CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., Depositor DLJ MORTGAGE CAPITAL, INC., Seller SELECT PORTFOLIO SERVICING, INC., Servicer and Master Servicer OCWEN LOAN SERVICING, LLC, Servicer and Trustee
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor
DLJ
MORTGAGE CAPITAL, INC.,
Seller
SELECT
PORTFOLIO SERVICING, INC.,
Servicer
and Master Servicer
OCWEN
LOAN SERVICING, LLC,
Servicer
and
U.S.
BANK
NATIONAL ASSOCIATION,
Trustee
Dated
as
of October 1, 2006
HOME
EQUITY MORTGAGE
TRUST
SERIES 2006-5
HOME
EQUITY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-5
TABLE
OF
CONTENTS
ARTICLE
I
DEFINITIONS
|
SECTION
1.01
|
Definitions.
|
|
SECTION
1.02
|
Interest
Calculations.
|
|
SECTION
1.03
|
Allocation
of Certain Interest Shortfalls.
|
ARTICLE
II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
|
SECTION
2.01
|
Conveyance
of Mortgage Loans.
|
|
SECTION
2.02
|
Acceptance
by the Trustee.
|
|
SECTION
2.03
|
Representations
and Warranties of the Seller, the Servicers and Master
Servicer.
|
|
SECTION
2.04
|
Representations
and Warranties of the Depositor as to the Mortgage Loans.
|
|
SECTION
2.05
|
Delivery
of Opinion of Counsel in Connection with Substitutions.
|
|
SECTION
2.06
|
Execution
and Delivery of Certificates.
|
|
SECTION
2.07
|
REMIC
Matters.
|
|
SECTION
2.08
|
Covenants
of each Servicer.
|
|
SECTION
2.09
|
Conveyance
of REMIC Regular Interests and Acceptance of REMIC 1, REMIC 2, REMIC
3,
REMIC 4 and REMIC 5 by the Trustee; Issuance of
Certificates.
|
|
SECTION
2.10
|
Purposes
and Powers of the Trust.
|
ARTICLE
III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
|
SECTION
3.01
|
Servicers
to Service Mortgage Loans.
|
|
SECTION
3.02
|
Subservicing;
Enforcement of the Obligations of Subservicers.
|
|
SECTION
3.03
|
[Reserved].
|
|
SECTION
3.04
|
Trustee
to Act as Servicer.
|
|
SECTION
3.05
|
Collection
of Mortgage Loans; Collection Accounts; Certificate Account; Pre-Funding
Account; Capitalized Interest Account.
|
|
SECTION
3.06
|
Establishment
of and Deposits to Escrow Accounts; Permitted Withdrawals from Escrow
Accounts; Payments of Taxes, Insurance and Other Charges.
|
|
SECTION
3.07
|
Access
to Certain Documentation and Information Regarding the Mortgage Loans;
Inspections.
|
|
SECTION
3.08
|
Permitted
Withdrawals from the Collection Accounts and Certificate
Account.
|
|
SECTION
3.09
|
Maintenance
of Hazard Insurance and Mortgage Impairment Insurance; Claims; Restoration
of Mortgaged Property.
|
|
SECTION
3.10
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
|
|
SECTION
3.11
|
Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
|
|
SECTION
3.12
|
Trustee
to Cooperate; Release of Mortgage Files.
|
|
SECTION
3.13
|
Documents,
Records and Funds in Possession of a Servicer to be Held for the
Trustee.
|
|
SECTION
3.14
|
Servicing
Fee.
|
|
SECTION
3.15
|
Access
to Certain Documentation.
|
|
SECTION
3.16
|
Annual
Statement as to Compliance.
|
|
SECTION
3.17
|
Assessments
of Compliance and Attestation Reports.
|
|
SECTION
3.18
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
|
SECTION
3.19
|
Duties
of the Credit Risk Manager.
|
|
SECTION
3.20
|
Limitation
Upon Liability of the Credit Risk Manager.
|
|
SECTION
3.21
|
Advance
Facility.
|
|
SECTION
3.22
|
Special
Serviced Mortgage Loans
|
|
SECTION
3.23
|
Basis
Risk Reserve Fund.
|
|
SECTION
3.24
|
Termination
Test; Certificateholder Vote.
|
ARTICLE
IV
DISTRIBUTIONS AND ADVANCES BY THE SERVICER
|
SECTION
4.01
|
Advances
by the Servicer.
|
|
SECTION
4.02
|
Priorities
of Distribution.
|
|
SECTION
4.03
|
[Reserved].
|
|
SECTION
4.04
|
[Reserved].
|
|
SECTION
4.05
|
Allocation
of Realized Losses.
|
|
SECTION
4.06
|
Monthly
Statements to Certificateholders.
|
|
SECTION
4.07
|
Distributions
on the REMIC 1 Regular Interests and REMIC 2 Regular
Interests.
|
|
SECTION
4.08
|
[Reserved].
|
|
SECTION
4.09
|
Prepayment
Charges.
|
|
SECTION
4.10
|
Servicers
to Cooperate.
|
|
SECTION
4.11
|
The
Swap Agreement; Supplemental Interest Trust.
|
ARTICLE
V
THE
CERTIFICATES
|
SECTION
5.01
|
The
Certificates.
|
|
SECTION
5.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
|
SECTION
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
SECTION
5.04
|
Persons
Deemed Owners.
|
|
SECTION
5.05
|
Access
to List of Certificateholders’ Names and Addresses.
|
|
SECTION
5.06
|
Maintenance
of Office or Agency.
|
ARTICLE
VI
THE
DEPOSITOR, THE SELLER, THE SERVICERS THE MASTER SERVICER AND ANY SPECIAL
SERVICER
|
SECTION
6.01
|
Respective
Liabilities of the Depositor, the Sellers, the Servicers, the Master
Servicer and the Special Servicer.
|
|
SECTION
6.02
|
Merger
or Consolidation of the Depositor, the Seller, a Servicer, the Master
Servicer or any Special Servicer.
|
|
SECTION
6.03
|
Limitation
on Liability of the Depositor, the Seller, the Servicers, the Master
Servicer, any Special Servicer and Others.
|
|
SECTION
6.04
|
Limitation
on Resignation of a Servicer or the Master Servicer.
|
ARTICLE
VII
DEFAULT
|
SECTION
7.01
|
Events
of Default.
|
|
SECTION
7.02
|
Trustee
to Act; Appointment of Successor.
|
|
SECTION
7.03
|
Notification
to Certificateholders.
|
ARTICLE
VIII
CONCERNING THE TRUSTEE
|
SECTION
8.01
|
Duties
of the Trustee.
|
|
SECTION
8.02
|
Certain
Matters Affecting the Trustee.
|
|
SECTION
8.03
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
|
SECTION
8.04
|
Trustee
May Own Certificates.
|
|
SECTION
8.05
|
Trustee’s
Fees and Expenses.
|
|
SECTION
8.06
|
Eligibility
Requirements for the Trustee and Custodian.
|
|
SECTION
8.07
|
Resignation
and Removal of the Trustee.
|
|
SECTION
8.08
|
Successor
Trustee.
|
|
SECTION
8.09
|
Merger
or Consolidation of the Trustee.
|
|
SECTION
8.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
SECTION
8.11
|
Tax
Matters.
|
|
SECTION
8.12
|
Commission
Reporting.
|
ARTICLE
IX
TERMINATION
|
SECTION
9.01
|
Termination
upon Liquidation or Purchase of the Mortgage Loans.
|
|
SECTION
9.02
|
Final
Distribution on the Certificates.
|
|
SECTION
9.03
|
Additional
Termination Requirements.
|
|
SECTION
9.04
|
Determination
of the Terminating Entity.
|
ARTICLE
X
MISCELLANEOUS PROVISIONS
|
SECTION
10.01
|
Amendment.
|
|
SECTION
10.02
|
Recordation
of Agreement; Counterparts.
|
|
SECTION
10.03
|
Governing
Law.
|
|
SECTION
10.04
|
[Reserved].
|
|
SECTION
10.05
|
Notices.
|
|
SECTION
10.06
|
Severability
of Provisions.
|
|
SECTION
10.07
|
Assignment.
|
|
SECTION
10.08
|
Limitation
on Rights of Certificateholders.
|
|
SECTION
10.09
|
Certificates
Nonassessable and Fully Paid.
|
|
SECTION
10.10
|
Non-Solicitation
|
|
SECTION
10.11
|
Third
Party Beneficiary
|
EXHIBITS
|
EXHIBIT
A.
|
Form
of Class A Certificates
|
|
EXHIBIT
B.
|
Form
of Subordinate Certificate
|
|
EXHIBIT
C.
|
Form
of Residual Certificate
|
|
EXHIBIT
D.
|
Form
of Notional Amount Certificate
|
|
EXHIBIT
E.
|
Form
of Class P Certificate
|
|
EXHIBIT
F.
|
Form
of Reverse Certificates
|
|
EXHIBIT
G.
|
Form
of Initial Certification of Custodian
|
|
EXHIBIT
H.
|
Form
of Final Certification of Custodian
|
|
EXHIBIT
I.
|
Transfer
Affidavit
|
|
EXHIBIT
J.
|
Form
of Transferor Certificate
|
|
EXHIBIT
K.
|
Form
of Investment Letter (Non-Rule 144A)
|
|
EXHIBIT
L.
|
Form
of Rule 144A Letter
|
|
EXHIBIT
M.
|
Request
for Release
|
|
EXHIBIT
N.
|
Form
of Subsequent Transfer Agreement
|
|
EXHIBIT
O-1.
|
Form
of Collection Account Certification
|
|
EXHIBIT
O-2.
|
Form
of Collection Account Letter Agreement
|
|
EXHIBIT
P-1.
|
Form
of Escrow Account Certification
|
|
EXHIBIT
P-2.
|
Form
of Escrow Account Letter Agreement
|
|
EXHIBIT
Q.
|
[Reserved]
|
|
EXHIBIT
R-1.
|
Form
of Custodial Agreement for LaSalle Bank National
Association
|
|
EXHIBIT
R-2.
|
[Reserved].
|
|
EXHIBIT
R-3.
|
[Reserved]
|
|
EXHIBIT
S.
|
[Reserved]
|
|
EXHIBIT
T.
|
[Reserved]
|
|
EXHIBIT
U.
|
Charged
Off Loan Data Report
|
|
EXHIBIT
V.
|
Form
of Monthly Statement to Certificateholders
|
|
EXHIBIT
W.
|
Form
of Depositor Certification
|
|
EXHIBIT
X.
|
Form
of Trustee Certification
|
|
EXHIBIT
Y.
|
Form
of Servicer Certification
|
|
EXHIBIT
Z.
|
Information
to be Provided by Servicer to Trustee
|
|
EXHIBIT
AA
|
Form
of Limited Power of Attorney
|
|
EXHIBIT
BB.
|
[Reserved]
|
|
EXHIBIT
CC
|
Form
of ISDA Master Agreement
|
|
EXHIBIT
DD
|
Form
of Confirmation to the Swap Agreement
|
|
EXHIBIT
EE
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
|
EXHIBIT
FF
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
EXHIBIT
GG
|
Servicing
Modification Review Package
|
|
SCHEDULE
I
|
Mortgage
Loan Schedule
|
|
SCHEDULE
II
|
Seller’s
Representations and Warranties
|
|
SCHEDULE
IIIA
|
SPS
Representations and Warranties
|
|
SCHEDULE
IIIB
|
[Reserved]
|
|
SCHEDULE
IIIC
|
Ocwen
Representations and Warranties
|
|
SCHEDULE
IIID
|
[Reserved]
|
|
SCHEDULE
IV
|
Representations
and Warranties for the Mortgage Loans
|
|
SCHEDULE
V
|
Class
A-IO Notional Amount
|
THIS
POOLING AND SERVICING AGREEMENT, dated as of October 1, 2006, among CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware corporation, as
depositor (the “Depositor”), DLJ MORTGAGE CAPITAL, INC., a Delaware corporation,
as Seller (the “Seller”), SELECT PORTFOLIO SERVICING, INC., a Utah corporation,
as a servicer (a “Servicer” or “SPS”) and as master servicer (the “Master
Servicer”) and OCWEN LOAN SERVICING, LLC, a Delaware limited liability company,
as a servicer (a “Servicer” or “Ocwen”, and together with SPS, the “Servicers”)
and U.S. BANK NATIONAL ASSOCIATION, a national banking association organized
under the laws of the United States, as trustee (the “Trustee”).
WITNESSETH
THAT
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
PRELIMINARY
STATEMENT
The
Depositor intends to sell pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in multiple classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Fund created hereunder. The Certificates will consist of nineteen classes of
certificates, designated as (i) the Class A-1 Certificates, (ii) the Class
A-2
Certificates, (iii) the Class A-3 Certificates, (iv) the Class A-IO
Certificates, (v) the Class M-1 Certificates, (vi) the Class M-2 Certificates,
(vii) the Class M-3 Certificates, (viii) the Class M-4 Certificates, (ix) the
Class M-5 Certificates, (x) the Class M-6 Certificates, (xi) the Class M-7
Certificates, (xii) the Class M-8 Certificates, (xiii) the Class M-9
Certificates, (xiv) the Class B-1 Certificates, (xv) the Class P Certificates,
(xvi) the Class X-1 Certificates, (xvii) the Class X-2 Certificates, (xviii)
the
Class X-S Certificates and (xix) the Class A-R Certificates.
REMIC
1
As
provided herein, the Trustee will make an election to treat the segregated
pool
of assets consisting of the Mortgage Loans and certain other related assets
subject to this Agreement (exclusive of the Pre-Funding Account, Basis Risk
Reserve Fund, Swap Account, the Capitalized Interest Account, the Supplemental
Interest Trust and the Subsequent Mortgage Loan Interest) as a real estate
mortgage investment conduit (a “REMIC”) for federal income tax purposes, and
such segregated pool of assets will be designated as “REMIC 1.” The Class R-1
Interest will represent the sole class of “residual interests” in REMIC 1 for
purposes of the REMIC Provisions (as defined herein) under federal income tax
law. The following table irrevocably sets forth the designation, the
Uncertificated REMIC 1 Pass-Through Rate and the initial Uncertificated
Principal Balance for each of the “regular interests” in REMIC 1 (the “REMIC 1
Regular Interests”). None of the REMIC 1 Regular Interests will be certificated.
The latest possible maturity date (determined for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii)) of each of the REMIC 1 Regular
Interests will be the Latest Possible Maturity Date as defined herein.
|
Designation
|
Uncertificated
REMIC 1 Pass-Through Rate
|
Initial
Uncertificated Principal Balance
|
|||||
|
LTI-1
|
|
Variable(1)
|
|
$
|
686,924,203.79
|
||
|
LTI-PF
|
Variable(1)
|
$ |
113,075,796.21
|
||||
|
LTI-S1
|
Variable(1)
|
(2)
|
|||||
|
LTI-S2
|
Variable(1)
|
(2)
|
|||||
|
LTI-AR
|
Variable(1)
|
$ |
100.00
|
||||
|
LTI-P
|
Variable(1)
|
$ |
100.00
|
||||
___________________
| (1) |
Calculated
as provided in the definition of Uncertificated REMIC 1 Pass-Through
Rate.
|
| (2) |
REMIC
1 Regular Interest LTI-S1 and REMIC 1 Regular Interest LTI-S2 will
not
have an Uncertificated Principal Balance but will accrue interest
on an
uncertificated notional amount calculated in accordance with the
definition of “Uncertificated Notional Amount”
herein.
|
REMIC
2
As
provided herein, an election will be made to treat the segregated pool of assets
consisting of the REMIC 1 Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as REMIC 2.
The
Class R-2 Interest will represent the sole class of “residual interests” in
REMIC 2 for purposes of the REMIC Provisions under federal income tax law (the
“Class R-2 Interest”). The following table irrevocably sets forth the
designation, Uncertificated REMIC 2 Pass-Through Rate and initial Uncertificated
Principal Balance for each of the “regular interests” in REMIC 2 (the “REMIC 2
Regular Interests”). None of the REMIC 2 Regular Interests will be certificated.
The latest possible maturity date (determined for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii)) of each of the REMIC 2 Regular
Interests will be the Latest Possible Maturity Date as defined herein.
|
Designation
|
Uncertificated
REMIC 2
Pass-Through
Rate
|
Initial
Uncertificated Principal Balance
|
|||||
|
MTI-1-A
|
Variable(1)
|
$ |
154,100,000.00
|
||||
|
MTI-1-B
|
Variable(1)
|
$ |
154,100,000.00
|
||||
|
MTI-A-1
|
Variable(1)
|
$ |
475,800,000.00
|
||||
|
MTI-S
|
(2)
|
(3)
|
|||||
|
MTI-AR
|
Variable(1)
|
$ |
100.00
|
||||
|
MTI-P
|
Variable(1)
|
$ |
100.00
|
||||
|
MTI-X1
|
Variable(1)
|
$ |
16,000,000.00
|
||||
___________________________
| (1) |
Calculated
in accordance with the definition of “Uncertificated REMIC 2 Pass-Through
Rate” herein.
|
| (2) |
REMIC
2 Regular Interest MTI-S will not have an Uncertificated REMIC 2
Pass-Through Rate, but will be entitled to 100% of the amounts distributed
on REMIC 1 Regular Interest LTI-S1 and REMIC 1 Regular Interest
LTI-S2.
|
| (3) |
REMIC
2 Regular Interest MTI-S will not have an Uncertificated Principal
Balance, but will have an Uncertificated Notional Amount equal to
the
Uncertificated Notional Amount of REMIC 1 Regular Interest LTI-S1
and
REMIC 1 Regular Interest LTI-S2.
|
REMIC
3
As
provided herein, an election will be made to treat the segregated pool of assets
consisting of the REMIC 2 Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as REMIC 3.
The
Class R-3 Interest will represent the sole class of “residual interests” in
REMIC 3 for purposes of the REMIC Provisions under federal income tax law (the
“Class R-3 Interest”). The following table irrevocably sets forth the
designation, Uncertificated REMIC 3 Pass-Through Rate and initial Uncertificated
Principal Balance for each of the “regular interests” in REMIC 3 (the “REMIC 3
Regular Interests”). None of the REMIC 3 Regular Interests will be certificated.
The latest possible maturity date (determined for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii)) of each of the REMIC 3 Regular
Interests will be the Latest Possible Maturity Date as defined herein.
|
Designation
|
Uncertificated
REMIC 3 Pass-Through Rate
|
Initial
Uncertificated Principal Balance
|
|
|
MTIA-I
|
Variable(1)
|
$
|
720,000,000.00
|
|
MTIA-IO-1
|
Variable(1)
|
$
|
5,881,210.00
|
|
MTIA-IO-2
|
Variable(1)
|
$
|
5,448,852.00
|
|
MTIA-IO-3
|
Variable(1)
|
$
|
5,048,280.00
|
|
MTIA-IO-4
|
Variable(1)
|
$
|
4,677,154.00
|
|
MTIA-IO-5
|
Variable(1)
|
$
|
4,333,313.00
|
|
MTIA-IO-6
|
Variable(1)
|
$
|
4,014,748.00
|
|
MTIA-IO-7
|
Variable(1)
|
$
|
3,719,604.00
|
|
MTIA-IO-8
|
Variable(1)
|
$
|
3,446,157.00
|
|
MTIA-IO-9
|
Variable(1)
|
$
|
3,192,812.00
|
|
MTIA-IO-10
|
Variable(1)
|
$
|
2,958,092.00
|
|
MTIA-IO-11
|
Variable(1)
|
$
|
2,740,628.00
|
|
MTIA-IO-12
|
Variable(1)
|
$
|
2,539,150.00
|
|
MTIA-IO-13
|
Variable(1)
|
$
|
2,352,484.00
|
|
MTIA-IO-14
|
Variable(1)
|
$
|
2,179,541.00
|
|
MTIA-IO-15
|
Variable(1)
|
$
|
2,019,312.00
|
|
MTIA-IO-16
|
Variable(1)
|
$
|
1,870,861.00
|
|
MTIA-IO-17
|
Variable(1)
|
$
|
1,733,325.00
|
|
MTIA-IO-18
|
Variable(1)
|
$
|
1,605,900.00
|
|
MTIA-IO-19
|
Variable(1)
|
$
|
1,487,842.00
|
|
MTIA-IO-20
|
Variable(1)
|
$
|
1,378,462.00
|
|
MTIA-IO-21
|
Variable(1)
|
$
|
1,277,125.00
|
|
MTIA-IO-22
|
Variable(1)
|
$
|
1,183,237.00
|
|
MTIA-IO-23
|
Variable(1)
|
$
|
1,096,251.00
|
|
MTIA-IO-24
|
Variable(1)
|
$
|
1,015,660.00
|
|
MTIA-IO-25
|
Variable(1)
|
$
|
940,994.00
|
|
MTIA-IO-26
|
Variable(1)
|
$
|
871,816.00
|
|
MTIA-IO-27
|
Variable(1)
|
$
|
807,725.00
|
|
MTIA-IO-28
|
Variable(1)
|
$
|
748,344.00
|
|
MTIA-IO-29
|
Variable(1)
|
$
|
693,330.00
|
|
MTIA-IO-30
|
Variable(1)
|
$
|
8,737,791.00
|
|
MTIA-S
|
(2)
|
(3)
|
|
|
MTIA-Swap-IO
|
(1)
|
(4)
|
|
|
MTIA-P
|
Variable(1)
|
$
|
100.00
|
|
MTIA-R
|
Variable(1)
|
$
|
100.00
|
___________________
| (1) |
Calculated
as provided in the definition of Uncertificated REMIC 3 Pass-Through
Rate
herein.
|
| (2) |
REMIC
3 Regular Interest MTIA-S will not have an Uncertificated REMIC 3
Pass-Through Rate, but will be entitled to 100% of the amounts distributed
on REMIC 2 Regular Interest MTI-S.
|
| (3) |
REMIC
3 Regular Interest MTIA-S will not have an Uncertificated Principal
Balance, but will have an Uncertificated Notional Amount equal to
the
Uncertificated Notional Amount of REMIC 2 Regular Interest
MTI-S.
|
REMIC
3
Regular Interest MTIA-Swap-IO will not have an Uncertificated Principal Balance
but will accrue interest on its uncertificated notional amount calculated in
accordance with the definition Uncertificated Notional Amount
herein.
REMIC
4
As
provided herein, an election will be made to treat the segregated pool of assets
consisting of the REMIC 3 Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as REMIC 4.
The
Class R-4 Interest will represent the sole class of “residual interests” in
REMIC 4 for purposes of the REMIC Provisions under federal income tax law (the
“Class R-4 Interest”). The following table irrevocably sets forth the
designation, Uncertificated REMIC 4 Pass-Through Rate and initial Uncertificated
Principal Balance for each of the “regular interests” in REMIC 4 (the “REMIC 4
Regular Interests”). None of the REMIC 4 Regular Interests will be certificated.
The latest possible maturity date (determined for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii)) of each of the REMIC 4 Regular
Interests will be the Latest Possible Maturity Date as defined herein.
|
Designation
|
Uncertificated
REMIC 2 Pass-Through Rate
|
Initial
Uncertificated Principal Balance
|
|||
|
MTII-AA
|
Variable(1)
|
$
|
784,000,000.00
|
||
|
MTII-A-1
|
Variable(1)
|
$
|
4,758,000.00
|
||
|
MTII-A-2
|
Variable(1)
|
$
|
595,000.00
|
||
|
MTII-A-3
|
Variable(1)
|
$
|
595,000.00
|
||
|
MTII-M-1
|
Variable(1)
|
$
|
404,000.00
|
||
|
MTII-M-2
|
Variable(1)
|
$
|
332,000.00
|
||
|
MTII-M-3
|
Variable(1)
|
$
|
180,000.00
|
||
|
MTII-M-4
|
Variable(1)
|
$
|
168,000.00
|
||
|
MTII-M-5
|
Variable(1)
|
$
|
160,000.00
|
||
|
MTII-M-6
|
Variable(1)
|
$
|
152,000.00
|
||
|
MTII-M-7
|
Variable(1)
|
$
|
148,000.00
|
||
|
MTII-M-8
|
Variable(1)
|
$
|
116,000.00
|
||
|
MTII-M-9
|
Variable(1)
|
$
|
96,000.00
|
||
|
MTII-B-1
|
Variable(1)
|
$
|
136,000.00
|
||
|
MTII-ZZ
|
Variable(1)
|
$
|
8,160,000.00
|
||
|
MTII-P
|
Variable(1)
|
$
|
100.00
|
||
|
MTII-R
|
Variable(1)
|
$
|
100.00
|
||
|
MTII-S
|
(2)
|
(3)
|
|||
|
MTII-IO
|
(1)
|
(4)
|
|||
|
MTII-A-IO
|
(1)
|
(5)
|
___________________
| (1) |
Calculated
as provided in the definition of Uncertificated REMIC 4 Pass-Through
Rate
herein.
|
| (2) |
REMIC
4 Regular Interest MTII-S will not have an Uncertificated REMIC 4
Pass-Through Rate, but will be entitled to 100% of the amounts distributed
on REMIC 3 Regular Interest MTIA-S.
|
| (3) |
REMIC
4 Regular Interest MTII-S will not have an Uncertificated Principal
Balance, but will have an Uncertificated Notional Amount equal to
the
Uncertificated Notional Amount of REMIC 3 Regular Interest
MTI-S.
|
| (4) |
REMIC
4 Regular Interest MTII-IO will not have an Uncertificated Principal
Balance but will accrue interest on an uncertificated notional amount
that
equals the Uncertificated Notional Amount of REMIC 3 Regular Interest
MTIA-Swap-IO.
|
| (5) |
REMIC
4 Regular Interest MTII-A-IO will not have an Uncertificated Principal
Balance but will accrue interest on an uncertificated notional amount
calculated in accordance with the definition of Uncertificated Notional
Amount herein.
|
REMIC
5
As
provided herein, an election will be made to treat the segregated pool of assets
consisting of the REMIC 4 Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as REMIC 5.
The
Class R-5 Interest will represent the sole class of “residual interests” in
REMIC 5 for purposes of the REMIC Provisions under federal income tax law (the
“Class R-5 Interest”). The following table irrevocably sets forth the
designation, Pass-Through Rate, aggregate Initial Certificate Principal Balance
and minimum denominations for each Class of Certificates comprising the
interests representing “regular interests” in REMIC 5, and the Class A-R
Certificates and Class X-2 Certificates which are not “regular interests” in
REMIC 5. The latest possible maturity date (determined solely for purposes
of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii)) of each of the
Regular Certificates will be the Latest Possible Maturity Date as defined
herein.
|
Class
Certificate Balance
|
Pass-Through
Rate
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
|
|
Class
A-1
|
$
475,800,000
|
5.500%(3)
|
$25,000
|
$1
|
|
Class
A-2
|
$
59,500,000
|
Adjustable(1)
|
$25,000
|
$1
|
|
Class
A-3
|
$
59,500,000
|
Adjustable(1)
|
$25,000
|
$1
|
|
Class
A-IO
|
$
80,000,000(4)
|
10.000%(3)
|
$100,000
|
$1
|
|
Class
P
|
$
100.00
|
Variable(2)
|
$100
|
N/A
|
|
Class
A-R
|
$
100.00
|
Variable(2)
|
$100
|
N/A
|
|
Class
M-1
|
$
40,400,000
|
Adjustable(1)
|
$25,000
|
$1
|
|
Class
M-2
|
$
33,200,000
|
Adjustable(1)
|
$25,000
|
$1
|
|
Class
M-3
|
$
18,000,000
|
Adjustable(1)
|
$25,000
|
$1
|
|
Class
M-4
|
$
16,800,000
|
Adjustable(1)
|
$25,000
|
$1
|
|
Class
M-5
|
$
16,000,000
|
Adjustable(1)
|
$25,000
|
$1
|
|
Class
M-6
|
$
15,200,000
|
Adjustable(1)
|
$25,000
|
$1
|
|
Class
M-7
|
$
14,800,000
|
Adjustable(1)
|
$25,000
|
$1
|
|
Class
M-8
|
$
11,600,000
|
Adjustable(1)
|
$25,000
|
$1
|
|
Class
M-9
|
$
9,600,000
|
Adjustable(1)
|
$25,000
|
$1
|
|
Class
B-1
|
$
13,600,000
|
Adjustable(1)
|
$25,000
|
$1
|
|
Class
X-1
|
$
16,000,000
|
Variable(5)(6)
|
100%
|
N/A
|
|
Class
X-2
|
$
0.00
|
0.00%
|
N/A
|
N/A
|
|
Class
X-S
|
$
0.00(7)
|
(8)
|
100%
|
N/A
|
|
REMIC
5 Regular Interest IO (9)
|
(10)
|
(11)
|
N/A
|
N/A
|
______________
|
(1)
|
The
Class A-2, Class A-3, Class M-1, Class M-2, Class M-3, Class M-4,
Class
M-6, Class M-7, Class M-8, Class M-9 and Class B-1 Certificates have
an
adjustable rate and will receive interest pursuant to formulas based
on
LIBOR, subject to the Net Funds
Cap.
|
|
(2)
|
The
initial pass-through rates on the Class P Certificates and Class
A-R
Certificates will be
approximately 10.447% per annum which is equal to the weighted average
of
the Net Mortgage Rates on the Initial Mortgage Loans and will vary
after
the first Distribution Date.
|
|
(3)
|
The
Class A-1 Certificates and Class A-IO Certificates have a fixed rate
subject to the Net Funds Cap. The fixed rate will increase by 0.50%
per
annum after the Optional Termination
Date.
|
|
(4)
|
The
Class A-IO Certificates are interest only certificates, will have
no
principal balance and will accrue interest on their notional amount
for
the first 30 Distribution Dates. For any Distribution Date, the notional
amount of the Class A-IO Certificates will be equal to the lesser
of (1) a
scheduled notional balance and (2) the current Aggregate Collateral
Balance. The initial notional amount of the Class A-IO Certificates
is
$80,000,000.00.
|
|
(5)
|
The
Class X-1 Certificates will have an initial principal balance of
$16,000,000.00 and will accrue interest on its notional amount. For
any
Distribution Date, the notional amount of the Class X-1 Certificates
will
be equal to the Aggregate Collateral Balance minus the aggregate
Class
Certificate Balance of the Class A-R Certificates and Class P Certificates
immediately prior to such Distribution Date. The initial notional
amount
of the Class X-1 Certificates is
$800,000,000.00.
|
|
(6)
|
The
Class X-1 Certificates are variable rate and will accrue interest
on a
notional amount.
|
|
(7)
|
For
federal income tax purposes, the Class X-S Certificates will not
have a
Class Principal Balance, but will have a notional amount equal to
the
Uncertificated Notional Amount of REMIC 4 Regular Interest
MTII-S.
|
|
(8)
|
The
Class X-S Certificates are an interest only Class and for each
Distribution Date the Class X-S Certificates shall receive the aggregate
Excess Servicing Fee. For federal income tax purposes, the Class
X-S
Certificates will not have a Pass-Through Rate, but will be entitled
to
100% of the amounts distributed on REMIC 4 Regular Interest
MTII-S.
|
|
(9)
|
REMIC
5 Regular Interest IO will be held as an asset of the Swap Account
established by the Trustee.
|
|
(10)
|
REMIC
5 Regular Interest IO will not have an Uncertificated Principal Balance,
but will have a notional amount equal to the Uncertificated Notional
Amount of the REMIC 4 Regular Interest
MTII-IO.
|
|
(11)
|
REMIC
5 Regular Interest IO will not have a Pass-Through Rate, but will
receive
100% of amounts received in respect of the REMIC 4 Regular Interest
MTII-IO.
|
Set
forth
below are designations of Classes of Certificates to the categories used
herein:
|
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical
Certificates.
|
|
|
ERISA-Restricted
Certificates
|
Class
A-R, Class P and Class X Certificates.
|
|
|
LIBOR
Certificates
|
Class
X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and Class B-1
Certificates.
|
|
|
Notional
Amount Certificates
|
Class
A-IO, Class X-1 and Class X-S Certificates.
|
|
|
Class
A Certificates
|
Class
A-1, Class A-2, Class A-3, Class A-IO and Class A-R
Certificates.
|
|
|
Class
B Certificates
|
Class
B-1 Certificates.
|
|
|
Class
M Certificates
|
Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7,
Class M-8 and Class M-9 Certificates.
|
|
|
Class
X Certificates
|
Class
X-1, Class X-2 and Class X-S Certificates.
|
|
|
Offered
Certificates
|
All
Classes of Certificates (other than the Class P Certificates and
Class X
Certificates).
|
|
|
Physical
Certificates
|
Class
A-R, Class P and Class X Certificates.
|
|
|
Private
Certificates
|
Class
P Certificates and Class X Certificates.
|
|
|
Rating
Agencies
|
S&P,
Xxxxx’x and DBRS.
|
|
|
Regular
Certificates
|
All
Classes of Certificates other than the Class A-R Certificates and
Class
X-2 Certificates.
|
|
|
Residual
Certificates
|
Class
A-R Certificates.
|
|
|
Senior
Certificates
|
Class
A-1, Class A-2, Class A-3, Class A-IO, Class P and Class A-R
Certificates.
|
|
|
Subordinate
Certificates
|
Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7,
Class M-8, Class M-9, Class B-1 and Class X-1
Certificates.
|
|
|
Minimum
Denominations
|
Class
A-1, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class
M-4,
Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class
B-1 and
Certificates: $25,000 and multiples of $1 in excess thereof. Class
A-IO
Certificates: $100,000 and multiples of $1 in excess
thereof.
|
|
|
Class
A-R Certificates and Class P Certificates: $100. The Class X-1
Certificates will be issued as a single Certificate with a Certificate
Principal Balance of $16,000,000.00. The Class X-2 Certificates
will be
issued as a single Certificate and will not have a principal balance.
The
Class X-S Certificates will be issued as a single Certificate with
an
initial Notional Amount of $686,924,403.79.
|
ARTICLE
I
DEFINITIONS
| SECTION 1.01 |
Definitions.
|
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Accepted
Servicing Practices: With respect to any Mortgage Loan, those mortgage servicing
practices of prudent mortgage lending institutions which service mortgage loans
of the same type as such Mortgage Loan in the jurisdiction where the related
Mortgaged Property is located.
Additional
Form 10-D Disclosure: As defined in Section 8.12(a)(i).
Additional
Form 10-K Disclosure: As defined in Section 8.12(a)(iii).
Advance:
The payment required to be made by a Servicer with respect to any Distribution
Date pursuant to Section 4.01.
Affected
Party: As defined in the Swap Agreement.
Aggregate
Collateral Balance: As of any date of determination will be equal to the
Aggregate Loan Balance plus the amount, if any, then on deposit in the
Pre-Funding Account.
Aggregate
Loan Balance: As of any Distribution Date will be equal to the aggregate of
the
Stated Principal Balances of the Mortgage Loans determined as of the last day
of
the related Collection Period.
Aggregate
Subsequent Transfer Amount: With respect to any Subsequent Transfer Date, the
aggregate Stated Principal Balance as of the applicable Cut-off Date of the
Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date, as listed
on the revised Mortgage Loan Schedule delivered pursuant to Section 2.01(b);
provided,
however,
that
such amount shall not exceed the amount on deposit in the Pre-Funding
Account.
Agreement:
This Pooling and Servicing Agreement and all amendments or supplements
hereto.
Ancillary
Income: All income derived from the Mortgage Loans, other than Servicing Fees
and Prepayment Charges, including but not limited to, late charges, fees
received with respect to checks or bank drafts returned by the related bank
for
non-sufficient funds, assumption fees, optional insurance administrative fees
and all other incidental fees and charges.
Annual
Statement of Compliance: As defined in Section 3.16.
Applied
Loss Amount: As to any Distribution Date, an amount equal to the excess, if
any
of (i) the aggregate Class Principal Balance of the Certificates, other than
the
Class A-IO Certificates, after giving effect to all Realized Losses incurred
with respect to the Mortgage Loans during the Due Period for such Distribution
Date and payments of principal on such Distribution Date and any amounts on
deposit in the Swap Account over (ii) the Aggregate Collateral Balance for
such
Distribution Date.
Appraised
Value: The amount set forth in an appraisal of the related Mortgage Loan as
the
value of the Mortgaged Property.
Assessment
of Compliance: As defined in Section 3.17.
Assignment
Agreement: An assignment agreement between DLJ Mortgage Capital, Inc. as Seller
and the Depositor, whereby the Mortgage Loans are transferred and limited
representations and warranties relating to the Mortgage Loans are
made.
Assignment
of Mortgage: An assignment of the Mortgage, notice of transfer or equivalent
instrument in recordable form (except for the omission of the name of the
assignee if such Mortgage is endorsed in blank), sufficient under the laws
of
the jurisdiction wherein the related Mortgaged Property is located to reflect
the transfer of the Mortgage to the Trustee for the benefit of the
Certificateholders.
Attestation
Report: As defined in Section 3.17.
Available
Funds: With respect to any Distribution Date (A) the sum of (i) all Scheduled
Payments (net of the related Expense Fees (other than the Excess Servicing
Fee))
due on the Due Date in the month in which such Distribution Date occurs and
received prior to the related Determination Date, together with any Advances
in
respect thereof required pursuant to Section 4.01; (ii) all Insurance Proceeds,
Liquidation Proceeds and Net Recoveries received during the month preceding
the
month of such Distribution Date; (iii) all Curtailments and Payoffs received
during the Prepayment Period applicable to such Distribution Date (excluding
Prepayment Charges); (iv) amounts received with respect to such Distribution
Date as the Substitution Adjustment Amount or Repurchase Price; (v) Compensating
Interest Payments for such Distribution Date; (vi) with respect to the
Distribution Date in January 2007, the amount remaining in the Pre-Funding
Account at the end of the Pre-Funding Period; (vii) any amounts withdrawn from
the Capitalized Interest Account to pay interest on the Certificates with
respect to such Distribution Date and (viii) amounts withdrawn from the Swap
Account and added to the Principal Remittance Amount for such Distribution
Date
minus (B) the sum of (i) amounts payable by the Supplemental Interest Trust
to
the Counterparty in respect of Net Swap Payments and Swap Termination Payments
(other than Swap Termination Payments resulting from a Counterparty Trigger
Event and to the extent not paid by the Supplemental Interest Trust Trustee
from
any upfront payment received pursuant to any related replacement swap agreement
that may be entered into by the Supplemental Interest Trust Trustee) for such
Distribution Date (or, if such Distribution Date is not also a Swap Payment
Date, for the related Swap Payment Date) and (ii) as to clauses (A)(i) through
(iv) above, reduced by amounts in reimbursement for Advances previously made
and
other amounts as to which the Servicers are entitled to be reimbursed pursuant
to Section 3.08.
Bankruptcy
Code: The United States Bankruptcy Reform Act of 1978, as amended.
Basis
Risk Reserve Fund: The separate Eligible Account created and initially
maintained by the Trustee pursuant to Section 3.23 in the name of the Trustee
for the benefit of the Certificateholders. Funds in the Basis Risk Reserve
Fund
shall be held in trust for the holders of the Class A, Class M and Class B
Certificates for the uses and purposes set forth herein. The Basis Risk Reserve
Fund will be an “outside reserve fund” within the meaning of Treasury regulation
Section 1.860G-2(h) established and maintained pursuant to Section 3.23. The
Basis Risk Reserve Fund is not an asset of any REMIC. Ownership of the Basis
Risk Reserve Fund is evidenced by the Class X-1 Certificates.
Basis
Risk Shortfall: For each Class of LIBOR Certificates and the Class A-1
Certificates and Class A-IO Certificates and any Distribution Date, the sum
of:
(1) the
excess, if any, of (A) the related Current Interest for such
Class calculated on the basis of (i) LIBOR plus the applicable Certificate
Margin with respect to each such Class of LIBOR Certificates or (ii) the
related fixed Pass-Through Rate with respect to the Class A-1 Certificates
and
Class A-IO Certificates, over (B) Current Interest for such
Class calculated on the basis of the Net Funds Cap, for the applicable
Payment Date;
(2) any
amounts relating to clause (1) remaining unpaid from prior Distribution Dates,
and
(3) interest
on the amount in clause (2) calculated on the basis of (i) LIBOR plus the
applicable Certificate Margin with respect to each such Class of LIBOR
Certificates or (ii) the related fixed Pass-Through Rate with respect to the
Class A-1 Certificates and Class A-IO Certificates.
Book-Entry
Certificates: As specified in the Preliminary Statement.
Business
Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day on which
banking institutions in the City of New York, New York, or the city in which
the
Corporate Trust Office of the Trustee, or the states in which any Servicer’s
servicing operations are located, or savings and loan institutions in the States
of Illinois, Minnesota, Utah or Florida is located are authorized or obligated
by law or executive order to be closed.
Capitalized
Interest Account: The separate Eligible Account designated as such and created
and maintained by the Trustee pursuant to Section 3.05(g) hereof. The
Capitalized Interest Account shall be treated as an “outside reserve fund” under
applicable Treasury regulations and shall not be part of any REMIC. Except
as
provided in Section 3.05(g) hereof, any investment earnings on the Capitalized
Interest Account shall be treated as owned by the Depositor and will be taxable
to the Depositor.
Capitalized
Interest Deposit: $1,001,940.14.
Capitalized
Interest Requirement: With respect to the October 2006 Distribution Date, an
amount equal to interest accruing during the related Interest Accrual Period
for
the LIBOR Certificates at a per annum rate equal to (x) the weighted average
Pass-Through Rate of the Offered Certificates (other than the Class A-IO
Certificates) multiplied by (y) the Pre-Funded Amount outstanding at the end
of
the related Due Period. With respect to the November 2006 Distribution Date,
an
amount equal to interest accruing during the related Interest Accrual Period
for
the LIBOR Certificates at a per annum rate equal to (x) the weighted average
Pass-Through Rate of the Offered Certificates (other than the Class A-IO
Certificates) for such Distribution Date multiplied by (y) the sum of (c) the
Pre-Funded Amount at the end of the related Due Period and (d) the aggregate
Stated Principal Balance of the Subsequent Mortgage Loans that do not have
a
first Due Date prior to December 1, 2006, transferred to the Trust during the
related Due Period. With respect to the January 2007 Distribution Date, an
amount equal to interest accruing during the related Interest Accrual Period
for
the LIBOR Certificates at a per annum rate equal to (x) the weighted average
Pass-Through Rate of the Offered Certificates (other than the Class A-IO
Certificates) for such Distribution Date multiplied by (y) the sum of (c) the
Pre-Funded Amount at the end of the related Due Period and (d) the aggregate
Stated Principal Balance of the related Subsequent Mortgage Loans that do not
have a first Due Date prior to January 1, 2007, transferred to the Trust during
the related Due Period.
Capitalization
Reimbursement Amount: For any Distribution Date, the aggregate of the amounts
added to the Stated Principal Balances of the Mortgage Loans during the
preceding calendar month representing reimbursements to a Servicer on or prior
to such Distribution Date in connection with the modification of such Mortgage
Loans pursuant to Section 3.05(a).
Carryforward
Interest: For any Class of Certificates and any Distribution Date, the sum
of
(1) 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 from previous Distribution Dates exceeds (y) the amount
paid in respect of interest on such Class on such immediately preceding
Distribution Date, and (2) interest on such amount for the related Interest
Accrual Period at the applicable Pass-Through Rate.
Certificate:
Any one of the Certificates executed by the Trustee in substantially the forms
attached hereto as exhibits.
Certificates:
As specified in the Preliminary Statement.
Certificate
Account: The separate Eligible Account created and maintained with the Trustee,
or any other bank or trust company acceptable to the Rating Agencies which
is
incorporated under the laws of the United States or any state thereof pursuant
to Section 3.05, which account shall bear a designation clearly indicating
that
the funds deposited therein are held in trust for the benefit of the Trustee
on
behalf of the Certificateholders or any other account serving a similar function
acceptable to the Rating Agencies. Funds in the Certificate Account may (i)
be
held uninvested without liability for interest or compensation thereon or (ii)
be invested at the direction of the Trustee in Eligible Investments and
reinvestment earnings thereon (net of investment losses) shall be paid to the
Trustee. Funds deposited in the Certificate Account (exclusive of the Trustee
Fee and other amounts permitted to be withdrawn pursuant to Section 3.08) shall
be held in trust for the Certificateholders.
Certificate
Balance: With respect to any Certificate at any date, the maximum dollar amount
of principal to which the Holder thereof is then entitled hereunder, such amount
being equal to the Denomination thereof minus the sum of (i) all distributions
of principal previously made with respect thereto and (ii) all Realized Losses
allocated thereto and, in the case of any Subordinate Certificates, all other
reductions in Certificate Balance previously allocated thereto pursuant to
Section 4.05.
Certificate
Margin: As to each Class of LIBOR Certificates, the applicable amount set forth
below:
|
Class
|
Certificate
Margin
|
||
|
(1)
|
(2)
|
||
|
Class
A-2
|
0.200%
|
0.400%
|
|
|
Class
A-3
|
0.250%
|
0.500%
|
|
|
Class
M-1
|
0.320%
|
0.480%
|
|
|
Class
M-2
|
0.340%
|
0.510%
|
|
|
Class
M-3
|
0.380%
|
0.570%
|
|
|
Class
M-4
|
0.450%
|
0.675%
|
|
|
Class
M-5
|
0.530%
|
0.795%
|
|
|
Class
M-6
|
0.610%
|
0.915%
|
|
|
Class
M-7
|
1.100%
|
1.600%
|
|
|
Class
M-8
|
1.450%
|
1.950%
|
|
|
Class
M-9
|
2.250%
|
2.750%
|
|
|
Class
B-1
|
4.000%
|
4.500%
|
|
_________________
|
(1)
|
On
or prior to the Optional Termination
Date.
|
|
(2)
|
After
the Optional Termination Date.
|
Certificate
Owner: With respect to a Book-Entry Certificate, the Person who is the
beneficial owner of such Book-Entry Certificate.
Certificate
Register: The register maintained pursuant to Section 5.02.
Certificateholder
or Holder: The person in whose name a Certificate is registered in the
Certificate Register, except that, solely for the purpose of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Depositor or any affiliate of the Depositor shall be deemed not to be
Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect such consent has been obtained; provided, however, that
if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to
be
Outstanding for purposes of any provision hereof that requires the consent
of
the Holders of Certificates of a particular Class as a condition to the taking
of any action hereunder. The Trustee is entitled to rely conclusively on a
certification of the Depositor or any affiliate of the Depositor in determining
which Certificates are registered in the name of an affiliate of the
Depositor.
Charged
Off Loan: With respect to any Distribution Date, a defaulted Mortgage Loan
that
has not yet been liquidated, giving rise to a Realized Loss, on the date on
which the related Servicer determines, pursuant to the procedures set forth
in
Section 3.11, that there will be (i) no Significant Net Recoveries with respect
to such Mortgage Loan or (ii) the potential Net Recoveries are anticipated
to be
an amount, determined by the related Servicer in its good faith judgment and
in
light of other mitigating circumstances, that is insufficient to warrant
proceeding through foreclosure or other liquidation of the related Mortgaged
Property.
Class:
All Certificates bearing the same class designation as set forth in the
Preliminary Statement.
Class
A-R
Certificates: The Class A-R Certificates represents beneficial ownership of
the
Class R-1 Interest, Class R-2 Interest, Class R-3 Interest, Class R-4 Interest
and Class R-5 Interest.
Class
A-1
Pass-Through Rate: With respect to the initial Interest Accrual Period (a)
on or
prior to the Optional Termination Date, the lesser of (i) 5.500% per annum
and
(ii) the Net Funds Cap, and (b) after the Optional Termination Date, the lesser
of (i) 6.000% per annum and (ii) the Net Funds Cap.
Class
A-2
Pass-Through Rate: With respect to the initial Interest Accrual Period, based
on
a LIBOR determination date of October 27, 2006, 5.520% per annum. With respect
to any Interest Accrual Period thereafter, will be a per annum rate equal to
the
lesser of (i) the sum of LIBOR plus the related Certificate Margin and (ii)
the
Net Funds Cap.
Class
A-3
Pass-Through Rate: With respect to the initial Interest Accrual Period, based
on
a LIBOR determination date of October 27, 2006, 5.570% per annum. With respect
to any Interest Accrual Period thereafter, will be a per annum rate equal to
the
lesser of (i) the sum of LIBOR plus the related Certificate Margin and (ii)
the
Net Funds Cap.
Class
A-IO Notional Amount: With respect to any Distribution Date will equal the
lesser of (i) the amount set forth on Schedule V attached hereto for such
Distribution Date and (ii) the Aggregate Collateral Balance as of the last
day
of the preceding Collection Period.
Class
A-IO Pass-Through Rate: With respect to any Distribution Date (a) on or prior
to
the Optional Termination Date, the lesser of (i) 10.000% per annum and (ii)
the
Net Funds Cap, and (b) after the Optional Termination Date, the lesser of (i)
10.500% per annum and (ii) the Net Funds Cap; provided that after the
Distribution Date in April 2009, the Class A-IO Pass-Through Rate shall be
equal
to 0.000%.
Class
A-R
Pass-Through Rate: With respect to the Distribution Date in November 2006,
December 2006 or January 2007, a per annum rate equal to the Initial Mortgage
Loan Net WAC Rate, and with respect to any Distribution Date thereafter, a
per
annum rate equal to the Net Funds Cap. For federal income tax purposes, however,
with respect to any Distribution Date, the Class A-R Certificates will be
entitled to 100% of the interest accrued on REMIC 4 Regular Interest
MTII-R.
Class
B-1
Pass-Through Rate: With respect to the initial Interest Accrual Period, based
on
a LIBOR determination date of October 27, 2006, 9.320% per annum. With respect
to any Interest Accrual Period thereafter, will be a per annum rate equal to
the
lesser of (i) the sum of LIBOR plus the related Certificate Margin and (ii)
the
Net Funds Cap.
Class
B-1
Principal Payment Amount: For any Distribution Date on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, will be the
lesser of (1) the Class Principal Balance of the Class B-1 Certificates
immediately preceding such Distribution Date and (2) the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Balance of the Class A-1, Class A-2, Class A-3, Class P, Class A-R, Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class
M-6, Class M-7, Class M-8 and Class M-9 Certificates, in each case, after giving
effect to payments on such Distribution Date and (ii) the Class Principal
Balance of the Class B-1 Certificates immediately prior to such Distribution
Date exceeds (y) the lesser of (A) the product of (i) 88.80% and (ii) the
Aggregate Collateral Balance for such Distribution Date and (B) the amount,
if
any, by which (i) the Aggregate Collateral Balance for such Distribution Date
exceeds (ii) 0.50% of the Aggregate Collateral Balance as of the Cut-off
Date.
Class
M-1
Pass-Through Rate: With respect to the initial Interest Accrual Period, based
on
a LIBOR determination date of October 27, 2006, 5.640% per annum. With respect
to any Interest Accrual Period thereafter, will be a per annum rate equal to
the
lesser of (i) the sum of LIBOR plus the related Certificate Margin and (ii)
the
Net Funds Cap.
Class
M-1
Principal Payment Amount: For any Distribution Date on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, will be the lesser of (1) the Class Principal Balance of
the
Class M-1 Certificates immediately preceding such Distribution Date and (2)
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Balance of the Class A-1, Class A-2, Class A-3, Class P and Class A-R
Certificates, in each case, after giving effect to payments on such Distribution
Date and (ii) the Class Principal Balance of the Class M-1 Certificates
immediately prior to such Distribution Date exceeds (y) the lesser of (A) the
product of (i) 51.60% and (ii) the Aggregate Collateral Balance for such
Distribution Date and (B) the amount, if any, by which (i) the Aggregate
Collateral Balance for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Collateral Balance as of the Cut-off Date.
Class
M-2
Pass-Through Rate: With respect to the initial Interest Accrual Period, based
on
a LIBOR determination date of October 27, 2006, 5.660% per annum. With respect
to any Interest Accrual Period thereafter, will be a per annum rate equal to
the
lesser of (i) the sum of LIBOR plus the related Certificate Margin and (ii)
the
Net Funds Cap.
Class
M-2
Principal Payment Amount: For any Distribution Date on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, will be the lesser of (1) the Class Principal Balance of
the
Class M-2 Certificates immediately preceding such Distribution Date and (2)
the
amount, if any, by which (x) the sum of (i) the aggregate Class A-1, Class
A-2,
Class A-3, Class P, Class A-R and Class M-1Certificates, in each case, after
giving effect to payments on such Distribution Date and (ii) the Class Principal
Balance of the Class M-2 Certificates immediately prior to such Distribution
Date exceeds (y) the lesser of (A) the product of (i) 59.90% and (ii) the
Aggregate Collateral Balance for such Distribution Date and (B) the amount,
if
any, by which (i) the Aggregate Collateral Balance for such Distribution Date
exceeds (ii) 0.50% of the Aggregate Collateral Balance as of the Cut-off
Date.
Class
M-3
Pass-Through Rate: With
respect to the initial Interest Accrual Period, based on a LIBOR determination
date of October 27, 2006, 5.700% per annum. With respect to any Interest Accrual
Period thereafter, will be a per annum rate equal to the lesser of (i) the
sum
of LIBOR plus the related Certificate Margin and (ii) the Net Funds
Cap.
Class
M-3
Principal Payment Amount: For any Distribution Date on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, will be the lesser of (1) the Class Principal Balance of
the
Class M-3 Certificates immediately preceding such Distribution Date and (2)
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Balance of the Class A-1, Class A-2, Class A-3, Class P, Class A-R, Class M-1
and Class M-2 Certificates, in each case, after giving effect to payments on
such Distribution Date and (ii) the Class Principal Balance of the Class M-3
Certificates immediately prior to such Distribution Date exceeds (y) the lesser
of (A) the product of (i) 64.40% and (ii) the Aggregate Collateral Balance
for
such Distribution Date and (B) the amount, if any, by which (i) the Aggregate
Collateral Balance for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Collateral Balance as of the Cut-off Date.
Class
M-4
Pass-Through Rate: With respect to the initial Interest Accrual Period, based
on
a LIBOR determination date of October 27, 2006, 5.770% per annum. With respect
to any Interest Accrual Period thereafter, will be a per annum rate equal to
the
lesser of (i) the sum of LIBOR plus the related Certificate Margin and (ii)
the
Net Funds Cap.
Class
M-4
Principal Payment Amount: For any Distribution Date on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, will be the lesser of (1) the Class Principal Balance of
the
Class M-4 Certificates immediately preceding such Distribution Date and (2)
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Balance of the Class A-1, Class A-2, Class A-3, Class P, Class A-R, Class M-1,
Class M-2 and Class M-3 Certificates, in each case, after giving effect to
payments on such Distribution Date and (ii) the Class Principal Balance of
the
Class M-4 Certificates immediately prior to such Distribution Date exceeds
(y)
the lesser of (A) the product of (i) 68.60% and (ii) the Aggregate Collateral
Balance for such Distribution Date and (B) the amount, if any, by which (i)
the
Aggregate Collateral Balance for such Distribution Date exceeds (ii) 0.50%
of
the Aggregate Collateral Balance as of the Cut-off Date.
Class
M-5
Pass-Through Rate: With
respect to the initial Interest Accrual Period, based on a LIBOR determination
date of October 27, 2006, 5.850% per annum. With respect to any Interest Accrual
Period thereafter, will be a per annum rate equal to the lesser of (i) the
sum
of LIBOR plus the related Certificate Margin and (ii) the Net Funds
Cap.
Class
M-5
Principal Payment Amount: For any Distribution Date on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, will be the lesser of (1) the Class Principal Balance of
the
Class M-5 Certificates immediately preceding such Distribution Date and (2)
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Balance of the Class A-1, Class A-2, Class A-3, Class P, Class A-R, Class M-1,
Class M-2, Class M-3 and Class M-4 Certificates, in each case, after giving
effect to payments on such Distribution Date and (ii) the Class Principal
Balance of the Class M-5 Certificates immediately prior to such Distribution
Date exceeds (y) the lesser of (A) the product of (i) 72.60% and (ii) the
Aggregate Collateral Balance for such Distribution Date and (B) the amount,
if
any, by which (i) the Aggregate Collateral Balance for such Distribution Date
exceeds (ii) 0.50% of the Aggregate Collateral Balance as of the Cut-off
Date.
Class
M-6
Pass-Through Rate: With respect to the initial Interest Accrual Period, based
on
a LIBOR determination date of October 27, 2006, 5.930% per annum. With respect
to any Interest Accrual Period thereafter, will be a per annum rate equal to
the
lesser of (i) the sum of LIBOR plus the related Certificate Margin and (ii)
the
Net Funds Cap.
Class
M-6
Principal Payment Amount: For any Distribution Date on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, will be the lesser of (1) the Class Principal Balance of
the
Class M-6 Certificates immediately preceding such Distribution Date and (2)
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Balance of the Class A-1, Class A-2, Class A-3, Class P, Class A-R, Class M-1,
Class M-2, Class M-3, Class M-4 and Class M-5 Certificates, in each case, after
giving effect to payments on such Distribution Date and (ii) the Class Principal
Balance of the Class M-6 Certificates immediately prior to such Distribution
Date exceeds (y) the lesser of (A) the product of (i) 76.40% and (ii) the
Aggregate Collateral Balance for such Distribution Date and (B) the amount,
if
any, by which (i) the Aggregate Collateral Balance for such Distribution Date
exceeds (ii) 0.50% of the Aggregate Collateral Balance as of the Cut-off
Date.
Class
M-7
Pass-Through Rate: With respect to the initial Interest Accrual Period, based
on
a LIBOR determination date of October 27, 2006, 6.420% per annum. With respect
to any Interest Accrual Period thereafter, will be a per annum rate equal to
the
lesser of (i) the sum of LIBOR plus the related Certificate Margin and (ii)
the
Net Funds Cap.
Class
M-7
Principal Payment Amount: For any Distribution Date on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, will be the lesser of (1) the Class Principal Balance of
the
Class M-7 Certificates immediately preceding such Distribution Date and (2)
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Balance of the Class A-1, Class A-2, Class A-3, Class P, Class A-R, Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5 and Class M-6 Certificates, in each
case, after giving effect to payments on such Distribution Date and (ii) the
Class Principal Balance of the Class M-7 Certificates immediately prior to
such
Distribution Date exceeds (y) the lesser of (A) the product of (i) 80.10% and
(ii) the Aggregate Collateral Balance for such Distribution Date and (B) the
amount, if any, by which (i) the Aggregate Collateral Balance for such
Distribution Date exceeds (ii) 0.50% of the Aggregate Collateral Balance as
of
the Cut-off Date.
Class
M-8
Pass-Through Rate: With respect to the initial Interest Accrual Period, based
on
a LIBOR determination date of October 27, 2006, 6.770% per annum. With respect
to any Interest Accrual Period thereafter, will be a per annum rate equal to
the
lesser of (i) the sum of LIBOR plus the related Certificate Margin and (ii)
the
Net Funds Cap.
Class
M-8
Principal Payment Amount: For any Distribution Date on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, will be the lesser of (1) the Class Principal Balance of
the
Class M-8 Certificates immediately preceding such Distribution Date and (2)
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Balance of the Class A-1, Class A-2, Class A-3, Class P, Class A-R, Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6 and Class M-7
Certificates, in each case, after giving effect to payments on such Distribution
Date and (ii) the Class Principal Balance of the Class M-8 Certificates
immediately prior to such Distribution Date exceeds (y) the lesser of (A) the
product of (i) 83.00% and (ii) the Aggregate Collateral Balance for such
Distribution Date and (B) the amount, if any, by which (i) the Aggregate
Collateral Balance for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Collateral Balance as of the Cut-off Date.
Class
M-9
Pass-Through Rate: With respect to the initial Interest Accrual Period, based
on
a LIBOR determination date of October 27, 2006, 7.570% per annum. With respect
to any Interest Accrual Period thereafter, will be a per annum rate equal to
the
lesser of (i) the sum of LIBOR plus the related Certificate Margin and (ii)
the
Net Funds Cap.
Class
M-9
Principal Payment Amount: For any Distribution Date on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, will be the lesser of (1) the Class Principal Balance of
the
Class M-9 Certificates immediately preceding such Distribution Date and (2)
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Balance of the Class A-1, Class A-2, Class A-3, Class P, Class A-R, Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class
M-8
Certificates, in each case, after giving effect to payments on such Distribution
Date and (ii) the Class Principal Balance of the Class M-9 Certificates
immediately prior to such Distribution Date exceeds (y) the lesser of (A) the
product of (i) 85.40% and (ii) the Aggregate Collateral Balance for such
Distribution Date and (B) the amount, if any, by which (i) the Aggregate
Collateral Balance for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Collateral Balance as of the Cut-off Date.
Class
X-1
Distributable Amount: With respect to any Distribution Date, the amount of
interest accrued during the related Interest Accrual Period at the related
Pass-Through Rate on the Class X-1 Notional Amount for such Distribution
Date.
Class
X-1
Notional Amount: Immediately prior to any Distribution Date, with respect to
the
Class X-1 Certificates, an amount equal to the aggregate of the Uncertificated
Principal Balances of the REMIC 4 Regular Interests (other than REMIC 4 Regular
Interests MTII-P and MTII-R).
Class
X-S
Notional Amount: Immediately prior to any Distribution Date, with respect to
the
Class X-S Certificates, an amount equal to the Stated Principal Balance of
the
SPS Serviced Loans and the Ocwen Serviced Loans as of the Due Date in the month
of such Distribution Date (prior to giving effect to any Scheduled Payments
due
on such Mortgage Loans on such Due Date). For federal income tax purposes,
however, the Class X-S Notional Amount will equal the Uncertificated Notional
Amount of REMIC 4 Regular Interest MTII-S.
Class
P
Pass-Through Rate: With respect to the Class P Certificates and the Distribution
Dates for November 2006, December 2006 and January 2007 a per annum rate equal
to the Initial Mortgage Loan Net WAC Rate, and with respect to any Distribution
Date thereafter, a per annum rate equal to the Net Funds Cap. For federal income
tax purposes, however, with respect to any Distribution Date, the Class P
Certificates will be entitled to 100% of the interest accrued on REMIC 4 Regular
Interest MTII-P.
Class
Principal Balance: With respect to any Class and as to any date of
determination, the aggregate of the Certificate Balances of all Certificates
of
such Class as of such date plus, in the case of any Subordinate Certificates,
any increase in the Class Principal Balance of such Class pursuant to Section
4.02(vii) due to the receipt of Net Recoveries.
Class
R-1
Interest: The sole class of residual interests in REMIC 1.
Class
R-2
Interest: The sole class of residual interests in REMIC 2.
Class
R-3
Interest: The sole class of residual interests in REMIC 3.
Class
R-4
Interest: The sole class of residual interests in REMIC 4.
Class
R-5
Interest: The sole class of residual interests in REMIC 5.
Closing
Date: October 31, 2006.
Code:
The
Internal Revenue Code of 1986, as the same may be amended from time to time
(or
any successor statute thereto).
Collection
Accounts: The accounts established and maintained by a Servicer in accordance
with Section 3.05.
Collection
Period: With respect to any Distribution Date, the period from the second day
of
the month immediately preceding such Distribution Date to and including the
first day of the month of such Distribution Date.
Commission:
The United States Securities and Exchange Commission.
Combined
Loan-to-Value Ratio: With respect to any Mortgage Loan and as of any date of
determination, the fraction (expressed as a percentage) the numerator of which
is the sum of (i) original principal balance of the related Mortgage Loan at
such date of determination and (ii) the unpaid principal balance of the related
First Mortgage Loan as of either the date of origination of that Mortgage Loan
or the date of origination of the related First Mortgage Loan and the
denominator of which is the most recent Appraised Value of the related Mortgaged
Property.
Compensating
Interest Payment: For any Distribution Date, an amount to be paid by the
applicable Servicer for such Distribution Date, equal to the lesser of (i)
the
sum of (x) an amount equal to 0.25% per annum on the aggregate Stated Principal
Balance of the related Mortgage Loans otherwise payable to the related Servicer
on such Distribution Date (prior to giving effect to any Scheduled Payments
due
on the Mortgage Loans on such Due Date) and (y) any Prepayment Interest Excess
payable to such Servicer for such Distribution Date and (ii) the aggregate
Prepayment Interest Shortfall for the Mortgage Loans being serviced by the
related Servicer relating to voluntary Principal Prepayments received during
the
related Prepayment Period.
Confirmation:
With respect to the Swap Agreement, the separate Confirmation, dated October
31,
2006, and evidencing a transaction between the Counterparty and the Supplemental
Interest Trust Trustee.
Corporate
Trust Office: The designated 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 the execution of this Agreement is
located at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Corporate
Trust - Structured Finance: Home Equity Mortgage Trust-2006-5.
Corresponding
Certificate: With respect to:
|
(i)
|
REMIC
4 Regular Interest MTII-P, the Class P Certificates;
|
|
|
(ii)
|
REMIC
4 Regular Interest MTII-R, the Class A-R Certificates;
|
|
|
(iii)
|
REMIC
4 Regular Interest MTII-A-1, the Class A-1
Certificates;
|
|
|
(iv)
|
REMIC
4 Regular Interest MTII-A-2, the Class A-2
Certificates;
|
|
|
(v)
|
REMIC
4 Regular Interest MTII-A-3, the Class A-3
Certificates;
|
|
|
(vi)
|
REMIC
4 Regular Interest MTII-M-1, the Class M-1
Certificates;
|
|
|
(vii)
|
REMIC
4 Regular Interest MTII-M-2, the Class M-2
Certificates;
|
|
|
(viii)
|
REMIC
4 Regular Interest MTII-M-3, the Class M-3
Certificates;
|
|
|
(ix)
|
REMIC
4 Regular Interest MTII-M-4, the Class M-4
Certificates;
|
|
|
(x)
|
REMIC
4 Regular Interest MTII-M-5, the Class M-5
Certificates;
|
|
|
(xi)
|
REMIC
4 Regular Interest MTII-M-6, the Class M-6
Certificates;
|
|
|
(xii)
|
REMIC
4 Regular Interest MTII-M-7, the Class M-7
Certificates;
|
|
|
(xiii)
|
REMIC
4 Regular Interest MTII-M-8, the Class M-8
Certificates;
|
|
|
(xiv)
|
REMIC
4 Regular Interest MTII-M-9, the Class M-9
Certificates;
|
|
|
(xv)
|
REMIC
4 Regular Interest MTII-B-1, the Class B-1
Certificates;
|
|
|
(xvi)
|
REMIC
4 Regular Interest MTII-S, the Class X-S Certificates;
|
|
|
(xvii)
|
REMIC
3 Regular Interest MTIA-S, REMIC 4 Regular Interest MTII-S;
|
|
|
(xviii)
|
REMIC
3 Regular Interest MTIA-Swap-IO, REMIC 4 Regular Interest
MTII-IO;
|
|
|
(xix)
|
REMIC
3 Regular Interest MTIA-P, REMIC 4 Regular Interest
MTII-P;
|
|
|
(xx)
|
REMIC
3 Regular Interest MTIA-R, REMIC 4 Regular Interest MTII-R;
|
|
|
(xxi)
|
REMIC
2 Regular Interest MTI-A-1, REMIC
4 Regular Interest MTII-A-1;
|
|
|
(xxii)
|
REMIC
2 Regular Interest MTI-X1, the Class X-1 Certificate;
|
|
|
(xxiii)
|
REMIC
2 Regular Interest MTI-AR, REMIC 3 Regular Interest MTIA-R;
|
|
|
(xxiv)
|
REMIC
2 Regular Interest MTI-P, REMIC 3 Regular Interest
MTIA-P;
|
|
|
(xxv)
|
REMIC
1 Regular Interest LTI-AR, REMIC 2 Regular Interest MTI-AR;
and
|
|
|
(xxvi)
|
REMIC
1 Regular Interest LTI-P, REMIC 2 Regular Interest
MTI-P.
|
Counterparty:
Initially, Credit Suisse International. Under the Swap Agreement the
Counterparty will be either (a) entitled to receive payments from the
Supplemental Interest Trust Trustee from amounts payable by the Trust Fund
under
this Agreement or (b) required to make payments to the Supplemental Interest
Trust Trustee, in either case pursuant to the terms of the Swap
Agreement.
Counterparty
Trigger Event: With respect to any Distribution Date, (i) an Event of Default
under the Swap Agreement with respect to which the Counterparty is a Defaulting
Party, (ii) a Termination Event under the Swap Agreement with respect to which
the Counterparty is the sole Affected Party, or (iii) an Additional Termination
Event under the Swap Agreement with respect to which the Counterparty is the
sole Affected Party.
Credit
Risk Manager: Xxxxxxx Fixed Income Services Inc. (formerly known as The
Murrayhill Company), a Colorado corporation.
Credit
Risk Management Agreement: Either of the agreements between SPS or Ocwen and
the
Credit Risk Manager dated as of October 31, 2006.
Credit
Risk Manager Fee: As to each Mortgage Loan and any Distribution Date, an amount
equal to one month’s interest at the Credit Risk Manager Fee Rate on the Stated
Principal Balance of such Mortgage Loan as of the Due Date in the month of
such
Distribution Date (prior to giving effect to any Scheduled Payments due on
such
Mortgage Loan on such Due Date).
Credit
Risk Manager Fee Rate: 0.0175% per annum.
Credit
Suisse: Credit Suisse Securities (USA) LLC, a Delaware limited liability
company, and its successors and assigns.
Cumulative
Loss Event: For any Distribution Date, a Cumulative Loss Event is occurring
if
Cumulative Net Realized Losses on the Mortgage Loans, equal or exceed the
percentage of the Aggregate Collateral Balance as of the Cut-off Date for that
Distribution Date as specified below:
|
Distribution
Date
|
Percentage
of Aggregate Collateral Balance
|
|
November
2006 - October 2009
|
N.A.
|
|
November
2009 - October 2010
|
4.60%
for the first month, plus an additional 1/12th of 2.55% for each
month
thereafter
|
|
November
2010 - October 2011
|
7.15%
for the first month, plus an additional 1/12th of 1.60% for each
month
thereafter
|
|
November
2011 - October 2012
|
8.75%
for the first month, plus an additional 1/12th of 0.50% for each
month
thereafter
|
|
November
2012 and thereafter
|
9.25%
|
Cumulative
Net Realized Losses: As to any date of determination the aggregate amount of
Realized Losses as reduced by any Net Recoveries received on Charged Off
Loans.
Current
Interest: For any Class of Certificates and Distribution Date, the amount of
interest accruing at the applicable Pass-Through Rate on the related Class
Principal Balance, or Notional Amount, as applicable, of such Class during
the
related Interest Accrual Period; provided, that if and to the extent that on
any
Distribution Date the Interest Remittance Amount is less than the aggregate
distributions required pursuant to Section 4.02(b)(i)A-L without regard to
this
proviso, then the Current Interest on each such Class will be reduced, on a
pro
rata basis in proportion to the amount of Current Interest for each Class
without regard to this proviso, by the lesser of (i) the amount of the
deficiency described above in this proviso and (ii) the related Interest
Shortfall for such Distribution Date.
Curtailment:
Any payment of principal on a Mortgage Loan, made by or on behalf of the related
Mortgagor, other than a Scheduled Payment, a prepaid Scheduled Payment or a
Payoff, which is applied to reduce the outstanding Stated Principal Balance
of
the Mortgage Loan.
Custodial
Agreement: The agreement, among the Trustee, the related Custodian and the
Depositor providing for the safekeeping of any documents or instruments referred
to in Section 2.01 on behalf of the Certificateholders, attached hereto as
Exhibit R.
Custodian:
LaSalle Bank National Association, a national banking association, or any
successor custodian appointed pursuant to the terms of the related Custodial
Agreement. Each Custodian so appointed shall act as agent on behalf of the
Trustee, and shall be compensated by the Depositor. The Trustee shall remain
at
all times responsible under the terms of this Agreement, notwithstanding the
fact that certain duties have been assigned to a Custodian.
Cut-off
Date: For any Mortgage Loan, other than a Subsequent Mortgage Loan, October
1,
2006. For any Subsequent Mortgage Loan, the applicable Subsequent Transfer
Date.
Cut-off
Date Principal Balance: As to any Mortgage Loan, the Stated Principal Balance
thereof as of the close of business on the Cut-off Date.
DBRS:
Dominion
Bond Rating Service. For purposes of Section 10.05(b) the address for notices
to
DBRS shall be Dominion Bond Rating Service, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: RMBS, or such other address as DBRS may hereafter furnish
to
the Depositor, the Servicers, the Master Servicer and the Trustee.
Defaulting
Party: As defined in the Swap Agreement
Defective
Mortgage Loan: Any Mortgage Loan which is required to be repurchased pursuant
to
Section 2.02 or 2.03.
Deferred
Amount: For any Class of Class M Certificates or Class B Certificates and any
Distribution Date, will equal the amount by which (x) the aggregate of the
Applied Loss Amounts previously applied in reduction of the Class Principal
Balance thereof exceeds (y) the sum of (i) the aggregate of amounts previously
paid in reimbursement thereof and (ii) the amount of the increase in the related
Class Principal Balance due to the receipt of Net Recoveries as provided in
Section 4.02(vii).
Definitive
Certificates: Any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted
Mortgage Loan: As defined in Section 2.03.
Delinquent:
As used herein, a Mortgage Loan is considered to be: “30 to 59 days” or “30 or
more days” delinquent when a payment due on any scheduled due date remains
unpaid as of the close of business on the next following monthly scheduled
due
date; “60 to 89 days” or “60 or more days” delinquent when a payment due on any
scheduled due date remains unpaid as of the close of business on the second
following monthly scheduled due date; and so on. The determination as to whether
a Mortgage Loan falls into these categories is made as of the close of business
on the last business day of each month. For example, a Mortgage Loan with a
payment due on July 1 that remained unpaid as of the close of business on August
31 would then be considered to be 30 to 59 days delinquent.
Delinquency
Rate: For any month, a fraction, expressed as a percentage, the numerator of
which is the aggregate outstanding principal balance of all Mortgage Loans
60 or
more days delinquent (including all foreclosures and REO Properties) as of
the
close of business on the last day of such month, and the denominator of which
is
the Aggregate Collateral Balance as of the close of business on the last day
of
such month.
Denomination:
With respect to each Certificate, the amount set forth on the face thereof
as
the “Initial Certificate Balance of this Certificate” or the “Initial Notional
Amount of this Certificate” or, if neither of the foregoing, the Percentage
Interest appearing on the face thereof.
Depositor:
Credit Suisse First Boston Mortgage Securities Corp., a Delaware corporation,
or
its successor in interest.
Depository:
The initial Depository shall be The Depository Trust Company, the nominee of
which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a “clearing corporation” as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of
New
York.
Depository
Participant: A broker, dealer, bank or other financial institution or other
Person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
Determination
Date: As to any Distribution Date, the second Business Day immediately following
the 15th day of the month of such Distribution Date.
Distribution
Date: The 25th
day of
each month or if such day is not a Business Day, the first Business Day
thereafter, commencing in November 2006.
DLJMC:
DLJ Mortgage Capital, Inc., a Delaware corporation, and its successors and
assigns.
Due
Date:
With respect to any Distribution Date and any Mortgage Loan, the day during
the
related Due Period on which the Scheduled Payment is due.
Due
Period: With respect to each Distribution Date, the period commencing on the
second day of the month preceding the month of the Distribution Date and ending
on the first day of the month of the Distribution Date.
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 obligations of such holding company) have been rated by Moody’s
and DBRS in its highest short-term rating category and by S&P at least
“A-1+”, 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 obligations and securities listed below
which investment provides for a date of maturity not later than the
Determination Date in each month:
(i) direct
obligations of, and obligations fully guaranteed by, the United States of
America, or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; or obligations fully guaranteed by, the United States of
America; Xxxxxxx Mac, Xxxxxx Xxx, the Federal Home Loan Banks or any agency
or
instrumentality of the United States of America rated AA or higher by the Rating
Agencies;
(ii) federal
funds, demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company incorporated
or organized under the laws of the United States of America or any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, so long as at the time of such investment or 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 obligations
of
such holding company) are rated in one of two of the highest ratings by each
of
the Rating Agencies, and the long-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
long-term debt obligations of such holding company) are rated in one of two
of
the highest ratings, by each of the Rating Agencies;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as a principal) rated “A” or higher by Moody’s and “A-1”
or higher by S&P; provided, however, that collateral transferred pursuant to
such repurchase obligation must be of the type described in clause (i) above
and
must (A) be valued daily at current market price plus accrued interest, (B)
pursuant to such valuation, be equal, at all times, to 105% of the cash
transferred by the Trustee in exchange for such collateral, and (C) be delivered
to the Trustee or, if the Trustee is supplying the collateral, an agent for
the
Trustee, in such a manner as to accomplish perfection of a security interest
in
the collateral by possession of certificated securities;
(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 has
a
long-term unsecured debt rating in the highest available rating category of
each
of the Rating Agencies at the time of such investment;
(v) commercial
paper having an original maturity of less than 365 days and issued by an
institution having a short-term unsecured debt rating in the highest available
rating category of each Rating Agency that rates such securities at the time
of
such investment;
(vi) a
guaranteed investment contract approved by each of the Rating Agencies and
issued by an insurance company or other corporation having a long-term unsecured
debt rating in the highest available rating category of each of the Rating
Agencies at the time of such investment;
(vii) which
may
be 12b-1 funds as contemplated under the rules promulgated by the Securities
and
Exchange Commission under the Investment Company Act of 1940) having ratings
in
the highest available rating category of Moody’s and Fitch and or “AAAm” or
“AAAm-G” by S&P at the time of such investment (any such money market funds
which provide for demand withdrawals being conclusively deemed to satisfy any
maturity requirements for Eligible Investments set forth herein) including
money
market funds of a Servicer or the Trustee and any such funds that are managed
by
a Servicer or the Trustee or their respective Affiliates or for a Servicer
or
the Trustee or any Affiliate of either acts as advisor, as long as such money
market funds satisfy the criteria of this subparagraph (vii); and
(viii) such
other investments the investment in which will not, as evidenced by a letter
from each of the Rating Agencies, result in the downgrading or withdrawal of
the
Ratings of the Certificates.
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.
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 Prohibited Transaction Exemption
(“PTE”) 2002-41,
67 Fed. Reg. 54487 (2002) (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of
Labor.
ERISA-Restricted
Certificates: As specified in the Preliminary Statement.
Escrow
Account: The separate account or accounts created and maintained by each
Servicer pursuant to Section 3.06.
Escrow
Mortgage Loan: Any Mortgage Loan for which the related Servicer has established
an Escrow Account for items constituting Escrow Payments.
Escrow
Payments: With respect to any Mortgage Loan, the amounts constituting ground
rents, taxes, mortgage insurance premiums, fire and hazard insurance premiums,
and any other payments required to be escrowed by the Mortgagor with the
mortgagee pursuant to the Mortgage, applicable law or any other related
document.
Event
of
Default: As defined in Section 7.01.
Excess
Cashflow Loss Payment: As defined in Section 4.02(b)(iv)(A).
Excess
Servicing Fee: With respect to each SPS Serviced Loan and Ocwen Serviced Loan
and any Distribution Date, an amount equal to one month’s interest at the
related Excess Servicing Fee Rate on the Stated Principal Balance of each such
Mortgage Loan as of the Due Date in the month of such Distribution Date (prior
to giving effect to any Scheduled Payments due on each such Mortgage Loan on
such Due Date).
Excess
Servicing Fee Rate: With respect to the SPS Serviced Loans, the excess, if
any,
of 0.50% over the “SPS Servicing Fee Rate” as defined in the SPS Letter
Agreement. With respect to the Ocwen Serviced Loans, the excess, if any, of
0.50% over the “Ocwen Servicing Fee Rate” as defined in the Ocwen Letter
Agreement.
Exchange
Act: The Securities Exchange Act of 1934, as amended.
Expense
Fees: As to each Mortgage Loan, the sum of the related Servicing Fee, the Excess
Servicing Fee, the Credit Risk Manager Fee and the Trustee Fee.
Expense
Fee Rate: As to each Mortgage Loan, the sum of the related Servicing Fee Rate,
the Excess Servicing Fee Rate, if applicable, the Credit Risk Manager Fee Rate
and the Trustee Fee Rate.
Xxxxxx
Mae: Xxxxxx Xxx, a federally chartered and privately owned corporation organized
and existing under the Federal National Mortgage Association Charter Act, or
any
successor thereto.
Xxxxxx
Mae Guides: The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae Servicers’ Guide
and all amendments or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FIRREA:
The Financial Institutions Reform, Recovery and Enforcement Act of
1989.
First
Mortgage Loan: A Mortgage Loan that is secured by a first lien on the Mortgaged
Property securing the related Mortgage Note.
Fitch:
Fitch, Inc., or any successor thereto.
Foreclosure
Restricted Loan: Any Mortgage Loan that is 60 or more days delinquent as of
the
Closing Date, unless such Mortgage Loan has become current for three consecutive
Scheduled Payments after the Closing Date.
Form
8-K
Disclosure Information: As defined in Section 8.12(a)(ii).
Xxxxxxx
Mac: Xxxxxxx Mac, a corporate instrumentality of the United States created
and
existing under Title III of the Emergency Home Finance Act of 1970, as amended,
or any successor thereto.
Highest
Priority: As of any date of determination, the Class of Subordinate Certificates
then outstanding with a Class Principal Balance greater than zero, with the
highest priority for payments pursuant to Section 4.02, in the following order
of decreasing priority: Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and Class B-1
Certificates.
Initial
Mortgage Loan: A Mortgage Loan conveyed to the Trust on the Closing Date
pursuant to this Agreement as identified on the Mortgage Loan Schedule delivered
to the Trustee on the Closing Date.
Initial
Mortgage Loan Net WAC Rate: A per annum rate equal to the weighted average
of
the Net Mortgage Rates of the Initial Mortgage Loans.
Indirect
Participant: A broker, dealer, bank or other financial institution or other
Person that clears through or maintains a custodial relationship with a
Depository Participant.
Insurance
Proceeds: Proceeds paid under any Insurance Policy covering a Mortgage Loan
to
the extent the proceeds are not (i) applied to the restoration of the related
Mortgaged Property, (ii) applied to the satisfaction of any related First
Mortgage Loan or (iii) released to the Mortgagor in accordance with the
procedures that the Servicer would follow in servicing mortgage loans held
for
its own account.
Interest
Accrual Period: With respect to each Distribution Date, (i) with respect to
the
Class A-1, Class X-0, Xxxxx X-0, Class A-IO, Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class
B-1
Certificates, the period commencing on the immediately preceding Distribution
Date (or the Closing Date, in the case of the first Distribution Date) and
ending on the day immediately preceding the related Distribution Date, and
(ii)
with respect to the Class A-R, Class P, Class X-1 and Class X-S Certificates,
the calendar month prior to the month of such Distribution Date.
Interest
Remittance Amount: For any Distribution Date, an amount equal to (A) the sum
of
(1) all interest collected (other than Payaheads, if applicable) or advanced
in
respect of Scheduled Payments on the Mortgage Loans during the related Due
Period, the interest portion of Payaheads previously received and intended
for
application in the related Due Period and the interest portion of all Payoffs
and Curtailments received on the Mortgage Loans during the related Prepayment
Period, less (x) the Expense Fee (other than the Excess Servicing Fee) with
respect to such Mortgage Loans and (y) unreimbursed Advances and other amounts
due to a Servicer or the Trustee with respect to such Mortgage Loans, to the
extent allocable to interest, (2) all Compensating Interest Payments paid by
each Servicer with respect to the Mortgage Loans it is servicing and such
Distribution Date, (3) the portion of any Substitution Adjustment Amount or
Repurchase Price paid with respect to such Mortgage Loans during the calendar
month immediately preceding the Distribution Date allocable to interest, (4)
all
Liquidation Proceeds, Net Recoveries and any Insurance Proceeds and other
recoveries (net of unreimbursed Advances, Servicing Advances and expenses,
to
the extent allocable to interest, and unpaid Servicing Fees) collected with
respect to the Mortgage Loans during the prior calendar month, to the extent
allocable to interest and (5) any amounts withdrawn from the Capitalized
Interest Account to pay interest on the Certificates with respect to such
Distribution Date minus (B) amounts payable by the Trust to the Counterparty
in
respect of Net Swap Payments and Swap Termination Payments (other than Swap
Termination Payments resulting from a Counterparty Trigger Event and to the
extent not paid by the Supplemental Interest Trust Trustee from any upfront
payment received pursuant to any related replacement swap agreement that may
be
entered into by the Supplemental Interest Trust Trustee) for such Distribution
Date (or, if such Distribution Date is not also a Swap Payment Date, for the
related Swap Payment Date).
Interest
Shortfall: For any Distribution Date, the aggregate shortfall, if any, in
collections of interest for the previous month (adjusted to the related Net
Mortgage Rate) on Mortgage Loans resulting from (a) Principal Prepayments
received during the related Prepayment Period to the extent not covered by
Compensating Interest and (b) Relief Act Reductions.
ISDA:
International Swaps and Derivatives Association, Inc.
ISDA
Master Agreement: With respect to the Swap Agreement, the Master Agreement
dated
as of the Closing Date between the Supplemental Interest Trust Trustee and
the
Counterparty, including the Schedule thereto.
Last
Scheduled Distribution Date: With respect to each Class of Certificates, other
than the Class A-IO Certificates, the Distribution Date in January 2037. With
respect to the Class A-IO Certificates, the Distribution Date in April
2009.
Latest
Possible Maturity Date: For purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the “latest possible maturity date” of all interests
created in REMIC 1, REMIC 2, REMIC 3, REMIC 4 and REMIC 5 shall be January
25,
2037.
LIBOR:
For any Interest Accrual Period other than the first Interest Accrual Period,
the rate for United States dollar deposits for one month which appears on the
Dow Xxxxx Telerate Screen Page 3750 as of 11:00 A.M., London, England time,
on
the second LIBOR Business Day prior to the first day of such Interest Accrual
Period. With respect to the first Interest Accrual Period, the rate for United
States dollar deposits for one month which appears on the Dow Xxxxx Telerate
Screen Page 3750 as of 11:00 A.M., London, England time, two LIBOR Business
Days
prior to the Closing Date. If such rate does not appear on such page (or such
other page as may replace that page on that service, or if such service is
no
longer offered, such other service for displaying LIBOR or comparable rates
as
may be reasonably selected by the Trustee), the rate will be the Reference
Bank
Rate. If no such quotations can be obtained and no Reference Bank Rate is
available, LIBOR will be the LIBOR applicable to the Interest Accrual Period
preceding the next applicable Distribution Date.
LIBOR
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day on
which banking institutions in the State of New York or in the city of London,
England are required or authorized by law to be closed.
LIBOR
Certificates: The Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class B-1
Certificates.
Liquidated
Mortgage Loan: With respect to any Distribution Date, a defaulted Mortgage
Loan
(including any REO Property) which was liquidated or for which payments under
the related private mortgage insurance policy, hazard insurance policy or any
condemnation proceeds were received, in the calendar month preceding the month
of such Distribution Date and as to which the related Servicer has determined
(in accordance with this Agreement) that it has received all amounts it expects
to receive in connection with the liquidation of such Mortgage Loan, including
the final disposition of the related REO Property.
Liquidation
Proceeds: Amounts, including Insurance Proceeds, received in connection with
the
partial or complete liquidation of defaulted Mortgage Loans, whether through
trustee’s sale, foreclosure sale or similar disposition or amounts received in
connection with any condemnation or partial release of a Mortgaged Property
and
any other proceeds received in connection with an REO Property, in each case,
which, for the avoidance of doubt, is remaining after, or not otherwise required
to be applied to, the satisfaction of any related First Mortgage Loan, less
the
sum of related unreimbursed Expense Fees, Servicing Advances, Advances and
reasonable out-of-pocket expenses.
Majority
in Interest: As to any Class of Regular Certificates or the Class X-2
Certificates, the Holders of Certificates of such Class evidencing, in the
aggregate, at least 51% of the Percentage Interests evidenced by all
Certificates of such Class.
Majority
Servicer: The Servicer servicing the largest percentage by Stated Principal
Balance of outstanding Mortgage Loans on the Optional Termination
Date.
Marker
Rate: With
respect to the Class X-1 Certificates and any Distribution Date, a per annum
rate equal to two (2) times the weighted average of the Uncertificated REMIC
4
Pass-Through Rates for REMIC 4 Regular Interests XXXX-X-0, XXXX-X-0, XXXX-X-0,
MTII-M-1, MTII-M-2, MTII-M-3, MTII-M-4, MTII-M-5, MTII-M-6, MTII-M-7, MTII-M-8,
MTII-M-9, MTII-B-1
and
MTII-ZZ, with the rates on the REMIC 4 Regular Interests XXXX-X-0, XXXX-X-0,
MTII-M-2, MTII-M-3, MTII-M-4, MTII-M-6, MTII-M-7, MTII-M-8, MTII-M-9
and MTII-B-1subject
to a cap, for the purpose of this calculation, equal to the lesser of (A) LIBOR
plus the Certificate Margin for the Corresponding Certificate and (B) the REMIC
4 Net WAC Rate, with the rate on the REMIC 4 Regular Interest MTII-A-1 subject
to a cap, for purposes of this calculation, equal to the lesser of (A) 5.500%
per annum on or prior to the Optional Termination Date and 6.000% per annum
after the Optional Termination Date and (B) the REMIC 4 Net WAC Rate and with
the rate on the REMIC 4 Regular Interest MTII-ZZ subject to a cap, for the
purpose of this calculation, equal to zero.
Master
Servicer: SPS, in its capacity as master servicer, and its successors and
assigns. The only obligation of SPS as Master Servicer is to approve Mortgage
Loan modifications proposed by the Servicers in accordance with Section 3.05(a).
SPS, in its capacity as Master Servicer, shall not have (i) any duty or
obligation to supervise, monitor or oversee the servicing activities of any
Servicer (other than with respect to the approval of loan modifications)
or (ii)
any other remittance or reporting obligations typically performed by a Master
Servicer in similar transactions.
Maximum
Notional Amount: With respect to the Class X-S Certificates and solely for
purposes of the face thereof, $800,000,000.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS®
System: The system of recording transfers of Mortgages electronically maintained
by MERS.
MIN:
The
Mortgage Identification Number for Mortgage Loans registered with MERS on the
MERS® System.
MOM
Loan:
With respect to any Mortgage Loan, MERS acting as the mortgagee of such Mortgage
Loan, solely as nominee for the originator of such Mortgage Loan and its
successors and assigns, at the origination thereof.
Monthly
Excess Cashflow: For any Distribution Date, an amount equal to the sum of (1)
the Monthly Excess Interest and (2) the Overcollateralization Release Amount,
if
any, for such date.
Monthly
Excess Interest: As to any Distribution Date, the sum of (A) the Interest
Remittance Amount remaining after the application of payments pursuant to
clauses A. through M. of Section 4.02(b)(i) plus (B) the Principal Payment
Amount remaining after the application of payments pursuant to clauses A.
through L. of Section 4.02(b)(ii) or (iii).
Monthly
Statement: The statement delivered to the Certificateholders pursuant to Section
4.06.
Moody’s:
Xxxxx’x Investors Service, Inc., or any successor thereto. For purposes of
Section 10.05(b) the address for notices to Moody’s shall be Xxxxx’x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Pass-Through Monitoring, or such other address as Moody’s may
hereafter furnish to the Depositor, the Servicers, the Master Servicer and
the
Trustee.
Mortgage:
The mortgage, deed of trust or other instrument creating a first or second
lien
on an estate in fee simple or leasehold interest in real property securing
a
Mortgage Note.
Mortgage
File: The Mortgage documents listed in Section 2.01(b) hereof pertaining to
a
particular Initial Mortgage Loan or Subsequent Mortgage Loan and any additional
documents delivered to the Trustee to be added to the Mortgage File pursuant
to
this Agreement.
Mortgage
Loans: Such of the mortgage loans transferred and assigned to the Trustee
pursuant to the provisions hereof as from time to time are held as a part of
the
Trust Fund (including any REO Property), the mortgage loans so held being
identified in the Mortgage Loan Schedule, notwithstanding foreclosure or other
acquisition of title of the related Mortgaged Property.
Mortgage
Loan Purchase Agreement: Each mortgage loan purchase agreement between the
Seller and an Originator.
Mortgage
Loan Schedule: The Mortgage Loan Schedule which will list the Mortgage Loans
(as
from time to time amended by the Seller to reflect the addition of Qualified
Substitute Mortgage Loans and the purchase of Mortgage Loans pursuant to Section
2.01(f), 2.02 or 2.03) transferred to the Trustee as part of the Trust Fund
and
from time to time subject to this Agreement, attached hereto as Schedule I,
setting forth the following information with respect to each Mortgage
Loan:
(i) the
Mortgage Loan identifying number;
(ii) a
code
indicating the type of Mortgaged Property and the occupancy status;
(iii) a
code
indicating the Servicer of the Mortgage Loan;
(iv) the
original months to maturity;
(v) the
Loan-to-Value Ratio at origination;
(vi) the
Combined Loan-to-Value Ratio at origination;
(vii) the
related borrower’s debt-to-income ratio at origination;
(viii) the
related borrower’s credit score
at
origination;
(ix) the
Mortgage Rate as of the Cut-off Date;
(x) the
stated maturity date;
(xi) the
amount of the Scheduled Payment as of the Cut-off Date;
(xii) the
original principal amount of the Mortgage Loan;
(xiii) the
principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due on or before the
Cut-off Date whether or not collected;
(xiv) the
purpose of the Mortgage Loan (i.e., purchase, rate and term refinance, equity
take-out refinance);
(xv) a
code
indicating whether a Prepayment Charge is required to be paid in connection
with
a prepayment of the Mortgage Loan and the term and the amount of the Prepayment
Charge;
(xvi) an
indication whether the Mortgage Loan accrues interest at an adjustable Mortgage
Rate or a fixed Mortgage Rate;
(xvii) the
index
that is associated with such Mortgage Loan, if applicable;
(xviii) the
gross
margin, if applicable;
(xix) the
periodic rate cap, if applicable;
(xx) the
minimum mortgage rate, if applicable;
(xxi) the
maximum mortgage rate, if applicable;
(xxii) the
first
adjustment date after the Cut-off Date, if applicable;
(xxiii) the
Servicing Fee Rate;
(xxiv) the
Expense Fee Rate;
(xxv) a
code
indicating whether the Mortgage Loan is a MERS Mortgage Loan and, if so, its
corresponding MIN; and
(xxvi) a
code
indicating whether the Mortgage Loan is a Balloon Loan.
With
respect to the Mortgage Loans in the aggregate, each Mortgage Loan Schedule
shall set forth the following information, as of the Cut-off Date:
(i) the
number of Mortgage Loans;
(ii) the
current aggregate principal balance of the Mortgage Loans as of the close of
business on the Cut-off Date, after deduction of payments of principal due
on or
before the Cut-off Date whether or not collected; and
(iii) the
weighted average Mortgage Rate of the Mortgage Loans.
Mortgage
Note: The original executed note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage
Rate: The annual fixed rate of interest borne by a Mortgage Note.
Mortgaged
Property: The underlying real property securing a Mortgage Loan.
Mortgagor:
The obligor(s) on a Mortgage Note.
Net
Excess Spread: With respect to any Distribution Date and Loan, a fraction,
expressed as a percentage, the numerator of which is equal to the excess of
(x)
the aggregate Stated Principal Balance for such Distribution Date of the
Mortgage Loans, multiplied by the weighted average Net Mortgage Rate of such
Mortgage Loans over (y) the Interest Remittance Amount for such Distribution
Date, and the denominator of which is an amount equal to the aggregate Stated
Principal Balance for such Distribution Date of the Mortgage Loans, multiplied
by the actual number of days elapsed in the related Interest Accrual Period
divided by 360.
Net
Funds
Cap: As to any Distribution Date, will be a per annum rate equal to (a) a
fraction, expressed as a percentage, (a) the numerator of which is (1) the
sum
of (A) the amount of interest accrued on the Mortgage Loans for such date and
(B) any amounts withdrawn from the Capitalized Interest Account to pay interest
on the Certificates for such Distribution Date, minus (2) the sum of (w) the
Expense Fee, (x) except with respect to the Class A-IO Certificates, the
aggregate amount of Current Interest for the Class A-IO Certificates for such
date and (y) amounts payable by the Trust to the Counterparty in respect of
Net
Swap Payments and Swap Termination Payments (other than Swap Termination
Payments resulting from a Counterparty Trigger Event and to the extent not
paid
by the Supplemental Interest Trust Trustee from any upfront payment received
pursuant to any related replacement swap agreement that may be entered into
by
the Supplemental Interest Trust Trustee) for such Distribution Date, and (b)
the
denominator of which is the product of (i) the Aggregate Collateral Balance
immediately preceding such Distribution Date (or as of the Cut-off Date in
the
case of the first Distribution Date), and (ii)(x) in the case of the Class
A-1,
Class A-IO, Class A-R and Class P Certificates, 1/12 and (y) in the case of
the
Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and Class B-1 Certificates, the
actual number of days in the related Interest Accrual Period divided by 360.
For
federal income tax purposes, however, as to any Distribution Date and the
Regular Certificates (other than the Class A-IO Certificates) will be the
expressed as a per annum rate equal to the weighted average of the
Uncertificated Pass-Through Rates on the REMIC 4 Regular Interests (other than
the REMIC 4 Regular Interest MTII-P, REMIC 4 Regular Interest MTII-R, REMIC
4
Regular Interest MTII-S, REMIC 4 Regular Interest MTII-IO and REMIC 4 Regular
Interest MTII-A-IO) multiplied by (in the case of the Class X-0, Xxxxx X-0,
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8, Class M-9 and Class B-1 Certificates) 30 and divided by the actual
number of days in the related Interest Accrual Period. For federal income tax
purposes, the Class A-IO Certificates shall not have a Net Funds Cap, but shall
be entitled to 100% of the amounts distributed on REMIC 4 Regular Interest
MTII-A-IO.
Net
Mortgage Rate: As to each Mortgage Loan, and at any time, the per annum rate
equal to the Mortgage Rate less the related Expense Fee Rate.
Net
Prepayment Interest Shortfalls: As to any Distribution Date, the amount, if
any,
by which the aggregate of Prepayment Interest Shortfalls during the Prepayment
Period exceeds the Compensating Interest Payment for such Distribution
Date.
Net
Recovery: Any proceeds received by a Servicer on a delinquent or Charged
Off
Loan (including any Liquidation Proceeds received on a Charged Off Loan),
net of
any unreimbursed Advance, Servicing Fee, Ancillary Income and any other
Servicing Advances or related expenses. Notwithstanding the foregoing, in
accordance with Section 3.11(a)(iii), the related Servicer will discontinue
making Advances at the time a Mortgage Loan becomes a Charged Off Loan, and
such
Servicer shall not be entitled to any reimbursement for Advances out of future
recoveries on such Charged Off Loan.
Net
Swap
Payment: With respect to each Swap Payment Date, the net payment required to
be
made pursuant to the terms of the Swap Agreement by either the Counterparty
or
the Supplemental Interest Trust Trustee which net payment shall not take into
account any Swap Termination Payment.
Nonrecoverable
Advance: With respect to any Mortgage Loan, any portion of an Advance or
Servicing Advance previously made or proposed to be made by the applicable
Servicer that, in the good faith judgment of the applicable Servicer, will
not
be ultimately recoverable by the applicable Servicer from the related Mortgagor,
related Liquidation Proceeds or otherwise.
Notional
Amount: The Class A-IO Notional Amount, Class X-1 Notional Amount or the Class
X-S Notional Amount, as applicable.
Notional
Amount Certificates: As specified in the Preliminary Statement.
Ocwen:
Ocwen Loan Servicing, LLC, a Delaware limited liability company.
Ocwen
Letter Agreement: The securitization servicing side letter agreement, dated
as
of October 1, 2006, between the Seller and Ocwen, as amended, supplemented
or
superseded from time to time.
Ocwen
Serviced Loans: The Mortgage Loans identified as such on the Mortgage Loan
Schedule.
Ocwen
Special Servicing: With regard to any Ocwen Serviced Loans that become Charged
Off Loans, the servicing of such Charged Off Loans using specialized collection
procedures (including foreclosure, if appropriate) to maximize
recoveries.
Ocwen
Termination Test: With respect to the Ocwen Serviced Loans and each
Determination Date, the Ocwen Termination Test will be failed if (A) the
Realized Loss Percentage for the Ocwen Serviced Loans exceeds the applicable
percentages set forth below with respect to such Distribution Date:
|
Range
of Distribution Dates
|
Percentage
|
|
November
2006 - October 2010
|
5.30%*
|
|
November
2010 - October 2011
|
7.70%*
|
|
November
2011 - October 2012
|
9.60%*
|
|
November
2012 and thereafter
|
10.55%
|
*
The
percentages set forth above are the percentages applicable for the first
Distribution Date in the corresponding range of Distribution Dates. The
percentage for each succeeding Distribution Date in a range increases
incrementally by a fraction, the numerator of which is one and the denominator
of which is the number of months in the corresponding range of Distribution
Dates, inclusive, of the positive difference between the percentage applicable
to the first Distribution Date in that range and the percentage applicable
to
the first Distribution Date in the succeeding range.
and
(B)
Holders of the Certificates entitled to 51% or more of the Voting Rights request
in writing to the Trustee to terminate Ocwen as a Servicer under this Agreement
pursuant to the terms of Section 7.01.
Offered
Certificates: As specified in the Preliminary Statement.
Officer’s
Certificate: A certificate signed by the Chairman of the Board or the Vice
Chairman of the Board or the President or a Vice President or an Assistant
Vice
President or the Treasurer or the Secretary or one of the Assistant Treasurers
or Assistant Secretaries of a Servicer, any Special Servicer or the Depositor,
and delivered to the Depositor or the Trustee, as the case may be, as required
by this Agreement.
Opinion
of Counsel: A written opinion of counsel, who may be counsel for the Depositor
or a Servicer, including in-house counsel, reasonably acceptable to the Trustee;
provided, however, that with respect to the interpretation or application of
the
REMIC Provisions, such counsel must (i) in fact be independent of the Depositor
and any Servicer, (ii) not have any material direct financial interest in the
Depositor or any Servicer or in any affiliate of either, and (iii) not be
connected with the Depositor or any Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
Optional
Termination: The termination of the trust created hereunder in connection with
the purchase of the Mortgage Loans pursuant to Section 9.01.
Optional
Termination Date: The first date on which the Optional Termination may be
exercised.
Optional
Termination Notice Period: As defined in Section 9.02.
Originator:
With respect to each Mortgage Loan, the entity that sold such Mortgage Loan
to
the Seller.
OTS:
The
Office of Thrift Supervision.
Outsourcer:
As defined in Section 3.02.
Outstanding:
With respect to the Certificates as of any date of determination, all
Certificates theretofore executed and authenticated under this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to the Trustee
for cancellation; and (ii) Certificates in exchange for which or in lieu of
which other Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding
Mortgage Loan: As of any Due Date, a Mortgage Loan with a Stated Principal
Balance greater than zero which was not the subject of a Payoff prior to such
Due Date and which did not become a Liquidated Mortgage Loan or Charged Off
Loan
prior to such Due Date.
Overcollateralization
Amount: For any Distribution Date, an amount equal to the amount, if any, by
which (x) the Aggregate Collateral Balance for such Distribution Date exceeds
(y) the aggregate Class Principal Balance of the Certificates after giving
effect to payments on such Distribution Date.
Overcollateralization
Release Amount: For any Distribution Date, an amount equal to the lesser of
(x)
the Principal Remittance Amount (without regard to clause (6) of such
definition) for such Distribution Date and (y) the amount, if any, by which
(1)
the Overcollateralization Amount for such date, calculated for this purpose
on
the basis of the assumption that 100% of the aggregate of the Principal
Remittance Amount and Excess Cashflow Loss Payment for such date is applied
on
such date in reduction of the aggregate of the Class Principal Balances of
the
Certificates (to an amount not less than zero), exceeds (2) the Targeted
Overcollateralization Amount for such date.
Overfunded
Interest Amount: With respect to the November 2006 Distribution Date and
December 2006 Distribution Date, the excess of (A) the amount on deposit in
the
Capitalized Interest Account on such date over (B) the excess of (i) the amount
of interest accruing at (x) the assumed weighted average Pass-Through Rates
of
the Certificates multiplied by (y) the Pre-Funding Amount outstanding at the
end
of the related Due Period for the total number of days remaining through the
end
of the Interest Accrual Periods ending (a) November 27, 2006, (b) December
26,
2006 and (c) January 25, 2007 over (ii) one month of investment earnings on
the
amount on deposit in the Capitalized Interest Account on such date at an annual
rate of 2.677%. The assumed weighted average Pass-Through Rate of the
Certificates will be calculated assuming LIBOR is 5.32% for any Subsequent
Transfer Date for the Subsequent Mortgage Loans prior to the November 2006
Distribution Date, 5.67% for any Subsequent Transfer Date for the Subsequent
Mortgage Loans prior to the December 2006 Distribution Date and 6.02% for any
Subsequent Transfer Date for the Subsequent Mortgage Loans prior to the January
2007 Distribution Date.
Ownership
Interest: As to any Residual Certificate, any ownership or security interest
in
such Certificate including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
Par
Value: As defined in Section 9.01 hereof.
Pass-Through
Rate: With respect to the Class A-1, Class A-2, Class A-3, Class A-IO, Class
A-R, Class P, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class
M-6,
Class M-7, Class M-8, Class M-9 and Class B-1 Certificates, the
Class
A-1
Pass-Through Rate, Class A-2 Pass-Through Rate, Class A-3 Pass-Through Rate,
Class A-IO Pass-Through Rate, Class A-R Pass-Through Rate, Class P Pass-Through
Rate, Class M-1 Pass-Through Rate, Class M-2 Pass-Through Rate, Class M-3
Pass-Through Rate, Class M-4 Pass-Through Rate, Class M-5 Pass-Through Rate,
Class M-6 Pass-Through Rate, Class M-7 Pass-Through Rate, Class M-8 Pass-Through
Rate, Class M-9 Pass-Through Rate and Class B-1 Pass-Through Rate.
With
respect to the Class X-1 Certificates and any Distribution Date, a per annum
rate equal to the percentage equivalent of a fraction, the numerator of which
is
the sum of the amounts calculated pursuant to clauses (A) through (O) below,
and
the denominator of which is the aggregate of the Uncertificated Principal
Balances of REMIC 4 Regular Interest MTII-AA, REMIC 4 Regular Interest MTII-A-1,
REMIC 4 Regular Interest MTII-A-2, REMIC 4 Regular Interest MTII-A-3, REMIC
4
Regular Interest MTII-M-1, REMIC 4 Regular Interest MTII-M-2, REMIC 4 Regular
Interest MTII-M-3, REMIC 4 Regular Interest MTII-M-4, REMIC
4
Regular Interest MTII-M-5, REMIC
4
Regular Interest MTII-M-6, REMIC 4 Regular Interest MTII-M-7, REMIC 4 Regular
Interest MTII-M-8, REMIC 4 Regular Interest MTII-M-9, REMIC 4 Regular Interest
MTII-B-1 and REMIC 4 Regular Interest MTII-ZZ. For purposes of calculating
the
Pass-Through Rate for the Class X-1 Certificates, the numerator is equal to
the
sum of the following components:
(A) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-AA
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-AA;
(B) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-A-1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-A-1;
(C) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-A-2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-A-2;
(D) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-A-3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-A-3;
(E) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-M-1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-M-1;
(F) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-M-2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-M-2;
(G) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-M-3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-M-3;
(H) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-M-4
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-M-4;
(I) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-M-5
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-M-5;
(J) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-M-6
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-M-6;
(K) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-M-7
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-M-7;
(L) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-M-8
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-M-8;
(M) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-M-9
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-M-9;
(N) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-B-1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-B-1; and
(O) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-ZZ
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-ZZ.
Payahead:
Any Scheduled Payment intended by the related Mortgagor to be applied in a
Due
Period subsequent to the Due Period in which such payment was
received.
Payoff:
Any payment of principal on a Mortgage Loan equal to the entire outstanding
Stated Principal Balance of such Mortgage Loan, if received in advance of the
last scheduled Due Date for such Mortgage Loan and accompanied by an amount
of
interest equal to accrued unpaid interest on the Mortgage Loan to the date
of
such payment-in-full.
Percentage
Interest: As to any Certificate, the percentage interest evidenced thereby
in
distributions required to be made on the related Class, such percentage interest
being set forth on the face thereof or equal to the percentage obtained by
dividing the Denomination of such Certificate by the aggregate of the
Denominations of all Certificates of the same Class.
Permitted
Transferee: Any person other than (i) the United States, any State or political
subdivision thereof, or any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization or any agency or
instrumentality of either of the foregoing, (iii) an organization (except
certain farmers’ cooperatives described in section 521 of the Code) which is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by
section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to any
Residual Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) a Person that is not a United States
Person, and (vi) a Person designated as a non-Permitted Transferee by the
Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any REMIC created
hereunder to fail to qualify as a REMIC at any time that the Certificates are
outstanding. The terms “United States,” “State” and “International Organization”
shall have the meanings set forth in section 7701 of the Code or successor
provisions. A corporation will not be treated as an instrumentality of the
United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception
of
Xxxxxxx Mac, a majority of its board of directors is not selected by such
government unit.
Person:
Any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
Physical
Certificates: As specified in the Preliminary Statement.
Pre-Funding
Account: The separate Eligible Account created and maintained by the Trustee
with respect to the Mortgage Loans pursuant to Section 3.05(f) in the name
of
the Trustee for the benefit of the Certificateholders and designated “U.S. Bank
National Association, in trust for registered holders of Home Equity Mortgage
Pass-Through Certificates, Series 2006-5.” Funds in the Pre-Funding Account
shall be held in trust for the Certificateholders for the uses and purposes
set
forth in this Agreement and shall not be a part of any REMIC created hereunder;
provided, however, that any investment income earned from Eligible Investments
made with funds in the Pre-Funding Account shall be for the account of the
Depositor.
Pre-Funding
Amount: The amount deposited in the Pre-Funding Account on the Closing Date,
which shall equal $113,075,796.21.
Pre-Funding
Period: the period from the Closing Date until the earliest of (i) the date
on
which the amount on deposit in the Pre-Funding Account is reduced to zero,
(ii)
the date on which an Event of Default occurs or (iii) January 24,
2007.
Prepayment
Charge: With respect to any Mortgage Loan, any charge required to be paid if
the
Mortgagor prepays such Mortgage Loan as provided in the related Mortgage Note
or
Mortgage.
Prepayment
Interest Excess: As to any Mortgage Loan, Distribution Date and Principal
Prepayment in full during the portion of the related Prepayment Period occurring
from the first day through the fourteenth day of the calendar month in which
such Distribution Date occurs, an amount equal to interest (to the extent
received) at the applicable Mortgage Rate (giving effect to any applicable
Relief Act Reduction), as reduced by the related Expense Fee Rate on the amount
of such Principal Prepayment for the number of days commencing on the first
day
of the calendar month in which such Distribution Date occurs and ending on
the
date on which such Principal Prepayment is so applied; provided that Prepayment
Interest Excess shall only exist with respect to any Mortgage Loan and any
Distribution Date if the related Principal Prepayment in full is deposited
by
the applicable Servicer in the related Collection Account pursuant to Section
3.05(b)(i) hereof in the same month as such Principal Prepayment in full is
made, to be included with distributions on such Distribution Date.
Prepayment
Interest Shortfall: As to any Mortgage Loan, Distribution Date and Principal
Prepayment, other than Principal Prepayments in full that occur during the
portion of the Prepayment Period that is in the same calendar month as the
Distribution Date, the difference between (i) one full month’s interest at the
applicable Mortgage Rate (giving effect to any applicable Relief Act Reduction),
as reduced by the Expense Fee Rate, on the Stated Principal Balance of such
Mortgage Loan immediately prior to such Principal Prepayment and (ii) the amount
of interest actually received that accrued during the month immediately
preceding such Distribution Date or, with respect to any Mortgage Loan with
a
Due Date other than the first of the month, the amount of interest actually
received that accrued during the one-month period immediately preceding the
Due
Date following the Principal Prepayment, with respect to such Mortgage Loan
in
connection with such Principal Prepayment.
Prepayment
Period: With respect to each Distribution Date (other than the November 2006
Distribution Date), each Mortgage Loan and each Payoff, the related “Prepayment
Period” will be the 15th
of the
month preceding the month in which the related Distribution Date occurs through
the 14th
of the
month in which the related Distribution Date occurs. With respect to the
November 2006 Distribution Date, each Mortgage Loan and each Payoff, the related
“Prepayment Period” will be October 1, 2006 through November 14, 2006. With
respect to each Distribution Date and each Curtailment, the related “Prepayment
Period” will be the calendar month preceding the month in which the related
Distribution Date occurs.
Principal
Payment Amount: For any Distribution Date, an amount equal to the Principal
Remittance Amount for such date, minus the Overcollateralization Release Amount,
if any, for such date.
Principal
Prepayment: Any payment of principal on a Mortgage Loan which constitutes a
Payoff or Curtailment.
Principal
Remittance Amount: For any Distribution Date, an amount equal to (A) the sum
of
(1) all principal collected (other than Payaheads) or advanced in respect of
Scheduled Payments on the Mortgage Loans during the related Due Period (less
unreimbursed Advances, Servicing Advances and other amounts due to each Servicer
and the Trustee with respect to the Mortgage Loans, to the extent allocable
to
principal) and the principal portion of Payaheads previously received and
intended for application in the related Due Period, (2) all Principal
Prepayments on the Mortgage Loans received during the related Prepayment Period,
(3) the outstanding principal balance of each Mortgage Loan that was repurchased
by the Seller, the Terminating Entity or by any Special Servicer during the
calendar month immediately preceding such Distribution Date, (4) the portion
of
any Substitution Adjustment Amount paid with respect to any Deleted Mortgage
Loans during the calendar month immediately preceding such Distribution Date
allocable to principal, (5) all Liquidation Proceeds, and any Insurance Proceeds
and other recoveries (net of unreimbursed Advances, Servicing Advances and
other
expenses, to the extent allocable to principal) and Net Recoveries collected
with respect to the Mortgage Loans during the prior calendar month, to the
extent allocable to principal, (6) amounts withdrawn from the Swap Account
to
cover Realized Losses on the Mortgage Loans incurred during the related
Collection Period and (7) with respect to the Distribution Date in January
2007,
the amount remaining in the Pre-Funding Account at the end of the Pre-Funding
Period minus (B) the sum of (1) amounts payable by the Trust to the Counterparty
in respect of Net Swap Payments and Swap Termination Payments (other than Swap
Termination Payments resulting from a Counterparty Trigger Event and to the
extent not paid by the Supplemental Interest Trust Trustee from any upfront
payment received pursuant to any related replacement swap agreement that may
be
entered into by the Supplemental Interest Trust Trustee) for such Distribution
Date (or, if such Distribution Date is not also a Swap Payment Date, for the
related Swap Payment Date) to the extent not paid from the Interest Remittance
Amount for such Distribution Date and the extent remaining unpaid from any
previous Distribution Date and (2) the Capitalization Reimbursement Amount
for
such Distribution Date.
Prospectus
Supplement: The Prospectus Supplement dated October 30, 2006 relating to the
Offered Certificates.
PUD:
Planned Unit Development.
Qualified
Insurer: A mortgage guaranty insurance company duly qualified as such under
the
laws of the state of its principal place of business and each state having
jurisdiction over such insurer in connection with the insurance policy issued
by
such insurer, duly authorized and licensed in such states to transact a mortgage
guaranty insurance business in such states and to write the insurance provided
by the insurance policy issued by it, approved as a Xxxxxx Mae- or Xxxxxxx
Mac-approved mortgage insurer or having a claims paying ability rating of at
least “AA” or equivalent rating by at least two nationally recognized
statistical rating organizations. Any replacement insurer with respect to a
Mortgage Loan must have at least as high a claims paying ability rating as
the
insurer it replaces had on the Closing Date.
Qualified
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller for a
Deleted Mortgage Loan which must, on the date of such substitution, as confirmed
in a Request for Release, substantially in the form of Exhibit M (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution (or, in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of, and not more than 10% less
than
the Stated Principal Balance of the Deleted Mortgage Loan; (ii) be accruing
interest at a rate no lower than and not more than 1% per annum higher than,
that of the Deleted Mortgage Loan; (iii) have a Combined Loan-to-Value Ratio
no
higher than that of the Deleted Mortgage Loan; (iv) have a remaining term to
maturity no greater than (and not more than one year less than that of) the
Deleted Mortgage Loan; and (v) comply with each representation and warranty
set
forth in Section 2.03(f).
Rating
Agency: Xxxxx’x, S&P and DBRS. If any such organization or a successor is no
longer in existence, “Rating Agency” shall be such nationally recognized
statistical rating organization, or other comparable Person, as is designated
by
the Depositor, notice of which designation shall be given to the Trustee, the
Master Servicer and the Servicers. References herein to a given rating or rating
category of a Rating Agency shall mean such rating category without giving
effect to any modifiers.
Ratings:
As of any date of determination, the ratings, if any, of the Certificates as
assigned by the Rating Agencies.
Realized
Loss: With respect to each Liquidated Mortgage Loan, an amount (not less than
zero or greater than the Stated Principal Balance of the Mortgage Loan) as
of
the date of such liquidation, equal to (i) the Stated Principal Balance of
the
Liquidated Mortgage Loan as of the date of such liquidation, plus (ii) interest
at the Net Mortgage Rate from the related Due Date as to which interest was
last
paid or advanced (and not reimbursed) to the related Certificateholders up
to
the related Due Date in the month in which Liquidation Proceeds are required
to
be distributed on the Stated Principal Balance of such Liquidated Mortgage
Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan. Any Charged Off Loan will give rise to a Realized
Loss
(calculated as if clause (iii) of the previous sentence is equal to zero) at
the
time it is charged off, as described in Section 3.11(a)(iii)
hereof.
If
a
Servicer receives Net Recoveries with respect to any Charged Off Loan, the
amount of the Realized Loss with respect to that Charged Off Loan will be
reduced to the extent such recoveries are applied to principal distributions
on
any Distribution Date.
Realized
Loss Percentage: For the purposes of the Ocwen Termination Test, and with
respect to the Ocwen Serviced Loans, respectively, and any Distribution Date,
the percentage produced by the following calculation: (i) the aggregate amount
of cumulative Realized Losses incurred on the Ocwen Serviced Loans from the
Cut-off Date through the last day of the related Due Period, minus (ii) any
Net
Recoveries on such Ocwen Serviced Loans, divided by (iii) the aggregate Cut-off
Date Principal Balance of the Ocwen Serviced Loans.
Record
Date: With respect to the Certificates (other than the LIBOR Certificates,
Class
A-1 Certificates and Class A-IO Certificates which are Book-Entry Certificates)
and any Distribution Date, the close of business on the last Business Day of
the
month preceding the month in which such applicable Distribution Date occurs.
With respect to the LIBOR Certificates and the Class A-1 Certificates and Class
A-IO Certificates which are Book-Entry Certificates and any Distribution Date,
the close of business on the Business Day preceding such Distribution
Date.
Reference
Bank Rate: With respect to any Interest Accrual Period, as follows: the
arithmetic mean (rounded upwards, if necessary, to the nearest one sixteenth
of
a percent) of the offered rates for United States dollar deposits for one month
which are offered by the Reference Banks as of 11:00 A.M., London, England
time,
on the second LIBOR Business Day prior to the first day of such Interest Accrual
Period to prime banks in the London interbank market for a period of one month
in amounts approximately equal to the aggregate Class Principal Balance of
the
LIBOR Certificates; provided that at least two such Reference Banks provide
such
rate. If fewer than two offered rates appear, the Reference Bank Rate will
be
the arithmetic mean of the rates quoted by one or more major banks in New York
City, selected by the Trustee, as of 11:00 a.m., New York time, on such date
for
loans in U.S. Dollars to leading European Banks for a period of one month in
amounts approximately equal to the aggregate Class Principal Balance of the
LIBOR Certificates. If no such quotations can be obtained, the Reference Bank
Rate shall be LIBOR applicable to the preceding Distribution Date; provided
however, that if, under the priorities indicated above, LIBOR for a Distribution
Date would be based on LIBOR for the previous Payment Date for the third
consecutive Distribution Date, the Trustee shall select an alternative
comparable index over which the Trustee has no control, used for determining
one-month Eurodollar lending rates that is calculated and published or otherwise
made available by an independent party.
Reference
Banks: Barclays Bank PLC, National Westminster Bank and Abbey National
PLC.
Regular
Certificates: As specified in the Preliminary Statement.
Released
Loan: Any Charged Off Loan that is released by Ocwen or SPS to the Class X-2
Certificateholders pursuant to Section 3.11(a), generally on the date that
is
six months after the date on which Ocwen or SPS begins using Ocwen Special
Servicing or SPS Special Servicing, as applicable, on such Charged Off Loans.
Any Released Loan will no longer be an asset of any REMIC or the Trust
Fund.
Relief
Act: The Servicemembers Civil Relief Act or any similar state or local law
or
regulation.
Relief
Act Reductions: With respect to any Distribution Date and any Mortgage Loan
as
to which there has been a reduction in the amount of interest or principal
collectible thereon (attributable to any previous month) as a result of the
application of the Relief Act or similar state law or regulation, the amount,
if
any, by which (i) interest and/or principal collectible on such Mortgage Loan
for the most recently ended calendar month is less than (ii) interest and/or
principal accrued thereon for such month pursuant to the Mortgage
Note.
REMIC:
A
“real estate mortgage investment conduit” within the meaning of section 860D of
the Code.
REMIC
1:
The segregated pool of assets subject hereto, constituting the primary trust
created hereby and to be administered hereunder, with respect to which a REMIC
election is to be made consisting of: (i) such Mortgage Loans as from time
to
time are subject to this Agreement (other than any Prepayment Charges), together
with the Mortgage Files relating thereto, and together with all collections
thereon and proceeds thereof, (ii) any REO Property, together with all
collections thereon and proceeds thereof, (iii) the Trustee’s rights with
respect to the Mortgage Loans under all insurance policies, including any
Primary Insurance Policy, required to be maintained pursuant to this Agreement
and any proceeds thereof and (iv) the Collection Account and the Certificate
Account (subject to the last sentence of this definition) and such assets that
are deposited therein from time to time and any investments thereof.
Notwithstanding the foregoing, however, a REMIC election will not be made with
respect to the Basis Risk Reserve Fund, Pre-Funding Account, the Capitalized
Interest Account and the Swap Account.
REMIC
1
Regular Interest LTI-1: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LTI-1 shall accrue interest at
the
related Uncertificated REMIC 1 Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC
1
Regular Interest LTI-PF: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LTI-PF shall accrue interest
at
the related Uncertificated REMIC 1 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
1
Regular Interest LTI-S1: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LTI-S1 shall accrue interest
at
the related Uncertificated REMIC 1 Pass-Through Rate in effect from time to
time, and shall not be entitled to distributions of principal.
REMIC
1
Regular Interest LTI-S2: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LTI-S2 shall accrue interest
at
the related Uncertificated REMIC 1 Pass-Through Rate in effect from time to
time, and shall not be entitled to distributions of principal.
REMIC
1
Regular Interest LTI-AR: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LTI-AR shall accrue interest
at
the related Uncertificated REMIC 1 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
1
Regular Interest LTI-P: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LTI-P shall accrue interest at
the
related Uncertificated REMIC 1 Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC
1
Regular Interests: REMIC 1 Regular Interest LTI-1, LTI-PF, LTI-AR, LTI-P, LTI-S1
and LTI-S2.
REMIC
2:
The segregated pool of assets consisting of all of the REMIC 1 Regular Interests
conveyed in the trust to the Trustee, for the benefit of the Holders of the
REMIC 2 Regular Interests and the Class A-R Certificates (in respect of the
Class R-2 Interest), pursuant to Article II hereunder, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC
2
Regular Interest: Any of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a “regular interest” in
REMIC 2. Each REMIC 2 Regular Interest shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto. The designations
for
the respective REMIC 2 Regular Interests are set forth in the Preliminary
Statement hereto.
REMIC
2
Regular Interest MTI-1-A: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest MTI-1-A shall accrue interest
at
the related Uncertificated REMIC 2 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
2
Regular Interest MTI-1-B: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest MTI-1-B shall accrue interest
at
the related Uncertificated REMIC 2 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
2
Regular Interest MTI-A-1: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest MTI-A-1 shall accrue interest
at
the related Uncertificated REMIC 2 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
2
Regular Interest MTI-S: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest MTI-S shall accrue interest at
the
related Uncertificated REMIC 2 Pass-Through Rate in effect from time to time,
and shall not be entitled to distributions of principal as set forth in the
Preliminary Statement hereto.
REMIC
2
Regular Interest MTI-AR: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest MTI-AR shall accrue interest
at
the related Uncertificated REMIC 2 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
2
Regular Interest MTI-P: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest MTI-P shall accrue interest at
the
related Uncertificated REMIC 2 Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC
2
Regular Interest MTI-X1: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest MTI-X1 shall accrue interest
at
the related Uncertificated REMIC 2 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
3
Regular Interest: One of the separate non-certificated beneficial ownership
interests in REMIC 3 issued hereunder and designated as a Regular Interest
in
REMIC 3 as set forth in the Preliminary Statement. Each REMIC 3 Regular Interest
shall accrue interest at the related Uncertificated REMIC 3 Pass-Through Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Principal Balance, if any, as set forth in the
Preliminary Statement hereto.
REMIC
4
Interest Loss Allocation Amount: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the aggregate Stated Principal Balance
of
the Mortgage Loans and related REO Properties then outstanding and (ii) the
Uncertificated REMIC 4 Pass-Through Rate for REMIC 4 Regular Interest MTII-AA
minus the Marker Rate, divided by (b) 12.
REMIC
4
Overcollateralization Amount: With respect to any date of determination, (i)
1%
of the aggregate Uncertificated Principal Balances of the REMIC 4 Regular
Interests minus (ii) the aggregate Uncertificated Principal Balances of REMIC
4
Regular Interests XXXX-X-0, XXXX-X-0, XXXX-X-0, MTII-M-1, MTII-M-2, MTII-M-3,
MTII-M-4, MTII-M-5, MTII-M-6, MTII-M-7, MTII-M-8, MTII-M-9, MTII-B-1, MTII-R
and
MTII-P, in each case as of such date of determination.
REMIC
4
Principal Loss Allocation Amount: With respect to any Distribution Date, an
amount equal to the product of (i) the aggregate Stated Principal Balance of
the
Mortgage Loans and related REO Properties then outstanding and (ii) 1 minus
a
fraction, the numerator of which is two times the aggregate Uncertificated
Principal Balance of REMIC 4 Regular Interests XXXX-X-0, XXXX-X-0, XXXX-X-0,
MTII-M-1, MTII-M-2, MTII-M-3, MTII-M-4, MTII-M-5, MTII-M-6, MTII-M-7, MTII-M-8,
MTII-M-9 and MTII-B-1, and the denominator of which is the aggregate
Uncertificated Principal Balance of REMIC 4 Regular Interests XXXX-X-0,
XXXX-X-0, XXXX-X-0, MTII-M-1, MTII-M-2, MTII-M-3, MTII-M-4, MTII-M-5, MTII-M-6,
MTII-M-7, MTII-M-8, MTII-M-9, MTII-B-1 and MTII-ZZ.
REMIC
4
Regular Interest MTII-AA: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-AA shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-A-IO: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-A-IO shall accrue interest
on
its Uncertificated Notional Amount at its related Uncertificated REMIC 4
Pass-Through Rate in effect from time to time. REMIC 4 Regular Interest
MTII-A-IO shall not have an Uncertificated Principal Balance and shall not
be
entitled to distributions of principal.
REMIC
4
Regular Interest MTII-A-1: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-A-1 shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-A-2: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-A-2 shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-A-3: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-A-3 shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-IO: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-IO shall accrue interest
on
its Uncertificated Notional Amount at its related Uncertificated REMIC 4
Pass-Through Rate in effect from time to time. REMIC 4 Regular Interest MTII
-IO
shall not have an Uncertificated Principal Balance and shall not be entitled
to
distributions of principal.
REMIC
4
Regular Interest MTII-M-1: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-M-1 shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-M-2: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-M-2 shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-M-3: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-M-3 shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-M-4: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-M-4 shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-M-5: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-M-5 shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-M-6: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-M-6 shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-M-7: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-M-7 shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-M-8: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-M-8 shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-M-9: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-M-9 shall accrue interest
at
the related Uncertificated REMIC 2 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-B-1: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-B-1 shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-P: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-P shall accrue interest
at
the related Uncertificated REMIC 2 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-R: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-R shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-S: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-S shall accrue interest
as
set forth in the Preliminary Statement hereto. REMIC 2 Regular Interest MTII-S
shall not be entitled to distributions of principal.
REMIC
4
Regular Interest MTII-ZZ: One of the separate non-certificated beneficial
ownership interests in REMIC 4 issued hereunder and designated as a Regular
Interest in REMIC 4. REMIC 4 Regular Interest MTII-ZZ shall accrue interest
at
the related Uncertificated REMIC 4 Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
4
Regular Interest MTII-ZZ Maximum Interest Deferral Amount: With respect to
any
Distribution Date, the excess of (i) REMIC 4 Uncertificated Accrued Interest
calculated with the Uncertificated Pass-Through Rate for REMIC 4 Regular
Interest MTII-ZZ and an Uncertificated Principal Balance equal to the excess
of
(x) the Uncertificated Principal Balance of REMIC 4 Regular Interest MTII-ZZ
over (y) the REMIC 4 Overcollateralization Amount, in each case for such
Distribution Date, over (ii) the sum of REMIC 4 Uncertificated Accrued Interest
on REMIC 4 Regular Interests XXXX-X-0, XXXX-X-0, XXXX-X-0, MTII-M-1, MTII-M-2,
MTII-M-3, MTII-M-4, MTII-M-5, MTII-M-6, MTII-M-7, MTII-M-8, MTII-M-9 and
MTII-B-1, and the denominator of which is the aggregate Uncertificated Principal
Balance of REMIC 4 Regular Interests XXXX-X-0, XXXX-X-0, XXXX-X-0, MTII-M-1,
MTII-M-2, MTII-M-3, MTII-M-4, MTII-M-5, MTII-M-6, MTII-M-7, MTII-M-8, MTII-M-9
and MTII-B-1, with the rates on the REMIC 4 Regular Interests XXXX-X-0,
XXXX-X-0, XXXX-X-0, MTII-M-1, MTII-M-2, MTII-M-3, MTII-M-4, MTII-M-5, MTII-M-6,
MTII-M-7, MTII-M-8, MTII-M-9 and MTII-B-1, and the denominator of which is
the
aggregate Uncertificated Principal Balance of REMIC 4 Regular Interests
XXXX-X-0, XXXX-X-0, XXXX-X-0, MTII-M-1, MTII-M-2, MTII-M-3, MTII-M-4, MTII-M-5,
MTII-M-6, MTII-M-7, MTII-M-8, MTII-M-9 and MTII-B-1 subject to a cap, for the
purpose of this calculation, equal to the Pass-Through Rate for the
Corresponding Certificate and with the rate on the REMIC 4 Regular Interest
MTII-ZZ subject to a cap, for the purpose of this calculation, equal to
zero.
REMIC
4
Regular Interests: REMIC 4 Regular Interest MTII-AA, REMIC 4 Regular Interest
MTII-A-1, REMIC 4 Regular Interest MTII-A-2, REMIC 4 Regular Interest MTII-A-3,
REMIC 4 Regular Interest MTII-M-1, REMIC 4 Regular Interest MTII-M-2, REMIC
4
Regular Interest MTII-M-3, REMIC 4 Regular Interest MTII-M-4, REMIC 4 Regular
Interest MTII-M-5, REMIC 4 Regular Interest MTII-M-6, REMIC 4 Regular Interest
MTII-M-7, REMIC 4 Regular Interest MTII-M-8, REMIC 4 Regular Interest MTII-M-9,
REMIC 4 Regular Interest MTII-B-1, REMIC 4 Regular Interest MTII-S, REMIC 4
Regular Interest MTII-ZZ, REMIC 4 Regular Interest MTII-P, REMIC 4 Regular
Interest MTII-IO, REMIC 4 Regular Interests MTII-A-IO and REMIC 4 Regular
Interest MTII-R.
REMIC
4
Targeted Overcollateralization Amount: 1% of the Targeted Overcollateralization
Amount.
REMIC
5:
The segregated pool of assets consisting of all of the REMIC 4 Regular Interests
conveyed in the trust to the Trustee, for the benefit of the Holders of the
Regular Certificates and the Class A-R Certificates (in respect of the Class
R-5
Interest), and all amounts deposited therein, with respect to which a separate
REMIC election is to be made.
REMIC
5
Regular Interests: The Regular Certificates.
REMIC
Provisions: Provisions of the federal income tax law relating to real estate
mortgage investment conduits, which appear at sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
promulgated thereunder, as the foregoing may be in effect from time to
time.
REMIC
Regular Interests: The REMIC 1 Regular Interests, REMIC 2 Regular Interests,
REMIC 3 Regular Interests and REMIC 4 Regular Interests.
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 and,
for the avoidance of doubt, following the satisfaction of any related First
Mortgage Loan.
Reportable
Event: As defined in Section 8.12(a)(ii).
Repurchase
Price: With respect to any Mortgage Loan required to be purchased by the
Seller
pursuant to this Agreement or purchased by a Special Servicer pursuant to
this
Agreement, an amount equal to the sum of (i) 100% of the unpaid principal
balance of the Mortgage Loan on the date of such purchase, (ii) accrued unpaid
interest thereon at the applicable Mortgage Rate from the date through which
interest was last paid by the Mortgagor to the Due Date in the month in which
the Repurchase Price is to be distributed to Certificateholders, (iii) any
unreimbursed Servicing Advances (or, in the case of any Mortgage Loan purchased
by any Special Servicer, any unreimbursed Servicing Advances payable to any
other Servicer) and (iv) any costs and damages actually incurred and paid
by or
on behalf of the Trust (including, but not limited to late fees) in connection
with any breach of the representation and warranty set forth in clause (xx)
of
Schedule IV hereto as the result of a violation of a predatory or abusive
lending law applicable to such Mortgage Loan.
Request
for Release: The Request for Release submitted by a Servicer to the Trustee,
substantially in the form of Exhibit M.
Required
Insurance Policy: With respect to any Mortgage Loan, any insurance policy that
is required to be maintained from time to time under this
Agreement.
Required
Reserve Fund Deposit: With respect to any Distribution
Date,
the excess, if any, of (i) $1,000 over (ii) the amount of funds on deposit
in
the Basis Risk Reserve Fund prior to deposits thereto on such Distribution
Date.
Residual
Certificates: As specified in the Preliminary Statement.
Responsible
Officer: When used with respect to the Trustee or the Servicer, any Vice
President, any Assistant Vice President, any Assistant Secretary, any Trust
Officer or any other officer of the Trustee or the Servicer, as applicable,
customarily performing functions similar to those performed by any of the above
designated officers and also to whom, with respect to a particular matter,
such
matter is referred because of such officer’s knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Agreement.
Rolling
Three Month Delinquency Rate: For any Distribution Date will be the fraction,
expressed as a percentage, equal to the average of the Delinquency Rates for
each of the three (or one and two, in the case of the first and second
Distribution Dates, respectively) immediately preceding months.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
S&P:
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. For
purposes of Section 10.05(b) the address for notices to S&P shall be
Standard & Poor’s, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Mortgage Surveillance Monitoring, or such other address as S&P may hereafter
furnish to the Depositor, the Servicers, the Master Servicer and the
Trustee.
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due on any Due Date
allocable to principal and/or interest on such Mortgage Loan pursuant to the
terms of the related Mortgage Note, as reduced by any Relief Act
Reductions.
Second
Mortgage Loan: A Mortgage Loan that is secured by a second lien on the Mortgaged
Property securing the related Mortgage Note.
Securities
Act: The Securities Act of 1933, as amended.
Seller:
DLJ Mortgage Capital, Inc.
Senior
Certificates: As specified in the Preliminary Statement.
Senior
Enhancement Percentage: For any Distribution Date, the fraction, expressed
as a
percentage, the numerator of which is the sum of the aggregate Class Principal
Balance of the Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class
M-6, Class M-7, Class M-8, Class M-9 and Class B-1 Certificates and the
Overcollateralization Amount (which, for purposes of this definition only,
shall
not be less than zero), in each case after giving effect to payments on such
Distribution Date (assuming no Trigger Event is in effect), and the denominator
of which is the Aggregate Collateral Balance for such Distribution
Date.
Senior
Principal Payment Amount: For any Distribution Date on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, will be the lesser of (1) the Class Principal Balance of
the
Class A Certificates and Class P Certificates immediately preceding such
Distribution Date and (2) the amount, if any, by which (x) the aggregate Class
Principal Balance of the Class A-1, Class A-2, Class A-3, Class P and Class
A-R
Certificates immediately prior to such Distribution Date exceeds (y) the lesser
of (A) the product of (i) 41.50% and (ii) the Aggregate Collateral Balance
for
such Distribution Date and (B) the amount, if any, by which (i) the Aggregate
Collateral Balance for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Collateral Balance as of the Cut-off Date.
Servicer:
SPS or Ocwen, as applicable, or their successors in interest, or any successor
servicer appointed as provided herein.
Servicer
Employee: As defined in Section 3.18.
Servicer
Cash Remittance Date: With respect to each Distribution Date, the second
Business Day immediately preceding such Distribution Date.
Servicer
Data Remittance Date: With respect to each Distribution Date, the second
Business Day immediately following the 15th day of the month of such
Distribution Date.
Servicing
Advance: All customary, reasonable and necessary “out of pocket” costs and
expenses incurred in the performance by a Servicer of its servicing obligations,
including, but not limited to, the cost (including reasonable attorneys’ fees
and disbursements) of (i) the inspection, preservation, restoration and
protection of a Mortgaged Property, (ii) any expenses reimbursable to such
Servicer pursuant to Section 3.11 and any enforcement or judicial proceedings,
including foreclosures, and including any expenses incurred in relation to
any
such proceedings that result from the Mortgage Loan being registered on the
MERS
System; (iii) the management and liquidation of any REO Property (including
default management and similar services, appraisal services and real estate
broker services); (iv) any expenses incurred by such Servicer in connection
with
obtaining an environmental inspection or review pursuant to Section 3.11(a)(v)
and (vi); (v) compliance with the obligations under Section 3.01, 3.09 and
3.11(b); (vi) the cost of obtaining any broker’s price opinion in accordance
with Section 3.11 hereof; (vii) the costs of obtaining an Opinion of Counsel
pursuant to Section 3.11(c) hereof; (viii) expenses incurred in connection
with
any instrument of satisfaction or deed of reconveyance as described in Section
3.12 hereof; (ix) expenses incurred in connection with the recordation of
Assignments of Mortgage or substitutions of trustees and (x) obtaining any
legal
documentation required to be included in a Mortgage File and/or correcting
any
outstanding title issues (ie. any lien or encumbrance on the related Mortgaged
Property that prevents the effective enforcement of the intended lien position)
reasonably necessary for such Servicer to perform its obligations under 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 each Mortgage Loan and any Distribution Date, an amount equal to
one
month’s interest at the Servicing Fee Rate on the Stated Principal Balance of
such Mortgage Loan as of the Due Date in the month of such Distribution Date
(prior to giving effect to any Scheduled Payments due on such Mortgage Loan
on
such Due Date), subject to reduction as provided in Section 3.05(b)(vi).
Servicing
Fee Rate: With respect to each SPS
Serviced
Loan, the “SPS Servicing Fee Rate” as defined in the SPS Letter Agreement, which
rate may increase up to 0.50% per annum. With respect to each Ocwen Serviced
Loan, the “Ocwen Servicing Fee Rate” as defined in the Ocwen Letter Agreement,
which rate may increase up to 0.50% per annum. In the event of the appointment
of a successor servicer pursuant to Section 6.04 hereof, the Servicing Fee
Rate
as to each SPS Serviced Loan or Ocwen Serviced Loan, as applicable, may increase
to up to 0.50% per annum.
Servicing
Officer: With respect to each Servicer, any representative of that Servicer
involved in, or responsible for, the administration and servicing of the related
Mortgage Loans whose name and specimen signature appear on a list of servicing
officers furnished to the Trustee by such Servicer on the Closing Date pursuant
to this Agreement, as such list may from time to time be amended.
Significance
Percentage: With respect to each Distribution Date and the Swap Agreement,
the
amount calculated by the Trustee in accordance with DLJMC’s internal risk
management process in respect of similar instruments, such calculation to be
performed as agreed by the Trustee and the Depositor.
Significant
Net Recoveries: With respect to a defaulted Mortgage Loan, a determination
by a
Servicer that either (A) the potential Net Recoveries are anticipated to be
greater than or equal to the sum of (i) the total indebtedness of the senior
lien on the related Mortgaged Property and (ii) $10,000 (after anticipated
expenses and attorneys’ fees) or (B) the related Mortgagor has shown a
willingness and ability to pay over the previous six months.
Special
Serviced Mortgage Loan: The Mortgage Loans for which a Special Servicer acts
as
servicer pursuant to Section 3.22.
Special
Servicer: Any special servicer appointed by the Class X-1 Certificateholder
pursuant to Section 3.22.
SPS:
Select Portfolio Servicing, Inc., a Utah corporation, and its successors and
permitted assigns.
SPS
Letter Agreement: The securitization servicing side letter agreement, dated
as
of October 1, 2006, between the Seller and SPS, as amended, supplemented or
superseded from tiem to time.
SPS
Serviced Loans: The Mortgage Loans identified as such on the Mortgage Loan
Schedule.
SPS
Special Servicing: With regard to any SPS Serviced Loans that become Charged
Off
Loans, the servicing of such Charged Off Loans using specialized collection
procedures (including foreclosure, if appropriate) to maximize
recoveries.
Startup
Day: October 31, 2006.
Stated
Principal Balance: As to any Mortgage Loan and Due Date, the unpaid principal
balance of such Mortgage Loan as of such Due Date as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous Curtailments and Liquidation
Proceeds allocable to principal (other than with respect to any Liquidated
Mortgage Loan) and to the payment of principal due on such Due Date and
irrespective of any delinquency in payment by the related Mortgagor, increased
by the portion of any Capitalization Reimbursement Amount allocable to such
Mortgage Loan; provided, however, for purposes of calculating the Servicing
Fee
and the Trustee Fee, the Stated Principal Balance of any REO will be the unpaid
principal balance immediately prior to foreclosure.
Stepdown
Date: The date occurring on the later of (x) the Distribution Date in November
2009 and (y) the first Distribution Date on which the Senior Enhancement
Percentage (calculated for this purpose after giving effect to payments on
the
Certificates on such Distribution Date and for purposes of calculating the
Overcollateralization Amount only, after giving effect to the principal payments
from the Principal Remittance Amount and any Excess Cashflow Loss Payment)
is
greater than or equal to approximately 58.50%.
Subordinate
Certificates: As specified in the Preliminary Statement.
Subsequent
Mortgage Loan: Any Mortgage Loan other than an Initial Mortgage Loan conveyed
to
the Trust Fund pursuant to Section 2.01 hereof and to a Subsequent Transfer
Agreement, which Mortgage Loan shall be listed on the revised Mortgage Loan
Schedule delivered pursuant to this Agreement and on Schedule A to such
Subsequent Transfer Agreement. When used with respect to a single Subsequent
Transfer Date, Subsequent Mortgage Loan shall mean a Subsequent Mortgage Loan
conveyed to the Trust on that Subsequent Transfer Date.
Subsequent
Mortgage Loan Interest: Any amount constituting an Interest Remittance Amount
(other than an amount withdrawn from the related Capitalized Interest Account
pursuant to clause (5) of the definition of “Interest Remittance Amount”)
received or advanced with respect to a Subsequent Mortgage Loan during the
Due
Periods relating to the November 2006, December 2006 or January 2007
Distribution Dates, but only to the extent of the excess of such amount over
the
amount of interest accruing on such Subsequent Mortgage Loan during the related
period at a per annum rate equal to 5.73%, 6.21% and 6.41%, respectively. The
Subsequent Mortgage Loan Interest shall not be an asset of any
REMIC.
Subsequent
Transfer Agreement: A Subsequent Transfer Agreement substantially in the form
of
Exhibit N hereto, executed and delivered by the related Servicer, the Depositor,
the Seller and the Trustee as provided in Section 2.01 hereof.
Subsequent
Transfer Date: For any Subsequent Transfer Agreement, the date the related
Subsequent Mortgage Loans are transferred to the Trust Fund pursuant to the
related Subsequent Transfer Agreement.
Subservicer:
Any subservicer which is subservicing the Mortgage Loans pursuant to a
Subservicing Agreement. Any subservicer shall meet the qualifications set forth
in Section 3.02.
Subservicing
Agreement: An agreement between a Servicer and a Subservicer for the servicing
of the related Mortgage Loans.
Substitution
Adjustment Amount: As defined in Section 2.03.
Supplemental
Interest Trust: The corpus of a trust created pursuant to Section 4.11 of this
Agreement and designated as the “Supplemental Interest Trust,” consisting of the
Swap Agreement and the Swap Account. For the avoidance of doubt, the
Supplemental Interest Trust, the Swap Agreement and the Swap Account do not
constitute parts of the Trust Fund or any REMIC.
Supplemental
Interest Trust Trustee: U.S. Bank National Association, a national banking
association not in its individual capacity but solely in its capacity as
supplemental interest trust trustee under the Swap 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 supplemental interest trust trustee as may from time
to
time be serving as successor supplemental interest trust trustee.
Swap
Account: The separate Eligible Account created and initially maintained within
the Supplemental Interest Trust by the Supplemental Interest Trust Trustee
pursuant to Section 4.11 in the name of the Supplemental Interest Trust Trustee
for the benefit of the Certificateholders and designated “U.S. Bank National
Association in trust for registered holders of Credit Suisse First Boston
Mortgage Securities Corp., Home Equity Mortgage Pass-Through Certificates,
Series 2006-5.” Funds in the Swap Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement. The
Swap Account will not be an asset of any REMIC. Ownership of the Swap Account
is
evidenced by the Class X-1 Certificates.
Swap
Agreement: Collectively, the ISDA Master Agreement (including the Schedule
thereto and the transaction evidenced by the related Confirmation by and between
the Supplemental Interest Trust Trustee acting as trustee on behalf of the
Supplemental Interest Trust and the Counterparty), forms of which are attached
hereto as Exhibit CC and Exhibit DD.
Swap
LIBOR: LIBOR as determined pursuant to the Swap Agreement.
Swap
Payment Date: A payment date as defined in the Swap Agreement.
Swap
Termination Payment: Upon the designation of an “Early Termination Date” as
defined in the Swap Agreement, the payment to be made by the Supplemental
Interest Trust Trustee to the Counterparty from payments from the Trust Fund,
or
by the Counterparty to the Supplemental Interest Trust Trustee for payment
to
the Trust Fund, as applicable, pursuant to the terms of the Swap
Agreement.
Targeted
Overcollateralization Amount: For any Distribution Date prior to the Stepdown
Date, the sum of (i) 5.60% of the Aggregate Collateral Balance as of the Cut-off
Date and (ii) the amount by which the Class Principal Balance of the Class
B-1
Certificates has been reduced by any distributions pursuant to Section
4.02(b)(iv)Z.; with respect to any Distribution Date on or after the Stepdown
Date and with respect to which a Trigger Event is not in effect, the greater
of
(a) the sum of (i) 11.20% of the Aggregate Collateral Balance for such
Distribution Date and (ii) the product of (A) the Aggregate Collateral Balance
for such Distribution Date and (B) the product of (x) a fraction, the numerator
of which is the total amount by which the Class Principal Balance of the Class
B-1 Certificates has been reduced by any distributions pursuant to Section
4.02(b)(iv)Z. and the denominator of which is the Aggregate Collateral Balance
as of the Cut-off Date and (y) 2, or (b) 0.50% of the Aggregate Collateral
Balance as of the Cut-off Date; with respect to any Distribution Date on or
after the Stepdown Date with respect to which a Trigger Event is in effect
and
is continuing, the Targeted Overcollateralization Amount for the Distribution
Date immediately preceding such Distribution Date plust the product of (A)
the
Aggregate Collateral Balance as of such preceding Distribution Date and (B)
the
product of (x) a fraction, the numerator of which is the amount by which the
Class Principal Balance of the Class B-1 Certificates has been reduced on such
preceding Distribution Date and the denominator of which is the Aggregate
Collateral Balance as of the Cut-off Date and (y) 2. Notwithstanding the
foregoing, on and after any Distribution Date following the reduction of the
aggregate Class Principal Balance of the Class A, Class M and Class B
Certificates to zero, the Targeted Overcollateralization Amount shall be zero.
Upon (x) written direction by the Majority in Interest Holder of the Class
X-1
Certificates and (y) the issuance by an affiliate of the Depositor of a credit
enhancement contract in favor of REMIC 1 which is satisfactory to the Rating
Agencies and (z) receipt by the Trustee of an Opinion of Counsel, which opinion
shall not be an expense of the Trustee or the Trust Fund, but shall be at the
expense of the Majority in Interest Holder of the Class X-1 Certificates, to
the
effect that such credit enhancement contract will not cause the imposition
of
any federal tax on the Trust Fund or the Certificateholders or cause REMIC
1,
REMIC 2, REMIC 3, REMIC 4 and REMIC 5 to fail to qualify as a REMIC at any
time
that any Certificates are outstanding, the Targeted Overcollateralization Amount
shall be reduced to the level approved by the Rating Agencies as a result of
such credit enhancement contract. Any credit enhancement contract referred
to in
the previous sentence shall be collateralized by cash or mortgage loans,
provided that (i) the aggregate Stated Principal Balance of the mortgage loans
collateralizing any such credit enhancement contract shall not be less than
the
excess, if any, of (x) the initial Targeted Overcollateralization Amount over
(y) the then-current Overcollateralization Amount and (ii) the issuance of
any
credit enhancement contract supported by mortgage loans shall not result in
a
downgrading of the ratings assigned by the Rating Agencies.
Tax
Matters Person: The person designated as “tax matters person” in the manner
provided under Treasury regulation § 1.860F-4(d) and temporary Treasury
regulation § 301.6231(a)(7)-1T.
Terminating
Entity: As determined by the Trustee pursuant to Section 9.04(a). The
Terminating Entity shall be determined on each Optional Termination
Date.
Transfer:
Any direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Trigger
Event: A Trigger Event will be in effect for any Distribution Date on or after
the Stepdown Date if (a) the Rolling Three Month Delinquency Rate as of the
last
day of the related Due Period equals or exceeds 13.68% of the Senior Enhancement
Percentage for such Distribution Date or (ii) a Cumulative Loss Event is
occurring. The Trigger Event may be amended by the parties hereto in the future
with the consent of the Rating Agencies.
Trust
Collateral: As defined in Section 9.01(c).
Trust
Fund: Collectively, the assets of REMIC 1, REMIC 2, REMIC 3, REMIC 4, REMIC
5,
the Pre-Funding Account, the Capitalized Interest Account, the Basis Risk
Reserve Fund and the Subsequent Mortgage Loan Interest.
Trustee:
U.S.
Bank
National Association
and its
successors and, if a successor trustee is appointed hereunder, such
successor.
Trustee
Fee: As to each Mortgage Loan and any Distribution Date, an amount equal to
one
month’s interest at the Trustee Fee Rate on the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the month of such Distribution Date (prior
to giving effect to any Scheduled Payments due on such Mortgage Loan on such
Due
Date).
Trustee
Fee Rate: With respect to any Distribution Date, 0.0085% per annum.
Uncertificated
Accrued Interest: With respect to each REMIC Regular Interest on each
Distribution Date, an amount equal to one month’s interest at the related
Uncertificated Pass-Through Rate on the Uncertificated Principal Balance of
such
REMIC Regular Interest. In each case, Uncertificated Accrued Interest will
be
reduced by any Net Prepayment Interest Shortfalls and Relief Act Reductions
(allocated to such REMIC Regular Interests based on the priorities set forth
in
Section 1.03).
Uncertificated
Notional Amount: Uncertificated Notional Amount: With respect to REMIC 1 Regular
Interest LTI-S1, the Uncertificated Notional Amount shall be equal to the
principal balance of the SPS Serviced Loans. With respect to REMIC 1 Regular
Interest LTI-S2, the Uncertificated Notional Amount shall be equal to the
principal balance of the Ocwen Serviced Loans. With respect to REMIC 2 Regular
Interest MTI-S, the Uncertificated Notional Amount shall be equal to the
Uncertificated Notional Amount of REMIC 1 Regular Interest LTI-S1 and REMIC
1
Regular Interest LTI-S2. With respect to REMIC 3 Regular Interest MTIA-S, the
Uncertificated Notional Amount shall be equal to the Uncertificated Notional
Amount of REMIC 2 Regular Interest MTI-S. With respect to REMIC 3 Regular
Interest MTIA-Swap-IO, the Uncertificated Notional Amount shall be equal to
the
Uncertificated Principal Balance of REMIC 2 Regular Interest MTI-1-A. With
respect to REMIC 4 Regular Interest MTII-S, the Uncertificated Notional Amount
shall be equal to the Uncertificated Notional Amount of REMIC 3 Regular Interest
MTIA-S. With respect to REMIC 3 Regular Interest MTII-IO, the Uncertificated
Notional Amount shall be equal to the Uncertificated Principal Balance of REMIC
3 Regular Interest MTIA-Swap-IO. With respect to REMIC 4 Regular Interest
MTII-A-IO and each Distribution Date listed below, the aggregate Uncertificated
Principal Balance of the REMIC 3 Regular Interests listed below:
|
Distribution
Date
|
REMIC
3 Regular Interests
|
|
1
|
MTIA-IO-1
through MTIA-IO-30
|
|
2
|
MTIA-IO-2
through MTIA-IO-30
|
|
3
|
MTIA-IO-3
through MTIA-IO-30
|
|
4
|
MTIA-IO-4
through MTIA-IO-30
|
|
5
|
MTIA-IO-5
through MTIA-IO-30
|
|
6
|
MTIA-IO-6
through MTIA-IO-30
|
|
7
|
MTIA-IO-7
through MTIA-IO-30
|
|
8
|
MTIA-IO-8
through MTIA-IO-30
|
|
9
|
MTIA-IO-9
through MTIA-IO-30
|
|
10
|
MTIA-IO-10
through MTIA-IO-30
|
|
11
|
MTIA-IO-11
through MTIA-IO-30
|
|
12
|
MTIA-IO-12
through MTIA-IO-30
|
|
13
|
MTIA-IO-13
through MTIA-IO-30
|
|
14
|
MTIA-IO-14
through MTIA-IO-30
|
|
15
|
MTIA-IO-15
through MTIA-IO-30
|
|
16
|
MTIA-IO-16
through MTIA-IO-30
|
|
17
|
MTIA-IO-17
through MTIA-IO-30
|
|
18
|
MTIA-IO-18
through MTIA-IO-30
|
|
19
|
MTIA-IO-19
through MTIA-IO-30
|
|
20
|
MTIA-IO-20
through MTIA-IO-30
|
|
21
|
MTIA-IO-21
through MTIA-IO-30
|
|
22
|
MTIA-IO-22
through MTIA-IO-30
|
|
23
|
MTIA-IO-23
through MTIA-IO-30
|
|
24
|
MTIA-IO-24
through MTIA-IO-30
|
|
25
|
MTIA-IO-25
through MTIA-IO-30
|
|
26
|
MTIA-IO-26
through MTIA-IO-30
|
|
27
|
MTIA-IO-27
through MTIA-IO-30
|
|
28
|
MTIA-IO-28
through MTIA-IO-30
|
|
29
|
MTIA-IO-29
and MTIA-IO-30
|
|
30
|
MTIA-IO-30
|
|
thereafter
|
$0.00
|
Uncertificated
Pass-Through Rate: The Uncertificated REMIC 1 Pass-Through Rate, the
Uncertificated REMIC 2 Pass-Through Rate, the Uncertificated REMIC 3
Pass-Through Rate and the Uncertificated REMIC 4 Pass-Through Rate.
Uncertificated
Principal Balance: With respect to each REMIC Regular Interest, the amount
of
such REMIC Regular Interest outstanding as of any date of determination.
As of
the Closing Date, the Uncertificated Principal Balance of each REMIC Regular
Interest shall equal the amount set forth in the Preliminary Statement hereto
as
its initial Uncertificated Principal Balance. On each Distribution Date,
the
Uncertificated Principal Balance of each REMIC Regular Interest shall be
reduced
by all distributions of principal made on such REMIC Regular Interest on
such
Distribution Date pursuant to Section 4.07 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 4.05(b), and the Uncertificated Principal Balances
of REMIC 4 Regular Interest MTII-ZZ shall be increased, pro rata, by interest
deferrals as provided in Section 4.07. The Uncertificated Principal Balance
of
each REMIC Regular Interest that has an Uncertificated Principal Balance
shall
never be less than zero. REMIC 1 Regular Interest LTI-S1, REMIC 1 Regular
Interest LTI-S2, REMIC 2 Regular Interest MTI-S, REMIC 3 Regular Interest
MTIA-S, REMIC 3 Regular Interest MTIA-Swap-IO, REMIC 4 Regular Interest MTII-S,
REMIC 4 Regular Interest MTII-IO and REMIC 4 Regular Interest MTII-A-IO shall
not have an Uncertificated Principal Balance.
Uncertificated
REMIC 1 Pass-Through Rate: With respect to each REMIC 1 Regular Interest (other
than REMIC 1 Regular Interests LTI-PF, LTI-S1 and LTI-S2) and the Interest
Accrual Periods in November 2006, December 2006 and January 2007, a per annum
rate equal to the Initial Mortgage Loan Net WAC Rate; with respect to REMIC
1
Regular Interest LTI-PF and the Interest Accrual Periods in November 2006,
December 2006 and January 2007, a per annum rate equal to 5.73%, 6.21% and
6.41%, respectively, and with respect to each REMIC 1 Regular Interest (other
than REMIC 1 Regular Interests LTI-S1 and LTI-S2) and each Interest Accrual
Period thereafter, the weighted average of the Net Mortgage Rates on the
Mortgage Loans. With respect to REMIC 1 Regular Interest LTI-S1, a weighted
average per annum rate, determined on a Mortgage Loan by Mortgage Loan basis
(and solely with respect to the SPS Serviced Loans), equal to the excess of
(i)
the excess of (a) the Mortgage Rate for each SPS Serviced Loan over (b) the
sum
of the SPS Servicing Fee Rate, provided, however, that such rate shall be
subject to a cap equal to 0.50% per annum, the Credit Risk Manager Fee Rate
and
the Trustee Fee Rate, over (ii) the Net Mortgage Rate of each such Mortgage
Loan. With respect to REMIC 1 Regular Interest LTI-S2, a weighted average per
annum rate, determined on a Mortgage Loan by Mortgage Loan basis (and solely
with respect to the Ocwen Serviced Loans), equal to the excess of (i) the excess
of (a) the Mortgage Rate for each Ocwen Serviced Loan over (b) the sum of the
Ocwen Servicing Fee Rate, provided, however, that such rate shall be subject
to
a cap equal to 0.50% per annum, the Credit Risk Manager Fee Rate and the Trustee
Fee Rate, over (ii) the Net Mortgage Rate of each such Mortgage Loan.
Uncertificated
REMIC 2 Pass-Through Rate: With respect to REMIC 2 Regular Interest MTI-1-A,
a
per annum rate equal to the weighted average of the Uncertificated REMIC 1
Pass-Through Rates on REMIC 1 Regular Interest LTI-1 and REMIC 1 Regular
Interest LTI-PF multiplied by 2, subject to a maximum rate of 10.200%. With
respect to REMIC 2 Regular Interest MTI-1-B, the greater of (x) a per annum
rate
equal to the excess, if any, of (i) 2 multiplied by the weighted average of
the
Uncertificated REMIC 1 Pass-Through Rates on REMIC 1 Regular Interest LTI-1
and
REMIC 1 Regular Interest LTI-PF over (ii) 10.200% and (y) 0.00000%. With respect
to REMIC 2 Regular Interest MTI-A-1 and REMIC 2 Regular Interest MTI-X1, the
weighted average of the Uncertificated REMIC 1 Pass-Through Rates on REMIC
1
Regular Interest LTI-1 and REMIC 1 Regular Interest LTI-PF, weighted on the
basis of each such REMIC 1 Regular Interest prior to the related Distribution
Date. REMIC 2 Regular Interest MTI-S will not have an Uncertificated REMIC
2
Pass-Through Rate, but will be entitled to 100% of the amounts distributed
on
REMIC 1 Regular Interest LTI-S1 and REMIC 1 Regular Interest LTI-S2. REMIC
2
Regular Interest MTI-P will not have an Uncertificated REMIC 2 Pass-Through
Rate, but will be entitled to 100% of the amounts distributed on REMIC 1 Regular
Interest LTI-P. REMIC 2 Regular Interest MTI-AR will not have an Uncertificated
REMIC 2 Pass-Through Rate, but will be entitled to 100% of the amounts
distributed on REMIC 1 Regular Interest LTI-AR.
Uncertificated
REMIC 3 Pass-Through Rate: With respect to each REMIC 3 Regular Interest (other
than REMIC 3 Regular Interest MTIA-S, REMIC 3 Regular Interest MTIA-Swap-IO,
REMIC 3 Regular Interest MTIA-P and REMIC 3 Regular Interest MTIA-R),
a
per
annum rate (but not less than zero) equal to the weighted average of (v) with
respect to REMIC 2 Regular Interest MTI-1-B, the weighted average of the
Uncertificated REMIC 2 Pass-Through Rate for such REMIC 2 Regular Interest,
weighted on the basis of the Uncertificated Principal Balance of such REMIC
2
Regular Interest for each such Distribution Date, (w) with respect to REMIC
2
Regular Interest MTI-A-1, the weighted average of the Uncertificated REMIC
2
Pass-Through Rate for such REMIC 2 Regular Interest, weighted on the basis
of
the Uncertificated Principal Balance of such REMIC 2 Regular Interest for each
such Distribution Date, (x) with respect to REMIC 2 Regular Interest MTI-1-A,
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated REMIC
2 Pass-Through Rate for such REMIC 2 Regular Interest, weighted on the basis
of
the Uncertificated Principal Balance of such REMIC 2 Regular Interest for each
such Distribution Date and (y) with respect to REMIC 2 Regular Interest MTI-X1,
the weighted average of the Uncertificated REMIC 2 Pass-Through Rate for such
REMIC 2 Regular Interest, weighted on the basis of the Uncertificated Principal
Balance of such REMIC 2 Regular Interest for each such Distribution Date.
With
respect to REMIC 3 Regular interest MTIA-Swap-IO and (a) the first 60
Distribution Dates, the excess of (i) the weighted average of the Uncertificated
REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest MTI-1-A over (ii) 2
multiplied by Swap LIBOR and (b) thereafter, 0.00%.
REMIC
3
Regular Interests MTIA-S will not have an Uncertificated REMIC 3 Pass-Through
Rate, but shall be entitled to 100% of the amounts distributed on REMIC 2
Regular Interests MTI-S.
REMIC
3
Regular Interests MTIA-P will not have an Uncertificated REMIC 3 Pass-Through
Rate, but shall be entitled to 100% of the amounts distributed on REMIC 2
Regular Interests MTI-P.
REMIC
3
Regular Interests MTIA-R will not have an Uncertificated REMIC 3 Pass-Through
Rate, but shall be entitled to 100% of the amounts distributed on REMIC 2
Regular Interests MTI-AR.
Uncertificated
REMIC 4 Pass-Through Rate: With respect to REMIC 4 Regular Interest MTII-AA,
REMIC 4 Regular Interest MTII-A-1, REMIC 4 Regular Interest MTII-A-2, REMIC
4
Regular Interest MTII-A-3, REMIC 4 Regular Interest MTII-M-1, REMIC 4 Regular
Interest MTII-M-2, REMIC 4 Regular Interest MTII-M-3, REMIC 4 Regular Interest
MTII-M-4, REMIC 4 Regular Interest MTII-M-5, REMIC 4 Regular Interest MTII-M-6,
REMIC 4 Regular Interest MTII-M-7, REMIC 4 Regular Interest MTII-M-8, REMIC
4
Regular Interest MTII-M-9, REMIC 4 Regular Interest MTII-B-1 and REMIC 4 Regular
Interest MTII-ZZ, a
per
annum rate (but not less than zero) equal to the weighted average of (x) with
respect to REMIC 3 Regular Interest MTIA-1, the Uncertificated REMIC 3
Pass-Through Rate for such REMIC 3 Regular Interest for each such Distribution
Date, and (y) with respect to REMIC 3 Regular Interest MTIA-IO-1 through REMIC
3
Regular Interest MTIA-IO-30 for each Distribution Date listed below, the
weighted average of the rates listed below for each such REMIC 3 Regular
Interest listed below, weighted on the basis of the Uncertificated Principal
Balance of each such REMIC 3 Regular Interest:
|
Distribution
Date
|
REMIC
3 Regular Interests
|
Rate
|
|
1
|
MTIA-IO-1
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
2
|
MTIA-IO-2
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
3
|
MTIA-IO-3
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
and MTIA-IO-2
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
4
|
MTIA-IO-4
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-3
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
5
|
MTIA-IO-5
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-4
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
6
|
MTIA-IO-6
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-5
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
7
|
MTIA-IO-7
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-6
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
8
|
MTIA-IO-8
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-7
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
9
|
MTIA-IO-9
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-8
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
10
|
MTIA-IO-10
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-9
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
11
|
MTIA-IO-11
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-10
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
12
|
MTIA-IO-12
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-11
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
13
|
MTIA-IO-13
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-12
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
14
|
MTIA-IO-14
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-13
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
15
|
MTIA-IO-15
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-14
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
16
|
MTIA-IO-16
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-15
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
17
|
MTIA-IO-17
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-16
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
18
|
MTIA-IO-18
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-17
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
19
|
MTIA-IO-19
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-18
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
20
|
MTIA-IO-20
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-19
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
21
|
MTIA-IO-21
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-20
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
22
|
MTIA-IO-22
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-21
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
23
|
MTIA-IO-23
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-22
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
24
|
MTIA-IO-24
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-23
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
25
|
MTIA-IO-25
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-24
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
26
|
MTIA-IO-26
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-25
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
27
|
MTIA-IO-27
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-26
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
28
|
MTIA-IO-28
through MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-27
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
29
|
MTIA-IO-29
and MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-28
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
30
|
MTIA-IO-30
|
(a)
Uncertificated REMIC 3 Pass-Through Rate over (b) 10.00% (or 10.50%
after
the Optional Termination Date)
|
|
MTIA-IO-1
through MTIA-IO-29
|
Uncertificated
REMIC 3 Pass-Through Rate
|
|
|
thereafter
|
MTIA-IO-1
through MTIA-IO-30
|
Uncertificated
REMIC 3 Pass-Through Rate
|
With
respect to REMIC 4 Regular Interest MTII-A-IO, (i) for the first 30 Distribution
Dates, the excess of (a) the Uncertificated REMIC 3 Pass-Through Rate on REMIC
3
Regular Interest MTIA-I over (b) the Uncertificated REMIC 3 Pass-Through Rate
on
REMIC 3 Regular Interest MTIA-I minus 10.00% (or 10.50% after the Optional
Termination Date) and (ii) thereafter, 0.00%.
REMIC
4
Regular interest MTII-IO will not have an Uncertificated REMIC 3 Pass-Through
Rate, but shall be entitled to 100% of the amounts distributed on REMIC 2
Regular Interests MTIA-Swap-IO.
REMIC
4
Regular Interests MTII-S will not have an Uncertificated REMIC 4 Pass-Through
Rate, but shall be entitled to 100% of the amounts distributed on REMIC 3
Regular Interests MTIA-S.
REMIC
4
Regular Interests MTII-P will not have an Uncertificated REMIC 3 Pass-Through
Rate, but shall be entitled to 100% of the amounts distributed on REMIC 2
Regular Interests MTIA-P.
REMIC
4
Regular Interests MTII-R will not have an Uncertificated REMIC 4 Pass-Through
Rate, but shall be entitled to 100% of the amounts distributed on REMIC 3
Regular Interests MTIA-R.
United
States Person: A citizen or resident of the United States, a corporation or
a
partnership (including an entity treated as a corporation or partnership for
United States federal income tax purposes) created or organized in, or under
the
laws of, the United States or any State thereof or the District of Columbia
(except, in the case of a partnership, to the extent provided in regulations)
provided that, for purposes solely of the restrictions on the transfer of Class
A-R Certificates, no partnership or other entity treated as a partnership for
United States federal income tax purposes shall be treated as a United States
Person unless all persons that own an interest in such partnership either
directly or through any entity that is not a corporation for United States
federal income tax purposes are required to be United States Persons or an
estate whose income is subject to United States federal income tax regardless
of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more such
United States Persons have the authority to control all substantial decisions
of
the trust. To the extent prescribed in regulations by the Secretary of the
Treasury, which have not yet been issued, a trust which was in existence on
August 20, 1996 (other than a trust treated as owned by the grantor under
subpart E of part I of subchapter J of chapter 1 of the Code), and which was
treated as a United States person on August 20, 1996 may elect to continue
to be
treated as a United States Person notwithstanding the previous
sentence.
Voting
Rights: 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, 96% of all Voting
Rights shall be allocated among the Class A-1, Class X-0, Xxxxx X-0, Class
M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8,
Class M-9 and Class B-1 Certificates. The portion of such 96% Voting Rights
allocated to the Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class
B-1 Certificates shall be based on the fraction, expressed as a percentage,
the
numerator of which is the aggregate Class Principal Balance then outstanding
and
the denominator of which is the Class Principal Balance of all such Classes
then
outstanding. The Class A-IO, Class P, Class X-1 and Class X-S Certificates
shall
each be allocated 1% of the Voting Rights. Voting Rights shall be allocated
among the Certificates within each such Class (other than the Class P, Class
X-1
and Class X-S Certificates, which each have only one certificate) in accordance
with their respective Percentage Interests. The Class X-2 Certificates and
Class
A-R Certificates shall have no Voting Rights.
| SECTION 1.02 |
Interest
Calculations.
|
The
calculation of the Trustee Fee, the Servicing Fee, the Credit Risk Manager
Fee
and interest on the Class A-1, Class A-IO, Class P, Class A-R, Class X-1 and
Class X-S Certificates and on the related Uncertificated Interests shall be
made
on the basis of a 360-day year consisting of twelve 30-day months. The
calculation of interest on the Class X-0, Xxxxx X-0, Class M-1, Class M-2,
Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class
B-1 Certificates and the related Uncertificated Interests shall be made on
the
basis of a 360-day year and the actual number of days elapsed in the related
Interest Accrual Period. All dollar amounts calculated hereunder shall be
rounded to the nearest xxxxx with one-half of one xxxxx being rounded
down.
| SECTION 1.03 |
Allocation
of Certain Interest Shortfalls.
|
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 1 Regular Interests for any Distribution Date, the aggregate amount of
any
Prepayment Interest Shortfalls (net of any Compensating Interest Payment) and
any Relief Act Reductions incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated pro
rata
to REMIC
1 Regular Interests LTI-1 and LTI-PF, in each case to the extent of one month’s
interest at the then applicable respective Uncertificated REMIC 1 Pass-Through
Rate on the respective Uncertificated Principal Balance of each such REMIC
1
Regular Interest; provided, however, that with respect to the first three
Distribution Dates, such amounts relating to the Initial Mortgage Loans shall
be
allocated to REMIC 1 Regular Interest LTI-1 and such amounts relating to the
Subsequent Mortgage Loans shall be allocated to REMIC 1 Regular Interest
LTI-PF.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 2 Regular Interests for any Distribution Date, the aggregate amount of
any
Prepayment Interest Shortfalls (net of any Compensating Interest Payment) shall
be allocated first, to REMIC 2 Regular Interest MTI-A-1 based on, and to the
extent of, one month’s interest at the then applicable respective Uncertificated
REMIC 2 Pass-Through Rate on the respective Uncertificated Principal Balance
of
such REMIC 2 Regular Interest, second, to REMIC 2 Regular Interest MTI-1-B
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 2 Pass-Through Rate on the respective Uncertificated
Principal Balance of such REMIC 2 Regular Interest, in each case to the extent
of one month’s interest at the then applicable respective Uncertificated REMIC 2
Pass-Through Rates on the respective Uncertificated Principal Balances of each
such REMIC 2 Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 3 Regular Interests for any Distribution Date the aggregate amount of
any
Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls incurred
in respect of the Mortgage Loans shall be allocated first, to REMIC 3 Regular
Interest MTIA-I, to the extent of one month’s interest at the then applicable
respective Uncertificated REMIC 3 Pass-Through Rate on the Uncertificated
Principal Balance of each such REMIC 3 Regular Interest; and then, to each
other
REMIC 3 Regular Interest (other than REMIC 3 Regular Interest MTIA-S, REMIC
3
Regular Interest MTIA-Swap-IO, REMIC 3 Regular Interest MTIA-P and REMIC 3
Regular Interest MTIA-R), in each case to the extent of one month’s interest at
the then applicable respective Uncertificated REMIC 3 Pass-Through Rate on
the
respective Uncertificated Principal Balance of each such REMIC 3 Regular
Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 4 Regular Interests for any Distribution Date, any Prepayment Interest
Shortfalls (to the extent not covered by Compensating Interest) relating to
the
Mortgage Loans for any Distribution Date shall be allocated in the same
priority, and to the same extent, as that allocated to the Corresponding
Certificates.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
REPRESENTATIONS
AND WARRANTIES
| SECTION 2.01 |
Conveyance
of Mortgage Loans.
|
(a) The
Depositor, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee in trust
for
the benefit of the Certificateholders, without recourse, all (i) the right,
title and interest of the Depositor (which does not include servicing rights)
in
and to each Initial Mortgage Loan, including all interest and principal received
or receivable on or with respect to such Initial Mortgage Loans after the
Cut-off Date and all interest and principal payments on the Initial Mortgage
Loans received prior to the Cut-off Date in respect of installments of interest
and principal due thereafter, but not including payments of principal and
interest due and payable on the Initial Mortgage Loans on or before the Cut-off
Date (other than the rights of the Servicers to service the Mortgage Loans
in
accordance with this Agreement), (ii) the Depositor’s rights under the
Assignment Agreement (iii) any such amounts as may be deposited into and held
by
the Trustee in the Basis Risk Reserve Fund, the Pre-Funding Account and the
Capitalized Interest Account and (iv) all proceeds of any of the foregoing.
In
addition, on or prior to the Closing Date, the Depositor shall cause the
Counterparty to enter into the Swap Agreement with the Supplemental Interest
Trust Trustee. The parties hereto agree that it is not intended that any
mortgage loan be conveyed to the Trust that is either (i) a “High-Cost Home
Loan” as defined in the New Jersey Home Ownership Act effective November 27,
2003, (ii) a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (iii) a “High Cost Home Mortgage Loan”
as defined in the Massachusetts Predatory Home Loan Practices Act effective
November 7, 2004 or (iv) a “High-Cost Home Loan” as defined by the Indiana High
Cost Home Loan Law effective January 1, 2005.
(b) In
connection with the transfer and assignment set forth in clause (a) above,
the
Depositor has delivered or caused to be delivered to the Trustee or its
designated agent, the related Custodian, for the benefit of the
Certificateholders, the documents and instruments with respect to each Mortgage
Loan as assigned:
(i) the
original Mortgage Note of the Mortgagor in the name of the Trustee or endorsed
“Pay to the order of ________________ without recourse” and signed in the name
of the last named endorsee by an authorized officer, together with all
intervening endorsements showing a complete chain of endorsements from the
originator of the related Mortgage Loan to the last endorsee or with respect
to
any Lost Mortgage Note (as such term is defined in the Pooling and Servicing
Agreement), a lost note affidavit stating that the original Mortgage Note was
lost or destroyed, together with a copy of such Mortgage Note;
(ii) for
each
Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage bearing
evidence that such instruments have been recorded in the appropriate
jurisdiction where the Mortgaged Property is located as determined by DLJMC
(or,
in lieu of the original of the Mortgage or the assignment thereof, a duplicate
or conformed copy of the Mortgage or the instrument of assignment, if any,
together with a certificate of receipt from the Seller or the settlement agent
who handled the closing of the Mortgage Loan, certifying that such copy or
copies represent true and correct copy(ies) of the original(s) and that such
original(s) have been or are currently submitted to be recorded in the
appropriate governmental recording office of the jurisdiction where the
Mortgaged Property is located) or a certification or receipt of the recording
authority evidencing the same and in the case of each MERS Mortgage Loan, the
original Mortgage, noting the presence of the MIN of the related Mortgage Loan
and either language indicating that the Mortgage Loan is a MOM Loan if the
Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at
origination, the original Mortgage and the assignment thereof to MERS, with
evidence of recording indicated thereon or a copy of the Mortgage certified
by
the public recording office in which such Mortgage has been
recorded;
(iii) for
each
Mortgage Loan that is not a MERS Mortgage Loan, the original Assignment of
Mortgage, in blank, which assignment appears to be in form and substance
acceptable for recording and, in the event that the related Seller acquired
the
Mortgage Loan in a merger, the assignment must be by “[Seller], successor by
merger to [name of predecessor]”, and in the event that the Mortgage Loan was
acquired or originated by the related Seller while doing business under another
name, the assignment must be by “[Seller], formerly known as [previous
name]”;
(iv) for
each
Mortgage Loan, at any time that such Mortgage Loan is not a MERS Mortgage Loan,
the originals of all intervening Assignments of Mortgage not included in (iii)
above showing a complete chain of assignment from the originator of such
Mortgage Loan to the Person assigning the Mortgage to the Trustee, including
any
warehousing assignment, with evidence of recording on each such Assignment
of
Mortgage (or, in lieu of the original of any such intervening assignment, a
duplicate or conformed copy of such intervening assignment together with a
certificate of receipt from the related Seller or the settlement agent who
handled the closing of the Mortgage Loan, certifying that such copy or copies
represent true and correct copy(ies) of the original(s) and that such
original(s) have been or are currently submitted to be recorded in the
appropriate governmental recording office of the jurisdiction where the
Mortgaged Property is located) or a certification or receipt of the recording
authority evidencing the same;
(v) an
original of any related security agreement (if such item is a document separate
from the Mortgage) and the originals of any intervening assignments thereof
showing a complete chain of assignment from the originator of the related
Mortgage Loan to the last assignee;
(vi) an
original assignment of any related security agreement (if such item is a
document separate from the Mortgage) executed by the last assignee in
blank;
(vii) the
originals of any assumption, modification, extension or guaranty agreement
with
evidence of recording thereon, if applicable (or, in lieu of the original of
any
such agreement, a duplicate or conformed copy of such agreement together with
a
certificate of receipt from the related Seller or the settlement agent who
handled the closing of the Mortgage Loan, certifying that such copy(ies)
represent true and correct copy(ies) of the original(s) and that such
original(s) have been or are currently submitted to be recorded in the
appropriate governmental recording office of the jurisdiction where the
Mortgaged Property is located), or a certification or receipt of the recording
authority evidencing the same;
(viii) if
the
Mortgage Note or Mortgage or any other document or instrument relating to the
Mortgage Loan has been signed by a person on behalf of the Mortgagor, the
original power of attorney or other instrument that authorized and empowered
such person to sign bearing evidence that such instrument has been recorded,
if
so required, in the appropriate jurisdiction where the Mortgaged Property is
located as determined by DLJMC (or, in lieu thereof, a duplicate or conformed
copy of such instrument, together with a certificate of receipt from the related
Seller or the settlement agent who handled the closing of the Mortgage Loan,
certifying that such copy(ies) represent true and complete copy(ies)of the
original(s) and that such original(s) have been or are currently submitted
to be
recorded in the appropriate governmental recording office of the jurisdiction
where the Mortgaged Property is located) or a certification or receipt of the
recording authority evidencing the same; and
(ix) in
the
case of the First Mortgage Loans, the original mortgage title insurance policy,
or if such mortgage title insurance policy has not yet been issued, an original
or copy of a marked-up written commitment or a pro forma title insurance policy
marked as binding and countersigned by the title insurance company or its
authorized agent either on its face or by an acknowledged closing instruction
or
escrow letter.
In
the
event the Seller delivers to the Trustee certified copies of any document or
instrument set forth in 2.01(b) because of a delay caused by the public
recording office in returning any recorded document, the Seller shall deliver
to
the Trustee, within 60 days of the Closing Date, an Officer’s Certificate which
shall (i) identify the recorded document, (ii) state that the recorded document
has not been delivered to the Trustee due solely to a delay caused by the public
recording office, and (iii) state the amount of time generally required by
the
applicable recording office to record and return a document submitted for
recordation. The Trustee shall deliver such Officer’s Certificate to the
applicable Custodian.
In
the
event that in connection with any Mortgage Loan the Depositor cannot deliver
(a)
for a Mortgage Loan that is not registered on the MERS® System, the original
recorded Mortgage, (b) all interim recorded assignments or (c) the lender’s
title policy (together with all riders thereto) satisfying the requirements
set
forth above, concurrently with the execution and delivery hereof because such
document or documents have not been returned from the applicable public
recording office in the case of clause (a) or (b) above, or because the title
policy has not been delivered to the Seller or the Depositor by the applicable
title insurer in the case of clause (c) above, the Depositor shall promptly
deliver to the Trustee, in the case of clause (a) or (b) above, such original
Mortgage or such interim assignment, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, or a copy thereof, certified, if appropriate, by the relevant recording
office and in the case of clause (c) above, if such lender’s title policy is
received by the Depositor, upon receipt thereof.
As
promptly as practicable subsequent to such transfer and assignment, and in
any
event, within thirty (30) days thereafter, the Trustee shall (at the Seller’s
expense) (i) affix the Trustee’s name to each Assignment of Mortgage, as the
assignee thereof, (ii) cause such assignment to be in proper form for recording
in the appropriate public office for real property records within thirty (30)
days after receipt thereof and (iii) cause to be delivered for recording in
the
appropriate public office for real property records the assignments of the
Mortgages to the Trustee, except that, with respect to any assignment of a
Mortgage as to which the Trustee has not received the information required
to
prepare such assignment in recordable form, the Trustee’s obligation to do so
and to deliver the same for such recording shall be as soon as practicable
after
receipt of such information and in any event within thirty (30) days after
the
receipt thereof, and the Trustee need not cause to be recorded (a) any
assignment referred to in clause (iii) above which relates to a Mortgage Loan
in
any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel
delivered to the Trustee (at the Depositor’s expense, provided such expense has
been previously approved by the Depositor in writing) within 180 days of the
Closing Date, acceptable to the Rating Agencies, the recordation of such
assignment is not necessary to protect the Trustee’s and the Certificateholders’
interest in the related Mortgage Loan or (b) if MERS is identified on the
Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee
of record solely as nominee for the Seller and its successors and
assigns.
In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the Depositor further agrees that it will cause, at the Depositor’s own
expense, on or prior to the Closing Date, the MERS® System to indicate that such
Mortgage Loans have been assigned by the Depositor to the Trustee in accordance
with this Agreement for the benefit of the Certificateholders by including
(or
deleting, in the case of Mortgage Loans which are repurchased in accordance
with
this Agreement) in such computer files (a) the code “[IDENTIFY TRUSTEE SPECIFIC
CODE]” in the field “[IDENTIFY THE FIELD NAME FOR TRUSTEE]” which identifies the
Trustee and (b) the code “[IDENTIFY SERIES SPECIFIC CODE NUMBER]” in the field
“Pool Field” which identifies the series of the Certificates issued in
connection with such Mortgage Loans. The Depositor further agrees that it will
not, and will not permit any Servicer to, and each Servicer agrees that it
will
not, alter the codes referenced in this paragraph with respect to any Mortgage
Loan during the term of this Agreement unless and until such Mortgage Loan
is
repurchased in accordance with the terms of this Agreement.
(c) The
Trustee is authorized to appoint any bank or trust company approved by the
Depositor as Custodian of the documents or instruments referred to in this
Section 2.01, and to enter into a Custodial Agreement for such purpose and
any
documents delivered thereunder shall be delivered to the related Custodian
and
any Officer’s Certificates delivered with respect thereto shall be delivered to
the Trustee and the related Custodian.
(d) It
is the
express intent of the parties to this Agreement that the conveyance of the
Mortgage Loans by the Depositor to the Trustee as provided in this Section
2.01
be, and be construed as, a sale of the Mortgage Loans by the Depositor to the
Trustee. It is, further, not the intention of the parties to this Agreement
that
such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to
the
Trustee to secure a debt or other obligation of the Depositor. However, in
the
event that, notwithstanding the intent of the parties to this Agreement, the
Mortgage Loans are held to be the property of the Depositor, or if for any
other
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans then (a) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code; (b) the conveyance provided for in this Section 2.01 shall
be
deemed to be a grant by the Depositor to the Trustee for the benefit of the
Certificateholders of a security interest in all of the Depositor’s right, title
and interest in and to the Mortgage Loans and all amounts payable to the holders
of the Mortgage Loans in accordance with the terms thereof and all proceeds
of
the conversion, voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property, including without limitation all
amounts, other than investment earnings, from time to time held or invested
in
the Certificate Account, whether in the form of cash, instruments, securities
or
other property; (c) the possession by the Trustee or any Custodian of such
items
of property and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be “in possession by
the secured party” for purposes of perfecting the security interest pursuant to
Section 9-305 of the New York Uniform Commercial Code; and (d) notifications
to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the benefit of the
Certificateholders for the purpose of perfecting such security interest under
applicable law (except that nothing in this clause (e) shall cause any person
to
be deemed to be an agent of the Trustee for any purpose other than for
perfection of such security interests unless, and then only to the extent,
expressly appointed and authorized by the Trustee in writing). The Depositor
and
the Trustee, upon directions from the Depositor, shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that,
if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest
of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement.
(e) The
Depositor hereby sells, transfers, assigns, sets over and otherwise conveys
to
the Trustee in trust for the benefit of the Certificateholders, without
recourse, all right, title and interest in such Subsequent Mortgage Loans (which
does not include servicing rights), including all interest and principal due
on
or with respect to such Subsequent Mortgage Loans on or after the related
Subsequent Transfer Date and all interest and principal payments on such
Subsequent Mortgage Loans received prior to the Subsequent Transfer Date in
respect of installments of interest and principal due thereafter, but not
including principal and interest due on such Subsequent Mortgage Loans prior
to
the related Subsequent Transfer Date, any insurance policies in respect of
such
Subsequent Mortgage Loans and all proceeds of any of the foregoing.
(f) Upon
one
Business Day’s prior written notice to the Trustee, the Servicers, the Master
Servicer and the Rating Agencies, on any Business Day during the Pre-Funding
Period designated by the Depositor, the Depositor, DLJMC, the Servicers, the
Master Servicer and the Trustee shall complete, execute and deliver a Subsequent
Transfer Agreement so long as no Rating Agency has provided notice that the
execution and delivery of such Subsequent Transfer Agreement will result in
a
reduction or withdrawal of the ratings assigned to the
Certificates.
The
transfer of Subsequent Mortgage Loans and the other property and rights relating
to them on a Subsequent Transfer Date is subject to the satisfaction of each
of
the following conditions:
(i) each
Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies
the
representations and warranties applicable to it under this Agreement as of
the
applicable Subsequent Transfer Date; provided, however, that with respect to
a
breach of a representation and warranty with respect to a Subsequent Mortgage
Loan, the obligation under Section 2.03(f) of this Agreement of the Seller
to
cure, repurchase or replace such Subsequent Mortgage Loan shall constitute
the
sole remedy against the Seller respecting such breach available to
Certificateholders, the Depositor or the Trustee;
(ii) the
Trustee and the Rating Agencies are provided with an Opinion of Counsel or
Opinions of Counsel, at the expense of the Depositor, stating that each REMIC
in
the Trust Fund is and shall continue to qualify as a REMIC following the
transfer of the Subsequent Mortgage Loans, to be delivered as provided pursuant
to Section 2.01(g);
(iii) the
Rating Agencies and the Trustee are provided with an Opinion of Counsel or
Opinions of Counsel, at the expense of the Depositor, confirming that the
transfer of the Subsequent Mortgage Loans conveyed on such Subsequent Transfer
Date is a true sale, to be delivered as provided pursuant to Section
2.01(g);
(iv) the
execution and delivery of such Subsequent Transfer Agreement or conveyance
of
the related Subsequent Mortgage Loans does not result in a reduction or
withdrawal of any ratings assigned to the Certificates by the Rating
Agencies;
(v) no
Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date is 30 or
more
days contractually delinquent as of such date;
(vi) the
remaining term to stated maturity of such Subsequent Mortgage Loan does not
exceed 30 years for fully amortizing loans or 15 years for balloon
loans;
(vii) such
Subsequent Mortgage Loan does not have a Net Mortgage Rate less than 5.000%
per
annum;
(viii) the
Depositor shall have deposited in the Collection Account all principal and
interest collected with respect to the related Subsequent Mortgage Loans on
or
after the related Subsequent Transfer Date;
(ix) such
Subsequent Mortgage Loan does not have a Combined Loan-to-Value Ratio greater
than 100.00%;
(x) such
Subsequent Mortgage Loan has a principal balance not greater than
$400,000;
(xi) no
Subsequent Mortgage Loan shall have a final maturity date after December 1,
2036;
(xii) such
Subsequent Mortgage Loan is secured by a first or second lien;
(xiii) such
Subsequent Mortgage Loan is otherwise acceptable to the Rating
Agencies;
(xiv) [reserved];
(xv) following
the conveyance of such Subsequent Mortgage Loans on such Subsequent Transfer
Date the characteristics of the Mortgage Loans (based on the Initial Mortgage
Loans as of the Cut-off Date and the Subsequent Mortgage Loans as of their
related Subsequent Transfer Date) will be as follows:
| A. |
a
weighted average Mortgage Rate of at least 10.00% per
annum;
|
| B. |
a
weighted average remaining term to stated maturity of less than 190
months;
|
| C. |
a
weighted average Combined Loan-to-Value Ratio of not more than
100.00%;
|
| D. |
a
weighted average credit score of at least
660;
|
| E. |
no
more than 90.00% of the Mortgage Loans by aggregate Cut-off Date
Principal
Balance are balloon loans;
|
| F. |
no
more than 35.00% of the Mortgage Loans by aggregate Cut-off Date
Principal
Balance are concentrated in one state;
and
|
| G. |
no
more than 10.00% of the Mortgage Loans by aggregate Cut-off Date
Principal
Balance relate to non-owner occupied
properties;
|
(xvi) neither
the Seller nor the Depositor shall be insolvent or shall be rendered insolvent
as a result of such transfer;
(xvii) no
Event
of Default has occurred hereunder; and
(xviii) the
Depositor shall have delivered to the Trustee an Officer’s Certificate
confirming the satisfaction of each of these conditions precedent.
(g) Upon
(1)
delivery to the Trustee by the Depositor of the Opinions of Counsel referred
to
in Sections 2.01(f)(ii) and (iii), (2) delivery to the Trustee by the Depositor
of a revised Mortgage Loan Schedule reflecting the Subsequent Mortgage Loans
conveyed on such Subsequent Transfer Date and the related Subsequent Mortgage
Loans and (3) delivery to the Trustee by the Depositor of an Officer’s
Certificate confirming the satisfaction of each of the conditions precedent
set
forth in Section 2.01(f), the Trustee shall remit to the Depositor the Aggregate
Subsequent Transfer Amount related to the Subsequent Mortgage Loans transferred
by the Depositor on such Subsequent Transfer Date from funds in the Pre-Funding
Account.
The
Trustee shall not be required to investigate or otherwise verify compliance
with
the conditions set forth in the preceding paragraph, except for its own receipt
of documents specified above, and shall be entitled to rely on the required
Officer’s Certificate.
| SECTION 2.02 |
Acceptance
by the Trustee.
|
The
Trustee acknowledges receipt by itself or the Custodians of the documents
identified in the Initial Certification in the form annexed hereto as Exhibit
G
and declares that it or the Custodians on its behalf hold and will hold the
documents delivered to it or the Custodians, respectively, constituting the
Mortgage Files, and that it or the related Custodian holds or will hold such
other assets as are included in the Trust Fund, in trust for the exclusive
use
and benefit of all present and future Certificateholders. The Trustee
acknowledges that it or the related Custodian will maintain possession of the
Mortgage Notes in the State of Illinois or the State of Minnesota, as directed
by the Seller, unless otherwise permitted by the Rating Agencies.
Each
Custodian is required under the related Custodial Agreement to execute and
deliver on the Closing Date to the Depositor, the Seller, the Trustee, the
Master Servicer and the Servicers an Initial Certification in the form annexed
hereto as Exhibit G with respect to the Mortgage Loans delivered to such
Custodian. The Trustee shall deliver on the Closing Date to the Depositor,
the
Seller, the Trustee, the Master Servicer and the Servicers an Initial
Certification in the form annexed hereto as Exhibit G with respect to the
Mortgage Loans delivered to the Trustee. Based on its respective review and
examination, and only as to the documents identified in such related Initial
Certification, pursuant to the Custodial Agreement, each Custodian will
acknowledge that such documents delivered to it appear regular on their face
and
relate to such Mortgage Loan and pursuant to this Agreement the Trustee will
acknowledge that such documents delivered to it appear regular on their face
and
relate to such Mortgage Loan. Neither the Trustee nor the Custodians shall
be
under any duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
Not
later
than 90 days after the Closing Date, the Trustee and the Custodians are each
required to deliver to the Depositor, the Seller, the Trustee, the Master
Servicer and the Servicers a Final Certification with respect to the Mortgage
Loans delivered to it in the form annexed hereto as Exhibit H, with any
applicable exceptions noted thereon.
If,
in
the course of such review, the Trustee or a Custodian, as applicable, finds
any
document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01, the Trustee or, pursuant to the related Custodial
Agreement, the related Custodian, will list such as an exception in the Final
Certification; provided, however, that neither the Trustee nor the Custodians
shall make any determination as to whether (i) any endorsement is sufficient
to
transfer all right, title and interest of the party so endorsing, as noteholder
or assignee thereof, in and to that Mortgage Note or (ii) any assignment is
in
recordable form or is sufficient to effect the assignment of and transfer to
the
assignee thereof under the mortgage to which the assignment
relates.
The
Seller shall promptly correct or cure such defect within 120 days from the
date
it was so notified of such defect and, if the Seller does not correct or cure
such defect within such period and such defect materially and adversely affects
the interests of the Certificateholders in the related Mortgage Loan, the Seller
shall either (a) substitute for the related Mortgage Loan a Qualified Substitute
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03, or (b) purchase such
Mortgage Loan from the Trustee within 120 days from the date the Seller was
notified of such defect in writing at the Repurchase Price of such Mortgage
Loan; provided, however, that in no event shall such substitution or repurchase
occur more than 540 days from the Closing Date, except that if the substitution
or repurchase of a Mortgage Loan pursuant to this provision is required by
reason of a delay in delivery of any documents by the appropriate recording
office, then such substitution or repurchase shall occur within 720 days from
the Closing Date; and further provided, that the Seller shall have no liability
for recording any Assignment of Mortgage in favor of the Trustee or for the
Trustee’s failure to record such Assignment of Mortgage, and the Seller shall
not be obligated to repurchase or cure any Mortgage Loan solely as a result
of
the Trustee’s failure to record such Assignment of Mortgage. The Trustee, or the
related Custodian on its behalf, shall deliver written notice to each Rating
Agency within 360 days from the Closing Date indicating each Mortgage Loan
(a)
the Assignment of Mortgage which has not been returned by the appropriate
recording office or (b) as to which there is a dispute as to location or status
of such Mortgage Loan. Such notice shall be delivered every 90 days thereafter
until the Assignment of Mortgage for the related Mortgage Loan is returned
to
the Trustee or the dispute as to location or status has been resolved. Any
such
substitution pursuant to (a) above shall not be effected prior to the delivery
to the Trustee of the Opinion of Counsel required by Section 2.05 hereof, if
any, and any substitution pursuant to (a) above shall not be effected prior
to
the additional delivery to the Trustee, from the related Servicer, of a Request
for Release substantially in the form of Exhibit M. No substitution is permitted
to be made in any calendar month after the Determination Date for such month.
The Repurchase Price for any such Mortgage Loan shall be deposited by the Seller
in the Certificate Account on or prior to the Business Day immediately preceding
such Distribution Date in the month following the month of repurchase. Upon
receipt of such deposit the related Servicer shall deliver a certification
with
respect thereto in the form of Exhibit M hereto to the Trustee, with a copy
to
the related Custodian. The Trustee, or the related Custodian on behalf of the
Trustee, shall release the related Mortgage File to the Seller and shall execute
and deliver at such entity’s request such instruments of transfer or assignment
prepared by such entity, in each case without recourse, as shall be necessary
to
vest in such entity, or a designee, the Trustee’s interest in any Mortgage Loan
released pursuant hereto. In furtherance of the foregoing, if the Seller is
not
a member of MERS and repurchases a Mortgage Loan which is registered on the
MERS® System, the Seller, at its own expense and without any right of
reimbursement, shall cause MERS to execute and deliver an assignment of the
Mortgage in recordable form to transfer the Mortgage from MERS to the Seller
and
shall cause such Mortgage to be removed from registration on the MERS® System in
accordance with MERS’ rules and regulations.
With
respect to any Mortgage Loan that is delinquent or in default and for which
the
Seller reasonably believes breaches a representation, warranty or covenant
under
a Mortgage Loan Purchase Agreement pursuant to which the Seller purchased from
the Originator or prior holder of such Mortgage Loan, the Seller shall have
the
right to repurchase such Mortgage Loan from the Trust at any time in order to
facilitate its rights against such Originator or prior holder of such Mortgage
Loan at a price equal to the Repurchase Price; provided,
however,
that in
no event shall such repurchase take place with respect to Mortgage Loans
constituting more than 5% of the aggregate Cut-off Date Principal Balance of
the
Mortgage Loans plus amounts in deposit in the Pre-Funding Account as of the
Closing Date. Any such repurchase by the Seller pursuant to this provision
shall
be effected in accordance with the provisions of Section 2.03(f).
In
the
event that the Seller exercises such option, the Repurchase Price therefore
shall be deposited in the Certificate Account. Upon such deposit of the
Repurchase Price, the related Servicer shall deliver a Request for Release
in
the form of Exhibit M hereto to the Trustee, with copies to the applicable
Custodian. The applicable Custodian shall release the related Mortgage File
held
for the benefit of the Certificateholders to the Seller, and the Trustee shall
execute and deliver at the Seller’s discretion such instruments of transfer or
assignment prepared by the Seller, in each case without recourse, as shall
be
necessary to transfer title from the Trustee to the Seller.
Pursuant
to the related Custodial Agreement, the related Custodian is required to execute
and deliver on the Subsequent Transfer Date to the Depositor, the Seller, the
Trustee, the Master Servicer and the Servicers an Initial Certification in
the
form annexed hereto as Exhibit G. Based on its review and examination, and
only
as to the documents identified in such Initial Certification, the related
Custodian shall acknowledge that such documents appear regular on their face
and
relate to such Subsequent Mortgage Loan. Neither the Trustee nor the related
Custodian shall be under a duty or obligation to inspect, review or examine
said
documents, instruments, certificates or other papers to determine that the
same
are genuine, enforceable or appropriate for the represented purpose or that
they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
Pursuant
to the related Custodial Agreement, not later than 90 days after the end of
the
Pre-Funding Period, the related Custodian is required to deliver to the
Depositor, the Seller, the Trustee and the related Servicer a Final
Certification with respect to the Subsequent Mortgage Loans in the form annexed
hereto as Exhibit H with any applicable exceptions noted thereon.
If,
in
the course of such review of the Mortgage Files relating to the Subsequent
Mortgage Loans, the related Custodian finds any document constituting a part
of
a Mortgage File which does not meet the requirements of Section 2.01, pursuant
to the related Custodial Agreement, the related Custodian will be required
to
list such as an exception in the Final Certification; provided, however that
neither the Trustee nor the related Custodian shall make any determination
as to
whether (i) any endorsement is sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in and
to
that Mortgage Note or (ii) any assignment is in recordable form or is sufficient
to effect the assignment of and transfer to the assignee thereof under the
mortgage to which the assignment relates. The Seller shall cure any such defect
or repurchase or substitute for any such Mortgage Loan in accordance with
Section 2.02(a).
Pursuant
to the related Custodial Agreement, if a Custodian discovers any defect with
respect to any Mortgage File, the Custodian shall give written specification
of
such defect to the Trustee and the Seller. The Seller shall be responsible
for
completing or correcting any missing, incomplete or inconsistent
documents.
It
is
understood and agreed that the obligation of the Seller to cure, substitute
for
or to repurchase any Mortgage Loan which does not meet the requirements of
Section 2.01 shall constitute the sole remedy respecting such defect available
to the Trustee, the Depositor and any Certificateholder against the
Seller.
The
Trustee shall pay to each Custodian from time to time reasonable compensation
for all services rendered by it hereunder or under the related Custodial
Agreement, and the Trustee shall pay or reimburse each Custodian upon its
request for all reasonable expenses, disbursements and advances incurred or
made
by such Custodian in accordance with any of the provisions of this Agreement
or
the related Custodial Agreement, except any such expense, disbursement or
advance as may arise from its negligence or bad faith.
| SECTION 2.03 |
Representations
and Warranties of the Seller, the Servicers and Master
Servicer.
|
(a) The
Seller hereby makes the representations and warranties applicable to it set
forth in Schedule II hereto, and by this reference incorporated herein, to
the
Depositor and the Trustee, as of the Closing Date, or if so specified therein,
as of the Cut-off Date or such other date as may be specified.
(b) SPS,
in
its capacity as Servicer and Master Servicer, hereby makes the representations
and warranties applicable to it set forth in Schedule IIIA hereto, and by this
reference incorporated herein, to the Depositor and the Trustee, as of the
Closing Date, or if so specified therein, as of the Cut-off Date or such other
date as may be specified.
(c) Ocwen,
in
its capacity as Servicer, hereby makes the representations and warranties
applicable to it set forth in Schedule IIIC hereto, and by this reference
incorporated herein, to the Depositor and the Trustee, as of the Closing Date,
or if so specified therein, as of the Cut-off Date or such other date as may
be
specified.
(d) Each
of
SPS and Ocwen, each in its capacity as Servicer, will use its reasonable efforts
to become a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS.
(e) The
Seller hereby makes the representations and warranties set forth in Schedule
IV
as applicable hereto, and by this reference incorporated herein, to the Trustee,
as of the Closing Date, or the Subsequent Transfer Date, as applicable, or
if so
specified therein, as of the Cut-off Date or such other date as may be
specified.
(f) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty made pursuant to Section 2.03(e) that materially and adversely affects
the interests of the Certificateholders in any Mortgage Loan, the party
discovering such breach shall give prompt notice thereof to the other parties.
The Seller hereby covenants that within 120 days of the earlier of its discovery
or its receipt of written notice from any party of a breach of any
representation or warranty made by it pursuant to Section 2.03(e) which
materially and adversely affects the interests of the Certificateholders in
any
Mortgage Loan sold by the Seller to the Depositor, it shall cure such breach
in
all material respects, and if such breach is not so cured, shall, (i) if such
120-day period expires prior to the second anniversary of the Closing Date,
remove such Mortgage Loan (a “Deleted Mortgage Loan”) from the Trust Fund and
substitute in its place a Qualified Substitute Mortgage Loan, in the manner
and
subject to the conditions set forth in this Section; or (ii) repurchase the
affected Mortgage Loan from the Trustee at the Repurchase Price in the manner
set forth below; provided, however, that any such substitution pursuant to
(i)
above shall not be effected prior to the delivery to the Trustee of the Opinion
of Counsel required by Section 2.05 hereof, if any, and any such substitution
pursuant to (i) above shall not be effected prior to the additional delivery
by
the related Servicer to the Trustee, with a copy to the related Custodian,
of a
Request for Release substantially in the form of Exhibit M and the Mortgage
File
for any such Qualified Substitute Mortgage Loan. The Seller shall promptly
reimburse the Trustee for any actual out-of-pocket expenses reasonably incurred
by the Trustee in respect of enforcing the remedies for such breach. With
respect to any representation and warranties described in this Section which
are
made to the best of a Seller’s knowledge if it is discovered by the Depositor,
the Seller or the Trustee that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value
of
the related Mortgage Loan or the interests of the Certificateholders therein,
notwithstanding the Seller’s lack of knowledge with respect to the substance of
such representation or warranty, such inaccuracy shall be deemed a breach of
the
applicable representation or warranty.
With
respect to any Qualified Substitute Mortgage Loan or Loans, the Seller shall
deliver to the Trustee for the benefit of the Certificateholders the Mortgage
Note, the Mortgage, the related assignment of the Mortgage, and such other
documents and agreements as are required by Section 2.01(b), with the Mortgage
Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution shall not
be
part of the Trust Fund and will be retained by the Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted Mortgage
Loan for such month and thereafter the Seller shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan. The Seller shall
amend the Mortgage Loan Schedule for the benefit of the Certificateholders
to
reflect the removal of such Deleted Mortgage Loan and the substitution of the
Qualified Substitute Mortgage Loan or Loans and the Seller shall deliver the
amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the
Qualified Substitute Mortgage Loan or Loans shall be subject to the terms of
this Agreement in all respects, and the Seller shall be deemed to have made
with
respect to such Qualified Substitute Mortgage Loan or Loans, as of the date
of
substitution, the representations and warranties made pursuant to Section
2.03(e) with respect to such Mortgage Loan. Upon any such substitution and
the
deposit to the Certificate Account of the amount required to be deposited
therein in connection with such substitution as described in the following
paragraph, the Trustee shall release the Mortgage File held for the benefit
of
the Certificateholders relating to such Deleted Mortgage Loan to the Seller
and
shall execute and deliver at the Seller’s direction such instruments of transfer
or assignment prepared by the Seller, in each case without recourse, as shall
be
necessary to vest title in the Seller, or its designee, the Trustee’s interest
in any Deleted Mortgage Loan substituted for pursuant to this Section
2.03.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Trustee shall determine the
amount (if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due
in
the month of substitution). The amount of such shortage (the “Substitution
Adjustment Amount”) plus an amount equal to the sum of (i) the aggregate of any
unreimbursed Advances with respect to such Deleted Mortgage Loans and (ii)
any
costs and damages actually incurred and paid by or on behalf of the Trust in
connection with any breach of the representation and warranty set forth in
Schedule IV (xx) as the result of a violation of a predatory or abusive lending
law applicable to such Mortgage Loan shall be deposited in the Certificate
Account by the Seller on or before the Business Day immediately preceding the
Distribution Date in the month succeeding the calendar month during which the
related Mortgage Loan became required to be repurchased or replaced
hereunder.
In
the
event that the Seller shall have repurchased a Mortgage Loan, the Repurchase
Price therefor shall be deposited in the Certificate Account on or before the
Business Day immediately preceding the Distribution Date in the month following
the month during which the Seller became obligated hereunder to repurchase
or
replace such Mortgage Loan. Upon such deposit of the Repurchase Price and the
delivery of the Opinion of Counsel if required by Section 2.05, the related
Servicer shall deliver a Request for Release in the form of Exhibit M hereto
to
the Trustee, with a copy to the related Custodian. The Trustee, or the related
Custodian on behalf of the Trustee, shall release the related Mortgage File
held
for the benefit of the Certificateholders to such Person, and the Trustee shall
execute and deliver at such Person’s direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall
be
necessary to transfer title from the Trustee. It is understood and agreed that
the obligation under this Agreement of any Person to cure, repurchase or
substitute any Mortgage Loan as to which a breach has occurred and is continuing
shall constitute the sole remedy against such Persons respecting such breach
available to Certificateholders, the Depositor or the Trustee on their
behalf.
The
representations and warranties made pursuant to this Section 2.03 shall survive
delivery of the respective Mortgage Files to the Trustee for the benefit of
the
Certificateholders.
| SECTION 2.04 |
Representations
and Warranties of the Depositor as to the Mortgage
Loans.
|
The
Depositor hereby represents and warrants to the Trustee with respect to the
Mortgage Loans that, as of the Closing Date, assuming good title has been
conveyed to the Depositor, the Depositor had good title to the Mortgage Loans
and Mortgage Notes, and did not encumber the Mortgage Loans during its period
of
ownership thereof, other than as contemplated by the Agreement.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the Mortgage Files to the
Trustee.
| SECTION 2.05 |
Delivery
of Opinion of Counsel in Connection with
Substitutions.
|
Notwithstanding
any contrary provision of this Agreement, no substitution pursuant to Section
2.02 shall be made more than 120 days after the Closing Date unless the Seller
delivers to the Trustee an Opinion of Counsel, which Opinion of Counsel shall
not be at the expense of either the Trustee or the Trust Fund, addressed to
the
Trustee, to the effect that such substitution will not (i) result in the
imposition of the tax on “prohibited transactions” on the Trust Fund or
contributions after the Startup Date, as defined in Sections 860F(a)(2) and
860G(d) of the Code, respectively, or (ii) cause any REMIC created hereunder
to
fail to qualify as a REMIC at any time that any Certificates are
outstanding.
| SECTION 2.06 |
Execution
and Delivery of Certificates.
|
The
Trustee (or the related Custodian) acknowledges receipt of the items described
in Section 2.02 of this Agreement and the documents identified in the Initial
Certification in the form annexed hereto as Exhibit G and, concurrently with
such receipt, has executed and delivered to or upon the order of the Depositor,
the Certificates in authorized denominations evidencing directly or indirectly
the entire ownership of the Trust Fund. The Trustee agrees to hold the Trust
Fund and exercise the rights referred to above for the benefit of all present
and future Holders of the Certificates and to perform the duties set forth
in
this Agreement to the best of its ability, to the end that the interests of
the
Holders of the Certificates may be adequately and effectively
protected.
| SECTION 2.07 |
REMIC
Matters.
|
The
Preliminary Statement sets forth the designations and “latest possible maturity
date” for federal income tax purposes of all interests created hereby. The
“Startup Day” for purposes of the REMIC Provisions shall be the Closing Date.
The REMIC 1 Regular Interests shall be designated as the “regular interests” in
REMIC 1. The REMIC 2 Regular Interests shall be designated as the “regular
interests” in REMIC 2. The REMIC 3 Regular Interests shall be designated as the
“regular interests” in REMIC 3. The REMIC 4 Regular Interests shall be
designated as the “regular interests” in REMIC 4. The Class A-1, Class A-2,
Class A-3, Class A-IO, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9, Class B-1, Class P, Class X-1 and
Class X-S Certificates and the REMIC 5 Regular Interest IO shall be designated
as the “regular interests” in REMIC 5. The Class A-R Certificates will represent
beneficial ownership of five residual interests, Class R-1 Interest, Class
R-2
Interest, Class R-3 Interest, Class R-4 Interest and Class R-5 Interest, each
of
which will constitute the sole class of residual interests in each of REMIC
1,
REMIC 2, REMIC 3, REMIC 4 and REMIC 5, respectively. The Trustee shall not
permit the creation of any “interests” (within the meaning of Section 860G of
the Code) in REMIC 1, REMIC 2, REMIC 3, REMIC 4 or REMIC 5 other than the
Certificates, the REMIC 1 Regular Interests, the REMIC 2 Regular Interests,
the
REMIC 3 Regular Interests or the REMIC 4 Regular Interests. The “tax matters
person” with respect to each of REMIC 1, REMIC 2, REMIC 3, REMIC 4 and REMIC 5
shall be the Holder of the Class A-R Certificate at any time holding the largest
Percentage Interest thereof in the manner provided under Treasury regulations
section 1.860F-4(d) and Treasury regulations section 301.6231(a)(7)-1. The
fiscal year for each REMIC shall be the calendar year. In addition, the Class
X-1 Certificateholders shall be deemed to have entered into a contractual
arrangement with the Class A-R Certificateholders whereby the Class A-R
Certificateholders agree to pay to the Class X-1 Certificateholders on each
Distribution Date amounts that would, in the absence of such contractual
agreement, be distributable with respect to the residual interest in REMIC
1,
REMIC 2, REMIC 3, REMIC 4 and REMIC 5 pursuant to Section 4.02(b)(iv)CC. (which
amounts are expected to be zero).
| SECTION 2.08 |
Covenants
of each Servicer.
|
Each
respective Servicer hereby covenants to the Depositor and the Trustee that
no
written information, certificate of an officer, statement furnished in writing
or written report prepared by such Servicer and delivered to the Depositor,
any
affiliate of the Depositor or the Trustee and prepared by such Servicer pursuant
to this Agreement will contain any untrue statement of a material
fact.
| SECTION 2.09 |
Conveyance
of REMIC Regular Interests and Acceptance of REMIC 1, REMIC 2, REMIC
3,
REMIC 4 and REMIC 5 by the Trustee; Issuance of
Certificates.
|
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
1 Regular Interests for the benefit of the Holder of the REMIC 2 Regular
Interests and the Holders of the Class R-2 Interest. The Trustee acknowledges
receipt of the REMIC 1 Regular Interests (each of which is uncertificated)
and
declares that it holds and will hold the same in trust for the exclusive use
and
benefit of the Holders of the REMIC 2 Regular Interests and Holder of the Class
R-2 Interest. The interests evidenced by the Class R-2 Interest, together with
the REMIC 2 Regular Interests, constitute the entire beneficial ownership
interest in REMIC 2.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
2 Regular Interests for the benefit of the Holders of the REMIC 3 Regular
Interests and the Class R-3 Interest. The Trustee acknowledges receipt of the
REMIC 2 Regular Interests (each of which is uncertificated) and declares that
it
holds and will hold the same in trust for the exclusive use and benefit of
the
Holders of the REMIC 3 Regular Interests and of the Class R-3 Interest. The
interests evidenced by the Class R-3 Interest, together with the REMIC 3 Regular
Interests, constitute the entire beneficial ownership interest in REMIC
3.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
3 Regular Interests for the benefit of the Holders of the REMIC 4 Regular
Interests and the Class R-4 Interest. The Trustee acknowledges receipt of the
REMIC 3 Regular Interests (each of which is uncertificated) and declares that
it
holds and will hold the same in trust for the exclusive use and benefit of
the
Holders of the REMIC 4 Regular Interests and of the Class R-4 Interest. The
interests evidenced by the Class R-4 Interest, together with the REMIC 4 Regular
Interests, constitute the entire beneficial ownership interest in REMIC
4.
(d) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
4 Regular Interests for the benefit of the Holders of the Regular Certificates
and the Class R-5 Interest. The Trustee acknowledges receipt of the REMIC 4
Regular Interests (each of which is uncertificated) and declares that it holds
and will hold the same in trust for the exclusive use and benefit of the Holders
of the Regular Certificates and of the Class R-5 Interest. The interests
evidenced by the Class R-5 Interest, together with the Regular Certificates,
constitute the entire beneficial ownership interest in REMIC 5.
(e) In
exchange for the REMIC 4 Regular Interests and, concurrently with the assignment
to the Trustee thereof, pursuant to the written request of the Depositor
executed by an officer of the Depositor, the Trustee has executed, authenticated
and delivered to or upon the order of the Depositor, the Regular Certificates
in
authorized denominations evidencing (together with the Class R-5 Interest)
the
entire beneficial ownership interest in REMIC 5.
(f) Concurrently
with (i) the assignment and delivery to the Trustee of REMIC 1 (including the
Residual Interest therein represented by the Class R-1 Interest) and the
acceptance by the Trustee thereof, pursuant to Section 2.01, Section 2.02 and
Section 2.09(a); (ii) the assignment and delivery to the Trustee of REMIC 2
(including the Residual Interest therein represented by the Class R-2 Interest)
and the acceptance by the Trustee thereof, pursuant to Section 2.09(b); (iii)
the assignment and delivery to the Trustee of REMIC 3 (including the Residual
Interest therein represented by the Class R-3 Interest) and the acceptance
by
the Trustee thereof, pursuant to Section 2.09(c); (iv) the
assignment and delivery to the Trustee of REMIC 4 (including the Residual
Interest therein represented by the Class R-4 Interest) and the acceptance
by
the Trustee thereof, pursuant to Section 2.09(d)
and (v)
the assignment and delivery to the Trustee of REMIC 5 (including the Residual
Interest therein represented by the Class R-5 Interest) and the acceptance
by
the Trustee thereof, pursuant to Section 2.09(e), the Trustee, pursuant to
the
written request of the Depositor executed by an officer of the Depositor, has
executed, authenticated and delivered to or upon the order of the Depositor,
the
Regular Certificates and the Class A-R Certificates in authorized denominations
evidencing the Class R-1 Interest, the Class R-2 Interest, the Class R-3
Interest, the Class R-4 Interest and the Class R-5 Interest.
| SECTION 2.10 |
Purposes
and Powers of the Trust.
|
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The
trust
is hereby authorized to engage in the foregoing activities. The Trustee shall
not cause the trust to engage in any activity other than in connection with
the
foregoing or other than as required or authorized by the terms of this Agreement
while any Certificate is outstanding, and this Section 2.10 may not be
amended.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
| SECTION 3.01 |
Servicers
to Service Mortgage Loans.
|
For
and
on behalf of the Certificateholders, each Servicer shall service and administer
the Mortgage Loans in accordance with the terms of this Agreement and with
Accepted Servicing Practices. The obligations of each of SPS and Ocwen hereunder
to service and administer the Mortgage Loans shall be limited to the SPS
Serviced Loans and Ocwen Serviced Loans, respectively; and with respect to
the
duties and obligations of each Servicer, references herein to the “Mortgage
Loans” or “related Mortgage Loans” shall be limited to the the SPS Serviced
Loans (and the related proceeds thereof and related REO Properties), in the
case
of SPS and the Ocwen Serviced Loans (and the related proceeds thereof and
related REO Properties), in the case of Ocwen, and in no event shall any
Servicer have any responsibility or liability with respect to any of the
other
Mortgage Loans. Notwithstanding anything in this Agreement, any Subservicing
Agreement or the Credit Risk Management Agreement to the contrary, neither
SPS
nor Ocwen shall have any duty or obligation to enforce any Credit Risk
Management Agreement to which it is not a party, nor to supervise, monitor
or
oversee the activities of the Credit Risk Manager under any other Credit
Risk
Management Agreement with respect to any action taken or not taken by SPS
or
Ocwen, as applicable, pursuant to a recommendation of the Credit Risk Manager.
The only obligation of SPS as Master Servicer is to approve Mortgage Loan
modifications proposed by the Servicers in accordance with Section 3.05(a).
SPS,
in its capacity as Master Servicer, shall not have (i) any duty or obligation
to
supervise, monitor or oversee the servicing activities of any Servicer (other
than with respect to the approval of loan modifications) or (ii) any other
remittance or reporting obligations typically performed by a Master Servicer
in
similar transactions. In connection with such servicing and administration,
each
Servicer shall have full power and authority, acting alone and/or through
Subservicers as provided in Section 3.02 hereof, to do or cause to be done
any
and all things that it may deem necessary or desirable in connection with
such
servicing and administration, including but not limited to, the power and
authority, subject to the terms hereof (i) to execute and deliver, on behalf
of
the Certificateholders and the Trustee, customary consents or waivers and
other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages (but
only
in the manner provided in this Agreement), (iii) to collect any Insurance
Proceeds and other Liquidation Proceeds, and (iv) to effectuate foreclosure
or
other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan; provided that a Servicer shall not take any action that is
materially inconsistent with or materially prejudices the interests of the
Trust
Fund or the Certificateholders in any Mortgage Loan or the rights and interests
of the Depositor, the Trustee or the Certificateholders under this Agreement
unless such action is specifically called for by the terms hereof. The Trustee
will provide a limited power of attorney to each Servicer, prepared by each
Servicer and reasonably acceptable to the Trustee, to permit each Servicer
to
act on behalf of the Trustee under this Agreement. Each Servicer hereby
indemnifies the Trustee for all costs and expenses incurred by the Trustee
in
connection with the negligent or willful misuse of such power of attorney.
Each
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. Each Servicer
further is hereby authorized and empowered in its own name or in the name
of the
Subservicer, when such Servicer or the Subservicer, as the case may be, believes
it is appropriate in its best judgment to register any Mortgage Loan on the
MERS® System, or cause the removal from the registration of any Mortgage Loan on
the MERS® System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment
and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any reasonable expenses incurred in connection with
the
actions described in the preceding sentence or as a result of MERS discontinuing
or becoming unable to continue operations in connection with the MERS® System,
shall be reimbursable by the Trust Fund to such Servicer. Notwithstanding
the
foregoing, subject to Section 3.05(a), the Servicers shall not make or permit
any modification, waiver or amendment of any Mortgage Loan that would both
constitute a sale or exchange of such Mortgage Loan within the meaning of
Section 1001 of the Code and any proposed, temporary or final regulations
promulgated thereunder (other than in connection with a proposed conveyance
or
assumption of such Mortgage Loan that is treated as a Principal Prepayment
in
Full pursuant to Section 3.10 hereof) which would cause any of REMIC 1, REMIC
2,
REMIC 3, REMIC 4 or REMIC 5 to fail to qualify as a REMIC. Without limiting
the
generality of the foregoing, each Servicer, in its own name or in the name
of
the Depositor and the Trustee, is hereby authorized and empowered by the
Depositor and the Trustee, when such Servicer believes it appropriate in
its
reasonable judgment, to execute and deliver, on behalf of the Trustee, the
Depositor, the Certificateholders or any of them, any and all instruments
of
satisfaction or cancellation, 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 held for the benefit of the
Certificateholders. Each Servicer shall prepare and deliver to the Depositor
and/or the Trustee such documents requiring execution and delivery by either
or
both of them as are necessary or appropriate to enable such Servicer to service
and administer the Mortgage Loans to the extent that such Servicer is not
permitted to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of such documents and a written request signed by
an
authorized officer, the Depositor and/or the Trustee shall execute such
documents and deliver them to such Servicer.
In
accordance with the standards of the preceding paragraph, each Servicer shall
advance or cause to be advanced funds as necessary for the purpose of effecting
the payment of taxes and assessments on any Mortgaged Property (to the extent
such Servicer has been notified that such taxes or assessments have not paid
by
the related Mortgagor or the owner or the servicer of the related First Mortgage
Loan), which advances shall be reimbursable in the first instance from related
collections from the Mortgagors pursuant to Section 3.06, and further as
provided in Section 3.08; provided, however, that each Servicer shall be
required to advance only to the extent that such advances, in the good faith
judgment of such Servicer, will be recoverable by such Servicer out of Insurance
Proceeds, Liquidation Proceeds, or otherwise out of the proceeds of the related
Mortgage Loan; and provided, further, that such payments shall be advanced
within such time period required to avoid the loss of the Mortgaged Property
by
foreclosure of a tax or other lien. The costs incurred by a Servicer, if any,
in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit; provided, however, that the
limitations contained in this sentence will not apply to modifications made
pursuant to Section 3.05(a).
Subject
to the provisions of the first paragraph of this Section, the Trustee shall
execute, at the written request of a Servicer, and furnish to such Servicer
and
any Subservicer such documents as are necessary or appropriate to enable such
Servicer or any Subservicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grants to each Servicer a power of
attorney, to be completed in the form of Exhibit AA hereto, to carry out such
duties. The Trustee shall not be liable for the actions of the Servicers or
any
Subservicers under such powers of attorney.
If
the
Mortgage relating to a Mortgage Loan had a lien senior to the Mortgage Loan
on
the related Mortgaged Property as of the Cut-off Date, then the related
Servicer, in such capacity, may consent to the refinancing of the prior senior
lien, provided that the following requirements are met:
(i) the
resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no higher than
the Combined Loan-to-Value Ratio prior to such refinancing; and
(ii) the
interest rate, or, in the case of an adjustable rate existing senior lien,
the
maximum interest rate, for the loan evidencing the refinanced senior lien is
no
more than 2.0% higher than the interest rate or the maximum interest rate,
as
the case may be, on the loan evidencing the existing senior lien immediately
prior to the date of such refinancing; and
(iii) the
loan
evidencing the refinanced senior lien is not subject to negative
amortization.
With
respect to the Mortgage Loans, the Servicer of each Mortgage Loan agrees that,
with respect to the Mortgagors of such Mortgage Loans, such Servicer for each
Mortgage Loan shall furnish, in accordance with the Fair Credit Reporting Act
and its implementing regulations, accurate and complete information on its
borrower credit files to Equifax, Experian and Trans Union Credit Information
Company on a monthly basis.
| SECTION 3.02 |
Subservicing;
Enforcement of the Obligations of
Subservicers.
|
(a) The
Mortgage Loans may be subserviced by a Subservicer on behalf of the related
Servicer in accordance with the servicing provisions of this Agreement, provided
that the Subservicer is an approved Xxxxxx Xxx or Xxxxxxx Mac seller/servicer
in
good standing. A Servicer may perform any of its servicing responsibilities
hereunder or may cause the Subservicer to perform any such servicing
responsibilities on its behalf, but the use by such Servicer of the Subservicer
shall not release such Servicer from any of its obligations hereunder and such
Servicer shall remain responsible hereunder for all acts and omissions of the
Subservicer as fully as if such acts and omissions were those of such Servicer.
Each Servicer shall pay all fees and expenses of any Subservicer engaged by
such
Servicer from its own funds.
Notwithstanding
the foregoing, each Servicer shall be entitled to outsource one or more separate
servicing functions to a Person (each, an “Outsourcer”) that does not meet the
eligibility requirements for a Subservicer, so long as such outsourcing does
not
constitute the delegation of such Servicer’s obligation to perform all or
substantially all of the servicing of the related Mortgage Loans to such
Outsourcer. In such event, the use by a Servicer of any such Outsourcer shall
not release such Servicer from any of its obligations hereunder and such
Servicer shall remain responsible hereunder for all acts and omissions of such
Outsourcer as fully as if such acts and omissions were those of such Servicer,
and such Servicer shall pay all fees and expenses of the Outsourcer from such
Servicer’s own funds.
(b) At
the
cost and expense of a Servicer, without any right of reimbursement from the
Depositor, Trustee, the Trust Fund, or the Collection Account, such Servicer
shall be entitled to terminate the rights and responsibilities of its
Subservicer and arrange for any servicing responsibilities to be performed
by a
successor Subservicer meeting the requirements set forth in Section 3.02(a),
provided, however, that nothing contained herein shall be deemed to prevent
or
prohibit such Servicer, at such Servicer’s option, from electing to service the
related Mortgage Loans itself. In the event that a Servicer’s responsibilities
and duties under this Agreement are terminated pursuant to Section 7.01, and
if
requested to do so by the Trustee, such Servicer shall at its own cost and
expense terminate the rights and responsibilities of its Subservicer as soon
as
is reasonably possible. Each Servicer shall pay all fees, expenses or penalties
necessary in order to terminate the rights and responsibilities of its
Subservicer from such Servicer’s own funds without any right of reimbursement
from the Depositor, Trustee, the Trust Fund, or the Collection
Account.
(c) Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between a Servicer and its Subservicer, a Servicer and its Outsourcer, or any
reference herein to actions taken through the Subservicer, the Outsourcer,
or
otherwise, no Servicer shall be relieved of its obligations to the Depositor,
Trustee or Certificateholders and shall be obligated to the same extent and
under the same terms and conditions as if it alone were servicing and
administering the related Mortgage Loans. Each Servicer shall be entitled to
enter into an agreement with its Subservicer and Outsourcer for indemnification
of such Servicer or Outsourcer, as applicable, by such Subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
For
purposes of this Agreement, a Servicer shall be deemed to have received any
collections, recoveries or payments with respect to the related Mortgage Loans
that are received by a related Subservicer or Outsourcer, as applicable,
regardless of whether such payments are remitted by the Subservicer or
Outsourcer, as applicable, to such Servicer.
Any
Subservicing Agreement and any other transactions or services relating to the
Mortgage Loans involving a Subservicer or an Outsourcer shall be deemed to
be
between the Subservicer or an Outsourcer, and related Servicer alone, and the
Depositor, the Trustee and the other Servicer shall have no obligations, duties
or liabilities with respect to a Subservicer including no obligation, duty
or
liability of the Depositor and Trustee or the Trust Fund to pay a Subservicer’s
fees and expenses.
| SECTION 3.03 |
[Reserved].
|
| SECTION 3.04 |
Trustee
to Act as Servicer.
|
(a) In
the
event that any Servicer shall for any reason no longer be a Servicer hereunder
(including by reason of an Event of Default), the Trustee or its successor
shall
thereupon assume all of the rights and obligations of such Servicer hereunder
arising thereafter (except that the Trustee shall not be (i) liable for losses
of such Servicer pursuant to Section 3.09 hereof or any acts or omissions of
the
related predecessor Servicer hereunder, (ii) obligated to make Advances if
it is
prohibited from doing so by applicable law or (iii) deemed to have made any
representations and warranties of such Servicer hereunder). Any such assumption
shall be subject to Section 7.02 hereof.
Each
Servicer shall, upon request of the Trustee, but at the expense of such
Servicer, deliver to the assuming party all documents and records relating
to
each Subservicing Agreement or substitute Subservicing Agreement and the
Mortgage Loans then being serviced thereunder and hereunder by such Servicer
and
an accounting of amounts collected or held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the substitute
Subservicing Agreement to the assuming party.
(b) [reserved].
| SECTION 3.05 |
Collection
of Mortgage Loans; Collection Accounts; Certificate Account; Pre-Funding
Account; Capitalized Interest
Account.
|
(a) Continuously
from the date hereof until the principal and interest on all Mortgage Loans
have
been paid in full or such Mortgage Loans have become Liquidated Mortgage
Loans,
each Servicer shall proceed in accordance with Accepted Servicing Practices
to
collect all payments due under each of the related Mortgage Loans when the
same
shall become due and payable to the extent consistent with this Agreement
and,
consistent with such standard, with respect to Escrow Mortgage Loans, a Servicer
shall ascertain and estimate Escrow Payments and all other charges that will
become due and payable with respect to the Mortgage Loans and the Mortgaged
Properties, to the end that the installments payable by the Mortgagors will
be
sufficient to pay such charges as and when they become due and payable.
Consistent with the foregoing, in connection with Mortgage Loans which it
is
directly servicing, each Servicer may in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in connection
with
the prepayment of a Mortgage Loan (provided that any such related prepayment
charge waiver shall be in accordance with the provisions of Section 4.09)
and
(ii) extend the Due Dates for payments due on a Mortgage Note for a period
not
greater than 180 days; provided,
however,
that no
such Servicer can extend the maturity of any such Mortgage Loan past the
date on
which the final payment is due on the latest maturing Mortgage Loan as of
the
Cut-off Date. Consistent with the foregoing, in instances when a Mortgage
Loan
is in default or default is reasonably foreseeable (within the meaning of
the
REMIC Provisions), the related Servicer may modify the terms of such Mortgage
Loan to (1) capitalize to the principal balance of any unreimbursed Advances,
unreimbursed Servicing Advances, unpaid Servicing Fees, and related amounts
due
to the related Servicer with respect to the related Mortgage Loan; (2) defer
such amounts to a balloon payment due on the final payment date of such Mortgage
Loan; (3) extend the maturity of any such Mortgage Loan, but in no instance
past
the date on which the final payment is due on the latest maturing Mortgage
Loan
as of the Cut-off Date; (4) reduce the related Mortgage Rate (provided that
the
Mortgage Rate of any adjustable rate Mortgage Loan may not be reduced below
the
Mortgage Rate of such Mortgage Loan immediately prior to the related first
adjustment date); and/or (5) accept less than the outstanding principal balance
as satisfaction of such Mortgage Loan; provided,
however,
that
the related Servicer shall be obligated to obtain the consent of the Master
Servicer prior to taking any such action, if so directed by the Master Servicer
and provided further, that the aggregate principal balance of all mortgage
loans
subject to modifications (measured at the time of the modification and after
giving effect to any modification) can be no more than five percent of the
Aggregate Collateral Balance as of the Cut-off Date, provided, that such
limit
may be increased from time to time if each Rating Agency provides written
confirmation that an increase in excess of that limit will not reduce the
rating
assigned to any Class of Certificates by such Rating Agency below the lower
of
the then-current rating or the rating assigned to such Certificates as of
the
Closing Date by such Rating Agency. To the extent a Servicer is required
to
obtain the consent of the Master Servicer prior to any modification, it shall
submit to the Master Servicer the information contained in Exhibit GG. If
the
Servicer has not received a response from the Master Servicer regarding such
modification within ten (10) Business Days, then the Servicer may proceed
with
such modification as though an affirmative response had been provided by
the
Master Servicer. Any such waiver, modification, postponement or indulgence
granted to a Mortgagor by a Servicer in connection with its servicing of
the
related First Mortgage Loan shall not be considered relevant to a determination
of whether such Servicer has acted consistently with the terms and standards
of
this Agreement, so long as in such Servicer’s determination such action is not
materially adverse to the interests of the Certificateholders. Notice of
any
such modifications shall be provided (i) in writing, by the related Servicer
to
the Depositor and the Trustee or (ii) as part of the monthly report delivered
by
the related Servicer to the Trustee. In the event of any such arrangement
that
permits the deferment of principal and interest payment on any Mortgage Loan,
the related Servicer shall make Advances on the related Mortgage Loan in
accordance with the provisions of Section 4.01 during the scheduled period
in
accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements. Each Servicer shall
not be
required to institute or join in litigation with respect to collection of
any
payment (whether under a Mortgage, Mortgage Note or otherwise or against
any
public or governmental authority with respect to a taking or condemnation)
if it
reasonably believes that enforcing the provision of the Mortgage or other
instrument pursuant to which such payment is required is prohibited by
applicable law.
(b) Each
Servicer shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan separate and apart from any of its own funds and general assets
and shall establish and maintain one or more Collection Accounts, each of which
shall be an Eligible Account, titled “[Servicer’s name], in trust for the
Holders of Credit Suisse First Boston Mortgage Securities Corp., Home Equity
Mortgage Pass-Through Certificates, Series 2006-5” or, if established and
maintained by a Subservicer on behalf of the related Servicer, “[Subservicer’s
name], in trust for [Servicer’s name]” or “[Subservicer’s name], as agent,
trustee and/or bailee of principal and interest custodial account for
[Servicer’s name], its successors and assigns, for various owners of interest in
[Servicer’s name] mortgage-backed pools”. Any funds deposited in a Collection
Account shall at all times be either invested in Eligible Investments or shall
be fully insured to the full extent permitted under applicable law. Funds
deposited in a Collection Account may be drawn on by the applicable Servicer
in
accordance with Section 3.08.
Each
Servicer shall deposit in the Collection Account within two Business Days of
receipt and retain therein, the following collections remitted by Subservicers
or payments received by such Servicer and payments made by such Servicer
subsequent to the Cut-off Date, other than Scheduled Payments due on or before
the Cut-off Date:
(i) all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the per annum
rate equal to the Mortgage Rate reduced by the related Servicing Fee
Rate;
(iii) all
Liquidation Proceeds on the Mortgage Loans;
(iv) all
Insurance Proceeds on the Mortgage Loans including amounts required to be
deposited pursuant to Section 3.09 (other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with Section 3.09);
(v) all
Advances made by such Servicer pursuant to Section 4.01;
(vi) with
respect to each Principal Prepayment on the Mortgage Loans, the Compensating
Interest Payment, if any, for the related Prepayment Period;
(vii) any
amounts required to be deposited by such Servicer in respect of net monthly
income from REO Property pursuant to Section 3.11; and
(viii) any
other
amounts required to be deposited hereunder including all collected Prepayment
Charges.
The
foregoing requirements for deposit into each Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, Ancillary Income need not be deposited by such Servicer into
such Collection Account. In addition, notwithstanding the provisions of this
Section 3.05, each Servicer may deduct from amounts received by it, prior to
deposit to the applicable Collection Account, any portion of any Scheduled
Payment representing the applicable Servicing Fee. In the event that a Servicer
shall remit any amount not required to be remitted, it may at any time withdraw
or direct the institution maintaining the related Collection Account to withdraw
such amount from such Collection Account, any provision herein to the contrary
notwithstanding. Such withdrawal or direction may be accomplished by delivering
written notice thereof to the Trustee or such other institution maintaining
such
Collection Account which describes the amounts deposited in error in such
Collection Account. Each Servicer shall maintain adequate records with respect
to all withdrawals made by it pursuant to this Section. All funds deposited
in a
Collection Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 3.08.
(c) On
or
prior to the Closing Date, the Trustee shall establish and maintain, on behalf
of the Certificateholders, the Certificate Account. The Trustee shall, promptly
upon receipt, deposit in the Certificate Account and retain therein the
following:
(i) the
aggregate amount remitted by each Servicer to the Trustee pursuant to Section
3.08(viii);
(ii) any
amount deposited by the Trustee pursuant to Section 3.05(d) in connection with
any losses on Eligible Investments; and
(iii) any
other
amounts deposited hereunder which are required to be deposited in the
Certificate Account.
In
the
event that a Servicer shall remit to the Trustee any amount not required to
be
remitted, it may at any time direct the Trustee to withdraw such amount from
the
Certificate Account, any provision herein to the contrary notwithstanding.
Such
direction may be accomplished by delivering an Officer’s Certificate to the
Trustee which describes the amounts deposited in error in the Certificate
Account. All funds deposited in the Certificate Account shall be held by the
Trustee in trust for the Certificateholders until disbursed in accordance with
this Agreement or withdrawn in accordance with Section 3.08(b). In no event
shall the Trustee incur liability for withdrawals from the Certificate Account
at the direction of a Servicer.
(d) Each
institution at which a Collection Account, the Certificate Account or the
Pre-Funding Account is maintained shall either hold such funds on deposit
uninvested or shall invest the funds therein as directed in writing by the
related Servicer (in the case of a Collection Account), the Trustee (in the
case
of the Certificate Account) or the Depositor (in the case of the Pre-Funding
Account), in Eligible Investments, which shall mature not later than (i) in
the
case of a Collection Account, the second Business Day immediately preceding
the
related Distribution Date and (ii) in the case of the Certificate Account and
the Pre-Funding Account, the Business Day immediately preceding the Distribution
Date and, in each case, shall not be sold or disposed of prior to its maturity.
All income and gain net of any losses realized from any such balances or
investment of funds on deposit in a Collection Account and any other benefit
arising from the Collection Account shall be for the benefit of the related
Servicer as servicing compensation and shall be remitted to it monthly as
provided herein. The amount of any realized losses in a Collection Account
incurred in any such account in respect of any such investments shall promptly
be deposited by the related Servicer in the related Collection Account. The
Trustee in its fiduciary capacity shall not be liable for the amount of any
loss
incurred in respect of any investment or lack of investment of funds held in
a
Collection Account or the Pre-Funding Account. All income and gain net of any
losses realized from any such investment of funds on deposit in the Certificate
Account shall be for the benefit of the Trustee as compensation and shall be
remitted to it monthly as provided herein. The amount of any realized losses
in
the Certificate Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Trustee in the Certificate
Account. All income and gain net of any losses realized from any such balances
or investment of funds on deposit in the Pre-Funding Account shall be for the
benefit of the Depositor and shall be remitted to it monthly.
(e) Each
Servicer shall give notice to the Trustee, the Seller, each Rating Agency and
the Depositor of any proposed change of the location of the related Collection
Account prior to any change thereof. The Trustee shall give notice to each
Servicer, the Seller, each Rating Agency and the Depositor of any proposed
change of the location of the Certificate Account prior to any change
thereof.
(f) The
Trustee shall establish and maintain, on behalf of the Certificateholders,
the
Pre-Funding Account. On the Closing Date, the Depositor shall remit the
Pre-Funding Amount to the Trustee for deposit in the Pre-Funding Account. On
each Subsequent Transfer Date, upon satisfaction of the conditions for such
Subsequent Transfer Date set forth in Section 2.01(f), with respect to the
related Subsequent Transfer Agreement, the Trustee shall remit to the Depositor
the applicable Aggregate Subsequent Transfer Amount as payment of the purchase
price for the related Subsequent Mortgage Loans.
If
any
funds remain in the Pre-Funding Account on January 24, 2007, to the extent
they
represent interest earnings on the amounts originally deposited into the
Pre-Funding Account, the Trustee shall distribute them to the order of the
Depositor. The remaining funds in the Pre-Funding Account shall be transferred
to the Certificate Account to be included as part of principal distributions
to
the Certificates, in accordance with the priorities set forth herein, on the
January 2007 Distribution Date.
(g) The
Trustee shall establish and maintain, on behalf of the Certificateholders,
the
Capitalized Interest Account. On the Closing Date, the Depositor shall remit
the
Capitalized Interest Deposit to the Trustee for deposit in the Capitalized
Interest Account. On
the
Business Day prior to each of the November 2006, December 2006 and January
2007
Distribution Dates, the Trustee shall transfer to the Certificate Account from
each Capitalized Interest Account an amount equal to the Capitalized Interest
Requirement for such Distribution Date. On
each
of the November 2006 and December 2006 Distribution Dates, the Overfunded
Interest Amount shall be withdrawn from the Capitalized Interest Account and
paid to the Depositor. Any funds remaining in the Capitalized Interest Account
immediately after the January 2007 Distribution Date shall be paid to the
Depositor.
| SECTION 3.06 |
Establishment
of and Deposits to Escrow Accounts; Permitted Withdrawals from Escrow
Accounts; Payments of Taxes, Insurance and Other
Charges.
|
(a) To
the
extent required by the related Mortgage Note and not in violation of current
law, the applicable Servicer shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan constituting Escrow Payments separate
and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, each of which shall be an Eligible
Account, titled, “[Servicer’s name], in trust for “Credit Suisse First Boston
Mortgage Securities Corp., Home Equity Mortgage Pass-Through Certificates,
Series 2006-5 and various mortgagors” or, if established and maintained by a
Subservicer on behalf of the related Servicer, “[Subservicer’s name], in trust
for [Servicer’s name]” or “[Subservicer’s name], as agent, trustee and/or bailee
of taxes and insurance custodial account for [Servicer’s name], its successors
and assigns, for various owners of interest in [Servicer’s name] mortgage-backed
pools”. Funds deposited in the Escrow Account may be drawn on by the related
Servicer in accordance with Section 3.06(b). All income and gain net of any
losses realized from any such balances or investment of funds on deposit in
an
Escrow Account and any other benefit arising from the Escrow Account shall
be
for the benefit of the related Servicer as servicing compensation and shall
be
remitted to it monthly as provided herein. The creation of any Escrow Account
shall be evidenced by a certification in the form of Exhibit P-1 hereto, in
the
case of an account established with a Servicer, or by a letter agreement in
the
form of Exhibit P-2 hereto, in the case of an account held by a depository
other
than a Servicer. A copy of such certification shall be furnished to the
Depositor and Trustee.
(b) Each
Servicer shall deposit in its Escrow Account or Accounts on a daily basis within
one Business Day of receipt and retain therein:
(i) all
Escrow Payments collected on account of the related Mortgage Loans, for the
purpose of effecting timely payment of any such items as required under the
terms of this Agreement; and
(ii) all
amounts representing Insurance Proceeds which are to be applied to the
restoration or repair of any Mortgaged Property.
Each
Servicer shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 3.06(c).
Each Servicer shall be entitled to retain any interest paid on funds deposited
in the related Escrow Account by the depository institution, other than interest
on escrowed funds required by law to be paid to the Mortgagor. To the extent
required by law, the applicable Servicer shall pay interest on escrowed funds
to
the Mortgagor notwithstanding that the Escrow Account may be non-interest
bearing or that interest paid thereon is insufficient for such
purposes.
(c) Withdrawals
from the Escrow Account or Accounts may be made by the related Servicer
only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
(ii) to
reimburse such Servicer for any Servicing Advances made by such Servicer
pursuant to this Agreement with respect to a related Mortgage Loan, but only
from amounts received on the related Mortgage Loan which represent late
collections of Escrow Payments thereunder;
(iii) to
refund
to any Mortgagor any funds found to be in excess of the amounts required under
the terms of the related Mortgage Loan;
(iv) for
transfer to the related Collection Account to reduce the principal balance
of
the related Mortgage Loan in accordance with the terms of the related Mortgage
and Mortgage Note;
(v) for
application to restore or repair of the related Mortgaged Property in accordance
with the procedures outlined in Section 3.09;
(vi) to
pay to
such Servicer, or any Mortgagor to the extent required by law, any interest
paid
on the funds deposited in such Escrow Account;
(vii) to
clear
and terminate such Escrow Account on the termination of this Agreement;
and
(viii) to
remove
funds inadvertently placed in the Escrow Account by such Servicer.
| SECTION 3.07 |
Access
to Certain Documentation and Information Regarding the Mortgage Loans;
Inspections.
|
(a) Each
Servicer shall afford the Depositor and the Trustee reasonable access to all
records and documentation regarding the Mortgage Loans and all accounts,
insurance information and other matters relating to this Agreement, such access
being afforded without charge, but only upon reasonable request and during
normal business hours at the office designated by such Servicer. In addition,
each Servicer shall provide to any Special Servicer reasonable access to all
records and documentation regarding the Mortgage Loans serviced by it that
become Special Serviced Mortgage Loans. Each Servicer may, from time to time,
provide the Depositor, and any Person designated by the Depositor, with reports
and information regarding the Mortgage Loans, including without limitation,
information requested by the Depositor or an originator of the Mortgage Loans
for required institutional risk control.
(b) If,
at
the request of the Seller or the Depositor or otherwise in accordance with
the
terms of this Agreement, a Servicer enters into a special servicing advisory
agreement with a Holder of any Class of Certificates, such Servicer, pursuant
to
the terms of any such agreement, may provide such Holder, in its capacity as
special servicing advisor, with loan-level information with respect to the
Mortgage Loans.
(c) Each
Servicer shall inspect the Mortgaged Properties as often as deemed necessary
by
such Servicer in such Servicer’s sole discretion, to assure itself that the
value of such Mortgaged Property is being preserved. In addition, if any
Mortgage Loan is more than 60 days delinquent, each Servicer shall conduct
subsequent inspections in accordance with Accepted Servicing Practices or as
may
be required by the primary mortgage guaranty insurer. Each Servicer shall keep
a
written or electronic report of each such inspection.
| SECTION 3.08 |
Permitted
Withdrawals from the Collection Accounts and Certificate
Account.
|
Each
Servicer may (and in the case of clause (viii) below, shall) from time to time
make withdrawals from the related Collection Account for the following
purposes:
(i) to
pay to
such Servicer (to the extent not previously retained by such Servicer) the
servicing compensation to which it is entitled pursuant to Section 3.14, and
to
pay to such Servicer, as additional servicing compensation, earnings on or
investment income with respect to funds in or credited to such Collection
Account;
(ii) to
reimburse such Servicer for unreimbursed Advances made by it, such right of
reimbursement pursuant to this subclause (ii) being limited to amounts received
on the Mortgage Loan(s) in respect of which any such Advance was made (including
without limitation, late recoveries of payments, Liquidation Proceeds and
Insurance Proceeds, amounts representing proceeds of other insurance policies,
if any, covering the related Mortgaged Property, rental and other income from
REO Property and proceeds of any purchase or repurchase of the related Mortgage
Loan to the extent deposited in the Collection Account);
(iii) to
reimburse such Servicer for any Nonrecoverable Advance previously made from
collections or proceeds of any of the Mortgage Loans;
(iv) to
reimburse such Servicer for (A) unreimbursed Servicing Advances, such Servicer’s
right to reimbursement pursuant to this clause (A) with respect to any Mortgage
Loan being limited to amounts received on such Mortgage Loan which represent
late payments of principal and/or interest (including, without limitation,
Liquidation Proceeds and Insurance Proceeds, amounts representing proceeds
of
other insurance policies, if any, covering the related Mortgaged Property,
rental and other income from REO Property and proceeds of any purchase or
repurchase of the related Mortgage Loan with respect to such Mortgage Loan)
respecting which any such advance was made, (B) for unpaid Servicing Fees as
provided in Section 3.11 hereof and (C) in the case of Ocwen, for unpaid
Servicing Fees not otherwise collected from Liquidation Proceeds;
(v) to
pay to
the purchaser, with respect to each Mortgage Loan or property acquired in
respect thereof that has been purchased pursuant to Section 2.02, 2.03 or 3.11,
all amounts received thereon after the date of such purchase;
(vi) to
reimburse such Servicer or the Depositor for expenses incurred by any of them
and reimbursable pursuant to Section 6.03 hereof;
(vii) to
withdraw any amount deposited in such Collection Account and not required to
be
deposited therein;
(viii) on
or
prior to the Servicer Cash Remittance Date, to withdraw an amount equal to
the
Available Funds (other than clause (vi) thereof) plus any related Expense Fees
(other than the Servicing Fee) for such Distribution Date and any Prepayment
Charges received in respect of the Mortgage Loans, subject to the collection
of
funds included in the definition of “Available Funds” and remit such amount to
the Trustee for deposit in the Certificate Account;
(ix) to
pay
itself any Prepayment Interest Excess; provided that in accordance with the
definition of “Prepayment Interest Excess,” the applicable Servicer shall only
be entitled to Prepayment Interest Excess with respect to any Mortgage Loan
and
any Distribution Date if the related Principal Prepayment in full is deposited
to the related Collection Account pursuant to Section 3.05(b)(i) hereof in
the
same month as such Principal Prepayment in full is made, to be included with
distributions on such Distribution Date;
(x) to
clear
and terminate such Collection Account upon termination of this Agreement
pursuant to Section 9.01 hereof;
(xi) to
invest
funds in certain Eligible Investments and to transfer funds to another Eligible
Account;
(xii) to
reimburse such Servicer for any unpaid Servicing Fees to which such Servicer
is
entitled under this Agreement, including (A) in connection with the termination
of the obligations of such Servicer and (B) any accrued and unpaid Servicing
Fees at the time a Mortgage Loan becomes a Charged Off Loan; and
(xiii) to
reimburse such Servicer for any Capitalization Reimbursement Amount not
previously reimbursed.
Each
Servicer shall keep and maintain separate accounting, on a Mortgage Loan basis
for the purpose of justifying any withdrawal from the Collection Account
pursuant to such subclauses (i), (ii), (iv) and (v). Prior to making any
withdrawal from a Collection Account pursuant to subclause (iii), the related
Servicer shall deliver to the Trustee a certificate of a Servicing Officer
indicating the amount of any previous Advance determined by such Servicer to
be
a Nonrecoverable Advance and identifying the related Mortgage Loans(s), and
their respective portions of such Nonrecoverable Advance.
The
Trustee shall withdraw funds from the Certificate Account for distributions
to
the Certificateholders and the Credit Risk Manager, if applicable, in the manner
specified in this Agreement (and to withhold from the amounts so withdrawn,
the
amount of any taxes that it is authorized to withhold pursuant to the last
paragraph of Section 8.11). In addition, the Trustee may from time to time
make
withdrawals from the Certificate Account for the following
purposes:
(i) to
pay to
itself the Trustee Fee and any investment income earned for the related
Distribution Date;
(ii) to
withdraw and return to the applicable Servicer for deposit to the Collection
Account any amount deposited in the Certificate Account and not required to
be
deposited therein; and
(iii) to
clear
and terminate the Certificate Account upon termination of this Agreement
pursuant to Section 9.01 hereof.
| SECTION 3.09 |
Maintenance
of Hazard Insurance and Mortgage Impairment Insurance; Claims; Restoration
of Mortgaged Property.
|
Each
Servicer shall obtain and maintain a blanket policy insuring against losses
arising from fire and hazards covered under extended coverage on all of the
related Mortgage Loans, which policy shall provide coverage in an amount equal
to the amount at least equal to the lesser of (i) the maximum insurable value
of
the improvements securing such Mortgage Loan and (ii) the greater of (A) the
outstanding principal balance of the Mortgage Loan and (B) an amount such that
the proceeds of such policy shall be sufficient to prevent the Mortgagor and/or
the mortgagee from becoming co-insurer. Any amounts collected by a Servicer
under any such policy relating to a Mortgage Loan (for the avoidance of doubt,
remaining after application of any such amounts to any related First Mortgage
Loan) shall be deposited in the related Collection Account subject to withdrawal
pursuant to Section 3.08. Such policy may contain a deductible clause, in which
case, in the event that there shall not have been maintained on the related
Mortgaged Property a standard hazard insurance policy, and there shall have
been
a loss which would have been covered by such policy, the related Servicer shall
deposit in the related Collection Account at the time of such loss the amount
not otherwise payable under the blanket policy because of such deductible clause
which is in excess of a deductible under a standard hazard insurance policy,
such amount to be deposited from such Servicer’s funds, without reimbursement
therefor. Upon request of the Trustee, a Servicer shall cause to be delivered
to
the Trustee a certified true copy of such policy and a statement from the
insurer thereunder that such policy shall in no event be terminated or
materially modified without 30 days’ prior written notice to the Trustee. In
connection with its activities as Servicer of the Mortgage Loans, each Servicer
agrees to present, on behalf of itself, the Depositor, and the Trustee for
the
benefit of the Certificateholders, claims under any such blanket
policy.
Pursuant
to Section 3.05, any amounts collected by a Servicer under any such policies
(other than amounts to be deposited in the related Escrow Account and applied
to
the restoration or repair of the related Mortgaged Property, or property
acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor, in accordance with such Servicer’s normal servicing procedures) shall
be deposited in the related Collection Account (subject to withdrawal pursuant
to Section 3.08). Any costs incurred by a Servicer in maintaining such insurance
shall be recoverable by such Servicer as a Servicing Advance out of payments
by
the related Mortgagor or out of Insurance Proceeds or Liquidation Proceeds.
Notwithstanding anything to the contrary in this paragraph, each Servicer shall
be required to pay the costs of maintaining any insurance contemplated by this
Section 3.09 only to the extent that such advances, in the good faith judgment
of such Servicer, will be recoverable.
A
Servicer need not obtain the approval of the Trustee prior to releasing any
Insurance Proceeds to the Mortgagor to be applied to the restoration or repair
of the Mortgaged Property if such release is in accordance with Accepted
Servicing Practices. At a minimum, each Servicer shall comply with the following
conditions in connection with any such release of Insurance Proceeds in excess
of $10,000:
(i) such
Servicer shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect
thereto;
(ii) such
Servicer shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens; and
(iii) pending
repairs or restoration, such Servicer shall place the Insurance Proceeds in
the
related Escrow Account, if any.
If
the
Trustee is named as an additional loss payee, the related Servicer is hereby
empowered to endorse any loss draft issued in respect of such a claim in the
name of the Trustee.
| SECTION 3.10 |
Enforcement
of Due-on-Sale Clauses; Assumption
Agreements.
|
Each
Servicer shall use its best efforts to enforce any “due-on-sale” provision
contained in any related Mortgage or Mortgage Note and to deny assumption by
the
person to whom the Mortgaged Property has been or is about to be sold whether
by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the related Servicer shall, to
the
extent it has knowledge of such conveyance, exercise its rights to accelerate
the maturity of such Mortgage Loan under the “due-on-sale” clause applicable
thereto, provided, however, that such Servicer shall not exercise such rights
if
prohibited by law from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related Primary Insurance Policy,
if any or, if consistent with Accepted Servicing Practices, such Servicer
believes the collections and other recoveries in respect of such Mortgage Loans
could reasonably be expected to be maximized if the Mortgage Loan were not
accelerated.
If
a
Servicer reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause or, if any of the other conditions set forth in the last
sentence of the preceding paragraph apply, such Servicer shall enter into (i)
an
assumption and modification agreement with the person to whom such property
has
been conveyed, pursuant to which such person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event
such
Servicer is unable under applicable law to require that the original Mortgagor
remain liable under the Mortgage Note and such Servicer has the prior consent
of
the primary mortgage guaranty insurer, a substitution of liability agreement
with the purchaser of the Mortgaged Property pursuant to which the original
Mortgagor is released from liability and the purchaser of the Mortgaged Property
is substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, a Servicer shall not be deemed to be in default
under this Section by reason of any transfer or assumption which such Servicer
reasonably believes it is restricted by law from preventing, for any reason
whatsoever. In connection with any such assumption, no material term of the
Mortgage Note, including without limitation, the Mortgage Rate borne by the
related Mortgage Note, the term of the Mortgage Loan or the outstanding
principal amount of the Mortgage Loan shall be changed.
Subject
to each Servicer’s duty to enforce any due-on-sale clause to the extent set
forth in this Section 3.10, in any case in which a Mortgaged Property has been
conveyed to a Person by a Mortgagor, and such Person is to enter into an
assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage that requires the signature of the Trustee, or if an instrument
of release signed by the Trustee is required releasing the Mortgagor from
liability on the Mortgage Loan, such Servicer shall prepare and deliver or
cause
to be prepared and delivered to the Trustee for signature and shall direct,
in
writing, the Trustee to execute the assumption agreement with the Person to
whom
the Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or Mortgage
or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person. In connection with any such
assumption, no material term of the Mortgage Note may be changed. Together
with
each such substitution, assumption or other agreement or instrument delivered
to
the Trustee for execution by it, the related Servicer shall deliver an Officer’s
Certificate signed by a Servicing Officer stating that the requirements of
this
Section 3.10 have been met in connection therewith. The related Servicer shall
notify the Trustee that any such substitution or assumption agreement has been
completed by forwarding to the Trustee the original of such substitution or
assumption agreement, which in the case of the original shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of
such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by a Servicer for entering into
an assumption, modification or substitution of liability agreement will be
retained by such Servicer as additional servicing compensation.
| SECTION 3.11 |
Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
|
(a) (i)Each
Servicer shall use reasonable efforts to foreclose upon or otherwise comparably
convert the ownership of properties securing such of the related Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments. With respect
to
such of the Mortgage Loans as come into and continue in default, each Servicer
will decide whether to (i) foreclose upon the Mortgaged Properties securing
such
Mortgage Loans, (ii) write off the unpaid principal balance of the Mortgage
Loans as bad debt, (iii) take a deed in lieu of foreclosure, (iv) accept 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 permit 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), (v) arrange for a repayment plan, or (vi) agree to a modification
in
accordance with this Agreement. In connection with such decision, the related
Servicer shall take such action as (i) such Servicer would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (ii) shall be consistent with Accepted Servicing Practices,
(iii) such Servicer shall determine consistently with Accepted Servicing
Practices to be in the best interest of the Trustee and Certificateholders,
provided, that actions taken by a Servicer in connection with its servicing
of
the related First Mortgage Loan shall not be considered relevant to a
determination of whether such Servicer has met the standard set forth in this
clause (iii), so long as in such Servicer’s determination such action is not
materially adverse to the interests of the Certificateholders and (iv) is
consistent with the requirements of the insurer under any Required Insurance
Policy; provided, however, that such Servicer shall not be required to expend
its own funds in connection with any foreclosure or towards the restoration
of
any property unless it shall determine in its sole discretion (i) that such
restoration and/or foreclosure will increase the proceeds of liquidation of
the
related Mortgage Loan after reimbursement to itself of such expenses and (ii)
that such expenses will be recoverable to it through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
related Collection Account). The related Servicer shall be responsible for
all
other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the liquidation
proceeds with respect to the related Mortgaged Property, as provided in the
definition of Liquidation Proceeds and as provided in Section
3.08(iv)(A).
(ii) Notwithstanding
anything to the contrary contained in this Agreement, with respect to any
Mortgage Loan that is one hundred twenty (120) days delinquent, the related
Servicer shall have obtained or shall obtain a broker’s price opinion with
respect to the related Mortgaged Property and shall use all reasonable efforts
to obtain a total indebtedness balance (including, but not limited to, unpaid
principal, interest, escrows, taxes and expenses) for any related senior lien.
The cost of obtaining any such broker’s price opinion shall be reimbursable to
the related Servicer as a Servicing Advance pursuant to Section 3.08(iii) or
(iv). After obtaining the related broker’s price opinion, the related Servicer
will determine whether any Significant Net Recovery is possible through
foreclosure proceedings or other liquidation of the related Mortgaged Property.
If the related Servicer determines that (x) no Significant Net Recovery is
possible or (y) the potential Net Recoveries are anticipated to be an amount,
determined by the related Servicer in its good faith judgment and in light
of
other mitigating circumstances, that is insufficient to warrant proceeding
through foreclosure or other liquidation of the related Mortgaged Property,
it
may, at its discretion, charge off such delinquent Mortgage Loan in accordance
with subsections (a)(iii) and (a)(iv) below.
(iii) With
respect to any Mortgage Loan, if the related Servicer determines based on the
broker’s price opinion obtained under paragraph (a)(ii) above and other relevant
considerations that (x) no Significant Net Recovery is possible through
foreclosure proceedings or other liquidation of the related Mortgaged Property
or (y) the potential Net Recoveries are anticipated to be an amount, determined
by the related Servicer in its good faith judgment and in light of other
mitigating circumstances, that is insufficient to warrant proceeding through
foreclosure or other liquidation of the related Mortgaged Property, it will
be
obligated to charge off the related Mortgage Loan at the time such Mortgage
Loan
becomes 180 days delinquent. Once a Mortgage Loan has been charged off, the
related Servicer will discontinue making Advances, the related Servicer will
not
be entitled to any additional servicing compensation (except as described in
paragraphs(a)(ii) or (a)(iv) of this Section 3.11), the Charged Off Loan will
give rise to a Realized Loss, and the related Servicer will follow the
procedures described in paragraph (a)(iv) below. If the related Servicer
determines that (x) a Significant Net Recovery is possible through foreclosure
proceedings or other liquidation of the Mortgaged Property and (y) the potential
Net Recoveries are anticipated to be an amount, determined by the related
Servicer in its good faith judgment and in light of other mitigating
circumstances, that is sufficient to warrant proceeding through foreclosure
or
other liquidation of the related Mortgaged Property, such Servicer may continue
to make Advances or Servicing Advances on the related Mortgage Loan that has
become 180 days delinquent and, will notify the Credit Risk Manager of that
decision.
(iv) Any
SPS
Serviced Loan or Ocwen Serviced Loan that becomes a Charged Off Loan may
continue to be serviced by the related Servicer for the Certificateholders
using
SPS Special Servicing or Ocwen Special Servicing, as applicable. SPS or Ocwen,
as applicable, will accrue, but not be entitled to, any Servicing Fees and
reimbursement of expenses in connection with such Charged Off Loans, except
to
the extent of funds available from the aggregate amount of recoveries on all
SPS
Serviced Loans or Ocwen Serviced Loans, as applicable, that are Charged Off
Loans. Such aggregate recovery amounts on SPS Serviced Loans or Ocwen Serviced
Loans, as applicable, that are Charged Off Loans shall be paid to SPS or Ocwen,
as applicable, first, as reimbursement of any outstanding and unpaid expenses,
and second, as any accrued and unpaid Servicing Fees. SPS and Ocwen will only
be
entitled to previously accrued Servicing Fees and expenses on any such related
Charged Off Loans. SPS and Ocwen will not be entitled to receive any future
unaccrued Servicing Fees or expenses from collections on such related Charged
Off Loans. Any Charged Off Loan serviced by SPS or Ocwen, as applicable, using
SPS Special Servicing or Ocwen Special Servicing, as applicable, shall be so
serviced until the Release Date described below. Any Net Recoveries on such
Charged Off Loans received prior to the Release Date will be included in
Available Funds.
On
the
date (the “Release Date”) which is no more than six months after the date on
which SPS or Ocwen begins servicing any Charged Off Loans using SPS Special
Servicing or Ocwen Special Servicing, as applicable, unless specific Net
Recoveries are anticipated by SPS or Ocwen, as applicable, on a particular
Charged Off Loan (in which case the Release Date will be delayed until all
such
specific anticipated Net Recoveries are received), such Charged Off Loan will
be
released from the Trust Fund, will no longer be an asset of any REMIC, and
will
be transferred to the Class X-2 Certificateholders, without recourse, and
thereafter (i) those Holders (as identified with contact information in writing
to the related Servicer by the Depositor) will be entitled to any amounts
subsequently received in respect of any such Released Loans, subject to the
related Servicer’s fees described below, (ii) the Majority in Interest Class X-2
Certificateholder may designate any servicer to service any such Released Loan
subject to the related Servicer’s fees described below, (iii) the Majority in
Interest Class X-2 Certificateholder may sell any such Released Loan to a third
party and (iv) to the extent the servicing of such Released Loan is not
transferred from the related Servicer, the servicing of such Charged Off Loans
and the fees therefor shall be governed by the most current servicing agreement
between the related Servicer and the Seller. Notwithstanding the previous
sentence, if at any time after a Mortgage Loan has been Charged Off and prior
to
six months after the date on which SPS or Ocwen begins servicing such Charged
Off Loan using SPS Special Servicing or Ocwen Special Servicing, as applicable,
SPS or Ocwen, as applicable, determines that there will not be any Net
Recoveries on such Charged Off Loan under any circumstances, SPS or Ocwen,
as
applicable, may release such Charged Off Loan to the Majority in Interest Class
X-2 Certificateholder in accordance with the provisions set forth in the
previous sentence.
Notwithstanding
the foregoing, the procedures described above in this subsection 3.11(a)(iv)
relating to the treatment of Charged Off Loans may be modified at any time
at
the discretion of the Majority in Interest Class X-1 Certificateholder, with
the
consent of SPS and Ocwen, which consents shall not be unreasonably withheld;
provided, however, that in no event shall the Majority in Interest Class X-1
Certificateholder change the fee structure relating to Charged Off Loans in
a
manner that would cause fees to be paid to SPS and Ocwen other than from
recoveries on Charged Off Loans.
The
Trustee shall track collections received by SPS and Ocwen on any Charged Off
Loans based upon loan level data provided to the Trustee by SPS and Ocwen on
each Servicer Data Remittance Date in a report in the form of Exhibit U hereto,
identifying the Charged Off Loans as of the related Due Period that SPS or
Ocwen, as applicable, will continue to service until the related Release Date
using SPS Special Servicing or Ocwen Special Servicing, as applicable. On each
Distribution Date, the Trustee shall verify, based on the recovery and expense
information provided by SPS or Ocwen, as applicable, on the related Servicer
Data Remittance Date, (i) the aggregate amount of accrued and unpaid Servicing
Fees to be paid to SPS or Ocwen, as applicable, and expenses to be reimbursed
to
SPS or Ocwen, as applicable, on such Charged Off Loans as of the related Due
Period and (ii) the amount of Net Recoveries on such Charged Off Loans for
such
Distribution Date. The Trustee shall be entitled to rely, without independent
verification, on the loan level data provided by SPS or Ocwen, as applicable,
that identifies the recovery amounts and the outstanding and unpaid expenses
on
any Charged Off Loan in order to verify the amount in clause (ii) of the
previous sentence. The Trustee will be responsible for independently verifying
the aggregate amount of accrued and unpaid Servicing Fees described in clause
(i) of the second preceding sentence to be paid to SPS or Ocwen, as
applicable.
(v) Notwithstanding
anything to the contrary contained in this Agreement, in connection with a
foreclosure or acceptance of a deed in lieu of foreclosure, in the event the
related Servicer has reasonable cause to believe that a Mortgaged Property
is
contaminated by hazardous or toxic substances or wastes, or if the Trustee
otherwise requests, an environmental inspection or review of such Mortgaged
Property conducted by a qualified inspector shall be arranged for by the such
Servicer. Upon completion of the inspection, the related Servicer shall promptly
provide the Trustee with a written report of environmental inspection. It is
understood by the parties hereto that any cost related to such inspection shall
be advanced by the related Servicer and will be deemed a Servicing Advance
in
accordance with the provisions of Section 3.08 hereof.
(vi) In
the
event the environmental inspection report indicates that the Mortgaged Property
is contaminated by hazardous or toxic substances or wastes, the related Servicer
shall not proceed with foreclosure or acceptance of a deed in lieu of
foreclosure if the estimated costs of the environmental clean up, as estimated
in the environmental inspection report, together with the Servicing Advances
made by such Servicer and the estimated costs of foreclosure or acceptance
of a
deed in lieu of foreclosure exceeds the estimated value of the Mortgaged
Property. If however, the aggregate of such clean up and foreclosure costs
and
Servicing Advances are less than or equal to the estimated value of the
Mortgaged Property, then the related Servicer may, in its reasonable judgment
and in accordance with Accepted Servicing Practices, choose to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure and such Servicer
shall be reimbursed for all reasonable costs associated with such foreclosure
or
acceptance of a deed in lieu of foreclosure and any related environmental clean
up costs, as applicable, from the related Liquidation Proceeds, or if the
Liquidation Proceeds are insufficient to fully reimburse such Servicer, such
Servicer shall be entitled to be reimbursed from amounts in the related
Collection Account pursuant to Section 3.08 hereof. In the event the related
Servicer does not proceed with foreclosure or acceptance of a deed in lieu
of
foreclosure pursuant to the first sentence of this paragraph, such Servicer
shall be reimbursed for all Servicing Advances made with respect to the related
Mortgaged Property from the related Collection Account pursuant to Section
3.08
hereof, such Servicer shall have no further obligation to service such Mortgage
Loan under the provisions of this Agreement.
(b) With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of U.S. Bank National Association (or in the case of a successor
trustee, the name of such successor trustee), the Trustee for the benefit of
the
Certificateholders of Home Equity Mortgage Trust Series 2006-5, or its nominee,
on behalf of the Certificateholders. The Trustee’s name shall be placed on the
title to such REO Property solely as the Trustee hereunder and not in its
individual capacity. Pursuant to its efforts to sell such REO Property, the
related Servicer shall in accordance with Accepted Servicing Practices manage,
conserve, protect and operate each REO Property for the purpose of its prompt
disposition and sale. The related Servicer, either itself or through an agent
selected by such Servicer, shall manage, conserve, protect and operate the
REO
Property in the same manner that it manages, conserves, protects and operates
other foreclosed property for its own account, and in the same manner that
similar property in the same locality as the REO Property is managed. The
related Servicer may rent such property, as such Servicer deems to be in the
best interest of the Trustee and the Certificateholders for the period prior
to
the sale of such REO Property on such terms and conditions and for such periods
as such Servicer deems to be in the best interest of the Trustee and the
Certificateholders. The related Servicer shall furnish to the Trustee on or
before each Distribution Date a statement with respect to any REO Property
covering the liquidation thereof during the previous calendar month. That
statement shall be accompanied by such other information as the Trustee shall
reasonably request and which is necessary to enable the Trustee to comply with
the reporting requirements of the REMIC Provisions. The net monthly rental
income, if any, from such REO Property shall be deposited in the related
Collection Account no later than the close of business on each Determination
Date. The related Servicer shall perform the tax reporting and withholding
required by Sections 1445 and 6050J of the Code with respect to foreclosures
and
abandonments, the tax reporting required by Section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and any tax
reporting required by Section 6050P of the Code with respect to the cancellation
of indebtedness by certain financial entities, by preparing such tax and
information returns as may be required, in the form required, and delivering
the
same to the Trustee for filing.
To
the
extent consistent with Accepted Servicing Practices, the related Servicer shall
also maintain on each REO Property fire and hazard insurance with extended
coverage in amount which is equal to the outstanding principal balance of the
related Mortgage Loan (as reduced by any amount applied as a reduction of
principal at the time of acquisition of the REO Property), liability insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required above. Any
costs
incurred by a Servicer in maintaining such insurance shall be recoverable by
such Servicer as a Servicing Advance out of payments by the related Mortgagor
or
out of Insurance Proceeds or Liquidation Proceeds. Notwithstanding anything
to
the contrary in this paragraph, each Servicer shall be required to pay the
costs
of maintaining any insurance contemplated by this Section 3.11(b) only to the
extent that such advances, in the good faith judgment of such Servicer, will
be
recoverable.
(c) In
the
event that the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the related Servicer shall dispose of such Mortgaged Property prior to three
years after the end of the calendar year of its acquisition by the Trust Fund
unless (i) the Trustee shall have been supplied with an Opinion of Counsel
to
the effect that the holding by the Trust Fund of such Mortgaged Property
subsequent to such three-year period will not result in the imposition of taxes
on “prohibited transactions” of any REMIC hereunder as defined in section 860F
of the Code or cause any REMIC hereunder to fail to qualify as a REMIC at any
time that any Certificates are outstanding, in which case the Trust Fund may
continue to hold such Mortgaged Property (subject to any conditions contained
in
such Opinion of Counsel) or (ii) the applicable Servicer shall have applied
for,
prior to the expiration of such three-year period, an extension of such
three-year period in the manner contemplated by Section 856(e)(3) of the Code,
in which case the three-year period shall be extended by the applicable
extension period. The applicable Servicer shall be entitled to be reimbursed
from the Collection Account, as a Servicing Advance, for any costs incurred
in
obtaining such Opinion of Counsel. Notwithstanding any other provision of this
Agreement, no Mortgaged Property acquired by the Trust Fund shall be rented
(or
allowed to continue to be rented) or otherwise used for the production of income
by or on behalf of the Trust Fund in such a manner or pursuant to any terms
that
would (i) cause such Mortgaged Property to fail to qualify as “foreclosure
property” within the meaning of section 860G(a)(8) of the Code or (ii) subject
any REMIC hereunder to the imposition of any federal, state or local income
taxes on the income earned from such Mortgaged Property under Section 860G(c)
of
the Code or otherwise, unless the related Servicer has agreed to indemnify
and
hold harmless the Trust Fund with respect to the imposition of any such
taxes.
In
the
event of a default on a Mortgage Loan one or more of whose obligor is not a
United States Person, as that term is defined in Section 7701(a)(30) of the
Code, in connection with any foreclosure or acquisition of a deed in lieu of
foreclosure (together, “foreclosure”) in respect of such Mortgage Loan, the
related Servicer will cause compliance with the provisions of Treasury
Regulation Section 1.1445-2(d)(3) (or any successor thereto) necessary to assure
that no withholding tax obligation arises with respect to the proceeds of such
foreclosure except to the extent, if any, that proceeds of such foreclosure
are
required to be remitted to the obligors on the Mortgage Loan.
(d) The
income earned from the management of any REO Properties, net of reimbursement
to
such Servicer for expenses incurred (including any property or other taxes)
in
connection with such management and net of applicable accrued and unpaid
Servicing Fees, and unreimbursed Advances and Servicing Advances, shall be
applied to the payment of principal and interest on the related defaulted
Mortgage Loans (with interest accruing as though such Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the related Collection Account.
To
the extent the net income received during any calendar month is in excess of
the
amount attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related Mortgage Loan for such calendar month, such excess
shall be considered to be a partial prepayment of principal of the related
Mortgage Loan.
No
Servicer shall acquire any Mortgaged Property on behalf of any REMIC created
hereunder in connection with a default or imminent default on a Foreclosure
Restricted Loan, if acquiring title to the Mortgaged Property underlying the
loan would cause the adjusted basis, for federal income tax purposes, of these
Mortgaged Properties owned by the related REMIC after foreclosure, along with
any other assets owned by the related REMIC other than “qualified mortgages” and
“permitted investments” within the meaning of Section 860G of the Code, to
exceed 0.75% of the adjusted basis of the assets of the related REMIC. If the
adjusted basis of such Mortgaged Properties in foreclosure, along with any
other
assets owned by the related REMIC, other than “qualified mortgages” and
“permitted investments” with the meaning of Section 860G of the Code, exceed
1.0% of the adjusted basis of the assets of the related REMIC immediately after
the distribution of principal and interest on any Distribution Date, the
applicable Servicer will dispose of enough of such Mortgaged Properties in
foreclosure, for cash or otherwise, so that the adjusted basis of such Mortgaged
Properties in foreclosure, along with any other assets owned by the related
REMIC, other than “qualified mortgages” and “permitted investments” within the
meaning of Section 860G of the Code, will be less than 1.0% of the adjusted
basis of the assets of the related REMIC. With respect to each Servicer, the
foregoing percentage limitations will apply only to the Mortgage Loans serviced
by such Servicer.
(e) The
proceeds from any liquidation of a Mortgage Loan, as well as any income from
an
REO Property, if applicable, will be applied in the following order of priority:
first, to reimburse the related Servicer for any related unreimbursed Servicing
Advances and Servicing Fees; second, to reimburse such Servicer for any
unreimbursed Advances; third, to reimburse the related Collection Account for
any Nonrecoverable Advances (or portions thereof) that were previously withdrawn
by such Servicer pursuant to Section 3.08(iii) that related to such Mortgage
Loan; fourth, to accrued and unpaid interest (to the extent no Advance has
been
made for such amount or any such Advance has been reimbursed) on the Mortgage
Loan or related REO Property, at the per annum rate equal to the related
Mortgage Rate reduced by the related Servicing Fee Rate, to the Due Date
occurring in the month in which such amounts are required to be distributed;
and
fifth, as a recovery of principal of the Mortgage Loan. Excess proceeds, if
any,
from the liquidation of a Liquidated Mortgage Loan will be retained by the
related Servicer as additional servicing compensation pursuant to Section 3.14.
| SECTION 3.12 |
Trustee
to Cooperate; Release of Mortgage
Files.
|
Upon
the
payment in full of any Mortgage Loan, or the receipt by a Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, such Servicer will immediately notify the Trustee (or the related
Custodian, as the case may be) by delivering, or causing to be delivered a
“Request for Release” substantially in the form of Exhibit M. Upon receipt of
such request, the Trustee (or the related Custodian, as the case may be) shall
within three Business Days release the related Mortgage File to the related
Servicer, and the Trustee shall within three Business Days of such Servicer’s
direction execute and deliver to such Servicer the request for reconveyance,
deed of reconveyance or release or satisfaction of mortgage or such instrument
releasing the lien of the Mortgage in each case provided by such Servicer,
together with the Mortgage Note with written evidence of cancellation thereon.
Each Servicer is authorized to cause the removal from the registration on the
MERS® System of such Mortgage, if applicable, and to execute and deliver, on
behalf of the Trustee and the Certificateholders or any of them, any and all
instruments of satisfaction or cancellation or of partial or full release.
Expenses incurred in connection with any instrument of satisfaction or deed
of
reconveyance shall be chargeable to the related Mortgagor to the extent
permitted by law and otherwise shall constitute a Servicing Advance. From time
to time and as shall be appropriate for the servicing or foreclosure of any
Mortgage Loan, including for such purpose, collection under any policy of flood
insurance, any fidelity bond or errors or omissions policy, or for the purposes
of effecting a partial release of any Mortgaged Property from the lien of the
Mortgage or the making of any corrections to the Mortgage Note or the Mortgage
or any of the other documents included in the Mortgage File, the Trustee shall,
within three Business Days of delivery to the Trustee (or the related Custodian,
as the case may be) of a Request for Release in the form of Exhibit M signed
by
a Servicing Officer, release the Mortgage File to the related Servicer. Subject
to the further limitations set forth below, the related Servicer shall cause
the
Mortgage File or documents so released to be returned to the Trustee (or the
related Custodian, as the case may be) when the need therefor by such Servicer
no longer exists, unless the Mortgage Loan is liquidated and the proceeds
thereof are deposited in the related Collection Account, in which case such
Servicer shall deliver to the Trustee (or the related Custodian, as the case
may
be) a Request for Release in the form of Exhibit M, signed by a Servicing
Officer.
If
a
Servicer at any time seeks to initiate a foreclosure proceeding in respect
of
any Mortgaged Property as authorized by this Agreement, such Servicer shall,
if
applicable, deliver or cause to be delivered to the Trustee, for signature,
as
appropriate, any court pleadings, requests for trustee’s sale or other documents
(which, if acceptable by the related court, may be copies) necessary to
effectuate such foreclosure or any legal action brought to obtain judgment
against the Mortgagor on the Mortgage Note or the Mortgage or to obtain a
deficiency judgment or to enforce any other remedies or rights provided by
the
Mortgage Note or the Mortgage or otherwise available at law or in
equity.
| SECTION 3.13 |
Documents,
Records and Funds in Possession of a Servicer to be Held for the
Trustee.
|
Notwithstanding
any other provisions of this Agreement, each Servicer shall transmit to the
Trustee as required by this Agreement all documents and instruments in respect
of a Mortgage Loan coming into the possession of the related Servicer from
time
to time required to be delivered to the Trustee pursuant to the terms hereof
and
shall account fully to the Trustee for any funds received by such Servicer
or
which otherwise are collected by such Servicer as Liquidation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Mortgage Files and
funds
collected or held by, or under the control of, a Servicer in respect of any
Mortgage Loans, whether from the collection of principal and interest payments
or from Liquidation Proceeds, including but not limited to, any funds on deposit
in a Collection Account, shall be held by the related Servicer for and on behalf
of the Trustee and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. Each Servicer
also agrees that it shall not create, incur or subject any Mortgage File or
any
funds that are deposited in the related Collection Account, Certificate Account
or any related Escrow Account, or any funds that otherwise are or may become
due
or payable to the Trustee for the benefit of the Certificateholders, to any
claim, lien (other than the lien of a related First Mortgage Loan), security
interest, judgment, levy, writ of attachment or other encumbrance, or assert
by
legal action or otherwise any claim or right of setoff against any Mortgage
File
or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that such Servicer shall be entitled to set off against and deduct
from
any such funds any amounts that are properly due and payable to such Servicer
under this Agreement.
| SECTION 3.14 |
Servicing
Fee.
|
As
compensation for its services hereunder, each Servicer shall be entitled to
withdraw from the Collection Account or to retain from interest payments on
the
related Mortgage Loans the amount of its Servicing Fee for each Mortgage Loan,
less any amounts in respect of its Servicing Fee payable by such Servicer
pursuant to Section 3.05(b)(vi). The Servicing Fee is limited to, and payable
solely from, the interest portion of such Scheduled Payments collected by the
related Servicer or as otherwise provided in Section 3.08.
Additional
servicing compensation in the form of Ancillary Income, Prepayment Interest
Excess and any excess proceeds upon the liquidation of a Mortgaged Property
(to
the extent not required to be remitted to the related Mortgagor) shall be
retained by the related Servicer. Each Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
(including the payment of any expenses incurred in connection with any
Subservicing Agreement entered into pursuant to Section 3.02) and shall not
be
entitled to reimbursement thereof except as specifically provided for in this
Agreement.
| SECTION 3.15 |
Access
to Certain Documentation.
|
Each
Servicer shall provide to the OTS and the FDIC and to comparable regulatory
authorities supervising Holders of Subordinate Certificates and the examiners
and supervisory agents of the OTS, the FDIC and such other authorities, access
to the documentation regarding the related Mortgage Loans required by applicable
regulations of the OTS and the FDIC. Such access shall be afforded without
charge, but only upon reasonable and prior written request and during normal
business hours at the offices designated by such Servicer. Nothing in this
Section shall limit the obligation of any Servicer to observe any applicable
law
prohibiting disclosure of information regarding the Mortgagors and the failure
of such Servicer to provide access as provided in this Section as a result
of
such obligation shall not constitute a breach of this Section. Nothing in this
Section 3.15 shall require any Servicer to collect, create, collate or otherwise
generate any information that it does not generate in its usual course of
business.
| SECTION 3.16 |
Annual
Statement as to Compliance.
|
Not
later
than March 10 of each calendar year beginning in 2007 (and no later than
April
15 of any calendar year in which the Trust Fund is no longer subject to the
Exchange Act reporting requirements), each Servicer, the Master Servicer
and any
Special Servicer shall deliver to the Depositor and the Trustee an Officer’s
Certificate (an “Annual Statement of Compliance”) stating, as to the signer
thereof, that (i) a review of the activities of such Servicer, the Master
Servicer or any Special Servicer during the preceding calendar year and of
the
performance of such Servicer under this Agreement has been made under such
officer’s supervision, and (ii) to the best of such officer’s knowledge, based
on such review, such Servicer, the Master Servicer or any Special Servicer
has
fulfilled all its obligations under this Agreement in all material respects
throughout such year, 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 of the failure. For the avoidance of doubt,
SPS may deliver one Annual Statement of Compliance covering its role as Servicer
and Master Servicer hereunder. Such Annual Statement of Compliance shall
contain
no restrictions or limitations on its use. If the Trustee or the Depositor
has
not received the related Annual Statement of Compliance by March 10 of the
related year (and no later than April 15 of any calendar year in which the
Trust
Fund is no longer subject to the Exchange Act reporting requirements), such
party shall notify the related Servicer by telephone and email, or by telephone
and fax, of such failure.
| SECTION 3.17 |
Assessments
of Compliance and Attestation
Reports.
|
On
and
after January 1, 2006, each Servicer, the Master Servicer and any Special
Servicer shall service and administer the related Mortgage Loans in accordance
with all applicable requirements of the Servicing Criteria. Each Servicer,
the
Master Servicer and any Special Servicer shall deliver to the Trustee and the
Depositor on or before March 10 of each calendar year beginning in 2007 (and
no
later than April 15 of any calendar year in which the Trust Fund is no longer
subject to the Exchange Act reporting requirements), a report (an “Assessment of
Compliance”) regarding the related Servicer’s or any Special Servicer’s
assessment of compliance with the Servicing Criteria during the preceding
calendar year as required by Rules 13a-18 and 15d-18 of the Exchange Act and
Item 1122 of Regulation AB, which as of the date hereof, require a report by
an
authorized officer of the related Servicer, the Master Servicer or the Special
Servicer that contains the following:
(a) A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the related Servicer or any Special
Servicer;
(b) A
statement by such officer that such officer used the Servicing Criteria to
assess compliance with the Servicing Criteria applicable to the related
Servicer,the Master Servicer or any Special Servicer;
(c) An
assessment by such officer of the related Servicer’s, the Master Sevicer’s or
any Special Servicer’s compliance with the applicable Servicing Criteria for the
period consisting of the preceding calendar year, including disclosure of any
material instance of noncompliance with respect thereto during such period,
which assessment shall be based on the activities it performs with respect
to
asset-backed securities transactions taken as a whole involving the related
Servicer or any Special Servicer, that are backed by the same asset type as
the
Mortgage Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the related Servicer’s, the Master Servicer’s or any Special
Servicer’s Assessment of Compliance for the period consisting of the preceding
calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the related Servicer, the Master Servicer or any Special Servicer, which
statement shall be based on the activities it performs with respect to
asset-backed securities transactions taken as a whole involving the related
Servicer, the Master Servicer or any Special Servicer, that are backed by the
same asset type as the Mortgage Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on a
certification substantially in the form of Exhibit EE hereto delivered to the
Trustee and the Depositor concurrently with the execution of this Agreement.
If
the Trustee or the Depositor has not received the related Assessment of
Compliance by March 10 of the related year (and no later than April 15 of any
calendar year in which the Trust Fund is no longer subject to the Exchange
Act
reporting requirements), such party shall notify the related Servicer, the
Master Servicer or Special Servicer by telephone and email, or by telephone
and
fax, of such failure.
On
or
before March 10 of each calendar year beginning in 2007 (and no later than
April
15 of any calendar year in which the Trust Fund is no longer subject to the
Exchange Act reporting requirements), each Servicer, the Master Servicer and
any
Special Servicer shall furnish to the Trustee and the Depositor a report (an
“Attestation Report”) by a registered public accounting firm that attests to,
and reports on, the Assessment of Compliance made by the related Servicer,
the
Master Servicer or any Special Servicer, as required by Rules 13a-18 and 15d-18
of the Exchange Act and Item 1122(b) of Regulation AB, which Attestation Report
must be made in accordance with standards for attestation reports issued or
adopted by the Public Company Accounting Oversight Board. If the Trustee or
the
Depositor has not received the related Attestation Report by March 10 of the
related year (and no later than April 15 of any calendar year in which the
Trust
Fund is no longer subject to the Exchange Act reporting requirements), such
party shall notify the related Servicer or Special Servicer by telephone and
email, or by telephone and fax, of such failure.
Each
Servicer shall cause any Subservicer to which such Servicer delegated any of
its
responsibilities with respect to the related Mortgage Loans and each
Subcontractor determined by such Servicer to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver to the
Trustee and the Depositor an assessment of compliance and accountants’
attestation by March 10 of any calendar year during which the Trust Fund is
subject to the Exchange Act reporting requirements.
For
so
long as the Trust Fund is subject to the Exchange Act reporting requirements,
the Trustee shall also provide to the Depositor an Assessment of Compliance
and
Attestation Report with respect to itself, as and when provided above by March
15, which shall address each of the Servicing Criteria specified on Exhibit
EE
hereto which are indicated as applicable to the “trustee.”
| SECTION 3.18 |
Maintenance
of Fidelity Bond and Errors and Omissions
Insurance.
|
Each
Servicer shall maintain with responsible companies, at its own expense, a
blanket Fidelity Bond and an Errors and Omissions Insurance Policy, with broad
coverage on all officers, employees or other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating
to
the related Mortgage Loans (“Servicer Employees”). The amount of coverage under
any such Fidelity Bond and Errors and Omissions Insurance Policy shall be at
least equal to the coverage maintained by the related Servicer in order to
be
acceptable to Xxxxxx Xxx or Xxxxxxx Mac to service loans for it or otherwise
in
an amount as is commercially available at a cost that is generally not regarded
as excessive by industry standards. No provision of this Section 3.18 requiring
such Fidelity Bond and Errors and Omissions Insurance Policy shall diminish
or
relieve a Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy shall
be at least equal to the corresponding amounts required by Xxxxxx Mae. Upon
the
request of the Trustee, the related Servicer shall cause to be delivered to
the
Trustee a certificate of insurance of the insurer and the surety including
a
statement from the surety and the insurer that such fidelity bond and insurance
policy shall in no event be terminated or materially modified without 30 days’
prior written notice to the Trustee.
| SECTION 3.19 |
Duties
of the Credit Risk Manager.
|
The
Depositor appoints Xxxxxxx Fixed Income Services Inc. (formerly known as The
Murrayhill Company) as Credit Risk Manager. For and on behalf of the Depositor,
and the Trustee, the Credit Risk Manager will provide the Depositor with reports
and recommendations concerning Mortgage Loans that are past due, as to which
there has been commencement of foreclosure, as to which there has been
forbearance in exercise of remedies which are in default, as to which obligor
is
the subject of bankruptcy, receivership, or an arrangement of creditors, or as
to which have become REO Properties. Such reports and recommendations will
be
based upon information provided to the Credit Risk Manager pursuant to the
Credit Risk Management Agreements and the Credit Risk Manager shall look solely
to the related Servicer for all information and data (including loss and
delinquency information and data) and loan level information and data relating
to the servicing of the Mortgage Loans. If the Credit Risk Manager is no longer
able to perform its duties hereunder, the Depositor shall terminate the Credit
Risk Manager and cause the appointment of a successor Credit Risk Manager.
Upon
any termination of the Credit Risk Manager or the appointment of a successor
Credit Risk Manager, the Depositor shall give written notice thereof to the
Seller, the Servicers, the Master Servicer, the Trustee and each Rating Agency.
Notwithstanding the foregoing, the termination of the Credit Risk Manager
pursuant to this Section 3.19 shall not become effective until the appointment
of a successor Credit Risk Manager.
| SECTION 3.20 |
Limitation
Upon Liability of the Credit Risk
Manager.
|
Neither
the Credit Risk Manager, nor any of the directors, officers, employees or agents
of the Credit Risk Manager, shall be under any liability to the Trustee, the
Certificateholders or the Depositor for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, in reliance
upon information provided by a Servicer under the Credit Risk Management
Agreements or of errors in judgment; provided, however, that this provision
shall not protect the Credit Risk Manager or any such person against liability
that would otherwise be imposed by reason of willful malfeasance, bad faith
or
gross negligence in its performance of its duties under this Agreement or the
Credit Risk Manager Agreements. The Credit Risk Manager and any director,
officer, employee or agent of the Credit Risk Manager may rely in good faith
on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder, and may rely in good faith
upon
the accuracy of information furnished by any Servicer pursuant to the Credit
Risk Management Agreements in the performance of its duties thereunder and
hereunder.
| SECTION 3.21 |
Advance
Facility.
|
(a) SPS
and
Ocwen are each hereby authorized to enter into a financing or other facility
(any such arrangement, an “Advance Facility”) under which (1) SPS or Ocwen, as
applicable, assigns or pledges to another Person (an “Advancing Person”) such
Servicer’s rights under this Agreement to be reimbursed for any Advances or
Servicing Advances and/or (2) an Advancing Person agrees to fund some or all
Advances and/or Servicing Advances required to be made by SPS or Ocwen, as
applicable, pursuant to this Agreement. The related Servicer is hereby
authorized to assign its rights to its Servicing Fee; it being understood that
neither the Trust Fund nor any party hereto shall have a right or claim
(including without limitation any right of offset) to the portion of the
Servicing Fee so assigned. No consent of the Trustee, Certificateholders or
any
other party is required before SPS or Ocwen, as applicable, may enter into
an
Advance Facility; provided,
however,
that
the consent of the Trustee (which consent shall not be unreasonably withheld)
shall be required before SPS or Ocwen, as applicable, may cause to be
outstanding at one time more than one Advance Facility with respect to Advances
or more than one Advance Facility with respect to Servicing Advances.
Notwithstanding the existence of any Advance Facility under which an Advancing
Person agrees to fund Advances and/or Servicing Advances on such Servicer’s
behalf, SPS or Ocwen, as applicable, shall remain obligated pursuant to this
Agreement to make Advances and Servicing Advances pursuant to and as required
by
this Agreement, and shall not be relieved of such obligations by virtue of
such
Advance Facility. If SPS or Ocwen enters into an Advance Facility, and for
so
long as an Advancing Person remains entitled to receive reimbursement for any
Advances or Servicing Advances outstanding and previously unreimbursed pursuant
to this Agreement, then SPS or Ocwen, as applicable, may elect by providing
written notice to the Trustee not to be permitted to reimburse itself for
Advances and/or Servicing Advances, as applicable, pursuant to Section 3.08
of
this Agreement, but following any such election SPS or Ocwen, as applicable,
shall be required to include amounts collected that would otherwise be retained
by SPS or Ocwen, as applicable, to reimburse it for previously unreimbursed
Advances (“Advance Reimbursement Amounts”) and/or previously unreimbursed
Servicing Advances (“Servicing Advance Reimbursement Amounts” and together with
Advance Reimbursement Amounts, “Reimbursement Amounts”) (in each case to the
extent such type of Reimbursement Amount is included in the Advance Facility)
in
the remittance to the Trustee made pursuant to this Agreement to the extent
of
amounts on deposit in the Collection Account on the related Servicer Cash
Remittance Date. Notwithstanding anything to the contrary herein, in no event
shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts
be included in Interest Remittance Amounts or Principal Remittance Amounts
or
distributed to Certificateholders. SPS or Ocwen, as applicable, if making the
election set forth herein, shall report to the Trustee the portions of the
Reimbursement Amounts that consist of Advance Reimbursement Amounts and
Servicing Advance Reimbursement Amounts, respectively.
(b) If
SPS or
Ocwen enters into an Advance Facility and makes the election set forth in
Section 3.21(a), SPS or Ocwen, as applicable, and the related Advancing Person
shall deliver to the Trustee a written notice and payment instruction (an
“Advance Facility Notice”), providing the Trustee with written payment
instructions as to where to remit Advance Reimbursement Amounts and/or Servicing
Advance Reimbursement Amounts (each to the extent such type of Reimbursement
Amount is included within the Advance Facility) on subsequent Distribution
Dates. The payment instruction shall require the applicable Reimbursement
Amounts to be distributed to the Advancing Person or to a trustee or custodian
(an “Advance Facility Trustee”) designated in the Advance Facility Notice. An
Advance Facility Notice may only be terminated by the joint written direction
of
SPS or Ocwen, as applicable, and the related Advancing Person (and any related
Advance Facility Trustee); provided,
however,
that
the provisions of this Section 3.21 shall cease to be applicable when all
Advances and Servicing Advances funded by an Advancing Person, and when all
Advances and Servicing Advances (the rights to be reimbursed for which have
been
assigned or pledged to an Advancing Person), have been repaid to the related
Advancing Person in full.
(c) Reimbursement
Amounts shall consist solely of amounts in respect of Advances and/or Servicing
Advances made with respect to the Mortgage Loans for which SPS or Ocwen, as
applicable, would be permitted to reimburse itself in accordance with Section
3.08(ii), (iii) and (iv) hereof, assuming SPS or Ocwen, as applicable, had
made
the related Advance(s) and/or Servicing Advance(s). Notwithstanding the
foregoing, no Person shall be entitled to reimbursement from funds held in
the
Collection Account for future distribution to Certificateholders pursuant to
the
provisions of Section 4.01. The Trustee shall not have any duty or liability
with respect to the calculation of any Reimbursement Amount and shall be
entitled to rely without independent investigation on the Advance Facility
Notice and on the applicable Servicer’s report of the amount of Advance
Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were
included in the remittance from SPS or Ocwen, as applicable, to the Trustee
pursuant to Section 3.08(viii). SPS or Ocwen, as applicable, shall maintain
and
provide to any successor Servicer a detailed accounting on a loan-by-loan basis
as to amounts advanced by, pledged or assigned to, and reimbursed to any
Advancing Person. The successor Servicer shall be entitled to rely on any such
information provided by SPS or Ocwen, as applicable, and the successor Servicer
shall not be liable for any errors in such information.
(d) An
Advancing Person who receives an assignment or pledge of the rights to be
reimbursed for Advances and/or Servicing Advances, and/or whose obligations
hereunder are limited to the funding of Advances and/or Servicing Advances
shall
not be required to meet the criteria for qualification of a Subservicer set
forth in Section 3.02 hereof.
(e) With
respect to any Advance Facility pursuant to which SPS or Ocwen has made the
election set forth in Section 3.21(a), the documentation establishing any
Advance Facility shall require that Reimbursement Amounts distributed with
respect to each Mortgage Loan be allocated to outstanding unreimbursed Advances
or Servicing Advances (as the case may be) made with respect to that Mortgage
Loan on a “first-in, first-out” (FIFO) basis. Such documentation shall also
require SPS or Ocwen, as applicable, to provide to the related Advancing Person
or Advance Facility Trustee loan-by-loan information with respect to each
Reimbursement Amount distributed by the Trustee to such Advancing Person or
Advance Facility Trustee on each Distribution Date, to enable the Advancing
Person or Advance Facility Trustee to make the FIFO allocation of each
Reimbursement Amount with respect to each Mortgage Loan. SPS or Ocwen, as
applicable, shall remain entitled to be reimbursed by the Advancing Person
or
Advance Facility Trustee for all Advances and Servicing Advances funded by
SPS
or Ocwen, as applicable, to the extent the related rights to be reimbursed
therefor have not been assigned or pledged to an Advancing Person.
(f) If
SPS or
Ocwen enters into an Advance Facility, SPS or Ocwen, as applicable, shall
indemnify the Trustee and the Trust and any successor Servicer, as applicable,
from and against any claims, losses, liabilities or damages resulting from
any
claim by the related Advancing Person, except to the extent that such claim,
loss, liability or damage resulted from or arose out of negligence, recklessness
or willful misconduct on the part of the successor Servicer or the Trustee,
or
failure by the successor Servicer or the Trustee to remit funds as required
by
Section 3.21(b). Any amendment to this Section 3.21 or to any other provision
of
this Agreement that may be necessary or appropriate to effect the terms of
an
Advance Facility as described generally in this Section 3.21, including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Trustee, the Seller and SPS or Ocwen, as applicable, without the
consent of any Certificateholder notwithstanding anything to the contrary in
Section 10.01 of or elsewhere in this Agreement.
| SECTION 3.22 |
Special
Serviced Mortgage Loans
|
(a) The
Holder of the largest Percentage Interest of Class X-1 Certificates may, at
its
discretion, appoint a Special Servicer; provided, that any such Special Servicer
shall meet all the requirements of a Servicer under this Agreement and shall
comply in all respects with the applicable provisions of this Agreement. The
Class X-1 Certificateholder shall notify the Trustee and the Depositor upon
the
appointment of a Special Servicer and the Trustee shall notify the Servicers
of
such appointment.
The
Class
X-1 Certificateholder shall not appoint a Special Servicer under the terms
of
this Agreement with respect to any Mortgage Loans unless:
(i)
such
Special Servicer first agrees in writing with the Class X-1 Certificateholder
to
deliver an Annual Statement of Compliance in such manner and at such times
as
required by Section 3.16 of this Agreement;
(ii)
such
Special Servicer first agrees in writing with the Class X-1 Certificateholder
to
deliver an Assessment of Compliance and an Accountant’s Attestation in such
manner and at such times as required by Section 3.17 of this Agreement;
and
(iii)
such
Special Servicer agrees to indemnify and hold harmless each of the Depositor
and
the Trustee and each Person, if any, who “controls” the Depositor or the Trustee
within the meaning of the Securities Act and their respective officers,
directors and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs, fees and expenses that such Person may sustain arising out
of
third party claims based on (i) the failure of such Special Servicer to deliver
or cause to be delivered when required any Officer’s Certificate pursuant to
Section 8.12(c), Annual Statement of Compliance pursuant to Section 3.16 or
the
Assessment of Compliance pursuant to Section 3.17, or (ii) any material
misstatement or omission contained in any Officer’s Certificate provided
pursuant to Section 8.12(c), in the Annual Statement of Compliance delivered
pursuant to Section 3.16 or in the Assessment of Compliance delivered pursuant
to Section 3.17.
(b) The
Majority in Interest Class X-1 Certificateholder may (but is not obligated
to)
direct any Special Servicer to assume the servicing from each Servicer (a
“Transferring Servicer”) of any Mortgage Loan 90 days or more delinquent. Such
Special Servicer shall thereupon assume all of the rights and obligations of
the
Transferring Servicer, as Servicer, hereunder arising thereafter and the
Transferring Servicer shall have no further rights or obligations, as Servicer,
hereunder with respect to such Mortgage Loan (except that such Special Servicer
shall not be (i) liable for losses of the Transferring Servicer pursuant to
Section 3.09 hereof or for any acts or omissions of the Transferring Servicer
hereunder prior to the servicing transfer date, (ii) obligated to effectuate
repurchases or substitutions of Mortgage Loans hereunder including, but not
limited to, repurchases or substitutions of Mortgage Loans pursuant to Section
2.02 or 2.03 hereof or (iii) deemed to have made any representations and
warranties of the Transferring Servicer hereunder). Upon the transfer of the
servicing of any such Mortgage Loan to a Special Servicer, such Special Servicer
shall be entitled to the applicable Servicing Fee and other compensation
accruing after the servicing transfer date with respect to such Mortgage Loans
pursuant to Section 3.14.
In
connection with the transfer of the servicing of any Mortgage Loan to a Special
Servicer, the Transferring Servicer, at such Special Servicer’s expense, shall
deliver to such Special Servicer all documents and records relating to such
Mortgage Loans and an accounting of amounts collected or held by it and
otherwise use its best efforts to effect the orderly and efficient transfer
of
the servicing to such Special Servicer. On the servicing transfer date, such
Special Servicer shall reimburse the Transferring Servicer for all unreimbursed
Advances, Servicing Advances and Servicing Fees relating to the Mortgage Loans
for which the servicing is being transferred. A Special Servicer shall be
entitled to be reimbursed pursuant to Section 3.08 or otherwise pursuant to
this
Agreement for all such Advances, Servicing Advances and Servicing Fees paid
by
the Transferring Servicer pursuant to this Section 3.22. In addition, a Special
Servicer shall notify the Trustee of such transfer and the effective date of
such transfer, and amend the Mortgage Loan Schedule to reflect that such
Mortgage Loans are Special Serviced Mortgage Loans.
(c) The
Majority in Interest Class X-1 Certificateholder, may (but is not obligated
to)
direct any Special Servicer to purchase from the Trust Fund, (a) any Mortgage
Loan that is delinquent in payment 90 or more days for the purpose of loss
mitigation or (b) any Mortgage Loan with respect to which there has been
initiated legal action or other proceedings for the foreclosure of the related
Mortgaged Property either judicially or non-judicially, in each case, provided
that the applicable Servicer has the right to transfer the related servicing
rights without the payment of any compensation to a Subservicer. Any such
purchase shall be made by such Special Servicer at a price equal to the
Repurchase Price for such Mortgage Loan. The applicable Servicer shall be
entitled to reimbursement from such Special Servicer for all expenses incurred
by it in connection with the transfer of any Mortgage Loan to such Special
Servicer pursuant to this Section 3.22(c). A Special Servicer shall notify
the
applicable Servicer of its intent to repurchase any Mortgage Loan pursuant
to
this Section 3.22(c) at least 45 days prior to such repurchase. Any Special
Servicer shall notify each Servicer in writing of any purchase of Mortgage
Loans
pursuant to this Section 3.22(c).
SECTION
3.23 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 Class A, Class M and Class B Certificates,
the
Basis Risk Reserve Fund. The Basis Risk Reserve Fund shall be an Eligible
Account, and funds on deposit therein shall be held separate and apart from,
and
shall not be commingled with, any other moneys, including without limitation,
other moneys held by the Trustee pursuant to this Indenture.
(b) On
the
Closing Date, $1,000 will be deposited by the Depositor into the Basis Risk
Reserve Fund. On each Distribution Date, the Trustee shall transfer from the
Certificate Account to the Basis Risk Reserve Fund pursuant to Section
4.02(b)(iv)BB., the Required Reserve Fund Deposit. Amounts on deposit in the
Basis Risk Reserve Fund may be withdrawn by the Trustee in connection with
any
Distribution Date to fund the amounts required to be distributed to holders
of
the Class A, Class M and Class B Certificates pursuant to Section 4.02(b)(iv)A.
and O. through Y. to the extent Monthly Excess Cashflow on such date are
insufficient to make such payments. Any such amounts distributed shall be
treated for federal tax purposes as amounts distributed by REMIC 5 to the Class
X-1 Certificateholders. On any Distribution Date, any amounts on deposit in
the
Basis Risk Reserve Fund in excess of the Required Reserve Fund Amount shall
be
distributed to the Class X-1 Certificateholder pursuant to Section
4.02(b)(iv)BB.
(c)
[reserved];
(d) Funds
in
the Basis Risk Reserve Fund may be invested in Eligible Investments by the
Trustee at the written direction of the Majority in Interest Class X-1
Certificates. Any net investment earnings on such amounts shall be payable
to
the Holder of the Class X-1 Certificates on each Distribution Date. In the
absence of such written direction, all funds in the Basis Risk Reserve Fund
shall be invested by the Trustee in the First American Prime Obligations Fund,
Class A. Amounts held in the Basis Risk Reserve Fund from time to time shall
continue to constitute assets of the Trust Fund, but not of REMIC 1, REMIC
2,
REMIC 3, REMIC 4 or REMIC 5, until released from the Basis Risk Reserve Fund
pursuant to this Section 3.23. The Basis Risk Reserve Fund constitutes an
“outside reserve fund” within the meaning of Treasury Regulation §1.860G-2(h)
and is not an asset of REMIC 1, REMIC 2, REMIC 3, REMIC 4 or REMIC 5. For all
federal tax purposes, amounts transferred by REMIC 5 to the Basis Risk Reserve
Fund shall be treated as amounts distributed by REMIC 5 to the Class X-1
Certificateholders. It is the intention of the parties hereto that, for federal
and state income and state and local franchise tax purposes, the Basis Risk
Reserve Fund be disregarded as an entity separate from the Holder of the Class
X-1 Certificates unless and until the date when either (a) there is more than
one Class X-1 Certificateholder or (b) any Class of Certificates in addition
to
the Class X-1 Certificates is recharacterized as an equity interest in the
Basis
Risk Reserve Fund for federal income tax purposes, in which case it is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Basis Risk Reserve Fund be treated as a
partnership. The Trustee shall have no liability for losses on investments
in
Eligible Investments made pursuant to this Section 3.23(d) (other than as
obligor on any such investments). Upon termination of the Trust Fund, any
amounts remaining in the Basis Risk Reserve Fund shall be distributed to the
Holder of the Class X-1 Certificates in the same manner as if distributed
pursuant to Section 4.02(b)(iv)BB. hereof.
(e) On
the
Distribution Date immediately after the Distribution Date on which the aggregate
Class Principal Balance of the Class A, Class M and Class B Certificates equals
zero, any amounts on deposit in the Basis Risk Reserve Fund not payable on
the
Class A, Class M and Class B Certificates shall be distributed to the Holder
of
the Class X-1 Certificates in the same manner as if distributed pursuant to
Section 4.02(b)(iv)BB. hereof.
SECTION
3.24 Termination
Test; Certificateholder Vote.
If
pursuant to clause (A) of the definition of the Ocwen Termination Test, the
cumulative Realized Losses as a percentage of the original Aggregate Loan
Balance of the Ocwen Serviced Loans on the Closing Date as of such Determination
Date is greater than the percentage set forth in the table included in such
definition, the Trustee shall report such failure on the part of Ocwen to
Certificateholders in its monthly statement, made pursuant to Section
4.06.
ARTICLE
IV
DISTRIBUTIONS
AND
ADVANCES
BY THE SERVICER
| SECTION 4.01 |
Advances
by the Servicer.
|
Each
Servicer shall deposit in a Collection Account an amount equal to all Scheduled
Payments (with interest at the Mortgage Rate less the Servicing Fee Rate) which
were due but not received on the related Mortgage Loans during the applicable
Due Period; provided however, that with respect to any Balloon Loan that is
delinquent on its maturity date, the related Servicer will not be required
to
advance the related balloon payment but will be required to continue to make
Advances in accordance with this Section 4.01 with respect to such Balloon
Loan
in an amount equal to an assumed scheduled payment that would otherwise be
due
based on the original amortization schedule for that Mortgage Loan (with
interest at the Mortgage Rate less the Servicing Fee Rate). The related Servicer
will not be required, however, to make any Advances with respect to reductions
in the amount of the Scheduled Payments on the Mortgage Loans due to bankruptcy
proceedings or the application of the Relief Act.
Each
Servicer’s obligation to make such Advances as to any related Mortgage Loan will
continue through the last Scheduled Payment due prior to the payment in full
of
such Mortgage Loan, or through the date that the related Mortgaged Property
has,
in the judgment of such Servicer, been completely liquidated; provided however,
that such obligation with respect to any related Mortgage Loan shall cease
if
such Servicer determines, in its reasonable opinion, that Advances with respect
to such Mortgage Loan are Nonrecoverable Advances; provided that the related
Servicer will be required to make Advances until the earlier of (i) the time
at
which the related Mortgage Loan becomes 120 days delinquent or (ii) the time
at
which the related Servicer determines that such Advances with respect to such
Mortgage Loan are Nonrecoverable Advances. In the event that such Servicer
determines that any such Advances are Nonrecoverable Advances, such Servicer
shall provide the Trustee with a certificate signed by a Servicing Officer
evidencing such determination.
If
an
Advance is required to be made hereunder, the related Servicer shall on the
second Business Day immediately preceding the Distribution Date immediately
following the related Determination Date either (i) deposit in the Collection
Account from its own funds 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 4.01, used by the related Servicer to make such
Advance or (iii) make Advances in the form of any combination of clauses (i)
and
(ii) aggregating the amount of such Advance. Any such funds being held in a
Collection Account for future distribution and so used shall be replaced by
the
related Servicer from its own funds by deposit in such Collection Account on
or
before any future Distribution Date in which such funds would be due. The
related Servicer shall be entitled to be reimbursed from the Collection Account
for all Advances of its own funds made pursuant to this Section as provided
in
Section 3.08.
| SECTION 4.02 |
Priorities
of Distribution.
|
(a)
On
each
Distribution Date, prior to making distributions to the holders of the
Certificates, the Trustee first, shall pay itself the Trustee’s Fee for such
Distribution Date and second, shall pay the Credit Risk Manager the Credit
Risk
Manager Fee for such Distribution Date.
(b)
With
respect to the Available Funds, on each Distribution Date, the Trustee shall
withdraw such Available Funds from the Certificate Account and based on the
information provided to it by the Servicers, apply such funds to distributions
on the Certificates in the following order and priority and, in each case,
to
the extent of such Available Funds remaining:
(i)
On
each
Distribution Date, the Trustee shall distribute the Interest Remittance Amount
for such date in the following order of priority:
| A. |
to
the Class X-S Certificates, the aggregate Excess Servicing Fee for
such
Distribution Date;
|
| B. |
to
the Class A-1, Class A-2, Class A-3, Class A-IO, Class A-R and Class
P
Certificates, concurrently and pro rata, Current Interest and any
Carryforward Interest, as applicable, for each such Class and such
Distribution Date;
|
| C. |
to
the Class M-1 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
| D. |
to
the Class M-2 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
| E. |
to
the Class M-3 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
| F. |
to
the Class M-4 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
| G. |
to
the Class M-5 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
| H. |
to
the Class M-6 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
| I. |
to
the Class M-7 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
| J. |
to
the Class M-8 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
| K. |
to
the Class M-9 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
| L. |
to
the Class B-1 Certificates, Current Interest and any Carryforward
Interest
for such Class and such Distribution
Date;
|
| M. |
on
the Distribution Dates occurring in November 2006, December 2006
and
January 2007, to the Depositor an amount equal to the amount received
during the related Due Period which constitutes Subsequent Mortgage
Loan
Interest; and
|
| N. |
for
application in the same manner as the Monthly Excess Cashflow for
such
Distribution Date as provided in clause (iv) of this Section 4.02(b),
any
Interest Remittance Amount remaining after application pursuant to
clauses
A. through M. above.
|
(ii)
On
each
Distribution Date (a) prior to the Stepdown Date or (b) with respect to which
a
Trigger Event has occurred, the Trustee shall distribute the Principal Payment
Amount for such date in the following order of priority:
| A. |
commencing
on the Distribution Date in January 2012, to the Class P Certificates,
until the Class Principal Balance of such class has been reduced
to
zero;
|
| B. |
first
to the Class A-R Certificates, until the Class Principal Balance
thereof
has been reduced to zero, and then sequentially as follows: (I) first,
to
the Class A-1 Certificates, until the Class Principal Balance thereof
has
been reduced to zero, (II) second, to the Class A-2 Certificates,
until
the Class Principal Balance thereof has been reduced to zero and
(III)
third, to the Class A-3 Certificates, until the Class Principal Balance
thereof has been reduced to zero;
|
| C. |
to
the Class M-1 Certificates, until the Class Principal Balance of
such
Class has been reduced to zero;
|
| D. |
to
the Class M-2 Certificates, until the Class Principal Balance of
such
Class has been reduced to zero;
|
| E. |
to
the Class M-3 Certificates, until the Class Principal Balance of
such
Class has been reduced to zero;
|
| F. |
to
the Class M-4 Certificates, until the Class Principal Balance of
such
Class has been reduced to zero;
|
| G. |
to
the Class M-5 Certificates, until the Class Principal Balance of
such
Class has been reduced to zero;
|
| H. |
to
the Class M-6 Certificates, until the Class Principal Balance of
such
Class has been reduced to zero;
|
| I. |
to
the Class M-7 Certificates, until the Class Principal Balance of
such
Class has been reduced to zero;
|
| J. |
to
the Class M-8 Certificates, until the Class Principal Balance of
such
Class has been reduced to zero;
|
| K. |
to
the Class M-9 Certificates, until the Class Principal Balance of
such
Class has been reduced to zero;
|
| L. |
to
the Class B-1 Certificates, until the Class Principal Balance of
such
Class has been reduced to zero; and
|
| M. |
for
application in the same manner as the Monthly Excess Cashflow for
such
Distribution Date, as provided in clause (iv) of this Section 4.02(b),
any
Principal Payment Amount remaining after application pursuant to
clauses
A. through L. above.
|
(iii)
On
each
Distribution Date (a) on or after the Stepdown Date and (b) with respect to
which a Trigger Event has not occurred, the Trustee shall distribute the
Principal Payment Amount for such date in the following order of
priority:
| A. |
commencing
on the Distribution Date in January 2012 or thereafter, to the Class
P
Certificates, until the Class Principal Balance of such Class has
been
reduced to zero;
|
| B. |
to
the Class A-1, Class A-2 and Class A-3 Certificates, the Senior Principal
Payment Amount for such Distribution Date, allocated sequentially
as
follows: (I) first, to the Class A-1 Certificates, until the Class
Principal Balance thereof has been reduced to zero, (II) second,
to the
Class A-2 Certificates, until the Class Principal Balance thereof
has been
reduced to zero and (III) third, to the Class A-3 Certificates, until
the
Class Principal Balance thereof has been reduced to
zero;
|
| C. |
to
the Class M-1 Certificates, the Class M-1 Principal Payment Amount
for
such Distribution Date, until the Class Principal Balance of such
Class
has been reduced to zero;
|
| D. |
to
the Class M-2 Certificates, the Class M-2 Principal Payment Amount
for
such Distribution Date, until the Class Principal Balance of such
Class
has been reduced to zero;
|
| E. |
to
the Class M-3 Certificates, the Class M-3 Principal Payment Amount
for
such Distribution Date, until the Class Principal Balance of such
Class
has been reduced to zero;
|
| F. |
to
the Class M-4 Certificates, the Class M-4 Principal Payment Amount
for
such Distribution Date, until the Class Principal Balance of such
Class
has been reduced to zero;
|
| G. |
to
the Class M-5 Certificates, the Class M-5 Principal Payment Amount
for
such Distribution Date, until the Class Principal Balance of such
Class
has been reduced to zero;
|
| H. |
to
the Class M-6 Certificates, the Class M-6 Principal Payment Amount
for
such Distribution Date, until the Class Principal Balance of such
Class
has been reduced to zero;
|
| I. |
to
the Class M-7 Certificates, the Class M-7 Principal Payment Amount
for
such Distribution Date, until the Class Principal Balance of such
Class
has been reduced to zero;
|
| J. |
to
the Class M-8 Certificates, the Class M-8 Principal Payment Amount
for
such Distribution Date, until the Class Principal Balance of such
Class
has been reduced to zero;
|
| K. |
to
the Class M-9 Certificates, the Class M-9 Principal Payment Amount
for
such Distribution Date, until the Class Principal Balance of such
Class
has been reduced to zero;
|
| L. |
to
the Class B-1 Certificates, the Class B-1 Principal Payment Amount
for
such Distribution Date, until the Class Principal Balance of such
Class
has been reduced to zero; and
|
| M. |
for
application as part of Monthly Excess Cashflow for such Distribution
Date,
as provided in clause (iv) of this Section 4.02(b), any Principal
Payment
Amount remaining after application pursuant to clauses A. through
L.
above.
|
(iv)
On
each
Distribution Date, the Trustee shall distribute the Monthly Excess Cashflow
for
such date in the following order of priority:
| A. |
to
the Class A-IO Certificates, any applicable Basis Risk Shortfall
to the
extent not paid from amounts in the Swap
Account;
|
| B. |
an
amount equal to the aggregate Realized Losses on the Mortgage Loans
incurred during the related Collection Period, such amount to be
distributed as set forth above in Section 4.02(b)(ii) and (iii) in
the
same manner as the Principal Payment Amount (any such amount, an
“Excess
Cashflow Loss Payment”);
|
| C. |
on
the first Distribution Date, an amount equal to the Monthly Excess
Cashflow for such Distribution Date remaining after the distribution
in
clauses (iv)A and (iv)B. above to the Class X-1
Certificates;
|
| D. |
except
for the first Distribution Date, until the Overcollateralization
Amount
equals the Targeted Overcollateralization Amount for such date, on
each
Distribution Date
|
(I) (a)
prior
to the Stepdown Date or (b) with respect to which a Trigger Event has occurred,
to the Class A-1, Class A-2, Class A-3, Class A-R, Class P, Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class
M-9
and Class B-1 Certificates required to be made on such Distribution Date set
forth above in clause (ii) above, after giving effect to the distribution of
the
Principal Payment Amount for such Distribution Date, in accordance with the
priorities set forth therein; and
(II) on
each
Distribution Date on or after the Stepdown Date and with respect to which a
Trigger Event has not occurred, to fund any principal distributions to the
Class
A-1, Class A-2, Class A-3, Class A-R, Class P, Class M-1, Class M-2, Class
M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class
B-1
Certificates required to be made on such Distribution Date set forth above
in
clause (iii) above, after giving effect to the distribution of the Principal
Payment Amount for such Distribution Date, in accordance with the priorities
set
forth therein;
| E. |
to
the Class M-1 Certificates, any Deferred Amount for such Class, with
interest thereon at the Pass-Through Rate for such Class, to the
extent
not paid from amounts on deposit in the Swap
Account;
|
| F. |
to
the Class M-2 Certificates, any Deferred Amount for such Class, with
interest thereon at the Pass-Through Rate for such Class, to the
extent
not paid from amounts on deposit in the Swap
Account;
|
| G. |
to
the Class M-3 Certificates, any Deferred Amount for such Class, with
interest thereon at the Pass-Through Rate for such Class, to the
extent
not paid from amounts on deposit in the Swap
Account;
|
| H. |
to
the Class M-4 Certificates, any Deferred Amount for such Class, with
interest thereon at the Pass-Through Rate for such Class, to the
extent
not paid from amounts on deposit in the Swap
Account;
|
| I. |
to
the Class M-5 Certificates, any Deferred Amount for such Class, with
interest thereon at the Pass-Through Rate for such Class, to the
extent
not paid from amounts on deposit in the Swap
Account;
|
| J. |
to
the Class M-6 Certificates, any Deferred Amount for such Class, with
interest thereon at the Pass-Through Rate for such Class, to the
extent
not paid from amounts on deposit in the Swap
Account;
|
| K. |
to
the Class M-7 Certificates, any Deferred Amount for such Class, with
interest thereon at the Pass-Through Rate for such Class, to the
extent
not paid from amounts on deposit in the Swap
Account;
|
| L. |
to
the Class M-8 Certificates, any Deferred Amount for such Class, with
interest thereon at the Pass-Through Rate for such Class, to the
extent
not paid from amounts on deposit in the Swap
Account;
|
| M. |
to
the Class M-9 Certificates, any Deferred Amount for such Class, with
interest thereon at the Pass-Through Rate for such Class, to the
extent
not paid from amounts on deposit in the Swap
Account;
|
| N. |
to
the Class B-1 Certificates, any Deferred Amount for such Class, with
interest thereon at the Pass-Through Rate for such Class, to the
extent
not paid from amounts on deposit in the Swap
Account;
|
| O. |
to
the Class A-1, Class A-2 and Class A-3 Certificates, pro rata based
on entitlement, any applicable Basis Risk Shortfall for each such
Class,
to the extent not paid from amounts in the Swap
Account;
|
| P. |
to
the Class M-1 Certificates, any applicable Basis Risk Shortfall for
such Class, to the extent not paid from amounts in the Swap
Account;
|
| Q. |
to
the Class M-2 Certificates, any applicable Basis Risk Shortfall for
such Class, to the extent not paid from amounts in the Swap
Account;
|
| R. |
to
the Class M-3 Certificates, any applicable Basis Risk Shortfall for
such Class, to the extent not paid from amounts in the Swap
Account;
|
| S. |
to
the Class M-4 Certificates, any applicable Basis Risk Shortfall for
such Class, to the extent not paid from amounts in the Swap
Account;
|
| T. |
to
the Class M-5 Certificates, any applicable Basis Risk Shortfall for
such Class, to the extent not paid from amounts in the Swap
Account;
|
| U. |
to
the Class M-6 Certificates, any applicable Basis Risk Shortfall for
such Class, to the extent not paid from amounts in the Swap
Account;
|
| V. |
to
the Class M-7 Certificates, any applicable Basis Risk Shortfall for
such Class, to the extent not paid from amounts in the Swap
Account;
|
| W. |
to
the Class M-8 Certificates, any applicable Basis Risk Shortfall for
such Class, to the extent not paid from amounts in the Swap
Account;
|
| X. |
to
the Class M-9 Certificates, any applicable Basis Risk Shortfall for
such Class, to the extent not paid from amounts in the Swap
Account;
|
| Y. |
to
the Class B-1 Certificates, any applicable Basis Risk Shortfall for
such Class, to the extent not paid from amounts in the Swap
Account;
|
| Z. |
to
the ClassB-1 Certificates, until the Class Principal Balance of such
Class
has been reduced to zero;
|
| AA. |
to
the Counterparty, the amount of any Swap Termination Payment resulting
from a Counterparty Trigger Event and to the extent not paid by the
Supplemental Interest Trust Trustee from any upfront payment received
pursuant to any related replacement swap agreement that may be entered
into by the Supplemental Interest Trust Trustee not previously
paid;
|
| BB. |
from
amounts otherwise distributable to the Class X-1 Certificates, to
the
Basis Risk Reserve Fund, the Required Reserve Fund
Deposit;
|
| CC. |
to
the Class X-1 Certificates, (a) the Class X-1 Distribution Amount
for such
Distribution Date reduced by amounts distributed pursuant to clause
M. of
4.02(b)(i) for such Distribution Date, (b) the amount of any
Overcollateralization Release Amount for such Distribution Date,
(c) any
amounts withdrawn from the Basis Risk Reserve Fund for distribution
to
such Class X-1 Certificates pursuant to Section 3.23(b) and (d) for
any
Distribution Date on or after which the aggregate Class Principal
Balance
of the Regular Certificates has been reduced to zero, the
Overcollateralization Amount; and
|
| DD. |
to
the Class A-R Certificate, any remaining amount; provided, however
that
any amount that would be distributable pursuant to this priority
DD. shall
not be paid with respect to the Class A-R Certificate but shall be
paid
instead with respect to the Class X-1 Certificates pursuant to a
contract
that exists under this Agreement between the Class A-R Certificateholders
and the Class X-1
Certificateholders.
|
Distributions
pursuant to Section 4.02(b)(iv)A., B. and E. through Y. on any Distribution
Date
will be made after giving effect to withdrawals from the Swap Account on such
date to pay Deferred Amounts.
(v) On
each
Distribution Date, the Trustee shall distribute to the Holder of the Class
P
Certificate, the aggregate of all Prepayment Charges collected during the
preceding Prepayment Period.
(vi) [reserved].
(vii) On
each
Distribution Date, following the foregoing distributions, an amount equal to
the
amount of Net Recoveries included in the Available Funds for such Distribution
Date shall be applied to increase the Class Principal Balance of the Class
of
Certificates with the Highest Priority up to the extent of such Realized Losses
previously allocated to that Class of Certificates pursuant to Section 4.05.
An
amount equal to the amount of any remaining Net Recoveries shall be applied
to
increase the Class Principal Balance of the Class of Certificates with the
next
Highest Priority, up to the amount of such Realized Losses previously allocated
to that Class of Certificates pursuant to Section 4.05, and so on. Holders
of
such Certificates will not be entitled to any distribution in respect of
interest on the amount of such increases for any Interest Accrual Period
preceding the Distribution Date on which such increase occurs. Any such
increases shall be applied to the Class Principal Balance of each Certificate
of
such Class in accordance with its respective Percentage Interest.
| SECTION 4.03 |
[Reserved].
|
| SECTION 4.04 |
[Reserved].
|
| SECTION 4.05 |
Allocation
of Realized Losses.
|
On
each
Distribution Date, the Trustee shall determine the total of the Applied Loss
Amount, if any, for such Distribution Date. The Applied Loss Amount for any
Distribution Date shall be applied by reducing the Class Principal Balance
of
each Class of Subordinate Certificates beginning with the Class of Subordinate
Certificates then outstanding with the lowest relative payment priority, in
each
case until the respective Class Principal Balance thereof is reduced to zero.
Any Applied Loss Amount allocated to a Class of Subordinate Certificates shall
be allocated among the Subordinate Certificates of such Class in proportion
to
their respective Percentage Interests.
All
Realized Losses on the Mortgage Loans shall be allocated on each Distribution
Date to the following REMIC 1 Regular Interests: first, to REMIC 1 Regular
Interests LTI-1 until the Uncertificated Principal Balance thereof has been
reduced to zero, then to REMIC 1 Regular Interest LTI-PF until the
Uncertificated Principal Balance thereof has been reduced to zero, however,
that
with respect to the first three Distribution Dates, Realized Losses relating
to
the Initial Mortgage Loans shall be allocated to REMIC 1 Regular Interest LTI-1
and Realized Losses relating to the Subsequent Mortgage Loans shall be allocated
to REMIC 1 Regular Interest LTI-PF until the Uncertificated Principal Balance
thereof has been reduced to zero.
All
Realized Losses on the REMIC 1 Regular Interests LTI-1 and LTI-PF shall be
deemed to have been allocated, first, on each Distribution Date, to REMIC 2
Regular Interest MTI-A-1 and MTI-X1 in the same amount and in the same priority
as Realized Losses are allocated to the Corresponding Certificate until such
REMIC 2 Regular Interest has been reduced to zero; and second, to the REMIC
2
Regular Interests MTI-1-A and REMIC 2 Regular Interest MTI-1-B, pro rata until
each such REMIC 2 Regular Interest has been reduced to zero.
All
Realized Losses on the REMIC 2 Regular Interests shall be deemed to have been
allocated first, to REMIC 3 Regular Interest MTIA-1, until the Uncertificated
Principal Balance has been reduced to zero and then to and then, to each other
REMIC 3 Regular Interest (other than REMIC 3 Regular Interest MTIA-S, Regular
Interest MTIA-Swap-IO, Regular Interest MTIA-P and Regular Interest MTIA-R),
sequentially beginning with the REMIC 3 Regular Interest with the lowest
numerical designation until the Uncertificated Principal Balance of each such
REMIC 3 Regular Interest has been reduced to zero.
All
Realized Losses on the REMIC 3 Regular Interests shall be deemed to have been
allocated to the following REMIC 4 Regular Interests in the specified
percentages, as follows: first to Uncertificated Accrued Interest payable to
the
REMIC 4 Regular Interests MTII-AA and MTII-ZZ up to an aggregate amount equal
to
the excess of (a) the REMIC 4 Interest Loss Allocation Amount over (b)
Prepayment Interest Shortfalls (to the extent not covered by Compensating
Interest) relating to the Mortgage Loans for such Distribution Date, 98% and
2%,
respectively; second, to the Uncertificated Principal Balances of the REMIC
4
Regular Interests MTII-AA and MTII-ZZ up to an aggregate amount equal to the
REMIC 4 Principal Loss Allocation Amount, 98% and 2%, respectively; third,
to
the Uncertificated Principal Balances of REMIC 4 Regular Interest MTII-AA,
REMIC
4 Regular Interest MTII-B-1 and REMIC 4 Regular Interest MTII-ZZ, 98%, 1% and
1%, respectively, until the Uncertificated Principal Balance of REMIC 4 Regular
Interests MTII-B-1 have been reduced to zero; fourth, to the Uncertificated
Principal Balances of REMIC 4 Regular Interest MTII-AA, REMIC 4 Regular Interest
MTII-M-9 and REMIC 4 Regular Interest MTII-ZZ, 98%, 1% and 1%, respectively,
until the Uncertificated Principal Balance of REMIC 4 Regular Interest MTII-M-9
has been reduced to zero; fifth, to the Uncertificated Principal Balances of
REMIC 4 Regular Interest MTII-AA, REMIC 4 Regular Interest MTII-M-8 and REMIC
4
Regular Interest MTII-ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-M-8 has been reduced to
zero;
sixth, to the Uncertificated Principal Balances of REMIC 4 Regular Interest
MTII-AA, REMIC 4 Regular Interest MTII-M-7 and REMIC 4 Regular Interest MTII-ZZ,
98%, 1% and 1%, respectively, until the Uncertificated Principal Balance of
REMIC 4 Regular Interest MTII-M-7 has been reduced to zero; seventh, to the
Uncertificated Principal Balances of REMIC 4 Regular Interest MTII-AA, REMIC
4
Regular Interest MTII-M-6 and REMIC 4 Regular Interest MTII-ZZ, 98%, 1% and
1%,
respectively, until the Uncertificated Principal Balance of REMIC 4 Regular
Interest MTII-M-6 has been reduced to zero; eighth, to the Uncertificated
Principal Balances of REMIC 4 Regular Interest MTII-AA, REMIC 4 Regular Interest
MTII-M-5 and REMIC 4 Regular Interest MTII-ZZ, 98%, 1% and 1%, respectively,
until the Uncertificated Principal Balance of REMIC 4 Regular Interest MTII-M-5
has been reduced to zero; ninth, to the Uncertificated Principal Balances of
REMIC 4 Regular Interest MTII-AA, REMIC 4 Regular Interest MTII-M-4 and REMIC
4
Regular Interest MTII-ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 4 Regular Interest MTII-M-4 has been reduced to
zero;
tenth, to the Uncertificated Principal Balances of REMIC 4 Regular Interest
MTII-AA, REMIC 4 Regular Interest MTII-M-3 and REMIC 4 Regular Interest MTII-ZZ,
98%, 1% and 1%, respectively, until the Uncertificated Principal Balance of
REMIC 4 Regular Interest MTII-M-3 has been reduced to zero; eleventh, to the
Uncertificated Principal Balances of REMIC 4 Regular Interest MTII-AA, REMIC
4
Regular Interest MTII-M-2 and REMIC 4 Regular Interest MTII-ZZ, 98%, 1% and
1%,
respectively, until the Uncertificated Principal Balance of REMIC 4 Regular
Interest MTII-M-2 has been reduced to zero; and twelfth, to the Uncertificated
Principal Balances of REMIC 4 Regular Interest MTII-AA, REMIC 4 Regular Interest
MTII-M-1 and REMIC 4 Regular Interest MTII-ZZ, 98%, 1% and 1%, respectively,
until the Uncertificated Principal Balance of REMIC 4 Regular Interest MTII-M-1
has been reduced to zero.
| SECTION 4.06 |
Monthly
Statements to Certificateholders.
|
(a) Not
later
than each Distribution Date, the Trustee shall prepare, and make available
on
the website maintained by the Trustee at xxx.xxxxxx.xxx/xxx, a statement setting
forth with respect to the related distribution, the items listed on Exhibit
V.
Assistance
in using the website can be obtained by calling the Trustee’s Bondholder
Services at 800-934-6802. Parties that are unable to use the website are
entitled to have a paper copy mailed to them via first class mail by written
notice to the Trustee at its Corporate Trust Office. The Trustee’s
responsibility for disbursing the above information to the Certificateholders
is
limited to the availability, timeliness and accuracy of the information derived
from the Servicers. The foregoing information shall be reported to the Trustee
each month on or before the Servicer Data Remittance Date.
(b) [reserved].
(c) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
cause to be furnished to each Person who at any time during the calendar year
was a Certificateholder, a statement containing the information set forth in,
items (i)(c), (i)(d), (i)(g), (i)(j), (i)(k), (ii)(c), (ii)(d), (ii)(g),
(ii)(i), (v)(d), (v)(e) and (v)(s) of Exhibit V aggregated for such calendar
year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code as from time
to
time in effect.
| SECTION 4.07 |
Distributions
on the REMIC 1 Regular Interests and REMIC 2 Regular
Interests.
|
(a) Distributions
on the REMIC 1 Regular Interests.
On
each
Distribution Date, the Trustee shall cause in the following order of priority,
the following amounts to be distributed by REMIC 1 to REMIC 2 on account of
the
REMIC 1 Regular Interests or withdrawn from the Distribution Account and
distributed to the holders of the Class A-R Certificates (in respect of the
Class R-1 Interest), as the case may be:
(i) first,
to
Holders of REMIC 1 Regular Interests XXX-0, XXX-X0, XXX-X0, XXX-XX, LTI-P and
LTI-PF an amount equal to (x) the related Uncertificated Accrued Interest for
such Distribution Date, plus (y) any amounts in respect thereof remaining unpaid
from previous Distribution Dates;
(ii) second,
to the Holders of REMIC 1 Regular Interests, in an amount equal to the remainder
of the Available Funds for such Distribution Date after the distributions made
pursuant to clause (i) above and, in the case of distributions made pursuant
to
Section 4.07(a)(ii)(C), the amount of any Prepayment Charges for such
Distribution Date, allocated as follows:
(A) to
the
Holders of REMIC 1 Regular Interest LTI-AR and REMIC 1 Regular Interest LTI-P,
an amount of principal shall be distributed to such Holders in the same amount
and priority as principal is distributed to the Corresponding Certificate until
the Uncertificated Principal Balance of each such REMIC 1 Regular Interest
is
reduced to zero;
(B) to
the
Holders of REMIC 1 Regular Interest LTI-1, until the Uncertificated Principal
Balance of REMIC 1 Regular Interest LTI-1 is reduced to zero;
(C) to
the
Holders of REMIC 1 Regular Interest LTI-PF, until the Uncertificated Principal
Balance of REMIC 1 Regular Interest LTI-PF is reduced to zero; and
(D) to
the
Holders of REMIC 1 Regular Interest LTI-P, the amount of any Prepayment Charges
for such Distribution Date.
Any
remaining amount to the Holders of the Class A-R Certificates; provided,
however, that for the first three Distribution Dates, such amounts constituting
Available Funds relating to the Initial Mortgage Loans shall be allocated to
REMIC 1 Regular Interest LTI-1, and such amounts constituting Available Funds
relating to the Subsequent Mortgage Loans and shall be allocated to REMIC 1
Regular Interest LT-PF.
(b) Distributions
on the REMIC 2 Regular Interests.
On
each
Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC 2 to REMIC 3 on account of REMIC 2 Regular
Interests or withdrawn from the Distribution Account and distributed to the
holders of the Class A-R Certificates (in respect of the Class R-2 Interest),
as
the case may be:
(i) first,
to
the Holders of each REMIC 2 Regular Interest, pro
rata,
in an
amount equal to (A) Uncertificated Accrued Interest for such REMIC 2 Regular
Interests for such Distribution Date, plus (B) any amounts payable in respect
thereof remaining unpaid from previous Distribution Dates.
(ii) second,
to the Holders of REMIC 2 Regular Interests, in an amount equal to the remainder
of the Available Funds for such Distribution Date after the distributions made
pursuant to clause (i) above and, in the case of distributions made pursuant
to
Section 4.07(b)(ii)(C), the amount of any Prepayment Charges for such
Distribution Date, allocated as follows:
(A) to
the
Holders of REMIC 2 Regular Interest MTI-A-1, MTI-AR, MTI-P and MTI-X1 an amount
of principal shall be distributed to such Holders in the same amount and
priority as principal is distributed to the Corresponding Certificate until
the
Uncertificated Principal Balance of each such REMIC 2 Regular Interest is
reduced to zero;
(B) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
and (ii)(A) above, payments of principal shall be allocated, pro
rata,
to
REMIC 2 Regular Interests MTI-1-A and MTI-1-B until the Uncertificated Principal
Balance of each such REMIC 2 Regular Interest is reduced to zero;
(C) to
the
Holders of REMIC 2 Regular Interest MTI-P, the amount of any Prepayment Charges
for such Distribution Date; and
(D) and
any
remaining amount to the Holders of the Class A-R Certificates (in respect of
the
Class R-2 Interest).
(b) Distributions
on the REMIC 3 Regular Interests.
On
each
Distribution Date, the Trustee shall cause in the following order of priority,
the following amounts to be distributed by REMIC 3 to REMIC 4 on account of
the
REMIC 3 Regular Interests or withdrawn from the Distribution Account and
distributed to the Holders of the Class A-R Certificates (in respect of the
Class R-3 Interest), as the case may be:
(i) First,
to
the Holders of REMIC 3 Regular Interest MTIA-Swap-IO in an amount equal to
(A)
the Uncertificated Accrued Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Distribution Dates,
second, to the Holders of all REMIC 3 Regular Interests (other than REMIC 3
Regular Interest MTIA-S, Regular Interest MTIA-Swap-IO, REMIC 3 Regular Interest
MTIA-P and REMIC 3 Regular Interest MTIA-R) pro rata in an amount equal to
(A)
the Uncertificated Accrued Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Distribution Dates
and
third, to the Holders of REMIC 3 Regular Interest MTIA-I, REMIC 3
Regular Interest MTIA-S, REMIC 3 Regular Interest MTIA-P and REMIC 3
Regular Interest MTIA-R, in an amount equal to (A) the Uncertificated Accrued
Interest for such Distribution Date, plus (B) any amounts in respect thereof
remaining unpaid from previous Distribution Dates;
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
above, payments of principal shall be allocated as follows, first, to the
Holders of REMIC 3 Regular Interest MTIA-1 until the Uncertificated Principal
Balance of such REMIC 3 Regular Interest is reduced to zero, and second, to
each
other REMIC 3 Regular Interest (other than REMIC 3 Regular Interest MTIA-S,
REMIC 3 Regular Interest MTIA-Swap-IO, REMIC 3 Regular Interest MTIA-P and
REMIC
3 Regular Interest MTIA-R), sequentially beginning with the REMIC 3 Regular
Interest with the lowest numerical designation until the Uncertificated
Principal Balance of each such REMIC 3 Regular Interest has been reduced to
zero;
(iii) to
the
Holders of REMIC 3 MTIA-P, the amount of any Prepayment Charges for such
Distribution Date;
and
any
remaining amount to the Holders of the Class A-R Certificates, in respect of
the
Class R-3 Interest;
(d) Distributions
on the REMIC 4 Regular Interests.
On
each
Distribution Date, the Trustee shall cause in the following order of priority,
the following amounts to be distributed by REMIC 4 to REMIC 5 on account of
the
REMIC 4 Regular Interests or withdrawn from the Distribution Account and
distributed to the holders of the Class A-R Certificates (in respect of the
Class R-4 Interest), as the case may be:
(i) first,
to
the extent of the sum of Available Funds for such Distribution Date, to the
Holder of REMIC 4 Regular Interest MTII-IO in an amount equal to (A) the
Uncertificated Accrued Interest for such Distribution Date, plus (B) any amounts
in respect thereof remaining unpaid from previous Distribution Dates and second,
to the Holders of REMIC 4 Regular Interest MTII-A-IO in an amount equal to
(A)
the Uncertificated Accrued Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Distribution Dates,
and then to Holders of REMIC 4 Regular Interests XXXX-XX, XXXX-X-0, XXXX-X-0,
XXXX-X-0, MTII-M-1, MTII-M-2, MTII-M-3, MTII-M-4, MTII-M-5, MTII-M-6, MTII-M-7,
MTII-M-8, MTII-M-9, MTII-B-1, MTII-ZZ, MTII-P, MTII-R and MTII-S pro rata,
in an
amount equal to (A) the Uncertificated Accrued Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates. Amounts payable as Uncertificated Accrued Interest in
respect of REMIC 4 Regular Interest MTII-ZZ shall be reduced when the REMIC
4
Overcollateralization Amount is less than the REMIC 4 Overcollateralization
Target Amount, by the lesser of (x) the amount of such difference and (y) the
REMIC 4 Regular Interest MTII ZZ Maximum Interest Deferral Amount and such
amount will be payable to the Holders of REMIC 4 Regular Interest XXXX-X-0,
XXXX-X-0, XXXX-X-0, MTII-M-1, MTII-M-2, MTII-M-3, MTII-M-4, MTII-M-5, MTII-M-6,
MTII-M-7, MTII-M-8, MTII-M-9 and MTII-B-1 in the same proportion as the amounts
are allocated to the Corresponding Certificate, pursuant to Section 4.02(b)
herein, for each such REMIC 4 Regular Interest, and the Uncertificated Principal
Balance of the REMIC 4 Regular Interest MTII-ZZ shall be increased by such
amount;
(ii) second,
to the Holders of REMIC 4 Regular Interests, in an amount equal to the remainder
of the Available Funds for such Distribution Date after the distributions made
pursuant to clause (i) above and, in the case of distributions made pursuant
to
Section 4.07(c)(ii)(B), the amount of any Prepayment Charges for such
Distribution Date, allocated as follows:
(A) to
the
Holders of REMIC 4 Regular Interest MTII-R, an amount equal to the amount of
principal distributed to the holder of the Corresponding Certificate on such
Distribution Date pursuant to Section 4.02(b); and
(B) to
the
Holders of REMIC 4 Regular Interest MTII-P, an amount equal to the amount of
principal distributed to the holder of the Corresponding Certificate on such
Distribution Date pursuant to Section 4.02(b); and
(iii) third,
to
the Holders of REMIC 4 Regular Interests, in an amount equal to the remainder
of
the Available Funds for such Distribution Date after the distributions made
pursuant to clauses (i) and (ii) above, allocated as follows:
(A) 98%
of
such remainder to the Holders of REMIC 4 Regular Interest MTII-AA, until the
Uncertificated Principal Balance of such REMIC 4 Regular Interest is reduced
to
zero;
(B) 2%
of
such remainder, first, to the Holders of REMIC 4 Regular Interest XXXX-X-0,
XXXX-X-0, XXXX-X-0, MTII-M-1, MTII-M-2, MTII-M-3, MTII-M-4, MTII-M-5, MTII-M-6,
MTII-M-7, MTII-M-8, MTII-M-9 and MTII-B1 equal to 1% of and in the same
proportion as principal payments are allocated to the Corresponding
Certificates, until the Uncertificated Principal Balances of such REMIC 4
Regular Interests are reduced to zero; and second, to the Holders of REMIC
4
Regular Interest MTII-ZZ, until the Uncertificated Principal Balance of such
REMIC 4 Regular Interest is reduced to zero; and
(C) any
remaining amount to the Holders of the Class A-R Certificates (in respect of
the
Class R-4 Interest).
| SECTION 4.08 |
[Reserved].
|
| SECTION 4.09 |
Prepayment
Charges.
|
Notwithstanding
anything in this Agreement to the contrary, in the event of a Principal
Prepayment of a Mortgage Loan, the related Servicer may not waive any Prepayment
Charge or portion thereof required by the terms of the related Mortgage Note
unless (i) the Mortgage Loan is in default or foreseeable default and such
waiver (a) is standard and customary in servicing similar mortgage loans to
the
Mortgage Loans and (b) would, in the reasonable judgment of the related
Servicer, maximize recovery of total proceeds taking into account the value
of
such Prepayment Charge and the related Mortgage Loan, (ii)(A) the enforceability
thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership,
or
other similar law relating to creditors’ rights generally or (2) due to
acceleration in connection with a foreclosure or other involuntary payment,
or
(B) the enforceability is otherwise limited or prohibited by applicable law,
(iii) the enforceability would be considered “predatory” pursuant to written
guidelines issued by any applicable federal, state or local authority having
jurisdiction over such matters, (iv) the related Servicer is unable to locate
documentation sufficient to allow it to confirm the existence and amount of
such
Prepayment Charge after using commercially reasonable efforts to locate such
documentation, which efforts shall include, but are not limited to, seeking
such
documentation from the Depositor, the Seller, the Custodians and from its own
records or files or (v) the Mortgaged Property has been damaged such that the
current value of the Mortgaged Property has been reduced by at least half as
a
result of a natural disaster or other insured or uninsured peril, and the
Mortgagor has elected to pay the Loan in full rather than rebuild the Mortgaged
Property. For the avoidance of doubt, the related Servicer may waive a
Prepayment Charge in connection with a short sale or short payoff on a defaulted
Mortgage Loan. If the related Servicer has waived all or a portion of a
Prepayment Charge relating to a Principal Prepayment, other than as provided
above, the related Servicer shall deliver to the Trustee no later than the
Business Day immediately preceding the next Distribution Date, for deposit
into
the Certificate Account the amount of such Prepayment Charge (or such portion
thereof as had been waived) for distribution in accordance with the terms of
this Agreement; provided, however, the related Servicer shall not have any
obligation to pay the amount of any uncollected Prepayment Charge under this
Section 4.09 if such Servicer did not have a copy of the related Mortgage Note,
such Servicer requested via email a copy of the same from the Trustee and the
Trustee failed to provide such a copy within two (2) Business Days of receipt
of
such request. If the related Servicer has waived all or a portion of a
Prepayment Charge for any reason, it shall promptly notify the Trustee thereof
and shall include such information in any monthly reports it provides the
Trustee. Notwithstanding any provision in this Agreement to the contrary, in
the
event the Prepayment Charge payable under the terms of the Mortgage Note is
different from the amount of the Prepayment Charge set forth in the Mortgage
Loan Schedule or other information provided to the related Servicer, such
Servicer shall rely conclusively on the Prepayment Charge as set forth under
the
terms of the Mortgage Note. To the extent the Prepayment Charge payable under
the terms of the Mortgage Note is less than the amount of the Prepayment Charge
set forth in the Mortgage Loan Schedule or other information provided to the
related Servicer, such Servicer shall not have any liability or obligation
with
respect to such difference, and in addition shall not have any liability or
obligation to pay the amount of any uncollected Prepayment Charge if the failure
to collect such amount is the direct result of inaccurate or incomplete
information on the Mortgage Loan Schedule.
| SECTION 4.10 |
Servicers
to Cooperate.
|
Each
Servicer shall provide to the Trustee the information set forth in Exhibit
Z
hereto in such form as the Trustee shall reasonably request with respect to
each
Mortgage Loan serviced by such Servicer no later than twelve noon on the
Servicer Data Remittance Date to enable the Trustee to calculate the amounts
to
be distributed to each Class of Certificates and otherwise perform its
distribution, accounting and reporting requirements hereunder.
| SECTION 4.11 |
The
Swap Agreement; Supplemental Interest
Trust.
|
(a) On
the
Closing Date, the Supplemental Interest Trust Trustee shall establish and
maintain in the name of the Supplemental Interest Trust Trustee, as a separate
trust for the benefit of the Certificates, the Supplemental Interest Trust.
The
Supplemental Interest Trust shall hold the Swap Agreement and the Swap Account.
The Swap Account shall be an Eligible Account, and funds on deposit therein
shall be held separate and apart from, and shall not be commingled with, any
other moneys, including without limitation, other moneys held by the Trustee
pursuant to this Agreement.
(b) On
or
prior to the Closing Date, the Supplemental
Interest Trust
Trustee
is hereby directed to enter into the Swap Agreement for the benefit of the
Holders of the Certificates. The Swap Agreement will be an asset of the
Supplemental Interest Trust but will not be an asset of any REMIC. On each
Distribution Date, the Supplemental Interest Trust Trustee shall deposit any
Net
Swap Payments paid by the Counterparty to the Supplemental Interest Trust
Trustee, pursuant to the Swap Agreement, into the Swap Account.
(c) Net
Swap
Payments and Swap Termination Payments (other than Swap Termination Payments
resulting from a Counterparty Trigger Event and to the extent not paid by the
Supplemental Interest Trust Trustee from any upfront payment received pursuant
to any related replacement swap agreement that may be entered into by the
Supplemental Interest Trust Trustee) payable by the Supplemental Interest Trust
Trustee to the Counterparty pursuant to the Swap Agreement shall be deducted
from the Interest Remittance Amount, and to the extent of any such remaining
amounts due, from the Principal Remittance Amount, prior to any distributions
to
the Certificateholders. On or before each Swap Payment Date, such amounts will
be remitted to the Counterparty, first to make any Net Swap Payment owed to
the
Counterparty pursuant to the Swap Agreement for such Swap Payment Date, and
second to make any Swap Termination Payment (not due to a Counterparty Trigger
Event and to the extent not paid by the Supplemental Interest Trust Trustee
from
any upfront payment received pursuant to any related replacement swap agreement
that may be entered into by the Supplemental Interest Trust Trustee) owed to
the
Counterparty pursuant to the Swap Agreement for such Swap Payment Date. For
federal income tax purposes, such amounts paid to the Counterparty on each
Swap
Payment Date shall first be deemed paid to the Counterparty in respect of REMIC
5 Regular Interest IO to the extent of the amount distributable on such REMIC
5
Regular Interest IO on such Distribution Date, and any remaining amount shall
be
deemed paid to the Counterparty in respect of a Class IO Distribution Amount.
Any Swap Termination Payment triggered by a Counterparty Trigger Event owed
to
the Counterparty pursuant to the Swap Agreement will be subordinated to
distributions to the Holders of the Class A, Class M and Class B Certificates
and shall be paid as set forth under Section 4.02(b)(iv)AA.
(d) The
Supplemental Interest Trust Trustee will prepare and deliver any notices
required to be delivered to the Counterparty under Sections 2(b), 2(d), 4(d),
5(a), 6(a), 6(b), 6(d) and 12(b) of the ISDA Master Agreement.
(e) The
Supplemental Interest Trust Trustee shall terminate the Swap Agreement upon
the
occurrence of an event of default under the Swap Agreement of which a
Responsible Officer of the Supplemental Interest Trust Trustee has actual
knowledge. Upon such a termination, the Counterparty may be required to pay
a
termination payment to the Supplemental Interest Trust Trustee in respect of
the
Swap Agreement. Any such termination payment shall be applied by the
Supplemental Interest Trust Trustee to the purchase of a substantially
equivalent swap agreement at the written direction of the Majority in Interest
Class X-1 Certificateholder. In addition, any payments received from a
replacement swap counterparty as payment to enter a replacement transaction
shall be used to pay any termination payments still owing to the Counterparty.
In the event that a replacement swap agreement is not obtained within 30 days
after receipt by the Supplemental
Interest Trust Trustee,
on behalf of the Supplemental Interest Trust, of the Swap Termination Payment
paid by the original Counterparty, the Supplemental Interest Trust Trustee
will
deposit such Swap Termination Payment into the Swap Account and will, on each
Distribution Date, withdraw from the Swap Account an amount equal to the Net
Swap Payment, if any, that would have been paid to the Supplemental Interest
Trust by the original Counterparty (computed in accordance with the terms of
the
original Swap Agreement) and distribute such amount in the priority set forth
below.
(f) On
each
Distribution Date, the Trustee shall distribute amounts on deposit in the Swap
Account to pay the following amounts:
(i) to
the
Class A-1, Class A-2, Class A-3, Class A-IO and Class A-R Certificates, pro
rata
based on amounts due, Current Interest and any Carryforward Interest for each
such class and such Distribution Date, after giving effect to distributions
of
such amounts pursuant to Section 4.02(b)(i)B.;
(ii) to
the
Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8, Class M-9 and Class B-1 Certificates, in that order, Current Interest
and any Carryforward Interest for each such class and such Distribution Date,
after giving effect to distributions of such amounts pursuant to Section
4.02(b)(i)C. through L.;
(iii) to
the
Principal Remittance Amount, up to the amount of Realized Losses on the Mortgage
Loans incurred during the related Collection Period prior to giving effect
to
amounts available to be paid in respect of Excess Cashflow Loss Payments
pursuant to Section 4.02(b)(iv)A.;
(iv) to
the
Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8, Class M-9 and Class B-1 Certificates, in that order, any applicable
Deferred Amounts, with interest therein at the applicable Pass-Through Rate,
prior to giving effect to amounts available to be paid in respect of Deferred
Amounts as described in Section 4.02(b)(iv)E. through N. on such Distribution
Date; and
(v) to
the
Class A-1, Class A-2, Class A-3 and Class A-IO Certificates, on a pro rata
basis, and then to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and Class B-1 Certificates, in that
order, any Basis Risk Shortfall, prior to giving effect to amounts available
to
be paid in respect of Basis Risk Shortfalls as described in Section
4.02(b)(iv)O. through Y. on such Distribution Date.
(g) Funds
in
the Swap Account may be invested in Eligible Investments by the Trustee at
the
written direction of the Majority in Interest Class X-1 Certificateholder
maturing on or prior to the next succeeding Distribution Date. The Trustee
shall
account for the Swap Account as an outside reserve fund within the meaning
of
Treasury regulation 1.860G-2(h) and not an asset of any REMIC created pursuant
to this Agreement. The Trustee shall treat amounts paid by the Swap Account
as
payments made from outside the REMICs for all federal tax purposes. Any net
investment earnings on such amounts shall be payable to the Class X-1
Certificateholders. It is the intention of the parties hereto that, for federal
and state income and state and local franchise tax purposes, the Swap Account
be
disregarded as an entity separate from the Holder of the Class X-1 Certificates
unless and until the date when either (a) there is more than one Class X-1
Certificateholder or (b) any Class of Certificates in addition to the Class
X-1
Certificates is recharacterized as an equity interest in the Swap Account for
federal income tax purposes, in which case it is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Swap Account be treated as a partnership. The Majority in Interest
Class X-1 Certificateholder shall direct the Trustee in writing as to the
investment of amounts therein. In the absence of such written direction, all
funds in the Swap Account shall remain uninvested with no liability for interest
or other compensation thereon. The Trustee shall have no liability for losses
on
investments in Eligible Investments made pursuant to this Section 4.11(g) (other
than as obligor on any such investments). Upon termination of the Trust Fund,
any amounts remaining in the Swap Account shall be distributed to the Class
X-1
Certificateholders.
(h) Amounts
paid under the Swap Agreement not used on any Distribution Date as described
in
Section 4.11(f) shall remain on deposit in the Swap Account and may be available
on future Distribution Dates to make the payments described in Section 4.11(f).
On the Distribution Date on which the aggregate Class Principal Balance of
the
Certificates is reduced to zero, any amounts remaining in the Swap Account
shall
be released to the Class X-1 Certificateholders.
(i) In
connection with paragraph 7(i) of the ISDA credit support annex, upon the
Counterparty's failure to post collateral with the Supplemental Interest Trust
Trustee, the Supplemental Interest Trust Trustee (to the extent it has actual
knowledge) shall provide, no later than the next Business Day after the date
such collateral was required to be posted, to the Counterparty a written
notice of such failure.
ARTICLE
V
THE
CERTIFICATES
| SECTION 5.01 |
The
Certificates.
|
The
Certificates shall be substantially in the forms attached hereto as exhibits.
The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one Certificate
in each Class may be issued in a different amount which must be in excess of
the
applicable minimum denomination) and aggregate denominations per Class set
forth
in the Preliminary Statement.
Subject
to Section 9.02 respecting the final distribution on the Certificates, on each
Distribution Date the Trustee shall make distributions to each Certificateholder
of record on the preceding Record Date either (x) by wire transfer in
immediately available funds to the account of such holder at a bank or other
entity having appropriate facilities therefor, if (i) such Holder has so
notified the Trustee at least five Business Days prior to the related Record
Date and (ii) such Holder shall hold (A) a Notional Amount Certificate, (B)
100%
of the Class Principal Balance of any Class of Certificates or (C) Certificates
of any Class with aggregate principal Denominations of not less than $1,000,000
or (y) by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register.
The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Trustee by an authorized officer upon the written order of the Depositor.
Certificates bearing the manual or facsimile signatures of individuals who
were,
at the time such signatures were affixed, authorized to sign on behalf of the
Trustee shall bind the Trustee, notwithstanding that such individuals or any
of
them have ceased to be so authorized prior to the countersignature and delivery
of any such Certificates or did not hold such offices at the date of such
Certificate. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless countersigned by the Trustee
by
manual signature, and such countersignature upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been
duly
executed and delivered hereunder. All Certificates shall be dated the date
of
their countersignature. On the Closing Date, the Trustee shall countersign
the
Certificates to be issued at the written direction of the Depositor, or any
affiliate thereof.
The
Depositor shall provide, or cause to be provided, to the Trustee on a continuous
basis, an adequate inventory of Certificates to facilitate
transfers.
The
Trustee shall have no obligation or duty to monitor, determine or inquire as
to
compliance with any restriction or transfer imposed under Article V of this
Agreement or under applicable law with respect to any transfer of any
Certificate, or any interest therein, other than to require delivery of the
certification(s) and/or opinions of counsel described in Article V applicable
with respect to changes in registration of record ownership of Certificates
in
the Certificate Register. The Trustee shall have no liability for transfers,
including transfers made through the book-entry facilities of the Depository
or
between or among Depository Participants or beneficial owners of the
Certificates made in violation of applicable restrictions.
| SECTION 5.02 |
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
(a) The
Trustee shall maintain, or cause to be maintained in accordance with the
provisions of Section 5.06, a Certificate Register for the Trust Fund in which,
subject to the provisions of subsections (b) and (c) below and to such
reasonable regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates and of transfers and exchanges of Certificates
as
herein provided. Upon surrender for registration of transfer of any Certificate,
the Trustee shall execute and deliver, in the name of the designated transferee
or transferees, one or more new Certificates of the same Class and aggregate
Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates
are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Trustee duly executed by the holder thereof or
his
attorney duly authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Trustee in accordance with the
Trustee’s customary procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. Except in connection with any
transfer of a Private Certificate by the Depositor to any affiliate or any
transfer of a Private Certificate from the Depositor or an affiliate of the
Depositor to an owner trust or other entity established by the Depositor, in
the
event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer and
such Certificateholder’s prospective transferee shall each certify to the
Trustee and the Depositor in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit J (the “Transferor Certificate”) and
(i) deliver a letter in substantially the form of either (A) Exhibit K (the
“Investment Letter”) provided that all of the Class X Certificates of a Class
shall be transferred to one investor or the Depositor otherwise consents to
such
transfer, or (B) Exhibit L (the “Rule 144A Letter”) or (ii) there shall be
delivered to the Trustee and the Depositor at the expense of the transferor
an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Securities Act. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee, the Master Servicer and the
Servicers shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably request
to meet its obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Depositor, the Seller, the Master Servicer and the
Servicers against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
If
any
Certificate Owner that is required under this Section 5.02(b) to transfer its
Book-Entry Certificates in the form of Definitive Certificates, (i) notifies
the
Trustee of such transfer or exchange and (ii) transfers such Book-Entry
Certificates to the Trustee, in its capacity as such, through the book-entry
facilities of the Depository, then the Trustee shall decrease the balance of
such Book-Entry Certificates or, the Trustee shall use reasonable efforts to
cause the surrender to the Certificate Registrar of such Book-Entry Certificates
by the Depository, and thereupon, the Trustee shall execute, authenticate and
deliver to such Certificate Owner or its designee one or more Definitive
Certificates in authorized denominations and with a like aggregate principal
amount.
Any
Certificate Owner of a Book-Entry Certificate other than any such “qualified
institutional buyers” shall notify the Trustee of its status as such and shall
transfer such Book-Entry Certificate to the Trustee, through the book-entry
facilities of the Depository, whereupon, and also upon surrender to the Trustee
of such Book-Entry Certificate by the Depository, (which surrender the Trustee
shall use reasonable efforts to cause to occur), the Trustee shall execute,
authenticate and deliver to such Certificate Owner or such Certificate Owner’s
nominee one or more Definitive Certificates in authorized denominations and
with
a like aggregate principal amount.
No
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
and
the Depositor shall have received either (i) a representation from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee (in the event such Certificate is a Private
Certificate or a Residual Certificate, such requirement is satisfied only by
the
Trustee’s receipt of a representation letter from the transferee substantially
in the form of Exhibit K or Exhibit L, or Exhibit I, as applicable), to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code
(a
“Plan”), nor a person acting on behalf of a Plan nor using the assets of a Plan
to effect such transfer or (ii) in the case of any such ERISA-Restricted
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement
or using such plan’s or arrangement’s assets, an Opinion of Counsel satisfactory
to the Trustee, which Opinion of Counsel shall not be an expense of either
the
Trustee or the Trust Fund, addressed to the Trustee and the Depositor for the
benefit of the Trustee, the Depositor, the Master Servicer and the Servicers
and
on which they may rely, to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not result in the assets of the Trust Fund
being deemed to be “plan assets” and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee, any
Depositor, the Special Servicer, the Master Servicer or the Servicers to any
obligation in addition to those expressly undertaken in this Agreement or to
any
liability. Notwithstanding anything else to the contrary herein, any purported
transfer of an ERISA-Restricted Certificate to or on behalf of an employee
benefit plan subject to ERISA or to the Code without the delivery to the Trustee
and the Depositor of an Opinion of Counsel satisfactory to the Trustee as
described above shall be void and of no effect.
Prior
to
the termination of the Supplemental Interest Trust, no transfer of a Class
A-1,
Class A-2, Class A-3, Class A-IO, Class M or Class B Certificate shall be made
unless either (i) the Trustee and the Depositor shall have received a
representation or a deemed representation, in the case of Book-Entry
Certificates, from the transferee of such Certificate acceptable to and in
form
and substance satisfactory to the Trustee and the Depositor, to the effect
that
such transferee is not an employee benefit plan subject to Section 406 of ERISA
or a plan subject to Section 4975 of the Code (either a “Plan”), or a Person
acting on behalf of a Plan or using the assets of a Plan, or (ii) the transferee
provides a representation, or is deemed to represent in the case of the
Book-Entry Certificates that (A) it is an accredited investor within the meaning
of Prohibited Transaction Exemption 2002-4 and (B) that the proposed transfer
or
holding of such Certificate are eligible for exemptive relief under Prohibited
Transaction Exemption (“PTE”) 84-14, XXX 00-00, XXX 00-0, XXX 95-60 or PTE 96-23
in the case of a Certificate other than a Class B-1 Certificate, or PTE 95-60
in
the case of a Class B-1 Certificate provided, however, that if the Class B-1
Certificate has been the subject of an ERISA-Qualifying Underwriting, the
transferee must represent or be deemed to represent that the acquisition or
holding of the Class B-1 Certificate is eligible for exemptive relief under
one
of the five prohibited transactions enumerated above. Any Holder of a
Certificate or any interest therein that is a Book-Entry Certificate shall
be
deemed to have made the representations described in the preceding
sentence.
Subsequent
to the termination of the Supplemental Interest Trust unless the Class B-1
Certificates meet the requirements for an ERISA-Qualifying Underwriting, each
beneficial owner of a Class B-1 Certificate or any interest therein shall be
deemed to have represented, by virtue of its acquisition or holding of that
certificate or interest therein, that either (i) it is not a Plan or investing
with “Plan Assets” or (ii) (1) it is an insurance company, (2) the source of
funds used to acquire or hold the certificate or interest therein is an
“insurance company general account,” as such term is defined in PTE 95-60, and
(3) the conditions in Sections I and III of PTE 95-60 have been
satisfied.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee shall be under no liability to any Person for any registration
of
transfer of any ERISA-Restricted Certificate that is in fact not permitted
by
this Section 5.02(b) 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.
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless, in addition to the certificates required
to
be delivered to the Trustee under subparagraph (b) above, the Trustee and the
Depositor shall have been furnished with an affidavit (a “Transfer Affidavit”)
of the initial owner or the proposed transferee in the form attached hereto
as
Exhibit I.
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Residual Certificate and (C) not to Transfer its Ownership Interest in a
Residual Certificate or to cause the Transfer of an Ownership Interest in a
Residual Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported Transferee.
If any purported transferee shall become a Holder of a Residual Certificate
in
violation of the provisions of this Section 5.02(c), then the last preceding
Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such 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 Section 5.02(b) and this Section 5.02(c) or for making any payments due
on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit and Transferor
Certificate. The Trustee shall be entitled but not obligated to recover from
any
Holder of a Residual Certificate that was in fact not a Permitted Transferee
at
the time it became a Holder or, at such subsequent time as it became other
than
a Permitted Transferee, all payments made on such Residual Certificate at and
after either such time. Any such payments so recovered by the Trustee shall
be
paid and delivered by the Trustee to the last preceding Permitted Transferee
of
such Certificate.
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Residual Certificate set forth in this Section
5.02(c) shall cease to apply (and the applicable portions of the legend on
a
Residual Certificate may be deleted) with respect to Transfers occurring after
delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall
not be an expense of the Trust Fund, the Trustee, the Seller, the Master
Servicer or the Servicers, to the effect that the elimination of such
restrictions will not cause the Trust Fund hereunder to fail to qualify as
a
REMIC at any time that the Certificates are outstanding or result in the
imposition of any tax on the Trust Fund, a Certificateholder or another Person.
Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based
on
an Opinion of Counsel furnished to the Trustee, is reasonably necessary (a)
to
ensure that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to a Person that is
not
a Permitted Transferee and (b) to provide for a means to compel the Transfer
of
a Residual Certificate which is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of the
parties to such transfers.
(e) Except
as
provided below, the Book-Entry Certificates shall at all times remain registered
in the name of the Depository or its nominee and at all times: (i) registration
of the Certificates may not be transferred by the Trustee except to another
Depository; (ii) the Depository shall maintain book-entry records with respect
to the Certificate Owners and with respect to ownership and transfers of such
Book-Entry Certificates; (iii) ownership and transfers of registration of the
Book-Entry Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository; (iv) the Depository may collect
its usual and customary fees, charges and expenses from its Depository
Participants; (v) the Trustee shall deal with the Depository, Depository
Participants and indirect participating firms as representatives of the
Certificate Owners of the Book-Entry Certificates for purposes of exercising
the
rights of holders under this Agreement, and requests and directions for and
votes of such representatives shall not be deemed to be inconsistent if they
are
made with respect to different Certificate Owners; and (vi) the Trustee may
rely
and shall be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures.
If
(x)
(i) the Depository or the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor, (y) the Depositor, with the consent of the
Depository Participants, advises the Trustee in writing that it elects to
terminate the book-entry system through the Depository or (z) after the
occurrence of an Event of Default, Certificate Owners representing at least
51%
of the Certificate Balance of the Book-Entry Certificates together advise the
Trustee and the Depository through the Depository Participants in writing that
the continuation of a book-entry system through the Depository is no longer
in
the best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully-registered Certificates (the
“Definitive Certificates”) to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates.
In
addition, if an Event of Default has occurred and is continuing, each
Certificate Owner materially adversely affected thereby may at its option
request a Definitive Certificate evidencing such Certificate Owner’s Percentage
Interest in the related Class of Certificates. In order to make such request,
such Certificate Owner shall, subject to the rules and procedures of the
Depository, provide the Depository or the related Depository Participant with
directions for the Trustee to exchange or cause the exchange of the Certificate
Owner’s interest in such Class of Certificates for an equivalent Percentage
Interest in fully registered definitive form. Upon receipt by the Trustee of
instruction from the Depository directing the Trustee to effect such exchange
(such instructions to contain information regarding the Class of Certificates
and the Certificate Balance being exchanged, the Depository Participant account
to be debited with the decrease, the registered holder of and delivery
instructions for the Definitive Certificates and any other information
reasonably required by the Trustee), (i) the Trustee shall instruct the
Depository to reduce the related Depository Participant’s account by the
aggregate Certificate Balance of the Definitive Certificates, (ii) the Trustee
shall execute, authenticate and deliver, in accordance with the registration
and
delivery instructions provided by the Depository, a Definitive Certificate
evidencing such Certificate Owner’s Percentage Interest in such Class of
Certificates and (iii) the Trustee shall execute and authenticate a new
Book-Entry Certificate reflecting the reduction in the aggregate Class Principal
Balance of such Class of Certificates by the amount of the Definitive
Certificates.
None
of
the Seller, the Servicers, the Depositor, the Master Servicer or the Trustee
shall be liable for any delay in delivery of any instruction required under
this
section and each may conclusively rely on, and shall be protected in relying
on,
such instructions. The Depositor shall provide the Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder; provided
that the Trustee shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the
Depository.
No
transfer of any Class X-1 Certificate shall be made unless the transferee of
such Class X-1 Certificate provides to the Trustee or the Depositor the
appropriate tax certification form (i.e., IRS Form W-9 or IRS Form X-0XXX,
X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor form thereto)), as
a
condition to such transfer and agrees to update such forms (i) upon expiration
of any such form, (ii) as required under then applicable U.S. Treasury
regulations and (iii) promptly upon learning that any IRS Form W-9 or IRS Form
X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor form thereto),
has become obsolete or incorrect. Upon receipt of any such tax certification
form from a transferee of any Class X-1 Certificate, the Trustee or the
Depositor shall provide a copy of such tax certification form to the
Supplemental Interest Trust Trustee. The Supplemental Interest Trust Trustee
shall provide a copy of any such tax certification form to the
Counterparty.
| SECTION 5.03 |
Mutilated,
Destroyed, Lost or Stolen
Certificates.
|
If
(a)
any mutilated Certificate is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Trustee such security or indemnity
as may be required by it to hold it harmless, then, in the absence of notice
to
the Trustee that such Certificate has been acquired by a bona fide purchaser,
the Trustee shall execute, countersign and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like Class, tenor and Percentage Interest. In connection with the issuance
of
any new Certificate under this Section 5.03, the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may
be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate issued
pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
| SECTION 5.04 |
Persons
Deemed Owners.
|
The
Servicers, the Master Servicer, the Trustee and any agent of the Servicers,
the
Master Servicer]or the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and none of the Servicers, the Master Servicer, the Trustee or
any
agent of the Servicers, the Master Servicer or the Trustee shall be affected
by
any notice to the contrary.
| SECTION 5.05 |
Access
to List of Certificateholders’ Names and
Addresses.
|
If
three
or more Certificateholders (a) request such information in writing from the
Trustee, (b) state that such Certificateholders desire to communicate with
other
Certificateholders with respect to their rights under this Agreement or under
the Certificates, and (c) provide a copy of the communication which such
Certificateholders propose to transmit, or if the Depositor or a Servicer shall
request such information in writing from the Trustee, then the Trustee shall,
within ten Business Days after the receipt of such request, provide the
Depositor, the Servicers or such Certificateholders at such recipients’ expense
the most recent list of the Certificateholders of such Trust Fund held by the
Trustee, if any. The Depositor and every Certificateholder, by receiving and
holding a Certificate, agree that the Trustee shall not be held accountable
by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
| SECTION 5.06 |
Maintenance
of Office or Agency.
|
The
Trustee will maintain or cause to be maintained at its expense an office or
offices or agency or agencies in St. Xxxx, Minnesota where Certificates may
be
surrendered for registration of transfer or exchange. The Trustee initially
designates its Corporate Trust Office for such purposes. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
ARTICLE
VI
THE
DEPOSITOR, THE SELLER, THE SERVICERS, THE MASTER SERVICER AND ANY SPECIAL
SERVICER
| SECTION 6.01 |
Respective
Liabilities of the Depositor, the Sellers, the Servicers, the Master
Servicer and the Special Servicer.
|
The
Depositor, the Seller, each Servicer, the Master Servicer and any Special
Servicer shall each be liable in accordance herewith only to the extent of
the
obligations specifically and respectively imposed upon and undertaken by them
herein.
| SECTION 6.02 |
Merger
or Consolidation of the Depositor, the Seller, a Servicer, the Master
Servicer or any Special Servicer.
|
The
Depositor, the Seller, each Servicer, the Master Servicer and any Special
Servicer will each keep in full effect its existence, rights and franchises
as a
corporation under the laws of the United States or under the laws of one of
the
states thereof or as a federally chartered savings bank organized under the
laws
of the United States and will each obtain and preserve its qualification to
do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement. Notwithstanding the foregoing,
the
Seller or a Servicer may be merged or consolidated into another Person in
accordance with the following paragraph.
Any
Person into which the Depositor, the Seller, a Servicer, the Master Servicer
or
any Special Servicer may be merged or consolidated, or any Person resulting
from
any merger or consolidation to which the Depositor, the Seller, a Servicer,
the
Master Servicer or any Special Servicer shall be a party, or any person
succeeding to the business of the Depositor, the Seller, a Servicer, the Master
Servicer or any Special Servicer, shall be the successor of the Depositor,
the
Seller, a Servicer, the Master Servicer or any Special Servicer, as the case
may
be, hereunder, without the execution or filing of any paper or any further
act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided, however, that the successor or surviving Person
with
respect to a merger or consolidation of a Servicer, the Master Servicer or
any
Special Servicer shall be an institution which is a Xxxxxx Mae or Xxxxxxx Mac
approved company in good standing. In addition to the foregoing, there must
be
delivered to the Trustee a letter from each of the Rating Agencies, to the
effect that such merger, conversion or consolidation of a Servicer will not
result in a disqualification, withdrawal or downgrade of the then current rating
of any of the Certificates.
| SECTION 6.03 |
Limitation
on Liability of the Depositor, the Seller, the Servicers, the Master
Servicer, any Special Servicer and
Others.
|
None
of
the Depositor, the Seller, any Servicer, the Master Servicer, any Special
Servicer nor any of the directors, officers, employees or agents of the
Depositor, the Seller, any Servicer, the Master Servicer or any Special Servicer
shall be under any liability to the Certificateholders for any action taken
or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Seller, any Servicer, the Master Servicer,
any Special Servicer or any such Person against any breach of representations
or
warranties made by it herein or protect the Depositor, the Seller, any Servicer,
the Master Servicer, the Special Servicer or any such Person from any liability
which would otherwise be imposed by reasons of willful misfeasance, bad faith
or
negligence in the performance of duties or by reason of reckless disregard
of
obligations and duties hereunder. The Depositor, the Seller, each Servicer,
the
Master Servicer, any Special Servicer and any director, officer, employee or
agent of the Depositor, the Seller, a Servicer, the Master Servicer or any
Special Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Seller, the Trustee, the related Servicer, the
Master Servicer, any Special Servicer and any director, officer, employee or
agent of the Depositor, the Seller, the Trustee, the related Servicer, the
Master Servicer or any Special Servicer shall be indemnified by the Trust Fund
out of the Collection Account and held harmless against any loss, liability
or
expense incurred in connection with any legal action relating to this Agreement
(including the provisions set forth in the last sentence of Section 2.01(a))
or
the Certificates, other than any loss, liability or expense incurred by reason
of willful misfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder; provided, however, with respect to the provisions set forth in the
last sentence of Section 2.01(a), such indemnification will be without regard
to
loss, liability or expense incurred by reason of any willful misfeasance, bad
faith or negligence in performance of its duties hereunder. None of the
Depositor, the Seller, any Servicer, the Master Servicer or any Special Servicer
shall be under any obligation to appear in, prosecute or defend any legal action
that is not incidental to its respective duties hereunder and which in its
opinion may involve it in any expense or liability; provided, however, that
any
of the Depositor, the Seller, any Servicer, the Master Servicer or any Special
Servicer may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties
of
the parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Seller, each Servicer, the Master Servicer
and any Special Servicer shall be entitled to be reimbursed therefor out of
the
Collection Account. Each Servicer’s, the Master Servicer’s and any Special
Servicer’s right to indemnity or reimbursement pursuant to this Section 6.03
shall survive the resignation or termination of such Servicer as set forth
herein.
| SECTION 6.04 |
Limitation
on Resignation of a Servicer or the Master
Servicer.
|
(a) Subject
to Section 6.04(b) below, a Servicer shall not resign from the obligations
and
duties hereby imposed on it except (a)(i) upon appointment, pursuant to the
provisions of Section 7.02, of a successor servicer which (x) has a net worth
of
not less than $10,000,000 and (y) is a Xxxxxx Xxx or Xxxxxxx Mac approved
company in good standing and (ii) receipt by the Trustee of a letter from each
Rating Agency that such a resignation and appointment will not result in a
qualification, withdrawal or downgrading of the then current rating of any
of
the Certificates, or (b) upon determination that its duties hereunder are no
longer permissible under applicable law. Any such determination under clause
(b)
permitting the resignation of a Servicer shall be evidenced by an Opinion of
Counsel to such effect delivered to the Trustee. No such resignation shall
become effective until the Trustee or a successor servicer shall have assumed
such Servicer’s responsibilities, duties, liabilities and obligations hereunder
and the requirements of Section 7.02 have been satisfied.
(b) Notwithstanding
the foregoing at the Seller’s request, so long as it is the owner of the
servicing rights, SPS or Ocwen shall resign upon the Seller’s selection and
appointment of a successor servicer; provided that the Seller delivers to the
Trustee the letter required by Section 6.04(a)(ii) above. In addition, at the
Seller’s request, so long as it is the owner of the servicing rights, SPS shall
resign as Master Servicer.
(c) Notwithstanding
the foregoing, at the request of the Majority in Interest Class X-1
Certificateholder, a Special Servicer shall resign, upon the selection and
appointment of a successor special servicer by the Majority in Interest Class
X-1 Certificateholder; provided, that any such successor Special Servicer shall
meet all the requirements of a Servicer as described in Section 7.02 of this
Agreement and shall comply in all respects with the applicable provisions of
this Agreement.
ARTICLE
VII
DEFAULT
| SECTION 7.01 |
Events
of Default.
|
“Event
of
Default”, wherever used herein, means any one of the following
events:
(i) any
failure by a Servicer to make any deposit or payment required pursuant to this
Agreement which continues unremedied for a period of one Business Day (or,
in
the case of any such failure to make any deposit or payment due to any outbreak
or escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis or act of god, for a period of
three Business Days) after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to such Servicer by
the
Trustee or the Depositor, or to such Servicer and the Trustee by the Holders
of
Certificates having not less than 25% of the Voting Rights evidenced by the
Certificates; or
(ii) any
failure by a Servicer duly to observe or perform in any material respect any
other of the covenants or agreements on the part of such Servicer set forth
in
this Agreement, which failure or breach (a) materially affects the rights of
the
Certificateholders and (b) continues unremedied for a period of 30 days after
the date on which written notice of such failure or breach, requiring the same
to be remedied, shall have been given to such Servicer by the Trustee or the
Depositor, or to such Servicer and the Trustee by the Holders of Certificates
having not less than 25% of the Voting Rights evidenced by the Certificates;
or
(iii) if
a
representation or warranty set forth in Section 2.03(b) or (c), as applicable,
hereof shall prove to be materially incorrect as of the time made in any respect
that materially and adversely affects interests of the Certificateholders,
and
the circumstances or condition in respect of which such representation or
warranty was incorrect shall not have been eliminated or cured, within 30 days
(or, if such breach is not capable of being cured within 30 days and provided
that the related Servicer believes in good faith that such breach can be cured
and is diligently pursuing the cure thereof, within 90 days) after the date
on
which written notice thereof shall have been given to the related Servicer
by
the Trustee for the benefit of the Certificateholders or by the Depositor;
or
(iv) failure
by a Servicer to maintain, if required, its license to do business in any
jurisdiction where the related Mortgaged Property is located, to the extent
such
failure materially and adversely affects the ability of such Servicer to perform
its obligations under this Agreement; 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, including bankruptcy, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against a Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 consecutive days;
or
(vi) a
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to such Servicer or of or
relating to all or substantially all of its property; or
(vii) any
failure of a Servicer to make any Advance, to the extent required under Section
4.01 in the manner and at the time required to be made from its own funds
pursuant to this Agreement and after receipt of notice from the Trustee, which
failure continues unremedied after the close of business on the Business Day
immediately preceding the related Distribution Date; or
(viii) a
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of or commence a voluntary case
under, any applicable insolvency, bankruptcy or reorganization statute, make
an
assignment for the benefit of its creditors, voluntarily suspend payment of
its
obligations or cease its normal business operations for three Business Days;
or
(ix) (a)
the
servicer rankings or ratings for a Servicer are downgraded to “below average”
status or below by one or more of the Rating Agencies rating the Certificates
or
(b) one or more Classes of the Certificates are downgraded or placed on negative
watch due in whole or in part to the performance or servicing of a
Servicer;
(x) with
respect to Ocwen, failure of clause (A) of the Ocwen Termination Test;
or
(xi) any
failure of a Servicer to deliver to the Trustee and the Depositor the items
required by Sections 3.16, 3.17 and 8.12(c) within two Business Days of notice
thereof from the Trustee or the Depositor.
Other
than an Event of Default resulting from a failure of a Servicer to make any
Advance, if an Event of Default described in clauses (i) through (viii) and
(x)
of this Section shall occur, then, and in each and every such case, so long
as
such Event of Default shall not have been remedied, the Trustee may, or at
the
direction of the Holders of Certificates evidencing not less than 51% of the
Voting Rights evidenced by the Certificates, the Trustee shall by notice in
writing to such Servicer (with a copy to each Rating Agency), terminate all
of
the rights and obligations of such Servicer under this Agreement and in and
to
the related Mortgage Loans and the proceeds thereof, other than its rights
as a
Certificateholder hereunder (and the rights to reimburse itself for Advances
and
Servicing Advances previously made pursuant to this Agreement, the right to
accrued and unpaid Servicing Fees and the rights under Section 6.03 with respect
to events occurring prior to such termination). If an Event of Default results
from the failure of a Servicer to make an Advance, the Trustee shall prior
to
the Distribution Date occurring in the succeeding calendar month, by notice
in
writing to such Servicer and the Depositor (with a copy to each Rating Agency),
terminate all of the rights and obligations of such Servicer under this
Agreement prior to the Distribution Date occurring in the succeeding calendar
month and in and to the related Mortgage Loans and the proceeds thereof, other
than its rights as a Certificateholder hereunder and the rights to reimburse
itself for Advances and Servicing Advances previously made pursuant to this
Agreement, the right to accrued and unpaid Servicing Fees and the rights under
Section 6.03 with respect to events occurring prior to such termination. If
an
Event of Default described in clause (ix) or (xi) of this Section occurs, the
Trustee shall, at the direction of the Seller, by notice in writing to the
related Servicer, terminate all of the rights and obligations of such Servicer
under this Agreement (other than its right to reimburse itself for Advances
and
Servicing Advances previously made, as provided in Section 3.08, the right
to
accrued and unpaid Servicing Fees and the rights under Section 6.03 with respect
to events occurring prior to such termination) and shall appoint as successor
Servicer the entity selected by the Seller in accordance with Section 7.02;
provided the Seller shall first furnish to the Trustee a letter from each Rating
Agency that the appointment of such successor will not result in a downgrading
of the rating of any of the Certificates.
Upon
receipt by a Servicer of such written notice of termination, all authority
and
power of such Servicer under this Agreement, whether with respect to the
Mortgage Loans serviced by it or otherwise, shall pass to and be vested in
the
Trustee or its nominee. Upon written request from the Trustee, such Servicer
shall prepare, execute and deliver to the successor entity designated by the
Trustee any and all documents and other instruments, place in such successor’s
possession all related Mortgage Files, and do or cause to be done all other
acts
or things necessary or appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at such Servicer’s sole
expense. The related Servicer shall cooperate with the Trustee and such
successor in effecting the termination of such Servicer’s responsibilities and
rights hereunder, including without limitation, the transfer to such successor
for administration by it of all cash amounts, net of unreimbursed Advances
and
Servicing Advances and unpaid Servicing Fees which shall at the time be credited
by the related Servicer to the Collection Account or Escrow Account or
thereafter received with respect to the Mortgage Loans serviced by it. The
Trustee, as successor Servicer, shall thereupon make any Advance prior to the
related Distribution Date. The Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the related 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 related Mortgage Loans and related documents, or
otherwise.
| SECTION 7.02 |
Trustee
to Act; Appointment of Successor.
|
On
and
after the time a Servicer receives a notice of termination pursuant to Section
7.01 of this Agreement or the resignation of a Servicer pursuant to Section
6.04, the Trustee shall, subject to and to the extent provided herein, be the
successor to the related Servicer, but only in its capacity as servicer under
this Agreement, and not in any other, and the transactions set forth herein
and
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on the related Servicer by the terms and provisions hereof and
applicable law including the obligation to make Advances pursuant to Section
4.01. As compensation therefor, the Trustee shall be entitled to all funds
relating to the Mortgage Loans that the related Servicer would have been
entitled to charge to the Collection Account, provided that the terminated
Servicer shall nonetheless be entitled to payment or reimbursement as provided
in Section 3.08 to the extent that such payment or reimbursement relates to
the
period prior to termination of the related Servicer. Notwithstanding the
foregoing, if the Trustee has become the successor to a Servicer in accordance
with Section 7.01, the Trustee may, if it shall be unwilling to so act, or
shall, if it is prohibited by applicable law from making Advances pursuant
to
4.01 hereof, or if it is otherwise unable to so act, appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution the appointment of which does not adversely affect the
then current rating of the Certificates by each Rating Agency, as the successor
to a Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of a Servicer hereunder. Any successor
to a Servicer shall be an institution which is a Xxxxxx Xxx or Xxxxxxx Mac
approved seller/servicer for first and second loans in good standing, which
has
a net worth of at least $10,000,000, which is willing to service the related
Mortgage Loans and which executes and delivers to the Depositor and the Trustee
an agreement accepting such delegation and assignment, containing an assumption
by such Person of the rights, powers, duties, responsibilities, obligations
and
liabilities of the related Servicer (other than liabilities of the related
Servicer under Section 6.03 hereof incurred prior to termination of the related
Servicer under Section 7.01 hereunder), with like effect as if originally named
as a party to this Agreement; provided that each Rating Agency acknowledges
that
its rating of the Certificates in effect immediately prior to such assignment
and delegation will not be qualified, withdrawn or downgraded as a result of
such assignment and delegation. Pending appointment of a successor to a Servicer
hereunder, the Trustee, unless the Trustee is prohibited by law from so acting,
shall, subject to the limitations described herein, act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out
of
payments on the related Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of the Servicing
Fee. The Trustee and such successor shall take such action, consistent with
this
Agreement, as shall be necessary to effectuate any such succession. Neither
the
Trustee nor any other successor servicer shall be deemed to be in default by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof or any failure to perform, or any delay in
performing, any duties or responsibilities hereunder, in either case caused
by
the failure of the related Servicer to deliver or provide, or any delay in
delivering or providing, any cash, information, documents or records to
it.
In
connection with the termination or resignation of any Servicer hereunder, either
(i) the successor servicer, including the Trustee if the Trustee is acting
as
successor Servicer, shall represent and warrant that it is a member of MERS
in
good standing and shall agree to comply in all material respects with the rules
and procedures of MERS in connection with the servicing of the Mortgage Loans
that are registered with MERS, in which case the predecessor Servicer shall
cooperate with the successor Servicer in causing MERS to revise its records
to
reflect the transfer of servicing to the successor Servicer as necessary under
MERS’ rules and regulations, or (ii) the predecessor Servicer shall cooperate
with the successor Servicer in causing MERS to execute and deliver an assignment
of Mortgage in recordable form to transfer the Mortgage from MERS to the Trustee
and to execute and deliver such other notices, documents and other instruments
as may be necessary or desirable to effect a transfer of such Mortgage Loan
or
servicing of such Mortgage Loan on the MERS® System to the successor Servicer.
The predecessor Servicer shall file or cause to be filed any such assignment
in
the appropriate recording office. The predecessor Servicer shall bear any and
all fees of MERS, costs of preparing any assignments of Mortgage, and fees
and
costs of filing any assignments of Mortgage that may be required under this
subsection.
Any
successor to a Servicer shall give notice to the Mortgagors of such change
of
servicer and shall, during the term of its service as servicer, maintain in
force the policy or policies that such Servicer is required to maintain pursuant
to this Agreement.
| SECTION 7.03 |
Notification
to Certificateholders.
|
(a) Upon
any
termination of or appointment of a successor to a Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders and to each Rating
Agency.
(b) Within
60
days after the occurrence of any Event of Default, the Trustee shall transmit
by
mail to all Certificateholders notice of each such Event of Default hereunder
actually known to the Trustee, unless such Event of Default shall have been
cured or waived.
ARTICLE
VIII
CONCERNING
THE TRUSTEE
| SECTION 8.01 |
Duties
of the Trustee.
|
The
Trustee, prior to the occurrence of an Event of Default and after the curing
of
all Events of Default that may have occurred, shall undertake to perform such
duties and only such duties as are specifically set forth in this Agreement.
In
case an Event of Default has occurred and remains uncured, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and
use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person’s own
affairs.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee that
are specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether they 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.
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) unless
an
Event of Default actually known to the Trustee shall have occurred and be
continuing, the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the Trustee 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 Trustee and the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believed in good
faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it shall
be
finally proven that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the direction of
Holders of Certificates evidencing not less than 25% of the Voting Rights of
Certificates relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Agreement.
| SECTION 8.02 |
Certain
Matters Affecting the Trustee.
|
Except
as
otherwise provided in Section 8.01:
(i) the
Trustee may request and conclusively rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officers’ Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper
or document believed by it to be genuine and to have been signed or presented
by
the proper party or parties and the Trustee shall have no responsibility to
ascertain or confirm the genuineness of any signature of any such party or
parties;
(ii) the
Trustee may consult with counsel, financial advisers or accountants and the
advice of any such counsel, financial advisers or accountants and any Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the
Trustee shall not be liable for any action taken, suffered or omitted by it
in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(iv) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders of Certificates evidencing
not
less than 25% of the Voting Rights allocated to each Class of
Certificates;
(v) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, affiliates, accountants
or
attorneys;
(vi) the
Trustee shall not be required to risk or expend its own funds or otherwise
incur
any financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not assured to it;
(vii) the
Trustee shall not be liable for any loss on any investment of funds pursuant
to
this Agreement (other than as issuer of the investment security);
(viii) the
Trustee shall not be deemed to have knowledge of an Event of Default until
a
Responsible Officer of the Trustee shall have received written notice thereof;
and
(ix) the
Trustee shall be under no obligation to exercise any of the trusts, rights
or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction
of
any of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
(x) It
is
acknowledged and agreed that the Person serving as Trustee hereunder shall
also
serve as Supplemental Interest Trust Trustee. The Supplemental Interest Trust
Trustee is hereby directed to execute and deliver the Swap Agreement, and to
make the representations required therein. The Supplemental Interest Trust
Trustee shall be entitled to be indemnified and held harmless by the Depositor
from and against any and all losses, claims, expenses or other liabilities
that
arise by reason of or in connection with the performance or observance of its
duties or obligations under the Swap Agreement, except to the extent that the
same is due to the Supplemental Interest Trust Trustee’s willful misfeasance,
bad faith or negligence. Any Person appointed as successor trustee pursuant
to
Section 8.08 shall also be required to serve as successor supplemental interest
trust trustee.
| SECTION 8.03 |
Trustee
Not Liable for Certificates or Mortgage
Loans.
|
The
recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor or the Seller, as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document, or of MERS or the
MERS® System, other than with respect to the Trustee’s execution and
countersignature of the Certificates. The Trustee shall not be accountable
for
the use or application by the Depositor or any Servicer of any funds paid to
the
Depositor or a Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or a
Servicer.
| SECTION 8.04 |
Trustee
May Own Certificates.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates and may transact business with the Depositor, the Seller, any
Servicer and their affiliates, with the same rights as it would have if it
were
not the Trustee.
| SECTION 8.05 |
Trustee’s
Fees and Expenses.
|
The
Trustee, as compensation for its activities hereunder, shall be entitled to
(a)
withdraw from the Certificate Account on each Distribution Date prior to making
distributions pursuant to Section 4.02 an amount equal to the Trustee Fee for
such Distribution Date and (b) investment earnings on amounts on deposit in
the
Certificate Account. The Trustee and any director, officer, employee or agent
of
the Trustee shall be indemnified by the Depositor and the Servicers, to the
extent such indemnity related to the failure of the related Servicer to perform
its servicing obligations in accordance with this Agreement, and held harmless
against any loss, liability or expense (including reasonable attorney’s fees and
expenses) (i) incurred in connection with any claim or legal action relating
to
(a)
this
Agreement (including the provisions set forth in the last sentence of Section
2.01(a)), (b) the Custodial Agreements, (c) the Certificates, or (d) the
performance of any of the Trustee’s duties hereunder (including website posting
of reports as required by Section 8.12(a)), other than any loss, liability
or
expense incurred by reason of willful misfeasance, bad faith or negligence
in
the performance of any of the Trustee’s duties hereunder or incurred by reason
of any action of the Trustee taken at the direction of the Certificateholders;
provided, however, with respect to the provisions set forth in the last sentence
of Section 2.01(a), such indemnification will be without regard to loss,
liability or expense incurred by reason of any willful misfeasance, bad faith
or
negligence in the performance of any of the Trustee’s duties hereunder and
(ii)
resulting from any error in any tax or information return prepared by the
related Servicer. Such indemnity shall survive the termination of this Agreement
or the resignation or removal of the Trustee hereunder. Without limiting the
foregoing, the Depositor covenants and agrees, except as otherwise agreed upon
in writing by the Depositor and the Trustee, and except for any such expense,
disbursement or advance as may arise from the Trustee’s negligence, bad faith or
willful misconduct, to pay or reimburse the Trustee, for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Agreement with respect to: (A)
the
reasonable compensation and the expenses and disbursements of its counsel not
associated with the closing of the issuance of the Certificates, (B) the
reasonable compensation, expenses and disbursements of any accountant, engineer
or appraiser that is not regularly employed by the Trustee, to the extent that
the Trustee must engage such persons to perform acts or services hereunder
and
(C) printing and engraving expenses in connection with preparing any Definitive
Certificates. Except as otherwise provided herein, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar or
agent for the Tax Matters Person hereunder or for any other
expenses.
| SECTION 8.06 |
Eligibility
Requirements for the Trustee and
Custodian.
|
The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause either of the Rating Agencies to reduce their respective then current
Ratings of the Certificates (or having provided such security from time to
time
as is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease
to
be eligible in accordance with the provisions of this Section 8.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.07. The entity serving as Trustee may have normal banking and trust
relationships with the Depositor and its affiliates or a Servicer and its
affiliates; provided, however, that such entity cannot be an affiliate of the
Seller, the Depositor or a Servicer other than the Trustee in its role as
successor to a Servicer.
| SECTION 8.07 |
Resignation
and Removal of the Trustee.
|
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Seller, each
Servicer, any Special Servicer and each Rating Agency not less than 60 days
before the date specified in such notice, when, subject to Section 8.08, such
resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.08 meeting the qualifications set forth in Section
8.06. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within 30 days after the giving of
such
notice of resignation or removal (as provided below), the resigning or removed
Trustee may petition any court of competent jurisdiction for the appointment
of
a successor trustee.
If
at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting,
or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or
of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect
to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, in triplicate, one copy of which shall
be delivered to the Trustee, one copy to each Servicer and the Seller and one
copy to the successor trustee.
The
Holders of Certificates entitled to at least 51% of the Voting Rights may at
any
time remove the Trustee and appoint a successor trustee by written instrument
or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which shall be delivered by the successor
Trustee to each Servicer and the Seller, one complete set to the Trustee so
removed and one complete set to the successor so appointed. Notice of any
removal of the Trustee shall be given to each Rating Agency by the successor
trustee. All costs and expenses incurred by the Trustee in connection with
the
removal of the Trustee without cause shall be reimbursed to the Trustee from
amounts on deposit in the Collection Account.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 8.07 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
8.08.
| SECTION 8.08 |
Successor
Trustee.
|
Any
successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and
each
Servicer and the Seller an instrument accepting such appointment hereunder
and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor, each Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things
as
may reasonably be required for more fully and certainly vesting and confirming
in the successor trustee all such rights, powers, duties, and
obligations.
No
successor trustee shall accept appointment as provided in this Section 8.08
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 8.06 and its appointment shall not adversely
affect the then current rating of the Certificates.
Upon
acceptance of appointment by a successor trustee as provided in this Section
8.08, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates. If the Depositor fails to mail such
notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of
the
Depositor.
| SECTION 8.09 |
Merger
or Consolidation of the Trustee.
|
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be eligible under the provisions
of Section 8.06 without the execution or filing of any paper or further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
| SECTION 8.10 |
Appointment
of Co-Trustee or Separate Trustee.
|
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Fund
or property securing any Mortgage Note may at the time be located, each Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee or co-trustees jointly with the Trustee, or separate
trustee or separate trustees, of all or any part of the Trust Fund, and to
vest
in such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 8.10, such
powers, duties, obligations, rights and trusts as each Servicer and the Trustee
may consider necessary or desirable. If a Servicer shall not have joined in
such
appointment within 15 days after the receipt by it of a request to do so, or
in
the case an Event of Default shall have occurred and be continuing, the Trustee
alone shall have the power to make such appointment. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.06 and no notice to Certificateholders of
the
appointment of any co-trustee or separate trustee shall be required under
Section 8.08.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) To
the
extent necessary to effectuate the purposes of this Section 8.10, all 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 or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to a Servicer hereunder), the Trustee shall
be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
applicable Trust Fund or any portion thereof in any such jurisdiction) shall
be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) No
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder and such appointment shall not, and
shall not be deemed to, constitute any such separate trustee or co-trustee
as
agent of the Trustee;
(iii) The
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee; and
(iv) The
Depositor, and not the Trustee, shall be liable for the payment of reasonable
compensation, reimbursement and indemnification to any such separate trustee
or
co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
each
Servicer and the Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
| SECTION 8.11 |
Tax
Matters.
|
It
is
intended that the assets with respect to which the REMIC elections are to be
made, as set forth in the Preliminary Statement, shall constitute, and that
the
conduct of matters relating to each such segregated pool of assets shall be
such
as to qualify such assets as, a “real estate mortgage investment conduit” as
defined in and in accordance with the Trust Fund Provisions. In furtherance
of
such intention, the Trustee covenants and agrees that it shall act as agent
(and
the Trustee is hereby appointed to act as agent) for the Tax Matters Person
and
on behalf of the Trust Fund and that in such capacity it shall: (a) prepare
and
file, or cause to be prepared and filed, in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit Income Tax Return (Form 1066 or any successor form
adopted by the Internal Revenue Service) and prepare and file or cause to be
prepared and filed with the Internal Revenue Service and applicable state or
local tax authorities income tax or information returns for each taxable year
with respect to each of REMIC 1, REMIC 2, REMIC 3, REMIC 4 and REMIC 5
containing such information and at the times and in the manner as may be
required by the Code or state or local tax laws, regulations, or rules, and
furnish or cause to be furnished to Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby;
(b)
within thirty days of the Closing Date, furnish or cause to be furnished to
the
Internal Revenue Service, on Forms 8811 or as otherwise may be required by
the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such form,
and
update such information at the time or times in the manner required by the
Code;
(c) make or cause to be made elections that the assets of each of REMIC 1,
REMIC
2, REMIC 3, REMIC 4 and REMIC 5 be treated as a REMIC on the federal tax return
for its first taxable year (and, if necessary, under applicable state law);
(d)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and to the Internal Revenue Service and, if necessary, state
tax authorities, all information returns and reports as and when required to
be
provided to them in accordance with the REMIC Provisions, including without
limitation, the calculation of any original issue discount using the Prepayment
Assumption; (e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of
a
Non-Permitted Transferee, or a pass-through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of computing
and furnishing such information may be charged to the Person liable for such
tax); (f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding
so as
to maintain the status of REMIC 1, REMIC 2, REMIC 3, REMIC 4 and REMIC 5 as
a
REMIC under the REMIC Provisions; (g) not knowingly or intentionally take any
action or omit to take any action that would cause the termination of the REMIC
status of REMIC 1, REMIC 2, REMIC 3, REMIC 4 or REMIC 5; (h) pay, from the
sources specified in the fourth paragraph of this Section 8.11, the amount
of
any federal or state tax, including prohibited transaction taxes as described
below, imposed on the Trust Fund prior to its termination when and as the same
shall be due and payable (but such obligation shall not prevent the Trustee
or
any other appropriate Person from contesting any such tax in appropriate
proceedings and shall not prevent the Trustee from withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings); (i) ensure
that federal, state or local income tax or information returns shall be signed
by the Trustee or such other person as may be required to sign such returns
by
the Code or state or local laws, regulations or rules; (j) maintain records
relating to the Trust Fund, including but not limited to the income, expenses,
assets and liabilities thereof and the fair market value and adjusted basis
of
the assets determined at such intervals as may be required by the Code, as
may
be necessary to prepare the foregoing returns, schedules, statements or
information; and (k) as and when necessary and appropriate, represent the Trust
Fund in any administrative or judicial proceedings relating to an examination
or
audit by any governmental taxing authority, request an administrative adjustment
as to any taxable year of the Trust Fund, enter into settlement agreements
with
any governmental taxing agency, extend any statute of limitations relating
to
any tax item of the Trust Fund, and otherwise act on behalf of the Trust Fund
in
relation to any tax matter or controversy involving it.
To
the
extent that they are under its control, each Servicer shall conduct matters
relating to the assets of each REMIC at all times that any Certificates are
outstanding so as to maintain the status of REMIC
1,
REMIC 2, REMIC 3, REMIC 4 and REMIC 5
as a
REMIC under the REMIC Provisions. No Servicer shall knowingly or intentionally
take any action that would cause the termination of the REMIC status of REMIC
1,
REMIC 2, REMIC 3, REMIC 4 and REMIC 5.
In
order
to enable the Trustee to perform its duties as set forth herein, the Depositor
shall provide, or cause to be provided, to the Trustee within ten (10) days
after the Closing Date all information or data that the Trustee requests in
writing and determines to be relevant for tax purposes to the valuations and
offering prices of the Certificates, including, without limitation, the price,
yield, prepayment assumption and projected cash flows of the Certificates and
the Mortgage Loans. Thereafter, the Depositor shall provide to the Trustee
promptly upon written request therefor any such additional information or data
that the Trustee may, from time to time, reasonably request in order to enable
the Trustee to perform its duties as set forth herein. The Depositor hereby
indemnifies the Trustee for any losses, liabilities, damages, claims or expenses
of the Trustee arising from any errors or miscalculations of the Trustee that
result from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Trustee on a timely basis.
In
the
event that any tax is imposed on “prohibited transactions” of the Trust Fund as
defined in Section 860F(a)(2) of the Code, on the “net income from foreclosure
property” of the Trust Fund as defined in Section 860G(c) of the Code, on any
contribution to the Trust Fund after the Startup Day pursuant to Section 860G(d)
of the Code, or any other tax is imposed, if not paid as otherwise provided
for
herein, such tax shall be paid by (i) the Trustee, if any such other tax arises
out of or results from a breach by the Trustee of any of its obligations under
this Agreement, (ii) the related Servicer or the Seller, in the case of any
such
minimum tax, if such tax arises out of or results from a breach by such Servicer
or the Seller of any of their obligations under this Agreement or (iii) the
Seller, if any such tax arises out of or results from the Seller’s obligation to
repurchase a related Mortgage Loan pursuant to Section 2.02 or 2.03 or (iv)
in
all other cases, or in the event that the Trustee, the related Servicer or
Seller fails to honor its obligations under the preceding clauses (i), (ii)
or
(iii), any such tax will be paid with amounts otherwise to be distributed to
the
Certificateholders, as provided in Section 4.02.
Neither
a
Servicer nor the Trustee shall enter into any arrangement by which any of REMIC
1, REMIC 2, REMIC 3, REMIC 4 or REMIC 5 will receive a fee or other compensation
for services nor permit any of REMIC 1, REMIC 2, REMIC 3, REMIC 4 or REMIC
5 to
receive any income from assets other than “qualified mortgages” as defined in
Section 860G(a)(3) of the Code or “permitted investments” as defined in Section
860G(a)(5) of the Code.
| SECTION 8.12 |
Commission
Reporting.
|
The
Trustee and the Servicers shall reasonably cooperate with the Depositor in
connection with the Trust’s satisfying the reporting requirements under the
Exchange Act.
(a) (i)
For
so
long as the Trust Fund is subject to the Exchange Act reporting
requirements,
within
15 days after each Distribution Date, the Trustee shall file with the Commission
via the Electronic Data Gathering and Retrieval System (“XXXXX”), a Distribution
Report on Form 10-D, signed by the Depositor, with a copy of the Monthly
Statement to be furnished by the Trustee to the Certificateholders for such
Distribution Date. Any disclosure in addition to the Monthly Statement required
to be included on the Form 10-D (“Additional Form 10-D Disclosure”) shall be
determined and prepared by the Trustee provided the entity indicated in Exhibit
FF as the responsible party for providing that information notifies the Trustee
in writing thereof within 5 calendar days after each Distribution Date, and
the
Trustee shall have no liability with respect to any failure to properly prepare
or file such Form 10-D resulting from or relating to the Trustee’s inability or
failure to obtain any information in a timely manner from the party responsible
for delivery of such Additional Form 10-D Disclosure.
For
so
long as the Trust Fund is subject to the Exchange Act reporting requirements,
within 5 calendar days after the related Distribution Date, each entity that
is
indicated in Exhibit FF as the responsible party for providing Additional Form
10-D Disclosure shall be required to provide to the Trustee and the Depositor,
to the extent known by a Responsible Officer, clearly identifying which item
of
Form 10-D the information relates to, any Additional Form 10-D Disclosure,
if
applicable. The Trustee shall compile the information provided to it, prepare
the Form 10-D and forward the Form 10-D to the Depositor for verification.
The
Depositor will approve, as to form and substance, or disapprove, as the case
may
be, the Form 10-D. No later than three Business Days prior to the 15th calendar
day after the related Distribution Date, an officer of the Depositor 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.
(ii) For
so
long as the Trust Fund is subject to the Exchange Act reporting requirements,
within four (4) Business Days after the occurrence of an event requiring
disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested
by the Depositor, the Trustee shall prepare and file on behalf of the Trust
a
Form 8-K reporting such Reportable Event, provided that the Depositor shall
file
the initial Form 8-K in connection with the issuance of the Certificates. Any
disclosure or information related to a Reportable Event or that is otherwise
required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be
determined and provided to the Trustee by the entity that is indicated in
Exhibit FF as the responsible party for providing that information, if other
than the Trustee, to the Trustee within two Business Days after the Reportable
Event, and the Trustee shall have no liability with respect to any failure
to
properly prepare or file such Form 8-K resulting from or relating to the
Trustee’s inability or failure to obtain any information in a timely manner from
the party responsible for delivery of such Form 8-K Disclosure
Information.
For
so
long as the Trust Fund is subject to the Exchange Act reporting requirements,
no
later than the end of business on the second Business Day after the occurrence
of a Reportable Event, the entity that is indicated in Exhibit FF as the
responsible party for providing Form 8-K Disclosure Information shall be
required to provide to the Trustee and the Depositor, to the extent known by
a
Responsible Officer, the substance of any Form 8-K Disclosure Information,
if
applicable. The Trustee shall compile the information provided to it, prepare
the Form 8-K and forward the Form 8-K to the Depositor for verification. The
Depositor will approve, as to form and substance, or disapprove, as the case
may
be, the Form 8-K. No later than 5 p.m. New York City time on the third Business
Days after the Reportable Event, an officer of the Depositor shall sign the
Form
8-K and return an electronic or fax copy of such signed Form 8-K (with an
original executed hard copy to follow by overnight mail) to the
Trustee.
(iii) Prior
to
January 30 of the first year in which the Trustee is able to do so under
applicable law, the Trustee shall file a Form 15 Suspension Notice with respect
to the Trust Fund. Prior to (x) March 15, 2007 and (y) unless and until a Form
15 Suspension Notice shall have been filed, prior to March 15 of each year
thereafter, each Servicer, the Master Servicer and any Special Servicer shall
provide the Trustee (for inclusion in the Form 10-K) with an Annual Compliance
Statement, together with a copy of the Assessment of Compliance and Attestation
Report to be delivered by the related Servicer, the Master Servicer or any
Special Servicer pursuant to Sections 3.16 and 3.17 (including with respect
to
any Subservicer to which such Servicer has delegated any of its responsibilities
with respect to the related Mortgage Loans and each Subcontractor determined
by
such Servicer to be “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, if required to be filed). Prior to (x) March
31,
2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed,
March 31 of each year thereafter, the Trustee shall file a Form 10-K with
respect to the Trust Fund. Such Form 10-K shall include the items provided
by
the Servicers, the Master Servicer and any Special Servicer pursuant to the
second preceding sentence, the Assessment of Compliance and Attestation Report
provided pursuant to Section 3.17 with respect to the Trustee, and the Form
10-K
certification in the form attached hereto as Exhibit W (the “Depositor
Certification”) signed by the senior officer of the Depositor in charge of
securitization. The Trustee shall receive the items described in the preceding
sentence no later than March 10 of each calendar year prior to the filing
deadline for the Form 10-K for so long as the Trust Fund is subject to the
Exchange Act reporting requirements. If the Trustee or the Depositor has not
received such items by March 10 of the related year, such party shall notify
the
related Servicer, the Master Servicer or any Special Servicer by telephone
and
email, or by telephone and fax, of such failure.
Not
later
than 5 Business Days before the date on which the Form 10-K is required to
be
filed in accordance with the Exchange Act and the rules and regulations of
the
Commission, the Depositor will deliver to the Trustee a form of the Depositor
Certification. The Depositor shall subsequently deliver to the Trustee the
executed Depositor Certification no later than the date on which the Form 10-K
is required to be filed.
Any
disclosure or information in addition to that described in the preceding
paragraph that is required to be included on Form 10-K (“Additional Form 10-K
Disclosure”) shall be determined and provided to the Trustee by the entity that
is indicated in Exhibit FF as the responsible party for providing that
information, if other than the Trustee.
If
information, data and exhibits to be included in the Form 10-K are not so timely
delivered, the Trustee shall file an amended Form 10-K including such documents
as exhibits reasonably promptly after they are delivered to the Trustee. The
Trustee shall have no liability with respect to any failure to properly prepare
or file such periodic reports resulting from or relating to the Trustee’s
inability or failure to timely obtain any information from any other
party.
Prior
to
(x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, prior to March 1 of each year thereafter, each entity that
is
indicated in Exhibit FF as the responsible party for providing Additional Form
10-K Disclosure information shall be required to provide to the Trustee and
the
Depositor, to the extent known by a Responsible Officer, the substance of any
Additional Form 10-K Disclosure information, if applicable. The Trustee shall
compile the information provided to it, prepare the Form 10-K and forward the
Form 10-K to the Depositor for verification. The Depositor will approve, as
to
form and substance, or disapprove, as the case may be, the Form 10-K by no
later
than March 25 of the relevant year (or the immediately preceding Business Day
if
March 25 is not a Business Day), an officer of the Depositor 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.
The
Trustee will post electronic copies of all Form 10-D, 8-K and 10-K filings
on
its internet website referred to in Section 4.06 as soon as reasonably
practicable after such filings have been made with the Commission.
(b) Not
later
than 15 calendar days before the date on which the Form 10-K is required to
be
filed in accordance with the Exchange Act and the rules and regulations of
the
Commission (or, if such day is not a Business Day, the immediately preceding
Business Day), the Trustee shall sign a certification in the form attached
hereto as Exhibit X (the “Trustee Certification”) for the benefit of the
Depositor and its officers, directors and affiliates regarding certain aspects
of items 1 through 3 of the Depositor Certification. In addition, the Trustee
shall, subject to the provisions of Section 8.01 and 8.02 hereof, indemnify
and
hold harmless the Depositor and each Person, if any, who “controls” the
Depositor within the meaning of the Securities Act and its officers, directors
and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon (i) the failure of
the
Trustee to deliver when required any Assessment of Compliance required pursuant
to Section 3.17 or (ii) any material misstatement or omission contained in
the
Trustee Certification or the Assessment of Compliance prepared by the Trustee
pursuant to Section 3.17. If the indemnification provided for in this Section
8.12(b) is unavailable or insufficient to hold harmless such Persons, then
the
Trustee shall contribute to the amount paid or payable by such Persons as a
result of the losses, claims, damages or liabilities of such Persons in such
proportion as is appropriate to reflect the relative fault of the Depositor
on
the one hand and the Trustee on the other. The Trustee acknowledges that the
Depositor is relying on the Trustee’s performance of its obligations under this
Section 8.12 in order to perform its obligations under Section 8.12(a)
above.
(c) Not
later
than March 10 of each year during which the Trust Fund is subject to the
Exchange Act reporting requirements, each Servicer and any Special Servicer
will
deliver to the Depositor and the Trustee an Officer’s Certificate for the prior
calendar year in substantially the form of Exhibit Y to this Agreement. If
the
Trustee or the Depositor has not received such Officer’s Certificate by March 10
of such year, such party shall notify the related Servicer by telephone and
email, or by telephone and fax, of such failure. Each Servicer, the Master
Servicer and any Special Servicer agrees to indemnify and hold harmless the
Depositor, the Trustee and each Person, if any, who “controls” the Depositor or
the Trustee within the meaning of the Securities Act and their respective
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs, fees and expenses that such Person may sustain
arising out of third party claims based on (i) the failure of such Servicer,
the
Master Servicer or any Special Servicer, as applicable, to deliver or cause
to
be delivered when required any Officer’s Certificate pursuant to this Section
8.12(c), the Annual Statement of Compliance pursuant to Section 3.16 or the
Assessment of Compliance pursuant to Section 3.17, or (ii) any material
misstatement or omission contained in any Officer’s Certificate provided
pursuant to this Section 8.12(c), in the Annual Statement of Compliance
delivered pursuant to Section 3.16 or in the Assessment of Compliance delivered
pursuant to Section 3.17. If an event occurs that would otherwise result in
an
indemnification obligation under clauses (i) or (ii) above, but the
indemnification provided for in this Section 8.12(c) by such Servicer, the
Master Servicer or any Special Servicer, as applicable, is unavailable or
insufficient to hold harmless such Persons, then such Servicer, the Master
Servicer or any Special Servicer, as applicable, shall contribute to the amount
paid or payable by such Persons as a result of the losses, claims, damages
or
liabilities of such Persons in such proportion as is appropriate to reflect
the
relative fault of the Depositor or Trustee on the one hand and such Servicer,
the Master Servicer or any Special Servicer, as applicable, on the other. Each
Servicer, the Master Servicer and any Special Servicer acknowledges that the
Depositor and the Trustee are relying on such Servicer’s, the Master Servicer’s
and any Special Servicer’s performance of its obligations under this Agreement
in order to perform their respective obligations under this Section
8.12.
(d) Upon
any
filing with the Commission, the Trustee shall promptly deliver to the Depositor
a copy of any executed report, statement or information.
(e) If
the
Commission issues additional interpretative guidance or promulgates additional
rules or regulations, or if other changes in applicable law occur, that would
require the reporting arrangements, or the allocation of responsibilities with
respect thereto, described in this Section 8.12, to be conducted differently
than as described, the Depositor, Servicers, the Master Servicer and Trustee
will reasonably cooperate to amend the provisions of this Section 8.12 in order
to comply with such amended reporting requirements and such amendment of this
Section 8.12. Any such amendment shall be made in accordance with Section 10.01
without the consent of the Certificateholders, and may result in a change in
the
reports filed by the Trustee on behalf of the Trust under the Exchange Act.
Notwithstanding the foregoing, the Depositor, Servicers, the Master Servicer
and
Trustee shall not be obligated to enter into any amendment pursuant to this
Section 8.12 that adversely affects its obligations and immunities under this
Agreement.
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.16, 3.17
and
8.12 of this Agreement is to facilitate compliance by the Purchaser and the
Depositor with the provisions of Regulation AB promulgated by the SEC under
the
Exchange Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from
time to time and subject to clarification and interpretive advice as may be
issued by the staff of the Commission 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 that purpose, (b) the parties’
obligations hereunder will be supplemented and modified as necessary to be
consistent with any such amendments, or SEC interpretive advice or guidance
in
respect of the requirements of Regulation AB, (c) the parties shall comply
with
reasonable requests made by the Seller or the Depositor for delivery of
additional or different information as is necessary to comply with the
provisions of Regulation AB, and (d) no amendment of this Agreement shall be
required to effect any such changes in the parties’ obligations as are necessary
to accommodate evolving interpretations of the provisions of Regulation
AB.
(f) For
each
Distribution Date through and including the Distribution Date in December 2006,
the Trustee shall calculate the Significance Percentage and include the
Significance Percentage on the related Monthly Statement. If on any such
Distribution Date, the Significance Percentage is equal to or greater than
9%,
the Trustee shall promptly notify the Depositor and the Counterparty. If, on
any
Distribution Date through and including the Distribution Date in December 2006,
the Significance Percentage is equal to or greater than 10%, the Trustee shall
promptly notify the Depositor and the Counterparty of the Significance
Percentage and the Depositor shall, within 5 Business Days of such Distribution
Date, deliver to the Trustee the financial information to the extent required,
pursuant to the Swap Agreement, to be provided to it by the Counterparty for
inclusion in the Form 10-D relating to such Distribution Date.
ARTICLE
IX
TERMINATION
| SECTION 9.01 |
Termination
upon Liquidation or Purchase of the Mortgage
Loans.
|
Subject
to Section 9.03 and Section 9.04, the rights, obligations and responsibilities
of the Depositor, the Seller, the Servicers, the Master Servicer, any Special
Servicer and the Trustee created hereunder with respect to the Trust Fund shall
terminate upon the earliest of:
(a) the
purchase by the Majority Servicer on behalf of the Terminating Entity, at the
direction of the Terminating Entity, of all Mortgage Loans (and REO Properties)
remaining at the price equal the sum of (A) 100% of the Aggregate Collateral
Balance (other than in respect of REO Property) plus one month’s accrued
interest thereon at the applicable Mortgage Rate, (B) with respect to any REO
Property, the lesser of (x) the appraised value of any REO Property as
determined by the higher of two independent valuations completed by two
independent companies selected by the Depositor at the expense of the Depositor
and (y) the Stated Principal Balance of each Mortgage Loan related to any REO
Property, in each case plus accrued and unpaid interest thereon at the
applicable Mortgage Rate and (C) any remaining unreimbursed Advances, Servicing
Advances and Servicing Fees payable to a Servicer (other than a Servicer that
is
the Terminating Entity) and any unreimbursed Advances (made by the Trustee
as a
successor Servicer), Trustee Fees and (D) any Swap Termination Payment payable
to the Counterparty which remains unpaid or which is due to the exercise of
such
option (the sum of (A), (B), (C) and (D), collectively, the “Par Value”);
and
(b) the
later
of (i) the maturity or other liquidation (or any Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and the disposition of
all
REO Property and (ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement.
In
no
event shall the trusts created hereby continue beyond the earlier of (i) the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of
St.
James’s, living on the date hereof and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties pursuant to clause
(a) above shall be conditioned upon the aggregate Stated Principal Balance
of
the Mortgage Loans and the appraised value of the REO Properties at the time
of
any such repurchase, aggregating less than ten percent of the Aggregate
Collateral Balance as of the Cut-off Date.
| SECTION 9.02 |
Final
Distribution on the Certificates.
|
If
on any
Determination Date, the Trustee determines that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Collection Accounts and Certificate Account, the Trustee shall
promptly send a final distribution notice to each Certificateholder. If the
Terminating Entity above elects to direct the Majority Servicer to terminate
the
Trust Fund on behalf of the Terminating Entity pursuant to Section 9.01(a),
at
least 20 days prior to the first day of the Optional Termination Notice Period
such Person shall notify the Servicers and the Trustee of the date the Majority
Servicer, on behalf of the Terminating Entity, intends to terminate the Trust
Fund and of the applicable purchase price of the Mortgage Loans and REO
Properties.
Notice
of
any termination of the Trust Fund, specifying the Distribution Date on which
Certificateholders shall surrender their Certificates for payment of the final
distribution and cancellation (whether upon Optional Termination or otherwise),
shall be given promptly by the Trustee by letter to Certificateholders mailed
not earlier than the 15th day and not later than the 10th day preceding the
applicable Optional Termination Date or date of final distribution, as the
case
may be (such period, the “Optional Termination Notice Period”). Any such notice
shall specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at
the
office therein designated, (b) the amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made, and (d) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Trustee
shall
give such notice to each Rating Agency and the Servicers at the time such notice
is given to Certificateholders.
Any
purchase by the Majority Servicer on behalf of the Terminating Entity pursuant
to Section 9.01(a) shall be made on an Optional Termination Date by deposit
of
the applicable purchase price into the Certificate Account before the
Distribution Date on which such purchase is effected. Upon receipt by the
Trustee of an Officer’s Certificate of the Terminating Entity certifying as to
the deposit of such purchase price into the Certificate Account, the Trustee
shall, upon request and at the expense of the Terminating Entity execute and
deliver all such instruments of transfer or assignment delivered to it by the
Terminating Entity, in each case without recourse, as shall be reasonably
requested by the Terminating Entity to vest title in the Terminating Entity
in
the Mortgage Loans so purchased and shall transfer or deliver to the Terminating
Entity the purchased Mortgage Loans. Any distributions on the Mortgage Loans
which have been subject to an Optional Termination received by the Trustee
subsequent to (or with respect to any period subsequent to) the Optional
Termination Date shall be promptly remitted by it to the Terminating
Entity.
The
Terminating Entity shall reimburse the Majority Servicer for its reasonable
out-of-pocket expenses incurred in connection with its termination of the Trust
Fund on behalf of the Terminating Entity and shall indemnify and hold harmless
the Majority Servicer for any losses, liabilities or expenses resulting from
any
claims relating to the Majority Servicer's termination of the Trust Fund on
behalf of the Terminating Entity.
Upon
presentation and surrender of the Certificates, the Trustee shall cause the
final distribution to the Certificateholders of each Class on the final
Distribution Date to be made in accordance with the priorities of Section 4.02.
On the final Distribution Date, the Overcollateralization Amount shall be
distributed to the Class X-1 Certificates in accordance with Section
4.02(b)(iv)BB. hereof. All amounts described in the definition of “Par Value”
payable to the Trustee shall be paid to the Trustee from the proceeds of an
optional termination prior to any distributions to
Certificateholders.
In
the
event that any affected Certificateholders shall not surrender Certificates
for
cancellation within six months after the date specified in the above mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within six months after the
second notice all the applicable Certificates shall not have been surrendered
for cancellation, the Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets which remain a part of the Trust Fund. If
within one year after the second notice all Certificates shall not have been
surrendered for cancellation, the Class A-R Certificateholders shall be entitled
to all unclaimed funds and other assets of the Trust Fund which remain subject
hereto and the Trustee shall be discharged from all further liability with
respect to the Certificates and this Agreement.
| SECTION 9.03 |
Additional
Termination Requirements.
|
(a) In
the
event that the Terminating Entity exercises its purchase option with respect
to
the Mortgage Loans as provided in Section 9.01(a), at such time as the Mortgage
Loans are so purchased, the Trust Fund shall be terminated in accordance with
the following additional requirements, unless the Trustee has been supplied
with
an Opinion of Counsel, at the expense of the Depositor, to the effect that
the
failure to comply with the requirements of this Section 9.03 will not (i) result
in the imposition of taxes on “prohibited transactions” on any REMIC as defined
in Section 860F of the Code, or (ii) cause REMIC 1, REMIC 2, REMIC 3, REMIC
4
and REMIC 5 to fail to qualify as a REMIC at any time that any Certificates
are
outstanding:
|
(1)
|
Within
90 days prior to the final Distribution Date set forth in the notice
given
by the Trustee under Section 9.02, the Depositor shall prepare and
the
Trustee, at the expense of the Depositor, shall adopt a plan of complete
liquidation within the meaning of Section 860F(a)(4) of the Code
which, as
evidenced by an Opinion of Counsel (which opinion shall not be an
expense
of the Trustee, the Tax Matters Person or the Trust Fund), meets
the
requirements of a qualified
liquidation;
|
|
(2)
|
Within
90 days after the time of adoption of such a plan of complete liquidation,
the Trustee shall sell all of the assets of the Trust Fund to the
Depositor for cash in accordance with Section 9.01;
and
|
|
(3)
|
On
the date specified for final payment of the Certificates, the Trustee
shall, after payment of any unreimbursed Advances, Servicing Advances,
Servicing Fees or other fee compensation payable to each Servicer
pursuant
to this Agreement, make final distributions of principal and interest
on
the Certificates in accordance with Section 4.02 and 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
the
cash retained to meet claims), and the Trust Fund (and any REMIC)
shall
terminate at that time.
|
(b) The
Trustee as agent for REMIC 1, REMIC 2, REMIC 3, REMIC 4 and REMIC 5 hereby
agrees to adopt and sign such a plan of complete liquidation upon the written
request of the Depositor, and the receipt of the Opinion of Counsel referred
to
in Section 9.03(a)(1) and to take such other action in connection therewith
as
may be reasonably requested by the Depositor.
(c) By
their
acceptance of the Certificates, the Holders thereof hereby authorize the
Depositor to prepare and the Trustee to adopt and sign a plan of complete
liquidation.
| SECTION 9.04 |
Determination
of the Terminating Entity.
|
(a) The
Trustee shall determine the “Terminating Entity” as follows:
(i)
the
Holder of the largest Percentage Interest of Class X-1 Certificates, unless
(1)
the Holder of the largest Percentage Interest of Class X-1 Certificates is
the
Depositor or an Affiliate of the Depositor and (2) DLJMC is not the owner of
the
servicing rights with respect to any Mortgage Loan on the Optional Termination
Date;
(ii)
the
Holder of the next largest Percentage Interest of Class X-1 Certificates, if
(1)
the Holder of the largest Percentage Interest of Class X-1 Certificates is
the
Depositor or an Affiliate of the Depositor and (2) DLJMC is not the owner of
the
servicing rights with respect to any Mortgage Loan on the Optional Termination
Date;
(iii)
the
Majority Servicer on the Optional Termination Date, if (1) the Depositor or
an
Affiliate of the Depositor is the Holder of 100% of the Class X-1 Certificates
and (2) DLJMC is not the owner of the servicing rights with respect to any
Mortgage Loan on the Optional Termination Date; provided, however that if the
Majority Servicer does not exercise its option to purchase the Mortgage Loans,
all real property acquired in respect of the Mortgage Loans remaining in the
Trust, and any remaining trust assets, each other Servicer, in sequential order
from the Servicer servicing the second largest percentage, the third largest
percentage, and so forth, to the Servicer servicing the smallest percentage,
in
each case by outstanding principal balance of the Mortgage Loans on such
Optional Termination Date, shall be the Terminating Entity; provided, that,
if a
Holder of Class X-1 Certificates is eligible to be the Terminating Entity on
any
Optional Termination Date and does not exercise its right to purchase all of
the
Mortgage Loans from the Trust, the option to purchase the Mortgage Loans on
such
Optional Termination Date shall not be exercised.
(b) If
the
Terminating Entity, as set forth in Section 9.04(a) above, elects to direct
the
Majority Servicer to purchase all Mortgage Loans and all property acquired
in
respect of any remaining Mortgage Loan, on behalf of the Terminating Entity,
such party must give written notice to the Trustee no later than twenty (20)
days prior to the first day of the Optional Termination Notice Period. Upon
receiving such notice, the Trustee shall immediately request from DLJMC and
DLJMC shall deliver no later than seventeen (17) days prior to the first day
of
the Optional Termination Notice Period a letter indicating whether or not DLJMC
retains the servicing rights to any Mortgage Loan. For the avoidance of doubt,
the Majority Servicer may not elect to exercise an Optional Termination other
than at the direction of the Terminating Entity.
(c) No
later
than fifteen (15) days prior to the first day of the Optional Termination Notice
Period, the Trustee shall provide notice to each Servicer that is a servicer
of
any of the Mortgage Loans of the identity of the Terminating Entity.
ARTICLE
X
MISCELLANEOUS
PROVISIONS
| SECTION 10.01 |
Amendment.
|
This
Agreement may be amended from time to time by the Depositor, each Servicer,
the
Master Servicer, the Seller and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or to supplement any provision herein which may
be
inconsistent with any other provision herein, (iii) to add to the duties of
the
Depositor, the Seller or any Servicer, (iv) to add any other provisions with
respect to matters or questions arising hereunder or (v) to modify, alter,
amend, add to or rescind any of the terms or provisions contained in this
Agreement; provided that any action pursuant to clauses (iv) or (v) above shall
not, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall
not
be an expense of the Trustee or the Trust Fund, but shall be at the expense
of
the party proposing such amendment), adversely affect in any material respect
the interests of any Certificateholder; provided, however, that no such Opinion
of Counsel shall be required if the Person requesting the amendment obtains
a
letter from each Rating Agency stating that the amendment would not result
in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor, the Seller and the
Servicers also may at any time and from time to time amend this Agreement
without the consent of the Certificateholders to modify, eliminate or add to
any
of its provisions to such extent as shall be necessary or helpful to (i)
maintain the qualification of REMIC 1, REMIC 2, REMIC 3, REMIC 4 and REMIC
5 as
a REMIC under the Code, (ii) avoid or minimize the risk of the imposition of
any
tax on the Trust Fund pursuant to the Code that would be a claim at any time
prior to the final redemption of the Certificates or (iii) comply with any
other
requirements of the Code, provided that the Trustee has been provided an Opinion
of Counsel, which opinion shall be an expense of the party requesting such
opinion but in any case shall not be an expense of the Trustee or the Trust
Fund, to the effect that such action is necessary or helpful to, as applicable,
(i) maintain such qualification, (ii) avoid or minimize the risk of the
imposition of such a tax or (iii) comply with any such requirements of the
Code.
This
Agreement may also be amended from time to time by the Depositor, the Servicers,
the Master Servicer, the Seller and the Trustee with the consent of the Holders
of a Majority in 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 of Certificates; provided, however, that no such amendment shall
(i)
reduce in any manner the amount of, or delay the timing of, payments required
to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the
Holders of any Class of Certificates in a manner other than as described in
clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating 66%, or (iii)
reduce the aforesaid percentages of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders
of
all such Certificates then outstanding.
Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent to
any
amendment to this Agreement unless it shall have first received an Opinion
of
Counsel, which opinion shall not be an expense of the Trustee or the Trust
Fund,
but shall be at the expense of the party preparing such amendment, to the effect
that such amendment will not cause the imposition of any federal tax on the
Trust Fund or the Certificateholders or cause REMIC 1, REMIC 2, REMIC 3, REMIC
4
and REMIC 5 to fail to qualify as a REMIC at any time that any Certificates
are
outstanding.
Notwithstanding
any of the other provisions of this Section 10.01, none of the Depositor, the
Servicers, the Master Servicer, the Seller or the Trustee shall enter into
any
amendment to this Agreement or any other amendment that would have a material
adverse effect on the Counterparty without the prior written consent of the
Counterparty.
Promptly
after the execution of any amendment to this Agreement, the Trustee shall
furnish written notification of the substance or a copy of such amendment to
each Certificateholder if the consent of Certificateholders was required and
each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section 10.01
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 Certificateholders shall be subject to such reasonable regulations
as
the Trustee may prescribe.
Nothing
in this Agreement shall require the Trustee to enter into an amendment without
receiving an Opinion of Counsel (which Opinion shall not be an expense of the
Trustee or the Trust Fund), satisfactory to the Trustee that (i) such amendment
is permitted and is not prohibited by this Agreement and that all requirements
for amending this Agreement have been complied with; and (ii) either (A) the
amendment does not adversely affect in any material respect the interests of
any
Certificateholder or (B) the conclusion set forth in the immediately preceding
clause (A) is not required to be reached pursuant to this Section
10.01.
| SECTION 10.02 |
Recordation
of Agreement; Counterparts.
|
This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the properties subject to the Mortgages are situated, and in
any
other appropriate public recording office or elsewhere, such recordation to
be
effected by the Depositor at its expense, but only upon direction by the Trustee
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the
Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
| SECTION 10.03 |
Governing
Law.
|
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
| SECTION 10.04 |
[Reserved].
|
| SECTION 10.05 |
Notices.
|
(a) The
Trustee shall use its best efforts to promptly provide notice to each Rating
Agency with respect to each of the following of which a Responsible Officer
of
the Trustee has actual knowledge and to the Counterparty with respect to clauses
(i), (iii) (as it relates to the Trustee only) and (v) of which a Responsible
Officer of the Trustee has actual knowledge:
(i) Any
material change or amendment to this Agreement;
(ii) The
occurrence of any Event of Default that has not been cured;
(iii) The
resignation or termination of any Servicer or the Trustee and the appointment
of
any successor;
(iv) The
repurchase or substitution of Mortgage Loans pursuant to Sections 2.02 and
2.03;
and
(v) The
final
payment to Certificateholders.
(b) In
addition, the Trustee shall promptly furnish to each Rating Agency copies of
the
following to the extent such items are in its possession:
(i) Each
report to Certificateholders described in Section 4.06 and 3.19;
(ii) Each
annual statement as to compliance described in Section 3.16;
(iii) Each
annual independent public accountants’ servicing report described in Section
3.17; and
(iv) Any
notice of a purchase of a Mortgage Loan pursuant to Section 2.02, 2.03 or
3.11.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered to (a) in the case of the
Depositor and the Seller, Eleven Madison Avenue, 4th Floor, New York, New York
10010, Attention: Xxxxx Xxxx (with a copy to Credit Suisse First Boston Mortgage
Securities Corp., Eleven Madison Avenue, 4th Floor, New York, New York 10010,
Attention: Office of the General Counsel), (b) in the case of the Trustee,
the
Corporate Trust Office or such other address as the Trustee may hereafter
furnish to the Depositor and the Servicers, (c) in the case of SPS, Select
Portfolio Servicing, Inc, 0000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx,
Attention: General Counsel, or such other address as may be hereafter furnished
in writing to the Depositor and the Trustee by SPS, (d) in the case of Ocwen,
Ocwen Federal Bank FSB, 0000 Xxxx Xxxxx Xxxxx Xxxx., Xxxx Xxxx Xxxxx, XX 00000,
Attention: Secretary or such other address as may be hereafter furnished in
writing to the Depositor and the Trustee by the Servicer, (e) in the case of
each of the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency, and (f) in the case of the
Counterparty: One Xxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxxx, Attention: Head of
Credit Risk Management. Notices to Certificateholders shall be deemed given
when
mailed, first class postage prepaid, to their respective addresses appearing
in
the Certificate Register.
| SECTION 10.06 |
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
| SECTION 10.07 |
Assignment.
|
Notwithstanding
anything to the contrary contained herein, except as provided in Sections 6.02
and 6.04, this Agreement may not be assigned by any Servicer without the prior
written consent of the Trustee and Depositor; provided, however, that neither
the Depositor nor the Trustee shall consent to any such assignment unless each
Rating Agency has confirmed in writing that such assignment will not cause
a
reduction or withdrawal of the ratings then assigned by it to any Class of
Certificates.
| SECTION 10.08 |
Limitation
on Rights of Certificateholders.
|
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder’s
legal representative or heirs to claim an accounting or to take any action
or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities
of
the parties hereto or any of them.
No
Certificateholder shall have any right to vote (except as provided herein)
or in
any manner otherwise control the operation and management of the Trust Fund,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third party by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as herein provided, and unless the
Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute
any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself
or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or
seek
to obtain priority over or preference to any other such Holder or to enforce
any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement
of
the provisions of this Section 10.08, each and every Certificateholder and
the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
| SECTION 10.09 |
Certificates
Nonassessable and Fully Paid.
|
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
| SECTION 10.10 |
Non-Solicitation
|
From
and
after the date of this Agreement, each of the Depositor, the Seller, the
Servicers, any Special Servicer and the Trustee agrees that it will not take
any
action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on any such party’s behalf, to
personally, by telephone, by mail, or electronically by e-mail or through the
internet or otherwise, solicit the borrower or obligor under any Mortgage Loan
to refinance the Mortgage Loan, in whole or in part. Notwithstanding the
foregoing, it is understood and agreed that promotions undertaken by the
Depositor, the Seller, any Servicer or the Trustee or any affiliate of any
such
party that originates mortgage loans in the normal course, which are directed
to
the general public at large, or segments thereof, including, without limitation,
mass mailings based on commercially acquired mailing lists or newspaper,
internet, company website, radio and television advertisements shall not
constitute solicitation under this Section 10.10, provided, that no segment
of
the general public shall consist primarily of the borrowers or obligors under
the Mortgage Loans. None of the Depositor, the Seller, a Servicer or the Trustee
shall permit the sale of the name of any Mortgagor or any list of names that
consist primarily of the Mortgages to any Person.
| SECTION 10.11 |
Third
Party Beneficiary
|
The
Counterparty is an express third-party beneficiary of this Agreement, and shall
have the right to enforce the provisions of this Agreement.
IN
WITNESS WHEREOF, the Depositor, the Trustee, the Seller, the Master Servicer
and
the Servicers have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above
written.
|
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
|
|
|
as
Depositor
|
|
|
By:
/s/ Xxxxx Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
Vice President
|
|
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
|
as
Trustee
|
|
|
By:
/s/ Xxxxx Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
Vice President
|
|
|
DLJ
MORTGAGE CAPITAL, INC.,
|
|
|
as
Seller
|
|
|
By: /s/
Xxx Xxx
|
|
|
Name:
Xxx Xxx
|
|
|
Title:
Vice President
|
|
|
SELECT
PORTFOLIO SERVICING, INC.
|
|
|
as
a Servicer
|
|
|
By:
/s/ Xxxxxxx X. X' Xxxxx
|
|
|
Name:
Xxxxxxx X. X' Xxxxx
|
|
|
Title:
Executive Vice President of Operations
|
|
|
OCWEN
LOAN SERVICING, LLC
|
|
|
as
a Servicer
|
|
|
By: /s/
Xxxxxxx Xxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxx
|
|
|
Title:
Authorized Representative
|
|
|
SELECT
PORTFOLIO SERVICING, INC.
|
|
|
as
Master Servicer
|
|
|
By: /s/
Xxxxxxx X. X' Xxxxx
|
|
|
Name:
Xxxxxxx X. X' Xxxxx
|
|
|
Title:
Executive Vice President of
Operations
|
[Notary
pages to be attached]
EXHIBIT
A
[FORM
OF
CLASS A CERTIFICATE]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, NO TRANSFER OF THIS
CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH
A
“PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
|
Certificate
No. [____]
|
[Adjustable
Pass-Through Rate] [Pass-Through Rate: [____]%]
|
|
Cut-off
Date:
October
1, 2006
|
[Initial
Certificate Balance] [Aggregate Notional Balance] of this Certificate
(“Denomination”):
$[_________________]
|
|
First
Distribution Date:
November
27, 2006
|
[Initial
Certificate Balance] [Aggregate Notional Balance] of all Certificates
of
this Class:
$[_________________]
|
|
Maturity
Date:
January
25, 2037
|
CUSIP:
[_________________]
|
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5
Class
[_______]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class with respect to a Trust Fund consisting primarily
of a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by
primarily
fixed rate, primarily second lien
residential mortgage loans.
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., AS DEPOSITOR
[Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein.] This Certificate is payable solely
from the assets of the Trust and does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicers
or the Trustee referred to below or any of their respective affiliates. This
Certificate and the Mortgage Loans are not guaranteed or insured by any
governmental agency or instrumentality.
This
certifies that [ ] is the registered owner of the Percentage Interest evidenced
by this Certificate (obtained by dividing the denomination of this Certificate
by the aggregate of the denominations of all Certificates of the Class to
which
this Certificate belongs) in certain monthly distributions with respect to
a
Trust Fund consisting primarily of the Mortgage Loans deposited by Credit
Suisse
First Boston Mortgage Securities Corp. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, DLJ Mortgage
Capital, Inc. as seller (“DLJMC”), Select Portfolio Servicing, Inc. as a
servicer (“SPS”) and as master servicer (the “Master Servicer”), Ocwen Loan
Servicing, LLC as a servicer (“Ocwen” and together with SPS, the “Servicers”)
and U.S. Bank National Association as trustee (the “Trustee”). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
to
such terms in the Agreement. This Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement
the
Holder of this Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
Prior
to
the termination of the supplemental Interest Trust, no transfer of this
Certificate to a Plan subject to ERISA or Section 4975 of the Code, any Person
acting, directly or indirectly, on behalf of any such Plan or any person
using
Plan Assets to acquire this Certificate shall be made except in accordance
with
Section 5.02(b) of the Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
October 31, 2006
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
as
Trustee
|
|
|
By:
_________________________________
|
Countersigned:
By:
_______________________________________
Authorized
Signatory of
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
EXHIBIT
B
[FORM
OF
SUBORDINATE CERTIFICATE]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
[THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(“THE ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.]
[FOR
THE
CLASS M CERTIFICATE] PRIOR TO THE TERMINATION OF THE SUPPLEMENTAL INTEREST
TRUST, NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE
WITH THE PROCEDURES DESCRIBED HEREIN.
[FOR
THE
CLASS B-1 CERTIFICATE] PRIOR TO THE TERMINATION OF THE SUPPLEMENTAL INTEREST
TRUST, NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE
WITH THE PROCEDURES DESCRIBED HEREIN.
[THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.]
|
Certificate
No. [____]
|
Adjustable
Pass-Through Rate
|
|
Cut-off
Date:
October
1, 2006
|
Initial
Certificate Balance of this Certificate (“Denomination”):
$[_________________]
|
|
First
Distribution Date:
November
27, 2006
|
Initial
Certificate Balances of all Certificates of this Class:
$[_________________]
|
|
Maturity
Date:
January
25, 2037
|
CUSIP:
[_________________]
|
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5
Class
[_______]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class with respect to a Trust Fund consisting primarily
of a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by primarily
fixed rate, primarily second lien residential mortgage loans.
Credit
Suisse First Boston Mortgage Securities Corp., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate is payable solely
from
the assets of the Trust and does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicers or
the
Trustee referred to below or any of their respective affiliates. This
Certificate and the Mortgage Loans are not guaranteed or insured by any
governmental agency or instrumentality.
This
certifies that [ ] is the registered owner of the Percentage Interest evidenced
by this Certificate (obtained by dividing the denomination of this Certificate
by the aggregate of the denominations of all Certificates of the Class to
which
this Certificate belongs) in certain monthly distributions with respect to
a
Trust Fund consisting primarily of the Mortgage Loans deposited by Credit
Suisse
First Boston Mortgage Securities Corp. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, DLJ Mortgage
Capital, Inc. as seller (“DLJMC”), Select Portfolio Servicing, Inc. as a
servicer (“SPS”) and as master servicer (the “Master Servicer”), Ocwen Loan
Servicing, LLC as a servicer (“Ocwen” and together with SPS, the “Servicers”)
and U.S. Bank National Association as trustee (the “Trustee”). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
to
such terms in the Agreement. This Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement
the
Holder of this Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
[This
Certificate has not been registered under the Securities Act of 1933, as
amended
(“the Act”). Any resale or transfer of this Certificate without registration
thereof under the Act may only be made in a transaction exempted from the
registration requirements of the Act and in accordance with the provisions
of
the Agreement referred to herein.]
[For
the
Class M Certificates] Prior to the termination of the supplemental Interest
Trust, no transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf
of any
such Plan or any person using Plan Assets to acquire this Certificate shall
be
made except in accordance with Section 5.02(b) of the
Agreement.
[For
the
Class B-1 Certificate] No transfer of this Certificate to a Plan subject
to
ERISA or Section 4975 of the Code, any Person acting, directly or indirectly,
on
behalf of any such Plan or any person using Plan Assets to acquire this
Certificate shall be made except in accordance with Section 5.02(b) of the
Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
October 31, 2006
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
as
Trustee
|
|
|
By:
__________________________________
|
Countersigned:
By
________________________________________
Authorized
Signatory of
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
EXHIBIT
C
[FORM
OF
RESIDUAL CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING
ELSE TO
THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF
OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE
OPINION
OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID
AND OF
NO EFFECT.
|
Certificate
No. [____]
|
Variable
Pass-Through Rate
|
|
Cut-off
Date:
October
1, 2006
|
Initial
Certificate Balance of this Certificate (“Denomination”):
$[_________________]
|
|
First
Distribution Date:
November
27, 2006
|
Initial
Certificate Balances of all Certificates of this Class:
$[_________________]
|
|
Maturity
Date:
January
25, 2037
|
CUSIP:
[_________________]
|
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5
Class
[_______]
evidencing
the distributions allocable to the Class A-R Certificates with respect to
a
Trust Fund consisting primarily of a pool of conventional mortgage loans
(the
“Mortgage Loans”) secured by primarily fixed rate, primarily second lien
residential mortgage loans.
Credit
Suisse First Boston Mortgage Securities Corp., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate is payable solely
from
the assets of the Trust and does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicers or
the
Trustee referred to below or any of their respective affiliates. This
Certificate and the Mortgage Loans are not guaranteed or insured by any
governmental agency or instrumentality.
This
certifies that [ ] is the registered owner of the Percentage Interest evidenced
by this Certificate (obtained by dividing the denomination of this Certificate
by the aggregate of the denominations of all Certificates of the Class to
which
this Certificate belongs) in certain monthly distributions with respect to
a
Trust Fund consisting primarily of the Mortgage Loans deposited by Credit
Suisse
First Boston Mortgage Securities Corp. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, DLJ Mortgage
Capital, Inc. as seller (“DLJMC”), Select Portfolio Servicing, Inc. as a
servicer (“SPS”) and as master servicer (the “Master Servicer”), Ocwen Loan
Servicing, LLC as a servicer (“Ocwen” and together with SPS, the “Servicers”)
and U.S. Bank National Association as trustee (the “Trustee”). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
to
such terms in the Agreement. This Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement
the
Holder of this Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
Any
distribution of the proceeds of any remaining assets of the Trust Fund will
be
made only upon presentment and surrender of this Class A-R Certificate at
the
Corporate Trust Office or the office or agency maintained by the Trustee
in St.
Xxxx, Minnesota.
No
transfer of a Class A-R Certificate shall be made unless the Trustee shall
have
received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit
plan
subject to Section 406 of ERISA or Section 4975 of the Code, or a person
acting
on behalf of any such plan or arrangement or using the assets of any such
plan
or arrangement to effect such transfer, which representation letter shall
not be
an expense of the Trustee or the Trust Fund, or (ii) in the case of any
such
Class A-R Certificate presented for registration in the name of an employee
benefit plan subject to ERISA, or Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee of any such plan
or any
other person acting on behalf of any such plan or arrangement, or using
such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trustee to the effect that the purchase or holding of such Class A-R Certificate
will not result in the assets of the Trust Fund being deemed to be “plan assets”
and subject to the prohibited transaction provisions of ERISA and the Code
and
will not subject the Trustee to any obligation in addition to those undertaken
in this Agreement, which Opinion of Counsel shall not be an expense of
the
Trustee or the Trust Fund. Notwithstanding anything else to the contrary
herein,
any purported transfer of a Class A-R Certificate to or on behalf of an
employee
benefit plan subject to ERISA or to the Code without the Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no
effect.
Each
Holder of this Class A-R Certificate will be deemed to have agreed to be
bound
by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in
this Class A-R Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class A-R Certificate may be transferred without delivery
to
the Trustee of (a) a transfer affidavit of the proposed transferee and (b)
a
transfer certificate of the transferor, each of such documents to be in the
form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Class A-R Certificate must agree to require a transfer
affidavit and to deliver a transfer certificate to the Trustee as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Class A-R Certificate must agree not to transfer an Ownership
Interest in this Class A-R Certificate if it has actual knowledge that the
proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class A-R Certificate
in
violation of such restrictions will be absolutely null and void and will
vest no
rights in the purported transferee.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
October 31, 2006
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
as
Trustee
|
|
|
By:
__________________________________
|
Countersigned:
By
_______________________________________
Authorized
Signatory of
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
EXHIBIT
D
[FORM
OF
NOTIONAL AMOUNT CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE” ).
[THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.]
THIS
CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY DISTRIBUTIONS
IN
RESPECT OF PRINCIPAL.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(“THE ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR SECTION 4975 OF THE CODE (EACH A “PLAN”) SHALL BE MADE
EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
|
Certificate
No. [____]
|
Variable
Interest Rate
|
|
Cut-off
Date:
October
1, 2006
|
Initial
Notional Amount of this Certificate (“Denomination”):
$[_________________]
|
|
First
Distribution Date:
November
27, 2006
|
Initial
Notional Amount of all Certificates of this Class:
$[_________________]
|
|
Maturity
Date:
January
25, 2037
|
CUSIP:
[_________________]
|
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Home
Equity Mortgage Trust Series 2006-5
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5
Class
[
]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class with respect to a Trust Fund consisting primarily
of a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by primarily
fixed rate, primarily second lien residential mortgage loans.
Credit
Suisse First Boston Mortgage Securities Corp., as Depositor
This
Certificate is payable solely from the assets of the Trust and does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Seller, the Servicers or the Trustee referred to below or any of their
respective affiliates. This Certificate and the Mortgage Loans are not
guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that [ ] is the registered owner of the Percentage Interest evidenced
by this Certificate (obtained by dividing the denomination of this Certificate
by the aggregate of the denominations of all Certificates of the Class to
which
this Certificate belongs) in certain monthly distributions with respect to
a
Trust Fund consisting primarily of the Mortgage Loans deposited by Credit
Suisse
First Boston Mortgage Securities Corp. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, DLJ Mortgage
Capital, Inc. as seller (“DLJMC”), Select Portfolio Servicing, Inc. as a
servicer (“SPS”) and as master servicer (the “Master Servicer”), Ocwen Loan
Servicing, LLC as a servicer (“Ocwen” and together with SPS, the “Servicers”)
and U.S. Bank National Association as trustee (the “Trustee”). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
to
such terms in the Agreement. This Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement
the
Holder of this Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be in reliance
upon an exemption from the Act and such laws, in order to assure compliance
with
the Act and such laws, the Certificateholder desiring to effect such transfer
and such Certificateholder’s prospective transferee shall each certify to the
Trustee and the Depositor in writing the facts surrounding the transfer.
In the
event that such a transfer is not to be made pursuant to Rule 144A of the
Act,
there shall be delivered to the Trustee and the Depositor an Opinion of Counsel
that such transfer may be made pursuant to an exemption from the Act, which
Opinion of Counsel shall not be obtained at the expense of the Trustee, the
Servicers or the Depositor; or there shall be delivered to the Trustee and
the
Depositor a transferor certificate by the transferor and an investment letter
shall be executed by the transferee. The Holder hereof desiring to effect
such
transfer shall, and does herby agree to, indemnify the Trustee and the Depositor
against any liability that may result if the transfer is not so exempt or
is not
made in accordance with such federal and state laws.
No
transfer of this Certificate to a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any person using Plan Assets of
a Plan
to acquire this Certificate shall be made except in accordance with Section
5.02(b) of the Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
October 31, 2006
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
as
Trustee
|
|
|
By:
__________________________________
|
Countersigned:
By
_______________________________________
Authorized
Signatory of
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
EXHIBIT
E
[FORM
OF
CLASS P CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR SECTION 4975 OF THE CODE (EACH A “ PLAN”) SHALL BE MADE
EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
|
Certificate
No. [____]
|
Variable
Pass-Through Rate
|
|
Cut-off
Date:
October
1, 2006
|
Initial
Certificate Balance of this Certificate (“Denomination”):
$[_________________]
|
|
First
Distribution Date:
November
27, 2006
|
Initial
Certificate Balances of all Certificates of this Class:
$[_________________]
|
|
Maturity
Date:
January
25, 2037
|
CUSIP:
[_________________]
|
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5
Class
[_______]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class with respect to a Trust Fund consisting primarily
of a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by primarily
fixed rate, primarily second lien residential mortgage loans.
Credit
Suisse First Boston Mortgage Securities Corp., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance of this Certificate at any time may
be less
than the Initial Certificate Balance set forth on the face hereof, as described
herein. This Class P Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee referred to below or any of their respective affiliates.
This
certifies that [ ] is the registered owner of the Percentage Interest evidenced
by this Certificate (obtained by dividing the denomination of this Certificate
by the aggregate of the denominations of all Certificates of the Class to
which
this Certificate belongs) in certain monthly distributions with respect to
a
Trust Fund consisting primarily of the Mortgage Loans deposited by Credit
Suisse
First Boston Mortgage Securities Corp. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, DLJ Mortgage
Capital, Inc. as seller (“DLJMC”), Select Portfolio Servicing, Inc. as a
servicer (“SPS”) and as master servicer (the “Master Servicer”), Ocwen Loan
Servicing, LLC as a servicer (“Ocwen” and together with SPS, the “Servicers”)
and U.S. Bank National Association as trustee (the “Trustee”). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
to
such terms in the Agreement. This Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement
the
Holder of this Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. In the event that such a transfer is not to be made pursuant to
Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of
the
Trustee, the Seller, the Servicers or the Depositor; or there shall be delivered
to the Trustee and the Depositor a transferor certificate by the transferor
and
an investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee and the Depositor against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any person using Plan Assets of
a Plan
to acquire this Certificate shall be made except in accordance with Section
5.02(b) of the Agreement.
Reference
is hereby made to the further provisions of this Class P Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class P Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
October 31, 2006
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
as
Trustee
|
|
|
By:
__________________________________
|
Countersigned:
By
________________________________________
Authorized
Signatory of
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
EXHIBIT
F
[FORM
OF
REVERSE OF CERTIFICATES]
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5
Class
[_______]
This
Certificate is one of a duly authorized issue of Certificates designated
as
Credit Suisse First Boston Mortgage Securities Corp., Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the “Certificates”), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Certificate Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this
Certificate is registered at the close of business on the applicable Record
Date
in an amount equal to the product of the Percentage Interest evidenced by
this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. [The Record Date applicable to each Distribution
Date
is the last Business Day of the month next preceding the month of such
Distribution Date.][The Record Date applicable to each Distribution Date
is the
Business Day immediately preceding the related Distribution Date; provided
that
if this Certificate is not a Book-Entry Certificate, then the Record Date
applicable to each Distribution Date is the last Business Day of the month
next
preceding such Distribution Date.]
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the
related
Record Date and such Certificateholder shall satisfy the conditions to receive
such form of payment set forth in the Agreement, or, if not, by check mailed
by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be
made in
like manner, but only upon presentment and surrender of such Certificate
at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicers, the Seller and the Trustee with the consent of
the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder
and
upon all future Holders of this Certificate and of any Certificate issued
upon
the transfer hereof or in exchange therefor or in lieu hereof whether or
not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without
the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the Corporate Trust Office or the office or agency maintained by the Trustee
in
St. Xxxx, Minnesota, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
Fund will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicers, the Master Servicer, the Seller and the Trustee
and
any agent of the Depositor or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and
the
Seller, the Depositor, the Trustee, or any such agent shall be affected by
any
notice to the contrary.
On
any
Distribution Date on which the sum of the aggregate Stated Principal Balance
of
the Mortgage Loans and the appraised value of the REO Properties at the time
of
purchase is less than 10% of the Aggregate Collateral Balance as of the Cut-off
Date, the Terminating Entity may, but is not required to, direct the Majority
Servicer to purchase, in whole, on behalf of the Terminating Entity, from
the
Trust Fund all remaining Mortgage Loans and REO Properties at a purchase
price
determined as provided in the Agreement. In the event that no such optional
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon the later of the maturity or other liquidation
(or
any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and the distribution to Certificateholders of all amounts required
to
be distributed pursuant to the Agreement. In no event, however, will the
trust
created by the Agreement continue beyond the expiration of 21 years from
the
death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
|
,
|
||||
|
for
the account of
|
,
|
|||
|
account
number___________, or, if mailed by check, to
|
,
|
|||
|
Applicable
statements should be mailed to
|
,
|
|||
|
.
|
||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
G
FORM
OF
INITIAL CERTIFICATION OF CUSTODIAN
October
31, 2006
______________________________
Cut-off
Date Principal Balance:
$_____________________________
U.S.
Bank
National Association
as
Trustee for the
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5
00
Xxxxxxxxxx Xxxxxx.
Xx.
Xxxx,
XX 00000-0000
Attention:
Corporate Trust - Structured Finance Ref: HEMT 2006-5
|
Re:
|
Custodial
Agreement, dated as of October 1, 2006, between U.S. Bank National
Association as Trustee and LaSalle Bank National Association, as
Custodian, Credit Suisse First Boston Mortgage Securities Corp.,
Home
Equity Mortgage Trust 2006-5, Home Equity Mortgage Pass-Through
Certificates, Series 2006-5
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 4 of the above-referenced Custodial
Agreement, dated as of October 1, 2006, between the undersigned, as the
Custodian, and U.S. Bank National Association as trustee, the undersigned
hereby
certifies as to each Mortgage Loan identified on the Mortgage Loan Schedule
attached hereto as Exhibit A that (i) it has received: the original Mortgage
Note and Assignment of Mortgage with respect to each Mortgage Loan identified
on
the Mortgage Loan Schedule attached hereto as Exhibit A and (ii) such Mortgage
Note has been reviewed by it and appears regular on its face and
relates.
The
Custodian makes no representations as to: (i) the validity, legality,
enforceability, sufficiency, due authorization or genuineness of any of the
documents contained in each Custodial File or of any of the Mortgage Loans
or
(ii) the collectability, insurability, effectiveness or suitability of any
such
Mortgage Loan.
The
Custodian hereby confirms that it is holding each such Mortgage Note and
Assignment of Mortgage as agent and bailee of, and custodian for the exclusive
use and benefit, and subject to the sole direction, of the Trustee pursuant
to
the terms and conditions of the Custodial Agreement.
This
Trust Receipt and Initial Certification is not divisible or
negotiable.
The
Custodian will accept and act on instructions with respect to the Mortgage
Loans
subject hereto upon surrender of this Trust Receipt and Initial Certification
at
its office at LaSalle Bank National Association, 0000 Xxxxx Xxxx, Xxxxx 000,
Xxx
Xxxxx, Xxxxxxxx, 00000.
Capitalized
terms used herein shall have the meaning ascribed to them in the Custodial
Agreement.
|
LASALLE
BANK NATIONAL ASSOCIATION
as
Custodian
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
H
FORM
OF
FINAL CERTIFICATION OF CUSTODIAN
Trust
Receipt #_________
Cut-off
Date Principal Balance
$_____________
[To
be
addressed to the Trustee of record]
________________________________
________________________________
|
Re:
|
Custodial
Agreement, dated as of October 1, 2006, between U.S. Bank National
Association as Trustee and LaSalle Bank National Association, as
Custodian, Credit Suisse First Boston Mortgage Securities Corp.,
Home
Equity Mortgage Trust 2006-5, Home Equity Mortgage Pass-Through
Certificates, Series 2006-5
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 6 of the above-referenced Custodial
Agreement, the undersigned, as the Custodian, hereby certifies that as to
each
Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage
Loan
paid in full or any Mortgage Loan listed on the attachment hereto) it has
reviewed the Custodial Files and has determined that (i) all documents required
to be delivered to it pursuant to Sections 2(i)-(ix) of the Custodial Agreement
are in its possession; (ii) such documents have been reviewed by it and appear
regular on their face and related to such Mortgage Loan; (iii) all Assignments
of Mortgage or intervening assignments of mortgage, as applicable, have been
submitted for recording in the jurisdictions in which recording is necessary;
and (iv) each Mortgage Note has been endorsed as provided in Section 2(ii)
of
the Custodial Agreement and each Mortgage has been assigned in accordance
with
Section 2(iii) of the Custodial Agreement. The Custodian makes no
representations as to: (i) validity, legality, enforceability, sufficiency,
due
authorization or genuineness of any of the documents contained in each Custodial
File or of any of the Mortgage Loans, or (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan.
The
Custodian hereby confirms that it is holding each such Custodial File as
agent
and bailee of, and custodian for the exclusion use and benefit, and subject
to
the sole direction, of Trustee pursuant to the terms and conditions of the
Custodial Agreement.
This
Trust Receipt and Final Certification is not divisible or
negotiable.
The
Custodian will accept and act on instructions with respect to the Mortgage
Loans
subject hereto upon surrender of this Trust Receipt and Final Certification
at
its office LaSalle Bank National Association, 0000 Xxxxx Xxxx, Xxxxx 000,
Xxx
Xxxxx, Xxxxxxxx, 00000.
Capitalized
terms used herein shall have the meaning ascribed to them in the Custodial
Agreement.
|
LASALLE
BANK NATIONAL ASSOCIATION
as
Custodian
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
I
TRANSFER
AFFIDAVIT
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5
Class
[_______]
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of _______________, the proposed Transferee of
an
Ownership Interest in a Class A-R Certificate (the “Certificate”) issued
pursuant to the Pooling and Servicing Agreement, (the “Agreement”), relating to
the above-referenced Series, among Credit Suisse First Boston Mortgage
Securities Corp. as depositor, DLJ Mortgage Capital, Inc. as seller (“DLJMC”),
Select Portfolio Servicing, Inc. as a servicer (“SPS”) and as master servicer
(the “Master Servicer”), Ocwen Loan Servicing, LLC as a servicer (“Ocwen”) and
U.S. Bank National Association as trustee (the “Trustee”). Capitalized terms
used, but not defined herein or in Exhibit 1 hereto, shall have the meanings
ascribed to such terms in the Agreement. The Transferee has authorized the
undersigned to make this affidavit on behalf of the Transferee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate either (i) for its own account or (ii) as nominee,
trustee or agent for another Person and has attached hereto an affidavit
from
such Person in substantially the same form as this affidavit. The Transferee
has
no knowledge that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be imposed
on Transfers of the Certificate to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is
through
an agent (which includes a broker, nominee or middleman) for a Person that
is
not a Permitted Transferee, on the agent; and (iii) the Person otherwise
liable
for the tax shall be relieved of liability for the tax if the subsequent
Transferee furnished to such Person an affidavit that such subsequent Transferee
is a Permitted Transferee and, at the time of Transfer, such Person does
not
have actual knowledge that the affidavit is false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record
holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed the provisions of Section 5.02(c) of the Agreement
(attached hereto as Exhibit 2 and incorporated herein by reference) and
understands the legal consequences of the acquisition of an Ownership Interest
in the Certificate including, without limitation, the restrictions on subsequent
Transfers and the provisions regarding voiding the Transfer and mandatory
sales.
The Transferee expressly agrees to be bound by and to abide by the provisions
of
Section 5.02(c) of the Agreement and the restrictions noted on the face of
the
Certificate. The Transferee understands and agrees that any breach of any
of the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom
the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person
that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as EXHIBIT J to the Agreement
(a
“Transferor Certificate”) to the effect that such Transferee has no actual
knowledge that the Person to which the Transfer is to be made is not a Permitted
Transferee.
7. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee's taxpayer identification number is [_____________].
9. The
Transferee is a United States Person.
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee either (a) is not an employee benefit plan that is subject to
ERISA
or a plan that is subject to Section 4975 of the Code, and the Transferee
is not
acting on behalf of such a plan or (b) has provided an Opinion of Counsel
in
accordance with the provisions of the Agreement.
*
*
*
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
_____
day of _____________, 20___.
|
Print
Name of Transferee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
[Corporate
Seal]
ATTEST:
_________________________
[Assistant]
Secretary
Personally
appeared before me the above-named , known or proved to me to be the same
person
who executed the foregoing instrument and to be the of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free
act
and deed of the Transferee.
Subscribed
and sworn before me this ______ day of _______________, 20___.
|
NOTARY
PUBLIC
My
Commission expires the _____ day of
_________________,
20___.
|
EXHIBIT
1
to
EXHIBIT
I
Certain
Definitions
“Ownership
Interest”: As to any Residual Certificate, any ownership or security interest in
such Certificate including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal
or
beneficial.
“Permitted
Transferee”: Any person other than (i) the United States, any State or political
subdivision thereof, or any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization or any agency or
instrumentality of either of the foregoing, (iii) an organization (except
certain farmers' cooperatives described in section 521 of the Code) which
is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by
section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to
any
Residual Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) a Person that is not a United States
Person, and (vi) a Person designated as a non-Permitted Transferee by the
Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any REMIC created
hereunder to fail to qualify as a REMIC at any time that the Certificates
are
outstanding. The terms “United States,” “State” and “International Organization
” shall have the meanings set forth in section 7701 of the Code or successor
provisions. A corporation will not be treated as an instrumentality of the
United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception
of
Xxxxxxx Mac, a majority of its board of directors is not selected by such
government unit.
“Person”:
Any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
“Transfer”:
Any direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
EXHIBIT
2
to
EXHIBIT
I
Section
5.02(c) of the Agreement
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of
any
change or impending change in its status as a Permitted Transferee.
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless, in addition to the certificates required
to
be delivered to the Trustee under subparagraph (b) above, the Trustee shall
have
been furnished with an affidavit (a “Transfer Affidavit”) of the initial owner
or the proposed transferee in the form attached hereto as Exhibit
I.
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Residual Certificate and (C) not to Transfer its Ownership Interest in
a
Residual Certificate or to cause the Transfer of an Ownership Interest in
a
Residual Certificate to any other Person if it has actual knowledge that
such
Person is not a Permitted Transferee.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall
be
absolutely null and void and shall vest no rights in the purported Transferee.
If any purported transferee shall become a Holder of a Residual Certificate
in
violation of the provisions of this Section 5.02(c), then the last preceding
Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such 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 Section 5.02(b) and this Section 5.02(c) or for making any payments due
on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit and Transferor
Certificate. The Trustee shall be entitled but not obligated to recover from
any
Holder of a Residual Certificate that was in fact not a Permitted Transferee
at
the time it became a Holder or, at such subsequent time as it became other
than
a Permitted Transferee, all payments made on such Residual Certificate at
and
after either such time. Any such payments so recovered by the Trustee shall
be
paid and delivered by the Trustee to the last preceding Permitted Transferee
of
such Certificate.
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Residual Certificate set forth in this Section
5.02(c) shall cease to apply (and the applicable portions of the legend on
a
Residual Certificate may be deleted) with respect to Transfers occurring
after
delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall
not be an expense of the Trust Fund, the Trustee, the Seller or the Servicers,
to the effect that the elimination of such restrictions will not cause the
Trust
Fund hereunder to fail to qualify as a REMIC at any time that the Certificates
are outstanding or result in the imposition of any tax on the Trust Fund,
a
Certificateholder or another Person. Each Person holding or acquiring any
Ownership Interest in a Residual Certificate hereby consents to any amendment
of
this Agreement which, based on an Opinion of Counsel furnished to the Trustee,
is reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Residual Certificate is not transferred, directly
or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Residual Certificate which is held
by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
EXHIBIT
J
FORM
OF
TRANSFEROR CERTIFICATE
__________,
200__
Credit
Suisse First Boston Mortgage Securities Corp.
00
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxx
U.S.
Bank
National Association
as
Trustee for the
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5
00
Xxxxxxxxxx Xxx.
Xx.
Xxxx,
XX 00000-0000
Attention:
Corporate Trust - Structured Finance Ref: HEMT 2006-5
Re: Credit
Suisse First Boston Mortgage Securities Corp., Home
Equity Mortgage Trust 2006-5
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5, Class
[___]
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that
(a) we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act
and (b)
we have not offered or sold any Certificates to, or solicited offers to buy
any
Certificates from, any person, or otherwise approached or negotiated with
any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the
Act.
|
Very
truly yours,
|
||
|
Print
Name of Transferor
|
||
|
By:
|
||
|
Authorized
Officer
|
||
EXHIBIT
K
FORM
OF
INVESTMENT LETTER (NON-RULE 144A)
__________,
200__
Credit
Suisse First Boston Mortgage Securities Corp.
00
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxx
U.S.
Bank
National Association
as
Trustee for the
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5
00
Xxxxxxxxxx Xxx.
Xx.
Xxxx,
XX 00000-0000
Attention:
Corporate Trust - Structured Finance Ref: HEMT 2006-5
Re: Credit
Suisse First Boston Mortgage Securities Corp.,
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5, Class
[___]
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that
(a) we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an institutional
“accredited investor,” as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c)
we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended,
or a
plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code
of 1986, as amended, nor are we acting on behalf of any such plan or arrangement
nor are we using the assets of any such plan or arrangement to effect such
acquisition or we have provided the certification or opinion letter as required
in section 5.02 of the Pooling and Servicing Agreement, (e) we are acquiring
the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at
all
times to sell or otherwise dispose of the Certificates in accordance with
clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached
or
negotiated with any person with respect thereto, or taken any other action
which
would result in a violation of Section 5 of the Act, and (g) we will not
sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory
to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser
or
transferee has otherwise complied with any conditions for transfer set forth
in
the Pooling and Servicing Agreement.
|
Very
truly yours,
|
||
|
Print
Name of Transferee
|
||
|
By:
|
||
|
Authorized
Officer
|
||
EXHIBIT
L
FORM
OF
RULE 144A LETTER
____________,
200__
Credit
Suisse First Boston Mortgage Securities Corp.
00
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxx
U.S.
Bank
National Association
as
Trustee for the
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5
00
Xxxxxxxxxx Xxx.
Xx.
Xxxx,
XX 00000-0000
Attention:
Corporate Trust - Structured Finance Ref: HEMT 2006-5
Re: Credit
Suisse First Boston Mortgage Securities Corp., Home
Equity Mortgage Trust 2006-5
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5, Class
[___]
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that
(a) we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of investments in the Certificates, (c) we have had
the
opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificates and all matters relating thereto
or
any additional information deemed necessary to our decision to purchase the
Certificates, (d) we are not an employee benefit plan that is subject to
the
Employee Retirement Income Security Act of 1974, as amended, or a plan or
arrangement that is subject to Section 4975 of the Internal Revenue Code
of
1986, as amended, nor are we acting on behalf of any such plan or arrangement
nor are we using the assets of any such plan or arrangement to effect such
acquisition or we have provided the certification or opinion letter as required
in section 5.02 of the Pooling and Servicing Agreement, (e) we have not,
nor has
anyone acting on our behalf offered, transferred, pledged, sold or otherwise
disposed of the Certificates, any interest in the Certificates or any other
similar security to, or solicited any offer to buy or accept a transfer,
pledge
or other disposition of the Certificates, any interest in the Certificates
or
any other similar security from, or otherwise approached or negotiated with
respect to the Certificates, any interest in the Certificates or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under
the Act or that would render the disposition of the Certificates a violation
of
Section 5 of the Act or require registration pursuant thereto, nor will act,
nor
has authorized or will authorize any person to act, in such manner with respect
to the Certificates, (f) we are a “qualified institutional buyer” as that term
is defined in Rule 144A under the Act (“Rule 144A”) and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex
2,
(g) we are aware that the sale to us is being made in reliance on Rule 144A,
and
(h) we are acquiring the Certificates for our own account or for resale pursuant
to Rule 144A and further, understand that such Certificates may be resold,
pledged or transferred only (A) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (B)
pursuant to another exemption from registration under the Act.
|
Very
truly yours,
|
||
|
Print
Name of Transferee
|
||
|
By:
|
||
|
Authorized
Officer
|
||
ANNEX
1
TO EXHIBIT L
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates
with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis $___________(1)
in securities (except for the 1 excluded securities referred to below) as
of the end of the Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A and (ii) the Buyer satisfies the criteria in
the
category marked below.
___
Corporation, etc. The Buyer is a corporation (other than a bank, savings
and
loan association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section 501(c)(3)
of
the Internal Revenue Code of 1986, as amended.
___
Bank.
The Buyer (a) is a national bank or banking institution organized under the
laws
of any State, territory or the District of Columbia, the business of which
is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
___
Savings and Loan. The Buyer (a) is a savings and loan association, building
and
loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal authority
having supervision over any such institutions or is a foreign savings and
loan
association or equivalent institution and (b) has an audited net worth of
at
least $25,000,000 as demonstrated in its latest annual financial statements,
a
copy of which is attached hereto.
___
Broker-dealer. The Buyer is a dealer registered pursuant to Section 15 of
the
Securities Exchange Act of 1934.
___
Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring
of
risks underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
___
State
or Local Plan. The Buyer is a plan established and maintained by a State,
its
political subdivisions, or any agency or instrumentality of the State or
its
political subdivisions, for the benefit of its employees.
___
ERISA
Plan. The Buyer is an employee benefit plan within the meaning of Title I
of the
Employee Retirement Income Security Act of 1974, as amended.
___
Investment Advisor. The Buyer is an investment advisor registered under the
Investment Advisors Act of 1940.
___
Small
Business Investment Company. Buyer is a small business investment company
licensed by the U.S. Small Business Administration under Section 301(c) or
(d)
of the Small Business Investment Act of 1958.
___
Business Development Company. Buyer is a business development company as
defined
in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The
term
“securities” as used herein does not include (i) securities of issuers that are
affiliated with the Buyer, (ii) securities that are part of an unsold allotment
to or subscription by the Buyer, if the Buyer is a dealer, (iii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iv) bank
deposit notes and certificates of deposit, (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value,
and
(ii) no current information with respect to the cost of those securities
has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and
if the
investments of such subsidiaries are managed under the Buyer's direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself
a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the
seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales
to the
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each
of the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer's purchase
of the
Certificates will constitute a reaffirmation of this certification as of
the
date of such purchase. In addition, if the Buyer is a bank or savings and
loan
is provided above, the Buyer agrees that it will furnish to such parties
updated
annual financial statements promptly after they become available.
|
Print
Name of Buyer
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
(1)
Buyer
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or
invest on a discretionary basis at least $10,000,000 in securities.
ANNEX
2
TO EXHIBIT L
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates
with
respect to the Certificates described therein:
|
1.
|
As
indicated below, the undersigned is the President, Chief Financial
Officer
or Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the
Securities Act of 1933, as amended (“Rule 144A”) because Buyer is part of
a Family of Investment Companies (as defined below), is such an
officer of
the Adviser.
|
|
2.
|
In
connection with purchases by Buyer, the Buyer is a “qualified
institutional buyer” as defined in SEC Rule 144A because (i) the Buyer is
an investment company registered under the Investment Company Act
of 1940,
as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in
securities
(other than the excluded securities referred to below) as of the
end of
the Buyer's most recent fiscal year. For purposes of determining
the
amount of securities owned by the Buyer or the Buyer's Family of
Investment Companies, the cost of such securities was used, except
(i)
where the Buyer or the Buyer's Family of Investment Companies reports
its
securities holdings in its financial statements on the basis of
their
market value, and (ii) no current information with respect to the
cost of
those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at
market.
|
___
The
Buyer owned $[_____________] in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
___
The
Buyer is part of a Family of Investment Companies which owned in the aggregate
$[_____________] in securities (other than the excluded securities referred
to
below) as of the end of the Buyer's most recent fiscal year (such amount
being
calculated in accordance with Rule 144A).
|
3.
|
The
term “Family of Investment Companies” as used herein means two or more
registered investment companies (or series thereof) that have the
same
investment adviser or investment advisers that are affiliated (by
virtue
of being majority owned subsidiaries of the same parent or because
one
investment adviser is a majority owned subsidiary of the
other).
|
|
4.
|
The
term “securities” as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's
Family of Investment Companies, (ii) securities issued or guaranteed
by
the U.S. or any instrumentality thereof, (iii) bank deposit notes
and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity
swaps.
|
|
5.
|
The
Buyer is familiar with Rule 144A and understands that the parties
listed
in the Rule 144A Transferee Certificate to which this certification
relates are relying and will continue to rely on the statements
made
herein because one or more sales to the Buyer will be in reliance
on Rule
144A. In addition, the Buyer will only purchase for the Buyer's
own
account.
|
|
6.
|
Until
the date of purchase of the Certificates, the undersigned will
notify the
parties listed in the Rule 144A Transferee Certificate to which
this
certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the
Certificates will constitute a reaffirmation of this certification
by the
undersigned as of the date of such
purchase.
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|
Print
Name of Buyer or Adviser
|
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|
Name
|
||
|
Title
|
||
|
IF
AN ADVISER:
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Print
Name of Buyer
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Date:
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EXHIBIT
M
REQUEST
FOR RELEASE
(for
Trustee)
CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Home
Equity Mortgage Trust 2006-5
Home
Equity Mortgage Pass-Through Certificates, Series 2006-5
Loan
Information
Name
of
Mortgagor:
____________________________________
Servicer
Loan
No.:
____________________________________
Trustee
Name:
Address:
____________________________________
____________________________________
____________________________________
Trustee
Mortgage
File No.:
The
undersigned Servicer hereby acknowledges that it has received from
[______________], as Custodian for the Holders of Mortgage Pass-Through
Certificates, of the above-referenced Series, the documents referred to below
(the “Documents”). All capitalized terms not otherwise defined in this Request
for Release shall have the meanings given them in the Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series among Credit Suisse First Boston Mortgage Securities
Corp. as depositor, DLJ Mortgage Capital, Inc. as seller, Select Portfolio
Servicing, Inc. as a servicer and as master servicer, Ocwen Loan Servicing,
LLC
as a servicer and U.S. Bank National Association as trustee (the
“Trustee”).
|
(
)
|
Mortgage
Note dated _____________________, _______, in the original principal
sum
of $___________________, made by ____________________. payable
to, or
endorsed to the order of, the
Trustee.
|
|
(
)
|
Mortgage
recorded on ________________ as instrument no. ______________ in
the
County Recorder's Office of the County of ___________________,
State of
___________ in book/reel/docket _________________ of official records
at
page/image _____________.
|
|
(
)
|
Deed
of Trust recorded on _____________ as instrument no. ______________
in the
County Recorder's Office of the County of _______________, State
of
______________ in book/reel/docket _____________________ of official
records at page/image _________.
|
|
(
)
|
Assignment
of Mortgage or Deed of Trust to the Trustee, recorded on _________
as
instrument no. ______________ in the County Recorder's Office of
the
County of ______, State of ________________ in book/reel/docket
_______________ of official records at page/image
_______________.
|
|
(
)
|
Other
documents, including any amendments, assignments or other assumptions
of
the Mortgage Note or Mortgage.
|
|
(
)
|
|
|
(
)
|
|
|
(
)
|
|
|
(
)
|
The
undersigned Servicer hereby acknowledges and agrees as follows:
(1) Such
Servicer shall hold and retain possession of the Documents in trust for the
benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) Such
Servicer shall not cause or knowingly permit the Documents to become subject
to,
or encumbered by, any claim, liens, security interest, charges, writs of
attachment or other impositions nor shall the Servicer, if applicable, assert
or
seek to assert any claims or rights of setoff to or against the Documents
or any
proceeds thereof.
(3) Such
Servicer shall return each and every Document previously requested from the
Mortgage File to the Custodian when the need therefor no longer exists, unless
the Mortgage Loan relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account and except as expressly
provided in the Agreement.
(4) The
Documents and any proceeds thereof, including any proceeds of proceeds, coming
into the possession or control of such Servicer shall at all times be earmarked
for the account of the Custodian, and such Servicer shall keep the Documents
and
any proceeds separate and distinct from all other property in such Servicer's
possession, custody or control.
[Servicer]
By
_________________________________
Its
_________________________________
Date:
____________, 20__
EXHIBIT
N
FORM
OF
SUBSEQUENT TRANSFER AGREEMENT
THIS
SUBSEQUENT TRANSFER AGREEMENT, dated as of _________ ___, 2006 (this “Subsequent
Transfer Agreement”), among CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP., a Delaware corporation, as depositor (the “Depositor”), DLJ MORTGAGE
CAPITAL, INC., a Delaware corporation, in its capacity as seller under the
Pooling and Servicing Agreement referred to below (the “Seller”), SELECT
PORTFOLIO SERVICING, INC., as a servicer (“SPS”) and as master servicer (the
“Master Servicer”), Ocwen Loan Servicing, LLC, as a servicer (“Ocwen” and
together with SPS, the “Servicers”) and U.S. Bank National Association, a
banking association organized under the laws of the United States, as trustee
(the “Trustee”);
WHEREAS,
the parties hereto are also among the parties to the Pooling and Servicing
Agreement, dated as of October 1, 2006, among the Depositor, the Seller,
SPS,
Ocwen and the Trustee, in relation to the Home Equity Mortgage Pass-Through
Certificates, Series 2006-5;
WHEREAS,
Sections 2.01(f) of the Pooling and Servicing Agreement provides for the
parties
hereto to enter into this Subsequent Transfer Agreement in accordance with
the
terms and conditions of the Pooling and Servicing Agreement;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged the
parties hereto agree as follows:
(i) The
“Subsequent Transfer Date” with respect to this Subsequent Transfer Agreement
shall be ____________, 200__.
(ii) The
“Aggregate Subsequent Purchase Amount” with respect to this Subsequent Transfer
Agreement shall be $____________, provided, however, that such amount shall
not
exceed the amount on deposit in the Pre-Funding Account.
(iii) The
Subsequent Mortgage Loans conveyed on the Subsequent Transfer Date shall
satisfy
the pool characteristics for the Trust Fund identified in Section 2.01(f)
of the
Pooling and Servicing Agreement.
(iv) In
case
any provision of this Subsequent Transfer Agreement shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions or obligations shall not in any way be affected or impaired
thereby.
(v) In
the
event of any conflict between the provisions of this Subsequent Transfer
Agreement and the Pooling and Servicing Agreement, the provisions of the
Pooling
and Servicing Agreement shall prevail. Capitalized terms used herein and
not
otherwise defined have the meanings in the Pooling and Servicing
Agreement.
(vi) The
Seller hereby sells, transfers, assigns, sets over and otherwise conveys
to the
Trustee for the benefit of the Certificateholders, without recourse, all
right
title and interest in the Subsequent Mortgage Loans identified in Schedule
A,
including all interest and principal due on or with respect to such Subsequent
Mortgage Loans on or after the Subsequent Cut-off Date and all interest and
principal payments on such Subsequent Mortgage Loans received prior to the
Subsequent Cut-off Date in respect of installments of interest and principal
due
thereafter, but not including principal and interest due on such Subsequent
Mortgage Loans prior to the Subsequent Cut-off Date, any insurance policies
in
respect of such Subsequent Mortgage Loans and all proceeds of any of the
foregoing.
(vii) This
Subsequent Transfer Agreement shall be governed by, and shall be construed
and
enforced in accordance with the laws of the State of New York.
(viii) The
Subsequent Transfer Agreement may be executed in one or more counterparts,
each
of which so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument.
EXHIBIT
O-1
FORM
OF
COLLECTION ACCOUNT CERTIFICATION
[
], 20__
[Servicer's
name] hereby certifies that it has established the account described below
as a
Collection Account pursuant to Section 3.05 of the Pooling and Servicing
Agreement, dated as of October 1, 2006, among Credit Suisse First Boston
Mortgage Securities Corp. as depositor, DLJ Mortgage Capital, Inc. as seller
(“DLJMC”), Select Portfolio Servicing, Inc. as a servicer (“SPS”) and as master
servicer (the “Master Servicer”), Ocwen Loan Servicing, LLC as a servicer
(“Ocwen”) and U.S. Bank National Association as trustee (the
“Trustee”).
Title
of
Account: [Servicer's
Name], in trust for the Holders of Credit Suisse First Boston Mortgage
Securities Corp., Home Equity Mortgage Pass-Through Certificates, Series
2006-5.
Account
Number: ______________
Address
of officer or branch
of
the
Company at
which
Account is maintained:
_________________________
_________________________
_________________________
[Servicer's
Name], AS SERVICER
By:
______________________
Name:
____________________
Title:
_____________________
EXHIBIT
O-2
FORM
OF
COLLECTION ACCOUNT LETTER AGREEMENT
[
], 20__
To:
___________________
___________________
___________________
(the
“Depository”)
As
Servicer under the Pooling and Servicing Agreement, dated as of October 1,
2006,
among Credit Suisse First Boston Mortgage Securities Corp. as depositor,
DLJ
Mortgage Capital, Inc. as seller (“DLJMC”), Select Portfolio Servicing, Inc. as
a servicer (“SPS”) and as master servicer (the “Master Servicer”), Ocwen Loan
Servicing, LLC as a servicer (“Ocwen”) and U.S. Bank National Association as
trustee (the “Trustee”) (the “Agreement”), we hereby authorize and request you
to establish an account, as a Collection Account pursuant to Section 3.05
of the
Agreement, to be designated as “[Servicer's Name], in trust for the Holders of
Credit Suisse First Boston Mortgage Securities Corp., Home Equity Mortgage
Pass-Through Certificates, Series 2006-5.” All deposits in the account shall be
subject to withdrawal therefrom by order signed by the Servicer. This letter
is
submitted to you in duplicate. Please execute and return one original to
us.
[Servicer's
Name], AS SERVICER
By:
___________________________
Name:
_________________________
Title:
__________________________
Date:
__________________________
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number _________ at the office of the
Depository indicated above and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will
be
insured up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund (“BIF”) or the Savings Association Insurance
Fund (“SAIF”).
_______________________________
Depository
By:
___________________________
Name:
_________________________
Title:
__________________________
Date:
__________________________
EXHIBIT
P-1
FORM
OF
ESCROW ACCOUNT CERTIFICATION
[
],
20__
[Servicer's
Name] hereby certifies that it has established the account described below
as an
Escrow Account pursuant to Section 3.06 of the Pooling and Servicing Agreement,
dated as of October 1, 2006, among Credit Suisse First Boston Mortgage
Securities Corp. as depositor, DLJ Mortgage Capital, Inc. as seller (“DLJMC”),
Select Portfolio Servicing, Inc. as a servicer (“SPS”) and as master servicer
(the “Master Servicer”), Ocwen Loan Servicing, LLC as a servicer (“Ocwen”) and
U.S. Bank National Association as trustee (the “Trustee”).
Title
of
Account: “[Servicer's
Name], in trust for Credit Suisse First Boston Mortgage Securities Corp.,
Home
Equity Mortgage Trust 2006-5, Home Equity Mortgage Pass-Through Certificates,
Series 2006-5 and various mortgagors”
Account
Number:
____________________________
Address
of officer or branch
of
the
Company at
which
Account is maintained:
____________________________
____________________________
____________________________
[Servicer's
Name], AS SERVICER
By:
_________________________
Name:
_______________________
Title:
________________________
EXHIBIT
P-2
FORM
OF
ESCROW ACCOUNT LETTER AGREEMENT
[
], 20__
To:
_________________
_________________
_________________
(the
“Depository”)
As
Servicer under the Pooling and Servicing Agreement, dated as of October 1,
2006,
among Credit Suisse First Boston Mortgage Securities Corp. as depositor,
DLJ
Mortgage Capital, Inc. as seller (“DLJMC”), Select Portfolio Servicing, Inc. as
a servicer (“SPS”) and as master servicer (the “Master Servicer”), Ocwen Loan
Servicing, LLC as a servicer (“Ocwen”) and U.S. Bank National Association as
trustee (the “Trustee”) (the “Agreement”), we hereby authorize and request you
to establish an account, as an Escrow Account pursuant to Section 3.06 of
the
Agreement, to be designated as “Credit Suisse First Boston Mortgage Securities
Corp., Home Equity Mortgage Trust 2006-5, Home Equity Mortgage Pass-Through
Certificates, Series 2006-5”. All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. This letter is submitted
to you in duplicate. Please execute and return one original to us.
[SERVICER'S
NAME], AS SERVICER
By:
___________________________
Name:
_________________________
Title:
__________________________
Date:
__________________________
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ________________ at the office
of the
Depository indicated above and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will
be
insured up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund (“BIF”) or the Savings Association Insurance
Fund (“SAIF”).
_______________________________
Depository
By:
___________________________
Name:
_________________________
Title:
__________________________
Date:
__________________________
EXHIBIT
Q
[RESERVED]
EXHIBIT
R-1
FORM
OF
CUSTODIAL AGREEMENT FOR LASALLE BANK NATIONAL ASSOCIATION
THIS
CUSTODIAL AGREEMENT (the “Custodial Agreement”), dated as of October 1, 2006 by
and between U.S. BANK NATIONAL ASSOCIATION, a national banking association
organized under the laws of the United States (the “Trustee”), having an address
at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000, not individually, but solely
as
trustee under the Pooling and Servicing Agreement for the Credit Suisse First
Boston Mortgage Securities Corp., Home Equity Mortgage Trust 2006-5, Home
Equity
Mortgage Pass-Through Certificates, Series 2006-5 (the “Trust”), and LASALLE
BANK NATIONAL ASSOCIATION, a national banking association having an address
at
0000 Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000, as custodian
(the
“Custodian”).
W
I T N E
S S E T H
WHEREAS,
Credit Suisse First Boston Mortgage Securities Corp. (the “Depositor”) has
agreed to transfer certain conventional, fixed-rate mortgage loans (the
“Mortgage Loans”) to the Trustee, pursuant to the terms and conditions of the
Pooling and Servicing Agreement, dated October 1, 2006 (the “Pooling and
Servicing Agreement” ), among DLJMC, as seller (the “Seller”), Select Portfolio
Servicing, Inc. as a servicer (“SPS”) and as master servicer (the “Master
Servicer”), Ocwen Loan Servicing, LLC, as a servicer (“Ocwen” and together with
SPS, the “Servicers”), the Trustee and the Depositor; and
WHEREAS,
the Servicers are to service the Mortgage Loans pursuant to the terms and
conditions of the Pooling and Servicing Agreement, and the Trustee will retain
record title to the Mortgage Loans; and
WHEREAS,
the Custodian is a national banking association and is otherwise authorized
to
act as Custodian pursuant to this Custodial Agreement; and
NOW
THEREFORE, in consideration of the mutual undertakings herein expressed,
the
parties hereto hereby agree as follows:
Section
1. Definitions.
Capitalized
terms used but not defined herein shall have the meanings assigned to them
in
the Pooling and Servicing Agreement, a copy of which has been received by
the
Custodian.
Agreement:
This
Custodial Agreement and all amendments, attachments and supplements
hereto.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a day on which banking
institutions in the City of New York, New York, or the city in which the
Corporate Trust Office of the Trustee is located, or savings and loan
institutions located in the States of Minnesota, New Jersey, Florida, Illinois
or Utah are authorized or obligated by law or executive order to be
closed.
Closing
Date:
October
31, 2006.
Commission:
The
United States Securities and Exchange Commission.
Custodial
File:
As to
each Mortgage Loan, any mortgage loan documents which are delivered to the
Custodian or which at any time come into the possession of the Custodian
as set
forth in Section 2 of this Custodial Agreement.
Custodian:
LaSalle
Bank National Association, or its successor in interest or assigns, or any
successor to the Custodian under this Custodial Agreement as herein
provided.
Delivery
Date:
The
date which occurs five (5) Business Days prior to the Closing Date or any
Subsequent Transfer Date, as applicable, or such other date as mutually agreed
upon by the Depositor, Trustee and the Custodian.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Master
Servicer:
The
Master Servicer under the Pooling and Servicing Agreement as therein
provided.
Mortgage
Loan:
The
mortgage loan relating to each Custodial File sold, assigned or transferred
pursuant to this Custodial Agreement and identified on the Mortgage Loan
Schedule attached hereto as Exhibit
5,
as such
Mortgage Loan Schedule may be supplemented from time to time.
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.
Securities
Act:
The
Securities Act of 1933, as amended.
Servicers:
The
Servicers under the Pooling and Servicing Agreement as therein
provided.
Subcontractor:
Any
vendor, subcontractor or other
person
that is not responsible for the overall servicing (as “servicing” is commonly
understood by participants in the mortgage-backed securities market) of the
Mortgage Loans but performs one or more discrete functions identified in
Item
1122(d) of Regulation AB with respect to the Mortgage Loans under the direction
or authority of the Custodian.
Trustee:
U.S.
Bank National Association, in its capacity as Trustee under the Pooling and
Servicing Agreement or its assigns.
Trust
Receipt:
Either
a Trust Receipt and Initial Certification or a Trust Receipt and Final
Certification.
Trust
Receipt and Initial Certification:
A trust
receipt and initial certification as to each Mortgage Loan, which Trust Receipt
and Initial Certification is delivered to the Trustee and the Master Servicer
by
the Custodian in the form annexed hereto as Exhibit 1.
Trust
Receipt and Final Certification:
A trust
receipt and final certification as to each Mortgage Loan, which Trust Receipt
and Final Certification is delivered to the Trustee and the Master Servicer
by
the Custodian in the form annexed hereto as Exhibit 2.
Section
2. Delivery
of Custodial Files.
The
Depositor will deliver and release or cause to be delivered and released
to the
Custodian on the Delivery Date the following original documents pertaining
to
each of the Mortgage Loans identified in the related Mortgage Loan
Schedule:
i) (A)
the
original Mortgage Note of the Mortgagor in the name of the Trustee or endorsed
“Pay to the order of ________________ without recourse” and signed in the name
of the last named endorsee by an authorized officer, together with all
intervening endorsements showing a complete chain of endorsements from the
originator of the related Mortgage Loan to the last endorsee or (B) with
respect
to any Lost Mortgage Note (as such term is defined in the Pooling and Servicing
Agreement), a lost note affidavit stating that the original Mortgage Note
was
lost or destroyed, together with a copy of such Mortgage Note;
| ii) |
the
original Mortgage bearing evidence that such instruments have been
recorded in the appropriate jurisdiction where the Mortgaged Property
is
located as determined by DLJMC (or, in lieu of the original of
the
Mortgage or the assignment thereof, a duplicate or conformed copy
of the
Mortgage or the instrument of assignment, if any, together with
a
certificate of receipt from the Seller or the settlement agent
who handled
the closing of the Mortgage Loan, certifying that such copy or
copies
represent true and correct copy(ies) of the original(s) and that
such
original(s) have been or are currently submitted to be recorded
in the
appropriate governmental recording office of the jurisdiction where
the
Mortgaged Property is located) or a certification or receipt of
the
recording authority evidencing the
same;
|
| iii) |
the
original Assignment of Mortgage, in blank, which assignment appears
to be
in form and substance acceptable for recording and, in the event
that the
related Seller acquired the Mortgage Loan in a merger, the assignment
must
be by “[Seller], successor by merger to [name of predecessor]”, and in the
event that the Mortgage Loan was acquired or originated by the
related
Seller while doing business under another name, the assignment
must be by
“[Seller], formerly known as [previous
name]”;
|
| iv) |
The
original of any intervening assignment of the Mortgage not included
in
(iii) above, including any warehousing assignment, with evidence
of
recording thereon (or, in lieu of the original of any such intervening
assignment, a duplicate or conformed copy of such intervening assignment
together with a certificate of receipt from the related Seller
or the
settlement agent who handled the closing of the Mortgage Loan,
certifying
that such copy or copies represent true and correct copy(ies) of
the
original(s) and that such original(s) have been or are currently
submitted
to be recorded in the appropriate governmental recording office
of the
jurisdiction where the Mortgaged Property is located) or a certification
or receipt of the recording authority evidencing the
same;
|
| v) |
an
original of any related security agreement (if such item is a document
separate from the Mortgage) and the originals of any intervening
assignments thereof showing a complete chain of assignment from
the
originator of the related Mortgage Loan to the last
assignee;
|
| vi) |
an
original assignment of any related security agreement (if such
item is a
document separate from the Mortgage) executed by the last assignee
in
blank;
|
| vii) |
the
originals of any assumption, modification, extension or guaranty
agreement
with evidence of recording thereon, if applicable (or, in lieu
of the
original of any such agreement, a duplicate or conformed copy of
such
agreement together with a certificate of receipt from the related
Seller
or the settlement agent who handled the closing of the Mortgage
Loan,
certifying that such copy(ies) represent true and correct copy(ies)
of the
original(s) and that such original(s) have been or are currently
submitted
to be recorded in the appropriate governmental recording office
of the
jurisdiction where the Mortgaged Property is located), or a certification
or receipt of the recording authority evidencing the
same;
|
| viii) |
if
the Mortgage Note or Mortgage or any other document or instrument
relating
to the Mortgage Loan has been signed by a person on behalf of the
Mortgagor, the original power of attorney or other instrument that
authorized and empowered such person to sign bearing evidence that
such
instrument has been recorded, if so required, in the appropriate
jurisdiction where the Mortgaged Property is located as determined
by
DLJMC (or, in lieu thereof, a duplicate or conformed copy of such
instrument, together with a certificate of receipt from the related
Seller
or the settlement agent who handled the closing of the Mortgage
Loan,
certifying that such copy(ies) represent true and complete copy(ies)
of
the original(s) and that such original(s) have been or are currently
submitted to be recorded in the appropriate governmental recording
office
of the jurisdiction where the Mortgaged Property is located) or
a
certification or receipt of the recording authority evidencing
the same;
and
|
| ix) |
in
the case of the First Mortgage Loans, the original mortgage title
insurance policy.
|
In
the
event that, pursuant to the Pooling and Servicing Agreement, an Officer’s
Certificate of the Seller is delivered to the Trustee because of a delay
caused
by the public recording office in returning any recorded document, the Trustee
shall deliver such Officer’s Certificate to the Custodian. The Trustee shall
direct the Custodian to deliver written notice to each Rating Agency, as
such
term is defined in the Pooling and Servicing Agreement, within 360 days from
the
Closing Date indicating each Mortgage (a) which has not been returned by
the
appropriate recording office or (b) as to which there is a dispute as to
location or status of such Mortgage. Such notice shall be delivered every
90
days thereafter until the related Mortgage is returned to the
Custodian.
From
time
to time, the Servicers shall forward or shall cause to be forwarded to the
Custodian additional original documents, additional documents evidencing
an
assumption, modification, consolidation or extension of a Mortgage Loan approved
by the related Servicer of such Mortgage Loan, in accordance with the terms
of
the Pooling and Servicing Agreement. All such mortgage documents held by
the
Custodian as to each Mortgage Loan shall constitute the “Custodial File”. From
time to time, the Trustee shall instruct or cause the instruction of the
Custodian to deliver certain mortgage documents to the Trustee for assignment
and recordation.
Within
thirty (30) days of the Closing Date with regard to the Initial Mortgage
Loans
and the related Subsequent Transfer Date with regard to the Subsequent Mortgage
Loans, the Trustee (at the expense of DLJ Mortgage Capital, Inc., referred
to in
the Pooling and Servicing Agreement as DLJMC, the seller of the Mortgage
Loans)
shall (i) affix the Trustee’s name to each Assignment of Mortgage, as the
assignee thereof, (ii) cause such Assignment of Mortgage to be completed
in
proper form for recording in the appropriate public office for real property
records and (iii) cause to be delivered for recording in the appropriate
public
office for real property records the Assignments of Mortgages to the Trustee,
except that, with respect to any Assignment of Mortgage as to which the Trustee
has not received the information required to prepare such Assignment of Mortgage
in recordable form, the Trustee’s obligation to do so and to deliver the same
for such recording shall be as soon as practicable after receipt of such
information and in any event within thirty (30) days after the receipt thereof.
The Custodian shall maintain a copy of each such assignment in the Custodial
File. DLJMC shall be responsible for the fees and expenses of the Trustee
in
connection with this paragraph.
At
least
24 hours prior to delivery of the Mortgage Loans, the Depositor will provide
or
cause to be provided to the Custodian, via electronic transmission, a list
of
all the Mortgage Loans and their related data fields including loan ID,
Mortgagor name, mortgaged property address, mortgage rate, maturity date,
and
original principal balance of each such Mortgage Loan. This data shall be
delivered to the Custodian in an acceptable format that can be easily uploaded
to the Custodian’s system. A hard copy of the Mortgage Loan Schedule will be
delivered to the Custodian at the time of delivery to the Custodian of such
documents related to the Mortgage Loans identified in such Mortgage Loan
Schedule.
Section
3. Custodian
as Bailee.
The
Custodian hereby acknowledges that it is, and agrees to act as, bailee for
the
Trustee and is holding each Custodial File delivered to it in trust for the
Trustee.
Section
4. Trust
Receipt and Initial Certification of the Custodian.
(a) No
later
than 1:00 p.m. Eastern Time on the Closing Date or Subsequent Transfer Date,
as
applicable, the Custodian shall deliver to the Trustee and the Master Servicer
a
Trust Receipt and Initial Certification certifying, subject to any exceptions
noted thereon, as to each Initial Mortgage Loan or Subsequent Mortgage Loan,
as
applicable, on the Mortgage Loan Schedule, (i) receipt of the original Mortgage
Note and Assignment of Mortgage and (ii) that the Mortgage Note has been
reviewed by the Custodian and appears regular on its face and relates to
such
Mortgage Loan.
(b) Upon
the
written directions of the Trustee, and upon the prior tender by the Trustee
of
an applicable trust receipt or trust receipts (including any related Trust
Receipt and Final Certification that has been issued), the Custodian shall
deliver all or any portion of the related Custodial Files held by it pursuant
to
such Trust Receipt to the Trustee, or to such other party designated by such
Trustee in such written direction, and to the place indicated in any such
written direction from the Trustee. If such delivery is for less than all
of the
Custodial Files held by the Custodian with respect to such Trust Receipt
(and a
Trust Receipt and Final Certification has been issued), the Custodian shall
deliver to the Trustee and the Master Servicer a new Trust Receipt and Final
Certification with respect to the related Custodial Files retained by the
Custodian. Each Trust Receipt (including any Trust Receipt and Final
Certification) surrendered shall be canceled by the Custodian.
Section
5. Obligations
of the Custodian.
(a) With
respect to the Mortgage Note, the Mortgage and the Assignment of Mortgage
and
other documents constituting each Custodial File which is delivered to the
Custodian or which come into the possession of the Custodian, the Custodian
is
the custodian for the Trustee exclusively. The Custodian shall hold all mortgage
documents received by it constituting the Custodial File for the exclusive
use
and benefit of the Trustee, and shall make disposition thereof only in
accordance with this Custodial Agreement and the instructions furnished by
the
Trustee. The Custodian shall segregate and maintain continuous custody of
all
mortgage documents constituting the Custodial File in secure and fire-resistant
facilities in accordance with customary standards for such custody. The
Custodian shall not be responsible to verify (i) the validity, legality,
enforceability, sufficiency, due authorization or genuineness of any document
in
the Custodial File or of any Mortgage Loans or (ii) the collectability,
insurability, effectiveness including the authority or capacity of any Person
to
execute or issue any document in the Custodial File, or suitability of any
Mortgage Loan unless specified otherwise in this Custodial Agreement. The
Custodian shall promptly report to the Trustee any failure on its part to
hold
the Custodial Files and maintain its accounts, records and computer systems
as
herein provided and promptly take appropriate action to remedy such
failure.
(b) On
or
before March 15th
of each
calendar year that the Trust Fund is subject to the Exchange Act reporting
requirements, beginning with March 15, 2007, the Custodian shall, at its
own
expense, cause a firm of independent public accountants (who may also render
other services to Custodian), which is a member of the American Institute
of
Certified Public Accountants, to furnish to the Trustee and the Depositor
a
report to the effect that such firm that attests to, and reports on, the
assessment made by such asserting party pursuant to Section 5(c) below, which
report shall be made in accordance with standards for attestation engagements
issued or adopted by the Public Company Accounting Oversight Board.
(c) On
or
before March 15th
of each
calendar year that the Trust Fund is subject to the Exchange Act reporting
requirements, beginning with March 15, 2007, the Custodian shall deliver
to the
Trustee and the Depositor a report regarding its assessment of compliance
with
the applicable servicing criteria identified in Exhibit
7
attached
hereto, as of and for the period ending the end of the fiscal year ending
no
later than December 31 of the year prior to the year of delivery of the report,
with respect to asset-backed security transactions taken as a whole in which
the
Custodian is performing any of the servicing criteria specified in Exhibit
7
and that
are backed by the same asset type backing such asset-backed securities. Each
such report shall include (a) a statement of the party’s responsibility for
assessing compliance with the servicing criteria applicable to such party,
(b) a
statement that such party used the criteria identified in Item 1122(d) of
Regulation AB (§ 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 Custodian
as provided in Section 5(b).
(d) The
Custodian has not and shall not engage any Subcontractor which is “participating
in the servicing function” within the meaning of Item 1122 of Regulation AB
without (a) giving notice to the Seller, the Trustee, the Master Servicer,
the
Servicers and the Depositor, and (b) requiring any such Subcontractor to
provide
to the Custodian an attestation report as provided for in Section 5(b) above
and
an assessment report as provided for in Section 5(c) above, which reports
the
Custodian shall include in the Custodian’s attestation and assessment
reports.
Section
6. Final
Certification.
Not
later
than ninety (90) days following (i) the Closing Date and (ii) the end of
the
Pre-Funding Period, the Custodian shall ascertain that all documents specified
in Sections 2(i) through (ix) of this Custodial Agreement are in its possession,
and shall deliver to the Trustee and the Master Servicer a Trust Receipt
and
Final Certification certifying, subject to any exceptions noted thereon that,
as
to each Initial Mortgage Loan or Subsequent Mortgage Loan, as applicable,
listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full
or any
Mortgage Loan specifically identified in such certification as not covered
by
such certification): (i) all documents required to be delivered to it pursuant
to Sections 2(i)-(ix) of this Custodial Agreement are in its possession;
(ii)
such documents have been reviewed by it (including the information set forth
in
items (i), (iii), (xii) and (xx) with respect to each Mortgage Loan and item
(ii) with respect to the Mortgage Loans in the aggregate of the Mortgage
Loan
Schedule) and appear regular on their face and relate to such Mortgage Loan;
(iii) all Assignments of Mortgage or intervening assignments of mortgage,
as
applicable, have been submitted for recording in the jurisdiction in which
recording is necessary; and (iv) each Mortgage Note has been endorsed as
provided in Section 2(i) of this Custodial Agreement and each Mortgage has
been
assigned in accordance with Section 2(iii) of this Custodial
Agreement.
Section
7. Future
Defects.
During
the term of this Custodial Agreement, if the Custodian discovers any defect
with
respect to any Custodial File, the Custodian shall give written specification
of
such defect to the Trustee, the Master Servicer and the related
Servicer.
Section
8. Release
for Servicing.
(a) From
time
to time and as appropriate for the foreclosure or servicing of any of the
Mortgage Loans, the Custodian is hereby authorized, upon written receipt
from a
Servicer of a request for release of documents and receipt in the form annexed
hereto as Exhibit
3,
to
release to such Servicer the related Custodial File or the documents set
forth
in such request and receipt to such Servicer. Such Servicer promptly shall
return to the Custodian the Custodial File or other such documents when such
Servicer’s need therefor no longer exists, unless the related Mortgage Loan
shall be liquidated in which case, upon receipt of an additional request
for
release of documents and receipt certifying such liquidation from such Servicers
to the Custodian in the form annexed hereto as Exhibit
3,
the
Servicer’s request and receipt submitted pursuant to the first sentence of this
Section 8 shall be released by the Custodian to such Servicer. If the Custodian
fails to release the Custodial File within three (3) business days of receipt
of
the request for release of documents, the Custodian, upon the written request
of
such Servicer, will provide such Servicer with a lost note affidavit and
indemnity; provided, however, that in the event such Custodial File did not
contain an original Mortgage Note and such exception was duly reported on
the
document exception report attached to the Trust Receipt and Initial
Certification, the Custodian will not be required to provide a lost note
affidavit and indemnity. The Custodian agrees to indemnify the Trustee for
the
reasonable replacement cost of the file, as well as any actual penalties
or
charges resulting from the failure of the Custodian to return the Mortgage
Files
within the time frame described above.
Section
9. Limitation
on Release.
The
foregoing provision respecting release to the Servicers of Custodial Files
and
documents by the Custodian upon requests by the Servicers shall be operative
only to the extent that at any time the Custodian shall not have released
to the
Servicers active Custodial Files or documents (including those requested)
pertaining to more than 15% of the Mortgage Loans in the Mortgage Pool. Any
additional Custodial Files or documents requested to be released by the
Servicers may be released only upon written authorization of the Depositor.
The
limitations of this paragraph shall not apply to the release of Custodial
Files
to the Servicers under Section 10 below.
Section
10. Release
for Payment.
Upon
receipt by the Custodian of the Servicers’ request for release of documents and
receipt in the form annexed hereto as Exhibit
3
(which
certification shall include a statement to the effect that all amounts received
in connection with such payment or repurchase have been credited to the
Certificate Account as provided in the Pooling and Servicing Agreement),
the
Custodian shall promptly release the related Custodial File to such
Servicer.
Section
11. Fees
of Custodian.
The
Custodian shall charge such fees for its services under this Custodial Agreement
as are set forth in Exhibit
6
hereto,
the payment of which fees (with the exception of conference room fees and
extraordinary time charges, which shall be the obligation of the party
requesting such services), together with the Custodian’s expenses in connection
herewith, shall be solely the obligation of the Trustee.
Section
12. Removal
of Custodian.
The
Trustee with or without cause, may upon at least 60 days’ notice remove and
discharge the Custodian from the performance of its duties under this Custodial
Agreement by written notice from the Trustee to the Custodian. Having given
notice of such removal, the Trustee, promptly shall appoint a successor
Custodian (which may be the Trustee or an affiliate of the Trustee) to act
on
behalf of the Trustee by written instrument, one original counterpart of
which
instrument shall be delivered to the Trustee and an original to the successor
Custodian (with a copy delivered to each Servicer), provided that any such
successor Custodian shall meet the criteria set forth in the following
paragraph. In the event of any such removal, the Custodian shall promptly
transfer to the successor Custodian, as directed, all Custodial Files being
administered under this Custodial Agreement. In the event of any such
appointments the Trustee shall be responsible for the fees and expenses of
the
existing and successor Custodian, unless the Custodian shall be removed for
cause, in which case such fees and expenses shall be the responsibility of
the
removed custodian. If the Trustee removes the Custodian without cause, the
Trustee shall be responsible for payment of all expenses incurred in the
transmission of the Custodial Files to the successor Custodian and for all
applicable release fees of the Custodian.
Any
successor Custodian shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which
would
not cause either of the Rating Agencies to reduce their respective then current
Ratings of the Certificates (or having provided such security from time to
time
as is sufficient to avoid such reduction) as evidenced in writing by each
Rating
Agency. If such corporation or association publishes reports of condition
at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section
12 the
combined capital and surplus of such corporation or association shall be
deemed
to be its combined capital and surplus as set forth in its most recent report
of
condition so published. In case at any time a successor Custodian shall cease
to
be eligible in accordance with the provisions of this Section 12, such successor
Custodian shall resign immediately and be replaced as specified in the previous
paragraph. The entity serving as successor Custodian may have normal banking
and
trust relationships with the Depositor and its affiliates or a Servicer and
its
affiliates; provided, however, that such entity cannot be an affiliate of
the
Seller, the Depositor, the Master Servicer or a Servicer.
Section
13. Transfer
of Custodial Files.
Upon
written request of the Trustee, the Custodian shall release to such Persons
as
the Trustee shall designate the Custodial Files relating to such Mortgage
Loans
as the Trustee shall request.
Section
14. Examination
of Custodial Files.
Upon
reasonable prior notice to the Custodian but not less than two (2) Business
Days
notice, the Trustee and its agents, accountants, attorneys, auditors and
designees will be permitted during normal business hours to examine the
Custodial Files, documents, records and other papers in the possession of
or
under the control of the Custodian relating to any or all of the Mortgage
Loans.
The Custodial Files shall be maintained at LaSalle Bank National Association,
0000 Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 or at such
other
location as the Custodian may designate in writing to the Trustee.
Section
15. Insurance
of Custodian.
At
its
own expense, the Custodian shall maintain at all times during the existence
of
this Custodial Agreement and keep in full force and effect such insurance
in
amounts, with standard coverage and subject to deductibles, all as is customary
for insurance typically maintained by banks which act as custodian. The minimum
coverage under any such bond and insurance policies shall be at least equal
to
the corresponding amounts required by FNMA in the FNMA Servicing Guide or
by
FHLMC in the FHLMC Company’s & Servicers’ Guide.
Section
16. Counterparts.
For
the
purpose of facilitating the execution of this Custodial Agreement as herein
provided and for other purposes, this Custodial Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall
be deemed to be an original, and such counterparts shall constitute and be
one
and the same instrument.
Section
17. Periodic
Statements.
Within
10
days of each anniversary of the date of this Custodial Agreement, or upon
the
request of the Trustee at any other time, the Custodian shall provide to
the
Trustee a list of all the Mortgage Loans and file exceptions for which the
Custodian holds a Custodial File pursuant to this Custodial Agreement and
the
Pooling and Servicing Agreement. Such list may be in a mutually agreeable
electronic format.
Section
18. Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW
YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
19. Copies
of Mortgage Documents.
Upon
the
request of the Trustee, acting solely at the direction of a Servicer or a
Certificateholder, the Custodian shall provide the Trustee or the Servicers
with
copies of the Mortgage Notes, Mortgages, Assignments of Mortgage and other
documents relating to one or more of the Mortgage Loans.
Section
20. No
Adverse Interest of Custodian.
By
execution of this Custodial Agreement, the Custodian represents and warrants
that it currently holds, and during the existence of this Custodial Agreement
shall hold, no interest adverse to the Trustee, by way of security or otherwise,
in any Mortgage Loan, and hereby waives and releases any such interest which
it
may have in any Mortgage Loan as of the date hereof.
Section
21. Termination
by Custodian.
The
Custodian may terminate its obligations under this Custodial Agreement upon
at
least 60 days’ prior written notice to the Trustee and the Servicers. In the
event of such termination, the Trustee shall appoint a successor Custodian
and
shall notify the Servicers of such appointment. The payment of such successor
Custodian’s fees and expenses shall be solely the responsibility of the Trustee.
Upon such appointment, the Custodian shall promptly transfer at its expense
to
the successor Custodian, as directed, all Custodial Files being administered
under this Custodial Agreement.
Section
22. Term
of Agreement.
Unless
terminated pursuant to Section 12 or Section 21 hereof, this Custodial Agreement
shall terminate upon the final payment or other liquidation (or advance with
respect thereto) of the last Mortgage Loan or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage
Loan,
and the final remittance of all funds due under the Pooling and Servicing
Agreement. In such event all documents remaining in the Custodial Files shall
be
released in accordance with the written instructions of the
Trustee.
Section
23. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when received by the recipient party at the
addresses shown on the first page hereof, and in the case of the Trustee,
to the
attention of U.S. Bank National Association, 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust - Structured Finance Ref: HEMT
2006-5, and in the case of the Custodian, to the attention of LaSalle Bank
National Association, 0000 Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxx Xxxxxxx, Xxxxxxxx
00000, Attention: Operations Manager, or at such other addresses as may
hereafter be furnished to the other parties by like notice. Any such demand,
notice or communication hereunder shall be deemed to have been received on
the
date delivered to or received at the premises of the addressee (as evidenced,
in
the case of registered or certified mail, by the date noted on the return
receipt).
Section
24. Successors
and Assigns.
The
Custodian may assign its rights and obligations under this Agreement, in
whole
or in part, to any Affiliate; however, Custodian agrees to notify Trustee
of any
such assignment. “Affiliate” is defined as any entity that directly or
indirectly is under common control with Custodian, or is under contract to
be
under common control with Custodian, and shall include a subsidiary or parent
company of Custodian.
This
Custodial Agreement shall inure to the benefit of the successors and assigns
of
the parties hereto. Any person into which the Custodian may be merged or
converted or with which the Custodian may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Custodian
shall be a party, or any Person succeeding to the business of the Custodian,
shall be the successor of the Custodian hereunder, without the execution
or
filing of any paper or any further act on the part of any of the parties
hereto,
anything to the contrary herein notwithstanding. Any assignee shall forward
a
list of authorized representatives to each party to this Custodial Agreement
pursuant to Section 28 of this Custodial Agreement.
Section
25. Liability
of Custodian; Indemnification.
Neither
the Custodian nor any of its directors, affiliates, officers, agents, or
employees, shall be liable for any action taken or omitted to be taken by
it or
them hereunder or in connection herewith in good faith and believed by it
or
them to be within the purview of this Custodial Agreement, except for its
or
their own gross negligence, lack of good faith or willful misconduct. In
no
event shall the Custodian or its directors, affiliates, officers, agents,
and
employees be held liable for any special, indirect or consequential damages
resulting from any action taken or omitted to be taken by it or them hereunder
or in connection herewith even if advised of the possibility of such
damages.
The
Custodian agrees to indemnify and defend, from Custodian’s own funds, and hold
the Depositor, DLJMC, and their respective directors, affiliates, officers,
agents, and employees harmless against any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements,
including reasonable attorney’s fees, that may be imposed on, incurred by, or
asserted against it or them directly based upon the engagement of any
Subcontractor in violation of Section 5(d) or any failure by the Custodian
to
deliver any information, report, certification, accountants’ letter or other
material when and as required under this Agreement, including any report
under
Sections 5(b) or 5(c). The indemnification set forth in this section shall
survive any termination of this Agreement and the termination, resignation
or
removal of the Custodian.
Section
26. Reliance
of Custodian.
In
the
absence of gross negligence or bad faith on the part of the Custodian, the
Custodian may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any data communications,
magnetic tape, request, instructions, certificate, opinion or other document
furnished to the Custodian, reasonably believed by the Custodian to be genuine
and to have been signed or presented by the proper party or parties and
conforming to the requirements of this Custodial Agreement; but in the case
of
any loan document or other request, instruction, document or certificate
which
by any provision hereof is specifically required to be furnished to the
Custodian, the Custodian shall be under a duty to examine the same to determine
whether or not it conforms prima facie to the requirements of this Custodial
Agreement.
Section
27. Transmission
of Custodial Files.
Written
instructions as to the method of shipment and shipper(s) the Custodian is
directed to utilize in connection with transmission of mortgage files and
loan
documents in the performance of the Custodian’s duties hereunder shall be
delivered by the related Servicer to the Custodian prior to any shipment
of any
mortgage files and loan documents hereunder. The Trustee will arrange for
the
provision of such services at the reasonable cost and expense of the Trustee
(or, at the Custodian’s option, the Trustee shall reimburse the Custodian for
all costs and expenses incurred by the Custodian consistent with such
instructions). Without limiting the generality of the provisions of Section
25
above, it is expressly agreed that in no event shall the Custodian have any
liability for any losses or damages to any person, including without limitation,
the Trustee arising out of actions of the Custodian consistent with instructions
of the Trustee.
Section
28. Authorized
Representatives.
Each
individual designated as an authorized representative of a Servicer (an
“Authorized Representative”), is authorized to give and receive notices,
requests and instructions and to deliver certificates and documents in
connection with this Custodial Agreement on behalf of the related Servicer,
as
the case may be, and the specimen signature for each such Authorized
Representative of each such Authorized Representative of a Servicer, initially
authorized hereunder, is set forth on Exhibit
4
hereof.
From time to time, the Servicers may, by delivering to the Custodian a revised
exhibit, change the information previously given pursuant to this Section
28,
but each of the parties hereto shall be entitled to rely conclusively on
the
then current exhibit until receipt of a superseding exhibit.
Section
29. Reproduction
of Documents.
This
Custodial Agreement and all documents relating thereto except with respect
to
the Custodial File, including, without limitation, (a) consents, waivers
and
modifications which may hereafter be executed, and (b) certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, microcard, miniature photographic or
other
similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not
such
reproduction was made by a party in the regular course of business, and that
any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
Section
30. Force
Majeure.
The
Custodian shall not be responsible for delays or failures in performance
resulting from acts beyond its control. Such acts shall include, without
limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism,
epidemics, nationalization, expropriation, currency restrictions, governmental
regulations adopted after the date of this Agreement, fire, communication
line
failures, computer viruses, power failures, earthquakes or other disasters
of a
similar nature to the foregoing.
Section
31. Limitations
on the Responsibilities of the Custodian.
| i) |
Except
as provided herein, the Custodian shall be under no duty or obligation
to
inspect, review or examine the Custodial Files to determine that
the
contents thereof are appropriate for the represented purpose or
that they
have been actually recorded or that they are other than what they
purport
to be on their face.
|
| ii) |
The
Custodian shall not be responsible for preparing or filing any
reports or
returns relating to federal, state or local income taxes with respect
to
this Agreement, other than for the Custodian’s compensation or for
reimbursement of expenses.
|
| iii) |
The
Custodian shall not be responsible or liable for, and makes no
representation or warranty with respect to, the validity, adequacy
or
perfection of any lien upon or security interest in any Custodial
File.
|
| iv) |
Any
other provision of this Agreement to the contrary notwithstanding,
the
Custodian shall have no notice, and shall not be bound by any of
the terms
and conditions of any other document or agreement executed or delivered
in
connection with, or intended to control any part of, the transactions
anticipated by or referred to in this Agreement unless the Custodian
is a
signatory party to that document or agreement. Notwithstanding
the
foregoing sentence, the Custodian shall be deemed to have notice
of the
terms and conditions (including without limitation definitions
not
otherwise set forth in full in this Agreement) of other documents
and
agreements executed or delivered in connection with, or intended
to
control any part of, the transactions anticipated by or referred
to in
this Agreement, to the extent such terms and provisions are referenced,
or
are incorporated by reference, into this Agreement only as long
as the
Custodian shall have been provided a copy of any such document
or
agreement.
|
| v) |
The
duties and obligations of the Custodian shall only be such as are
expressly set forth in this Agreement or as set forth in a written
amendment to this Agreement executed by the parties hereto or their
successors and assigns. In the event that any provision of this
Agreement
implies or requires that action or forbearance be taken by a party,
but is
silent as to which party has the duty to act or refrain from acting,
the
parties agree that the Custodian shall not be the party required
to take
the action or refrain from acting. In no event shall the Custodian
have
any responsibility to ascertain or take action except as expressly
provided herein.
|
| vi) |
Nothing
in this Agreement shall be deemed to impose on the Custodian any
duty to
qualify to do business in any jurisdiction, other
than
(i) any jurisdiction where any Custodial File is or may be held
by the
Custodian from time to time hereunder, and (ii) any jurisdiction
where its
ownership of property or conduct of business requires such qualification
and where failure to qualify could have a material adverse effect
on the
Custodian or its property or business or on the ability of the
Custodian
to perform its duties hereunder.
|
| vii) |
The
Custodian may consult with counsel selected by the Custodian with
regard
to legal questions arising out of or in connection with this Agreement,
and the written opinion of such counsel shall be full and complete
authorization and protection in respect of any action reasonably
taken,
omitted or suffered by the Custodian in good faith and in accordance
therewith.
|
| viii) |
No
provision of this Agreement shall require the Custodian 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 and powers, if, in its sole judgment, it shall believe
that
repayment of such funds or adequate indemnity against such risk
or
liability is not assured to it.
|
| ix) |
The
Custodian shall have no duty to ascertain whether or not each amount
or
payment has been received by the Trustee or any third
person.
|
Section
32. Binding
Arbitration.
Upon
demand of any party hereto, whether made before or after institution of any
judicial proceeding, any dispute, claim or controversy arising out of, connected
with or relating to this Agreement (“Disputes”), between or among parties hereto
shall be resolved by binding arbitration as provided herein. Institution
of a
judicial proceeding by a party does not waive the right of that party to
demand
arbitration hereunder. Disputes may include, without limitation tort claims,
counterclaims, claims brought as class actions or claims concerning any aspect
of the past, present or future relationships arising out of or connected
with
this Agreement. Arbitration shall be conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the “Arbitration Rules”) of the
American Arbitration Association and Title 9 of the U.S. Code. All arbitration
hearings shall be conducted in New York, New York. The expedited procedures
set
forth in Rule 51, et
seq.
of the
Arbitration Rules shall be applicable to claims of less than $1,000,000.
All
applicable statutes of limitation shall apply to any Dispute. A judgment
upon
the award may be entered in any court having jurisdiction. The panel from
which
all arbitrators are selected shall be comprised of licensed attorneys. The
single arbitrator selected for expedited procedure shall be a retired judge
from
the highest court of general jurisdiction, state or federal, of the state
where
the hearing will be conducted.
Section
33. Intent
of the Parties; Reasonableness.
The
parties hereto acknowledge and agree that the purpose of Sections 5(b), 5(c),
5(d), 33, 34 and 35 is to facilitate compliance by the Depositor with the
provisions of Regulation AB and related rules and regulations of the Commission.
The Depositor shall not exercise its right to request delivery of information
or
other performance under these provisions other than in good faith, or for
purposes other than compliance with the Securities Act, the Exchange Act
and the
rules and regulations of the Commission under the Securities Act and the
Exchange Act. Each of the parties hereto acknowledges that interpretations
of
the requirements of Regulation AB may change overtime, whether due to
interpretive guidance provided by the Commission or its staff, consensus
among
participants in the mortgage-backed securities markets, advice of counsel,
or
otherwise, and agrees to comply with requests made by the Depositor in good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. The Custodian shall cooperate
reasonably with the Depositor to deliver to the Depositor (including any
of its
assignees or designees), any and all disclosure, statements, reports,
certifications, records and any other information necessary in the reasonable,
good faith determination of the Depositor to permit the Depositor to comply
with
the provisions of Regulation AB.
Section
34. Additional
Representations and Warranties of the Custodian.
(a) The
Custodian shall be deemed to represent to the Depositor as of the date hereof
and on each date on which information is provided to the Trustee under Section
35 that, except as disclosed in writing to the Depositor prior to such date:
(i)
there are no aspects of its financial condition that could have a material
adverse effect on the performance by it of its Custodian obligations under
this
Custodial Agreement or any other securitization transaction as to which it
is
the custodian; (ii) there are no material legal or governmental proceedings
pending (or known to be contemplated) against it; and (iii) there are no
affiliations, relationships or transactions relating to the Custodian with
respect to the Depositor or any sponsor, issuing entity, servicer, originator,
significant obligor, enhancement or support provider or other material
transaction party (as such terms are used in Regulation AB) relating to the
securitization transaction contemplated by the Pooling and Servicing Agreement,
as identified by the Depositor to the Custodian in writing as of the Closing
Date (each, a “Transaction Party”).
(b) If
so
requested by the Depositor on any date following the Closing Date, the Custodian
shall, within five Business Days following such request, confirm in writing
the
accuracy of the representations and warranties set forth in paragraph (a)
of
this Section or, if any such representation and warranty is not accurate
as of
the date of such confirmation, provide reasonably adequate disclosure of
the
pertinent facts, in writing, to the requesting party. Any such request from
the
Depositor shall not be given more than once each calendar quarter, unless
the
Depositor shall have a reasonable basis for a determination that any of the
representations and warranties may not be accurate.
Section
35. Additional
Information to Be Provided by the Custodian.
For
so
long as the Trust is subject to the reporting obligations under the Exchange
Act, for the purpose of satisfying the Depositor’s reporting obligation under
the Exchange Act with respect to any class of publicly offered Certificates,
the
Custodian shall (a) notify the Depositor in writing of any material litigation
or governmental proceedings pending against the Custodian that would be material
to Certificateholders, and (b) provide to the Depositor and Trustee a written
description of such proceedings. Any notices and descriptions required under
this Section 35 shall be given no later than five Business Days prior to
the
Determination Date following the month in which the Custodian has knowledge
of
the occurrence of the relevant event. As of the date the Trustee files each
Report on Form 10-D or Form 10-K with respect to the Certificates, the Custodian
will be deemed to represent that any information previously provided under
this
Section 35, if any, is materially correct and does not have any material
omissions unless the Custodian has provided an update to such
information.
IN
WITNESS WHEREOF, the Trustee and the Custodian have caused their names to
be
duly signed hereto by their respective officers thereunto duly authorized,
all
as of the date first above written.
U.S.
BANK
NATIONAL ASSOCIATION,
not in its individual capacity but solely as Trustee under the Pooling
and Servicing Agreement for Home Equity Mortgage Pass-Through
Certificates, Series 2006-5
By:
______________________________________
Name:
Title:
LASALLE
BANK NATIONAL ASSOCIATION,
as
Custodian
By:
______________________________________
Name:
Title:
Acknowledged
and agreed
SELECT
PORTFOLIO SERVICING, INC.
By:
_______________________________
Name:
Title:
OCWEN
LOAN SERVICING, LLC
By:
_______________________________
Name:
Title:
EXHIBIT
1
TRUST
RECEIPT AND INITIAL CERTIFICATION
October
31, 2006
U.S.
Bank
National Association
as
Trustee under the Pooling and Servicing Agreement
Home
Equity Mortgage Pass-Through Certificates Series 0000-0
Xx.
Xxxx,
XX 00000-0000
Attention:
Corporate Trust - Structured Finance Ref: HEMT 2006-5
Re: Custodial
Agreement, dated as of October 1, 2006, between U.S. Bank National
Association
as Trustee, and LaSalle Bank National Association, as
Custodian
Ladies
and Gentlemen:
In
accordance with the provisions of Section 4 of the above referenced Custodial
Agreement, the undersigned, as the Custodian, hereby certifies as to each
[Initial Mortgage Loan] [Subsequent Mortgage Loan] in the Mortgage Loan Schedule
that (i) it has received the original Mortgage Note and Assignment of Mortgage
with respect to each Mortgage Loan identified on the Mortgage Loan Schedule
attached hereto as Exhibit
A
and (ii)
such Mortgage Note has been reviewed by it and appears regular on its face
and
relates to such Mortgage Loan. The Custodian makes no representations as
to (i)
the validity, legality, enforceability, sufficiency, due authorization or
genuineness of any of the documents contained in each Custodial File or of
any
of the Mortgage Loans or (ii) the collectability, insurability, effectiveness
or
suitability of any such Mortgage Loan.
The
Custodian hereby confirms that it is holding each such Mortgage Note, Assignment
of Mortgage and Assignment of Note as agent and bailee of, and custodian
for the
exclusive use and benefit, and subject to the sole direction, of the Trustee
pursuant to the terms and conditions of the Custodial Agreement.
This
Trust Receipt and Initial Certification is not divisible or
negotiable.
The
Custodian will accept and act on instructions with respect to the Mortgage
Loans
subject hereto upon surrender of this Trust Receipt and Initial Certification
at
its office at 0000 Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000,
Attention: Document Custodian.
Capitalized
terms used herein shall have the meaning ascribed to them in the Custodial
Agreement.
LASALLE
BANK NATIONAL ASSOCIATION,
as
Custodian
By:
______________________________________
Name:
Title:
Date:
EXHIBIT
2
TRUST
RECEIPT AND FINAL CERTIFICATION
Trust
Receipt #__________
Cut-off
Date Principal Balance $__________
U.S.
Bank
National Association
as
Trustee under the Pooling and Servicing Agreement
Home
Equity Mortgage Pass-Through Certificates Series 0000-0
Xx.
Xxxx,
XX 00000-0000
Attention:
Corporate Trust - Structured Finance Ref: HEMT 2006-5
|
Re:
|
Custodial
Agreement, dated as of October 1, 2006, between U.S. Bank National
Association,
|
as
Trustee, and LaSalle Bank National Association as
Custodian
Ladies
and Gentlemen:
In
accordance with the provisions of Section 6 of the above referenced Custodial
Agreement, the undersigned, as the Custodian, hereby certifies that as to
each
Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage
Loan
paid in full or any Mortgage Loan listed on the attachment hereto) it has
reviewed the Custodial Files and has determined that (i) all documents required
to be delivered to it pursuant to Sections 2(i)-(ix) of the Custodial Agreement
are in its possession; (ii) such documents have been reviewed by it and appear
regular on their face and related to such Mortgage Loan; (iii) all Assignments
of Mortgage or intervening assignments of mortgage, as applicable, have been
submitted for recording in the jurisdictions in which recording is necessary;
and (iv) each Mortgage Note has been endorsed as provided in Section 2(i)
of the
Custodial Agreement and each Mortgage has been assigned in accordance with
Section 2(iii) of the Custodial Agreement. The Custodian makes no
representations as to (i) the validity, legality, enforceability, sufficiency,
due authorization or genuineness of any of the documents contained in each
Custodial File or of any of the Mortgage Loans or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage
Loan.
The
Custodian hereby confirms that it is holding each such Custodial File as
agent
and bailee of, and custodian for the exclusive use and benefit, and subject
to
the sole direction, of Trustee pursuant to the terms and conditions of the
Custodial Agreement.
This
Trust Receipt and Final Certification is not divisible or
negotiable.
The
Custodian will accept and act on instructions with respect to the Mortgage
Loans
subject hereto upon surrender of this Trust Receipt and Final Certification
at
its office at 0000 Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000,
Attention: Document Custodian.
Capitalized
terms used herein shall have the meaning ascribed to them in the Custodial
Agreement.
LASALLE
BANK NATIONAL ASSOCIATION,
as
Custodian
By:
______________________________________
Name:
Title:
EXHIBIT
3
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
To:
[Address]
|
Re:
|
Custodial
Agreement, dated as of October 1, 2006, between
|
U.S.
Bank
National Association, as Trustee, and LaSalle Bank National Association,
as Custodian
In
connection with the administration of the Mortgage Loans held by you as the
Custodian on behalf of the Trustee, we request the release, and acknowledge
receipt, of the (Custodial File/[specify documents]) for the Mortgage Loan
described below, for the reason indicated.
Mortgagor’s
Name Address & Zip Code:
Mortgage
Loan Number:
Reason
for Requesting Documents (check
one)
____ 1. Mortgage
Loan Paid in Full. (The Trustee or the related Servicer of such Mortgage
Loan
hereby certifies that all amounts received in connection therewith have been
credited to the account of the Trustee or the related Servicer.)
____ 2.
Mortgage
Loan Liquidated By ____________________________ (The Trustee or the related
Servicer of such Mortgage Loan hereby certifies that all proceeds of
foreclosure, insurance, condemnation or other liquidation have been finally
received and credited to the account of the Trustee or the related
Servicer.)
____ 3.
Mortgage
Loan in Foreclosure
____ 4.
Other
(explain)
If
box 1
or 2 above is checked, and if all or part of the Custodial File was previously
released to us, please release to us our previous request and receipt on
file
with you, as well as any additional documents in your possession relating
to the
specified Mortgage Loan.
If
box 3
or 4 above is checked, upon our return of all of the above documents to you
as
the Custodian, please acknowledge your receipt by signing in the space indicated
below, and returning this form.
SELECT
PORTFOLIO SERVICING, INC.
as
a
Servicer
By:
______________________________________
Name:
Title:
Date
:
OCWEN
LOAN SERVICING, LLC
as
a
Servicer
By:
______________________________________
Name:
Title:
Date
:
Acknowledgment
of Documents returned to the Custodian:
LASALLE
BANK NATIONAL ASSOCIATION,
as
Custodian
By:
______________________________________
Name:
Title:
Date
EXHIBIT
4
AUTHORIZED
REPRESENTATIVES OF THE SERVICERS
SELECT
PORTFOLIO SERVICING, INC.
|
NAME
|
SPECIMEN
SIGNATURE
|
|
OCWEN
LOAN SERVICING, LLC
|
NAME
|
SPECIMEN
SIGNATURE
|
|
EXHIBIT
5
SCHEDULE
OF MORTGAGE LOANS
[ATTACHED
AS SCHEDULE I TO THE POOLING AND SERVICING AGREEMENT]
EXHIBIT
6
LASALLE
BANK N.A.
COLLATERAL
SERVICES GROUP
SCHEDULE
OF FEES
Credit
Suisse First Boston Financial Corporation
DLJ
MORTGAGE CAPITAL INC.
July
17,
2001
|
Release/Reinstatement
Fee
|
$2.50
per file
|
|
This
fee applies to servicing releases and sales.
|
|
|
Release
Rejection
|
$1.00
per rejection
|
|
Internal
Transfer
|
$1.00
per file
|
|
Document
Deposits
|
$1.00
per document/packet
|
|
Document
Rejection
|
$1.50
per document/packet
|
|
This
fee will apply when LaSalle is no longer in possession of the collateral
file because the loan has been forwarded to the investor or
servicer.
|
|
|
Safekeeping
and Storage
|
$0.12
per file, per month
|
|
Photocopies
|
$1.00
per file pull fee
$0.25
per page copied
|
|
Faxes
|
$1.00
per page + file pull fee
|
|
Endorsements
|
$0.50
per endorsement
|
|
Auditors/Due
Diligence
|
$1.00
per file pulled & re-filed
$500
per day conference room
reservation.
|
|
Fee
applies only for bulk sale reviews and customer reviews. Fee does
not
apply to LaSalle’s internal audit and annual IPA
audit.
|
|
|
Miscellaneous
Expenses
|
At
Cost
|
|
Miscellaneous
expenses include but are not limited to legal fees, postage, overnight
xxxxxx services, supplies etc.
|
|
|
Data
Conversion/Formatting
|
$50.00
per hour rounded up to the
next
full hour.
|
LaSalle
will provide customer with a detailed statement reflecting activity in the
customer’ s account as of the 20th of each month. Payment for services is due
within thirty days of receipt of invoice. Acceptable forms of payment is
a check
made payable to LaSalle Bank National Association or wired funds sent according
to the instructions attached.
This
Fee
Schedule will remain unchanged for one year from the date of execution and
is
subject to annual adjustments thereafter.
Agreed
and Accepted this ______day of ________, 2001.
By: _________________________________________
Title: _________________________________________
By: _________________________________________
Title: _________________________________________
EXHIBIT
7
SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Custodian shall address,
at a
minimum, the criteria identified as below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
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
(as
to the logistics of addition, removal or substitution of mortgage
loan
files)
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’ s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
EXHIBIT
R-2
[RESERVED]
EXHIBIT
R-3
[RESERVED]
EXHIBIT
S
[RESERVED]
EXHIBIT
T
[RESERVED]
EXHIBIT
U
CHARGED
OFF LOAN DATA REPORT
(Available
Upon Request)
EXHIBIT
V
FORM
OF
MONTHLY STATEMENT TO CERTIFICATEHOLDERS
(i) with
respect to each Class of Certificates which are not Notional Amount Certificates
and, unless otherwise stated, the related Distribution Date,
a. the
initial Class Principal Balance of such Class as of the Closing
Date;
b. the
Class
Principal Balance of such Class before giving effect to the distribution
of
principal and interest;
c. the
amount of the related distribution on such Class allocable to
interest;
d. the
amount of the related distribution on such Class allocable to
principal;
e. the
sum
of the principal and interest payable to such Class;
f. the
Realized Loss allocable to such Class;
g. the
Carryforward Interest allocable to such Class;
h. the
Class
Principal Balance of such Class after giving effect to the distribution of
principal and interest;
i. the
Pass-Through Rate for such Class and whether such Pass-Through Rate was limited
by the Net Funds Cap;
j. [reserved];
k. any
shortfall in principal allocable to such Class, if such amount is greater
than
zero; and
l. any
shortfall in interest allocable to such Class, if such amount is greater
than
zero.
(ii) with
respect to each Class of Certificates which are Notional Amount Certificates
and, unless otherwise stated, the related Distribution Date,
a. the
Notional Amount of such Class as of the Cut-off Date;
b. the
Notional Amount of such Class before giving effect to the distribution of
interest;
c. the
amount of the related distribution on such Class allocable to
interest;
d. the
amount of the related distribution on such Class allocable to
principal;
e. the
sum
of the principal and interest payable to such class;
f. the
Realized Loss allocable to such Class;
g. the
Deferred Amount allocable to such Class;
h. the
Notional Amount of such Class after giving effect to the distribution of
interest;
i. the
Pass-Through Rate for such Class; and
j. [reserved].
(iii) with
respect to a $1000 factor of the Initial Class Principal Balance of each
Class
of Certificates which are not Notional Amount Certificates and the related
Distribution Date,
a. the
CUSIP
number assigned to such Class;
b. the
Class
Principal Balance of such Class factor prior to giving effect to the
distribution of principal and interest;
c. the
amount of the related distribution allocable to interest on such Class
factor;
d. the
amount of the related distribution allocable to principal on such Class
factor;
e. the
sum
of the principal and interest payable to such Class factor; and
f. the
Class
Principal Balance of such Class factor after giving effect to the distribution
of principal and interest.
(iv) with
respect to a $1000 factor of the Initial Class Principal Balance of each
Class
of Certificates which are Notional Amount Certificates and the related
Distribution Date,
a. the
CUSIP
number assigned to such Class;
b. the
Notional Amount of such Class factor prior to giving effect to the distribution
of interest;
c. the
amount of the related distribution allocable to interest on such Class
factor;
d. the
amount of the related distribution allocable to principal on such Class
factor;
e. the
sum
of the principal and interest payable to such Class factor; and
f. the
Notional Amount of such Class factor after giving effect to the distribution
of
interest.
(v) with
respect to the related Distribution Date,
a. the
Principal Payment Amount or Principal Remittance Amount;
b. the
amount of Curtailments;
c. the
amount of Curtailment interest adjustments;
d. the
Scheduled Payment of principal;
e. the
amount of Principal Prepayments;
f. the
amount of principal as a result of repurchased Mortgage Loans;
g. the
Substitution Adjustment Amount;
h. the
aggregate amount of scheduled interest prior to reduction for fees;
i. the
amount of Net Recoveries;
j. the
amount of reimbursements of Nonrecoverable Advances previously
made;
k. the
amount of recovery of reimbursements previously deemed
nonrecoverable;
l. the
amount of net Liquidation Proceeds;
m. the
amount of Insurance Proceeds;
n. the
amount of any other distributions allocable to principal;
o. the
number of Mortgage Loans as of the first day of the related Collection
Period;
p. the
aggregate Stated Principal Balance of the Mortgage Loans as of the first
day of
the related Collection Period;
q. the
number of Mortgage Loans as of the last day of the related Collection
Period;
r. the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of
the related Collection Period;
s. the
sum
of the Servicing Fee, the Excess Servicing Fee, the Credit Risk Manager Fee
and
the Trustee Fee and the Expense Fee, with an identification of each payee
and
the general purpose of such fees;
t. the
amount of current Advances (including the general purpose of such
Advances);
u. the
amount of outstanding Advances and the general source of funds for
reimbursements;
v. the
number and aggregate principal amounts of Mortgage Loans Delinquent (1) 30
to 59
days, (2) 60 to 89 days and (3) 90 days or more, including Delinquent bankrupt
Mortgage Loans but excluding Mortgage Loans in foreclosure and REO
Property;
w. the
number and aggregate principal amounts of Mortgage Loans that are currently
in
bankruptcy, but not Delinquent;
x. the
number and aggregate principal amounts of Mortgage Loans that are in
foreclosure;
y. the
Delinquency Rate, Rolling Three Month Delinquency Rate, the Senior Enhancement
Percentage and whether a Trigger Event is in effect ;
z. the
number and aggregate principal amount of any REO Properties as of the close
of
business on the Determination Date preceding such Distribution
Date;
aa. current
Realized Losses;
bb. Cumulative
Net Realized Losses and whether a Cumulative Loss Event is
occurring;
cc. the
weighted average term to maturity of the Mortgage Loans as of the close of
business on the last day of the calendar month preceding the related
Distribution Date;
dd. the
number of Mortgage Loans that have Prepayment Penalties and for which
prepayments were made during the related Collection Period, as
applicable;
ee. the
aggregate principal balance of Mortgage Loans that have Prepayment Penalties
and
for which prepayments were made during the related Collection Period, as
applicable;
ff. the
aggregate amount of Prepayment Penalties collected during the related Collection
Period, as applicable;
gg. the
total
cashflows received and the general sources thereof;
hh. the
amount of any funds remaining in the Pre-Funding Account as of such Distribution
Date;
ii. the
weighted average Net Mortgage Rate and the Net Funds Cap;
jj. the
Net
Excess Spread; and
kk. the
applicable Record Dates, Interest Accrual Periods, Determination Date for
calculating distributions and the actual Distribution Date.
(vi) with
respect to the related Distribution Date,
a. the
Targeted Overcollateralization Amount;
b. the
Overcollateralization Amount;
c. the
amount, if any, by which the Targeted Overcollateralization Amount exceeds
the
Overcollateralization Amount;
d. the
Overcollateralization Release Amount;
e. the
Monthly Excess Interest and the Monthly Excess Cashflow;
f. the
amount of any payment to the Class X-1 Certificates;
g. the
amount of any Net Swap Payment payable by the Supplemental Interest Trust
Trustee on behalf of the Supplemental Interest Trust or payable to the
Supplemental Interest Trust Trustee on behalf of the Supplemental Interest
Trust; and
h. the
Realized Loss Percentage and whether the Ocwen Termination Test has been
failed.
EXHIBIT
W
FORM
OF
DEPOSITOR CERTIFICATION
|
Re:
|
Credit
Suisse First Boston Mortgage Securities
Corp.
|
Home
Equity Mortgage Trust 2006-5
I,
__________________________, certify that:
1. I
have
reviewed this report on Form 10-K and all reports on Form 10-D required to
be
filed in respect of the period covered by this report on Form 10-K of Home
Equity Mortgage Trust 2006-5 (the “Trust”);
2. Based
on
my knowledge, the Exchange Act periodic reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period covered
by
this report;
3. Based
on
my knowledge, all of the distribution, servicing and other information required
to be provided under Form 10-D for the period covered by this report is included
in the Exchange Act periodic reports;
4. Based
on
my knowledge and the servicer compliance statements required in this report
under Item 1123 of Regulation AB, and except as disclosed in the Exchange
Act
periodic reports, each Servicer has fulfilled its obligations under the Pooling
and Servicing Agreement in all material respects ; and
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except
as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated parties: each Servicer and the
Trustee.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated October 1, 2006 (the “Pooling and
Servicing Agreement”), among Credit Suisse First Boston Mortgage Securities
Corp., as depositor (the “Depositor”), DLJ Mortgage Capital, Inc., as seller,
Select Portfolio Servicing, Inc. as a servicer (“SPS”) and as master servicer
(the “Master Servicer”), Ocwen Loan Servicing, LLC, as a servicer (“Ocwen”) and
U.S. Bank National Association, as trustee (the “Trustee”).
|
[Name]
|
|
|
[Title]
|
|
|
[Date]
|
EXHIBIT
X
FORM
OF
TRUSTEE CERTIFICATION
|
Re:
|
Credit
Suisse First Boston Mortgage Securities
Corp.
|
Home
Equity Mortgage Trust 2006-5
U.S.
Bank
National Association (the “Trustee”) hereby certifies to Credit Suisse First
Boston Mortgage Securities Corp. (the “Depositor”), and each Person, if any, who
“controls” the Depositor within the meaning of the Securities Act of 1933, as
amended, and its officers, directors and affiliates, and with the knowledge
and
intent that they will rely upon this certification, that:
The
Trustee has reviewed the annual report on Form 10-K for the fiscal year [___],
and all reports on Form 10-K containing Monthly Statements filed in respect
of
periods included in the year covered by that annual report, of the Depositor
relating to the above-referenced trust;
Subject
to paragraph 4 hereof, based on the Trustee's knowledge, and assuming the
accuracy and completeness of the information supplied to the Trustee by each
Servicer, the Distribution Information in the Monthly Statements contained
in
such reports on Form 10-D, taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact required by
the
Pooling and Servicing Agreement to be included therein and necessary to make
the
statements made, in light of the circumstances under which such statements
were
made, not misleading as of the last day of the period covered by that annual
report; and
Based
on
the Trustee’s knowledge, the Distribution Information required to be provided by
the Trustee under the Pooling and Servicing Agreement is included in these
reports.
4. In
compiling the Distribution Information and making the foregoing certifications,
the Trustee has relied upon information furnished to it by the Servicers
under
the Pooling and Servicing Agreement. The Trustee shall have no responsibility
or
liability for any inaccuracy in such reports on Form 10-D to the extent such
inaccuracy results from information received from the Servicers.
For
purposes of this Certificate, the following terms shall have the meanings
ascribed below:
“Distribution
Information” shall mean that information (x) calculated and reported by the
Trustee and (y) reported by the Trustee, in either case, pursuant to Section
4.06 of the Pooling and Servicing Agreement.
“Monthly
Statements” shall mean the monthly statements prepared by the Trustee pursuant
to Section 4.06 of the Pooling and Servicing Agreement.
Any
additional capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement, dated October 1,
2006
(the “Pooling and Servicing Agreement”), among Credit Suisse First Boston
Mortgage Securities Corp., as depositor (the “Depositor”), DLJ Mortgage Capital,
Inc., as seller, Select Portfolio Servicing, Inc. as a servicer (“SPS”) and as
master servicer (the “Master Servicer” ), Ocwen Loan Servicing, LLC (“Ocwen”)
and U.S. Bank National Association, as trustee (the “Trustee”).
|
U.S.
BANK NATIONAL ASSOCIATION
as
Trustee
|
||
|
By:
|
||
|
[Name]
|
||
|
[Title]
|
||
|
[Date]
|
||
EXHIBIT
Y
FORM
SERVICER CERTIFICATION
|
Re:
|
Credit
Suisse First Boston Mortgage Securities
Corp.
|
Home
Equity Mortgage Trust 2006-5
I,
___________________________, a duly elected and acting officer of
[__________________] (the “Servicer”), certify pursuant to Section 8.12(c) of
the Pooling and Servicing Agreement to the Depositor, the Trustee and each
Person, if any, who “controls” the Depositor or the Trustee within the meaning
of the Securities Act of 1933, as amended, and their respective officers
and
directors, with respect to the calendar year immediately preceding the date
of
this Certificate (the “Relevant Year”), as follows”:
For
purposes of this Certificate, “ Relevant Information” means the information in
the certificate provided pursuant to Section 3.16 of the Pooling and Servicing
Agreement (the “Annual Statement of Compliance”) and the assessment provided
pursuant to Section 3.17 of the Pooling and Servicing Agreement (the “Assessment
of Compliance”) for the Relevant Year and the information in all servicing
reports required pursuant to the Pooling and Servicing Agreement to be provided
by the Servicer to the Trustee during the Relevant Year (as such information
is
amended or corrected in writing and delivered to the Trustee). Based on my
knowledge, the Relevant Information, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact required
to
be stated therein which is necessary to make the statements made therein,
in
light of the circumstances under which such statements were made, not misleading
as of the last day of the Relevant Year;
The
Relevant Information required to be provided to the Trustee under the Pooling
and Servicing Agreement has been provided to the Trustee;
I
am
responsible for reviewing the activities performed by the Servicer under
the
Pooling and Servicing Agreement during the Relevant Year. Based upon the
review
required under the Pooling and Servicing Agreement and my knowledge and except
as disclosed in the Annual Statement of Compliance or the accountants’
attestation provided pursuant to Section 3.17 of the Pooling and Servicing
Agreement, the Servicer has fulfilled its obligations under the Pooling and
Servicing Agreement in all material respects throughout the Relevant
Year.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated October 1, 2006 (the “Pooling and
Servicing Agreement”), among Credit Suisse First Boston Mortgage Securities
Corp., as depositor (the “Depositor”), DLJ Mortgage Capital, Inc., as seller,
Select Portfolio Servicing, Inc. as a servicer (“SPS”) and as master servicer
(the “Master Servicer”), Ocwen Loan Servicing, LLC, as a servicer (“Ocwen”) and
U.S. Bank National Association as trustee (the “Trustee”).
[_____________________________],
as
Servicer
By:
____________________________
[Name]
[Title]
EXHIBIT
Z
INFORMATION
TO BE PROVIDED BY SERVICER TO TRUSTEE
The
following information with respect to each Mortgage Loan will be e-mailed
by
each Servicer to the Trustee in accordance with Section 4.10:
|
FIELD
|
DESCRIPTION
|
|
LOAN
|
loan
number
|
|
STOP_ADV_FLAG
|
stop
advance flag (Y = Yes, blank or N = No)
|
|
RATE
|
interest
rate (entered as a %)
|
|
SF_RATE
|
servicing
fee rate (entered as a %)
|
|
LPMI_RATE
|
lpmi
rate (entered as a %)
|
|
BEG_SCHED
|
beg
scheduled balance
|
|
END_SCHED
|
end
scheduled balance
|
|
END_ACT
|
end
actual balance
|
|
P&I
|
monthly
p&i
|
|
GROSS_INT
|
gross
scheduled interest
|
|
NEG_AM
|
negative
amortization
|
|
SCHED_P
|
scheduled
principal
|
|
CURTAIL
|
curtailments
|
|
PREPAY
|
prepayments
or liquidation principal
|
|
PREPAY_DATE
|
prepayment
or liquidation date
|
|
PREPAY_CODE
|
PIF=60,
repurchase = 65, liquidation = 2
|
|
NEXT_DUE
|
borrower's
next payment due
|
|
STATUS
|
Bankruptcy,
Foreclosure, REO
|
|
BKCY_DATE
|
date
the loan went into Bkcy
|
|
FCLS_DATE
|
date
the loan went into Fcls
|
|
REO_DATE
|
date
the loan went into REO
|
|
DELINQ
|
0,1,30,60,90,120
( 1 = 1-29, 30 = 30-59, etc…)
|
|
PPIS
|
prepayment
interest shortfall (negative is excess)
|
|
RAIS
|
relief
act interest shortfall
|
|
CURRLTV
|
current
loan to value ratio (entered as %)
|
|
BOOK_VALUE
|
latest
BPO or market value or other book value as defined in governing
doc
|
|
PPP_Collected
|
PPPs
collected from borrower
|
|
PPP_Waived
|
PPPs
waived by the servicer
|
|
PPP_Servicer
|
PPPs
waived but paid by the servicer
|
|
NON_REC_ADV
|
nonrecoverable
advances claimed (reimbursed) in the current period
|
|
REIN_STOP_GINT
|
reinstated
stop advance gross interest
|
|
REIN_STOP_NINT
|
reinstated
stop advance net interest
|
|
REMIT
|
total
remit for the loan
|
|
MAT_DATE
|
Maturity
Date
|
|
ADV_P&I_CUR
|
current
period delinquent P&I advances made by servicer
|
|
ADV_P&I_OUT
|
cumulative
outstanding delinquent P&I advances
|
|
ADV_SERV_MADE
|
current
period servicer advances made by servicer (not including delinquent
P&I advances)
|
|
ADV_SERV_REIM
|
current
period servicer advances reimbursed to servicer (not including
delinquent
P&I advances)
|
|
ADV_SERV_DESC
|
description
of current period servicer advances made/reimbursed by servicer
(purpose,
terms)
|
|
MOD_EXT_WAIVE_FLAG
|
Y
if mod
|
|
MOD_EXT_WAIVE
|
description
of modification, extensions or waivers to asset terms, fees or
penalties
|
|
MTHROLL
|
Month
until the next rate adjustment occurs (for ARMs only)
|
|
DNEXTRATE
|
Next
Rate Adjustment Date
|
|
NEXT_RATE
|
next
period's interest rate
|
|
LIQUIDATION_FLAG
|
liquidation
flag (Y = Yes, blank or N = No)
|
|
GROSS_PROCEEDS
|
gross
sales proceeds
|
|
SERV_ADV
|
unpaid
servicing advances
|
|
DEL_ADV
|
unpaid
delinquency advances
|
|
SERV_FEES_UNPAID
|
unpaid
servicing fees
|
|
LEGAL_FEES
|
unpaid
legal fees
|
|
NET_PROCEEDS
|
net
proceeds (gross_proceeds - serv_adv - del_adv - serv_fees_unpaid
-
legal_fees)
|
|
LOSS
|
loss
(beg_sched - net_proceeds)
|
|
LOSS_ADD
|
trailing
loss/ (gain)
|
|
LOSS_ADD_DATE
|
trailing
loss/ (gain) date
|
EXHIBIT
AA
FORM
OF
LIMITED POWER OF ATTORNEY
LIMITED
POWER OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that U.S. Bank National Association, a banking
association organized under the laws of the United States, having a place
of
business at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000, as Trustee (and in
no
personal or other representative capacity) under the Pooling and Servicing
Agreement, dated as of October 1, 2006 (as amended, restated, supplemented
or
otherwise modified from time to time, the “Agreement”; capitalized terms not
defined herein have the definitions assigned to such terms in the Agreement),
relating to the Home Equity Mortgage Pass-Through Certificates, Series 2006-5,
hereby appoints [_______________], in its capacity as a Servicer under the
Agreement, as the Trustee's true and lawful Special Attorney-in-Fact, in
the
Trustee's name, place and stead and for the Trustee's benefit, but only in
its
capacity as Trustee aforesaid, to perform all acts and execute all documents
as
may be customary, necessary and appropriate to effectuate the following
enumerated transactions in respect of any mortgage, deed of trust, promissory
note or real estate owned from time to time owned (beneficially or in title,
whether the Trustee is named therein as mortgagee or beneficiary or has become
mortgagee or beneficiary by virtue of endorsement, assignment or other
conveyance) or held by or registered to the Trustee (directly or through
custodians or nominees), or in respect of which the Trustee has a security
interest or other lien, all as provided under the applicable Agreement and
only
to the extent the respective Trustee has an interest therein under the
Agreement, and in respect of which the Servicer is acting as servicer pursuant
to the Agreement (the “Mortgage Documents”).
This
appointment shall apply to the following enumerated transactions under the
Agreement only:
The
modification or re-recording of any Mortgage Document for the purpose of
correcting it to conform to the original intent of the parties thereto or
to
correct title errors discovered after title insurance was issued and where
such
modification or re-recording does not adversely affect the lien under the
Mortgage Document as insured.
The
subordination of the lien under a Mortgage Document to an easement in favor
of a
public utility company or a state or federal agency or unit with powers of
eminent domain including, without limitation, the execution of partial
satisfactions/releases, partial reconveyances and the execution of requests
to
trustees to acc omplish same.
The
conveyance of the properties subject to a Mortgage Document to the applicable
mortgage insurer, or the closing of the title to the property to be acquired
as
real estate so owned, or conveyance of title to real estate so
owned.
The
completion of loan assumption and modification agreements in respect of Mortgage
Documents.
The
full
or partial satisfaction/release of a Mortgage Document or full conveyance
upon
payment and discharge of all sums secured thereby, including, without
limitation, cancellation of the related note.
The
assignment of any Mortgage Document, in connection with the repurchase of
the
mortgage loan secured and evidenced thereby.
The
full
assignment of a Mortgage Document upon payment and discharge of all sums
secured
thereby in conjunction with the refinancing thereof, including, without
limitation, the assignment of the related note.
With
respect to a Mortgage Document, the foreclosure, the taking of a deed in
lieu of
foreclosure, or the completion of judicial or non-judicial foreclosure or
termination, cancellation or rescission of any such foreclosure, including,
without limitation, any and all of the following acts:
the
substitution of trustee(s) serving under a deed of trust, in accordance with
state law and the deed of trust;
the
preparation and issuance of statements of breach or
non-performance;
the
preparation and filing of notices of default and/or notices of
sale;
the
cancellation/rescission of notices of default and/or notices of
sale;
the
taking of a deed in lieu of foreclosure; and
the
preparation and execution of such other documents and performance of such
other
actions as may be necessary under the terms of the Mortgage Document or state
law to expeditiously complete said transactions in paragraphs 8(a) through
8(e),
above.
Demand,
xxx for, recover, collection and receive each and every sum of money, debt,
account and interest (which now is, or hereafter shall become due and payable)
belonging to or claimed by the Trustee under the Mortgage Documents, and
to use
or take any lawful means for recovery thereof by legal process or
otherwise.
Endorse
on behalf of the Trustee all checks, drafts and/or negotiable instruments
made
payable to the Trustee in respect of the Mortgage Documents.
The
Trustee gives the Special Attorney-in-Fact full power and authority to execute
such instruments and to do and perform all and every act and thing necessary
and
proper to carry into effect the power or powers granted by this Limited Power
of
Attorney, subject to the terms and conditions set forth in the Agreement
including the standard of care applicable to Servicer in the Agreement, and
hereby does ratify and confirm what such Special Attorney-in-Fact shall lawfully
do or cause to be done by authority hereof.
IN
WITNESS WHEREOF, the Trustee has caused its corporate name and seal to be
hereto
signed and affixed and these presents to be acknowledged by its duly elected
and
authorized officer this ___ day of ___ , 200_.
|
U.S.
BANK NATIONAL ASSOCIATION, as Trustee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
WITNESS:
|
WITNESS:
|
|
_______________________________
|
_______________________________
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
______________, 200_, before me, the undersigned, a Notary Public in and
for
said state, personally appeared __________________, personally known to me
to be
the person whose name is subscribed to the within instrument and to be a
duly
authorized and acting Senior Vice President of U.S. Bank National Association,
and such person acknowledged to me that such person executed the within
instrument in such person's authorized capacity as a Senior Vice President
of
U.S. Bank National Association, and that by such signature on the within
instrument the entity upon behalf of which such person acted executed the
instrument.
WITNESS
my hand and official seal.
|
Notary
Public
|
EXHIBIT
BB
[Reserved]
EXHIBIT
CC
Form
of ISDA MASTER Agreement
(Multicurrency—Cross
Border)
ISDAÒ
International
Swap Dealers Association, Inc.
MASTER
AGREEMENT
dated
as
of October 31, 2006
|
CREDIT
SUISSE INTERNATIONAL
(“Party
A”)
|
And
|
U.S.
BANK NATIONAL ASSOCIATION,
NOT
INDIVIDUALLY, BUT SOLELY
AS
TRUSTEE
ON BEHALF OF
THE
SUPPLEMENTAL INTEREST
TRUST
CREATED
UNDER THE
POOLING
AND SERVICING
AGREEMENT
FOR THE HOME
EQUITY
MORTGAGE TRUST
2006-4,
HOME EQUITY
MORTGAGE
PASS THROUGH
CERTIFICATES,
SERIES 2006-5
("Party
B")
|
have
entered and/or anticipate entering into one or more transactions (each
a
“Transaction”) that are or will be
governed by this Master Agreement, which includes the schedule (the “Schedule”),
and the documents and
other
confirming evidence (each a “Confirmation”) exchanged between the parties
confirming those Transactions.
Accordingly,
the parties agree as follows:—
1. Interpretation
(a) Definitions.
The
terms defined in Section 14 and in the Schedule will have the meanings
therein
specified for the purpose of this Master Agreement.
(b) Inconsistency.
In the
event of any inconsistency between the provisions of the Schedule and the
other
provisions of this Master Agreement, the Schedule will prevail. In the
event of
any inconsistency between the provisions of any Confirmation and this Master
Agreement (including the Schedule), such Confirmation will prevail for
the
purpose of the relevant Transaction.
(c) Single
Agreement.
All
Transactions are entered into in reliance on the fact that this Master
Agreement
and all Confirmations form a single agreement between the parties (collectively
referred to as this
“Agreement”), and the parties would not otherwise enter into any
Transactions.
2. Obligations
(a) General
Conditions.
(i) Each
party will make each payment or delivery specified in each Confirmation
to be
made by it, subject to the other provisions
of this
Agreement.
(ii) Payments
under this Agreement will be made on the due date for value on that date
in the
place of
the
account specified in the relevant Confirmation or otherwise pursuant to
this
Agreement, in freely transferable funds and in the manner customary for
payments
in the required currency. Where
settlement is by delivery (that is, other than by payment), such delivery
will
be made for
receipt
on the due date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.
(iii) Each
obligation of each party under Section 2(a)(i) is subject to (1) the condition
precedent that
no
Event of Default or Potential Event of Default with respect to the other
party
has occurred and
is
continuing, (2) the condition precedent that no Early Termination Date
in
respect of the relevant Transaction has occurred or been effectively designated
and (3) each other applicable condition precedent specified in this
Agreement.
(b) Change
of Account.
Either
party may change its account for receiving a payment or delivery by giving
notice to the other party at least five Local Business Days prior to the
scheduled date for the payment or delivery to which such change applies
unless
such other party gives timely notice of a reasonable objection to such
change.
(c) Netting.
If on
any date amounts would otherwise be payable:—
(i) in
the
same currency; and
(ii) in
respect of the same Transaction,
by
each
party to the other, then, on such date, each party’s obligation to make payment
of any such amount will be automatically satisfied and discharged and,
if the
aggregate amount that would otherwise have been payable by one party exceeds
the
aggregate amount that would otherwise have been payable by the other party,
replaced by an obligation upon the party by whom the larger aggregate amount
would have been payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.
The
parties may elect in respect of two or more Transactions that a net amount
will
be determined in respect of all amounts payable on the same date in the
same
currency in respect of such Transactions, regardless of whether such amounts
are
payable in respect of the same Transaction. The election may be made in
the
Schedule or a Confirmation by specifying that subparagraph (ii) above will
not
apply to the Transactions identified as being subject to the election,
together
with the starting date (in which case subparagraph (ii) above will not,
or will
cease to, apply to such Transactions from such date). This election may
be made
separately for different groups of Transactions and will apply separately
to
each pairing of Offices through which the parties make and receive payments
or
deliveries.
(d) Deduction
or Withholding for Tax.
(i) Gross-Up.
All
payments under this Agreement will be made without any deduction or withholding
for or on account of any Tax unless such deduction or withholding is required
by
any applicable law, as modified by the practice of any relevant governmental
revenue authority, then in effect. If a party is so required to deduct
or
withhold, then that party (“X”) will:—
(1) promptly
notify the other party (“Y”) of such requirement;
(2) pay
to
the relevant authorities the full amount required to be deducted or withheld
(including the full amount required to be deducted or withheld from any
additional amount paid by X to Y under this Section 2(d)) promptly upon the
earlier of determining that such deduction or withholding is required or
receiving notice that such amount has been assessed against Y;
(3) promptly
forward to Y an official receipt (or a certified copy), or other documentation
reasonably acceptable to Y, evidencing such payment to such authorities;
and
(4) if
such
Tax is an Indemnifiable Tax, pay to Y, in addition to the payment to which
Y is
otherwise
entitled under this Agreement, such additional amount as is necessary to
ensure that
the
net
amount actually received by Y (free and clear of Indemnifiable Taxes, whether
assessed against X or Y) will equal the full amount Y would have received
had no
such deduction or withholding been required. However, X will not be required
to
pay any additional amount to Y to
the
extent that it would not be required to be paid but for:—
(A) the
failure by Y to comply with or perform any agreement contained in Section
4(a)(i), 4(a)(iii) or 4(d); or
(B) the
failure of a representation made by Y pursuant to Section 3(f) to be accurate
and true unless such failure would not have occurred but for (I) any action
taken by a taxing authority, or brought in a court of competent jurisdiction,
on
or after the date on which a Transaction is entered into (regardless of
whether
such action is taken or brought with respect to a party to this Agreement)
or
(II) a Change in Tax Law.
(ii) Liability.
If:—
(1) X
is
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, to make any deduction or withholding in
respect
of which X would not be required to pay an additional amount to Y under
Section
2(d)(i)(4);
(2) X
does
not so deduct or withhold; and
(3) a
liability resulting from such Tax is assessed directly against X,
then,
except to the extent Y has satisfied or then satisfies the liability resulting
from such Tax, Y will promptly pay to X the amount of such liability (including
any related liability for interest, but including any related liability
for
penalties only if Y has failed to comply with or perform any agreement
contained
in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default
Interest; Other Amounts.
Prior
to the occurrence or effective designation of an Early Termination Date
in
respect of the relevant Transaction, a party that defaults in the performance
of
any payment obligation will, to the extent permitted by law and subject
to
Section 6(c), be required to pay interest (before as well as after judgment)
on
the overdue amount to the other party on demand in the same currency as
such
overdue amount, for the period from (and including) the original due date
for
payment to (but excluding) the date of actual payment, at the Default Rate.
Such
interest will be calculated on the basis of daily compounding and the actual
number of days elapsed. If, prior to the occurrence or effective designation
of
an Early Termination Date in respect of the relevant Transaction, a party
defaults in the performance of any obligation required to be settled by
delivery, it will compensate the other party on demand if and to the extent
provided for in the relevant Confirmation or elsewhere in this
Agreement.
3. Representations
Each
party represents to the other party (which representations will be deemed
to be
repeated by each party on each date on which a Transaction is entered into
and,
in the case of the representations in Section 3(f), at all times until
the
termination of this Agreement) that:—
(a) Basic
Representations.
(i) Status.
It is
duly organised and validly existing under the laws of the jurisdiction
of its
organisation or incorporation and, if relevant under such laws, in good
standing;
(ii) Powers.
It has
the power to execute this Agreement and any other documentation relating
to this
Agreement to which it is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is required by this Agreement
to deliver and to perform its obligations under this Agreement and any
obligations it has under any Credit Support Document to which it is a party
and
has taken all necessary action to authorise such execution, delivery and
performance;
(iii) No
Violation or Conflict.
Such
execution, delivery and performance do not violate or conflict with any
law
applicable to it, any provision of its constitutional documents, any order
or
judgment of any court or other agency of government applicable to it or
any of
its assets or any contractual restriction binding on or affecting it or
any of
its assets;
(iv) Consents.
All
governmental and other consents that are required to have been obtained
by it
with respect to this Agreement or any Credit Support Document to which
it is a
party have been obtained and are in full force and effect and all conditions
of
any such consents have been complied with; and
(v) Obligations
Binding.
Its
obligations under this Agreement and any Credit Support Document to which
it is
a party constitute its legal, valid and binding obligations, enforceable
in
accordance with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting creditors’
rights generally and subject, as to enforceability, to equitable principles
of
general application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
(b) Absence
of Certain Events.
No
Event of Default or Potential Event of Default or, to its knowledge, Termination
Event with respect to it has occurred and is continuing and no such event
or
circumstance would occur as a result of its entering into or performing
its
obligations under this Agreement or any Credit Support Document to which
it is a
party.
(c) Absence
of Litigation.
There
is not pending or, to its knowledge, threatened against it or any of its
Affiliates any action, suit or proceeding at law or in equity or before
any
court, tribunal, governmental body, agency or official or any arbitrator
that is
likely to affect the legality, validity or enforceability against it of
this
Agreement or any Credit Support Document to which it is a party or its
ability
to perform its obligations under this Agreement or such Credit Support
Document.
(d) Accuracy
of Specified Information.
All
applicable information that is furnished in writing by or on behalf of
it to the
other party and is identified for the purpose of this Section 3(d) in the
Schedule is, as of the date of the information, true, accurate and complete
in
every material respect.
(e) Payer
Tax Representation.
Each
representation specified in the Schedule as being made by it for the purpose
of
this Section 3(e) is accurate and true.
(f) Payee
Tax Representations.
Each
representation specified in the Schedule as being made by it for the purpose
of
this Section 3(f) is accurate and true.
4. Agreements
Each
party agrees with the other that, so long as either party has or may have
any
obligation under this Agreement or under any Credit Support Document to
which it
is a party:—
(a) Furnish
Specified Information.
It will
deliver to the other party or, in certain cases under subparagraph (iii)
below,
to such government or taxing authority as the other party reasonably
directs:
(i) any
forms, documents or certificates relating to taxation specified in the
Schedule
or any Confirmation;
(ii) any
other
documents specified in the Schedule or any Confirmation; and
(iii) upon
reasonable demand by such other party, any form or document that may be
required
or reasonably requested in writing in order to allow such other party or
its
Credit Support Provider to make a payment under this Agreement or any applicable
Credit Support Document without any deduction or withholding for or on
account
of any Tax or with such deduction or withholding at a reduced rate (so
long as
the completion, execution or submission of such form or document would
not
materially prejudice the legal or commercial position of the party in receipt
of
such demand), with any such form or document to be accurate and completed
in a
manner reasonably satisfactory to such other party and to be executed and
to be
delivered with any reasonably required certification,
in
each
case by the date specified in the Schedule or such Confirmation or, if
none is
specified, as soon as reasonably practicable.
(b) Maintain
Authorisations.
It will
use all reasonable efforts to maintain in full force and effect all consents
of
any governmental or other authority that are required to be obtained by
it with
respect to this Agreement or any Credit Support Document to which it is
a party
and will use all reasonable efforts to obtain any that may become necessary
in
the future.
(c) Comply
with Laws.
It will
comply in all material respects with all applicable laws and orders to
which it
may be subject if failure so to comply would materially impair its ability
to
perform its obligations under this Agreement or any Credit Support Document
to
which it is a party.
(d) Tax
Agreement.
It will
give notice of any failure of a representation made by it under Section
3(f) to
be accurate and true promptly upon learning of such failure.
(e) Payment
of Stamp Tax.
Subject
to Section 11, it will pay any Stamp Tax levied or imposed upon it or in
respect
of its execution or performance of this Agreement by a jurisdiction in
which it
is incorporated, organised, managed and controlled, or considered to have
its
seat, or in which a branch or office through which it is acting for the
purpose
of this Agreement is located (“Stamp Tax Jurisdiction”) and will indemnify the
other party against any Stamp Tax levied or imposed upon the other party
or in
respect of the other party’s execution or performance of this Agreement by any
such Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction
with
respect to the other party.
5. Events
of Default and Termination Events
(a) Events
of Default.
The
occurrence at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or any Specified Entity of such party of
any of
the following events constitutes an event of default (an “Event of Default”)
with respect to such party:—
(i) Failure
to Pay or Deliver.
Failure
by the party to make, when due, any payment under this Agreement or delivery
under Section 2(a)(i) or 2(e) required to be made by it if such failure
is not
remedied on or before the third Local Business Day after notice of such
failure
is given to the party;
(ii) Breach
of Agreement.
Failure
by the party to comply with or perform any agreement or obligation (other
than
an obligation to make any payment under this Agreement or delivery under
Section
2(a)(i) or 2(e) or to give notice of a Termination Event or any agreement
or
obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with
or
performed by the party in accordance with this Agreement if such failure
is not
remedied on or before the thirtieth day after notice of such failure is
given to
the party;
(iii) Credit
Support Default.
(1) Failure
by the party or any Credit Support Provider of such party to comply with
or
perform any agreement or obligation to be complied with or performed by
it in
accordance with any Credit Support Document if such failure is continuing
after
any applicable grace period has elapsed;
(2) the
expiration or termination of such Credit Support Document or the failing
or
ceasing of such Credit Support Document to be in full force and effect
for the
purpose of this Agreement (in either case other than in accordance with
its
terms) prior to the satisfaction of all obligations of such party under
each
Transaction to which such Credit Support Document relates without the written
consent of the other party; or
(3) the
party
or such Credit Support Provider disaffirms, disclaims, repudiates or rejects,
in
whole or in part, or challenges the validity of, such Credit Support
Document;
(iv) Misrepresentation.
A
representation (other than a representation under Section 3(e) or (f))
made or
repeated or deemed to have been made or repeated by the party or any Credit
Support Provider of such party in this Agreement or any Credit Support
Document
proves to have been incorrect or misleading in any material respect when
made or
repeated or deemed to have been made or repeated;
(v) Default
under Specified Transaction.
The
party, any Credit Support Provider of such party or any applicable Specified
Entity of such party (1) defaults under a Specified Transaction and, after
giving effect to any applicable notice requirement or grace period, there
occurs
a liquidation of, an acceleration of obligations under, or an early termination
of, that Specified Transaction, (2) defaults, after giving effect to any
applicable notice requirement or grace period, in making any payment or
delivery
due on the last payment, delivery or exchange date of, or any payment on
early
termination of, a Specified Transaction (or such default continues for
at least
three Local Business Days if there is no applicable notice requirement
or grace
period) or (3) disaffirms, disclaims, repudiates or rejects, in whole or
in
part, a Specified Transaction (or such action is taken by any person or
entity
appointed or empowered to operate it or act on its behalf);
(vi) Cross
Default.
If
“Cross Default” is specified in the Schedule as applying to the party, the
occurrence or existence of (1) a default, event of default or other similar
condition or event (however described)
in respect of such party, any Credit Support Provider of such party or
any
applicable Specified Entity of such party under one or more agreements
or
instruments relating to Specified Indebtedness of any of them (individually
or
collectively) in an aggregate amount of not less than the applicable Threshold
Amount (as specified in the Schedule) which has resulted in such Specified
Indebtedness becoming, or becoming capable at such time of being declared,
due
and payable under such agreements or instruments, before it would otherwise
have
been due and payable or (2) a default by such party, such Credit Support
Provider or such Specified Entity (individually or collectively) in making
one
or more payments on the due date thereof in an aggregate amount of not less than
the applicable Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace
period);
(vii) Bankruptcy.
The
party, any Credit Support Provider of such party or any applicable Specified
Entity of such party:—
(1) is
dissolved (other than pursuant to a consolidation, amalgamation or merger);
(2)
becomes insolvent or is unable to pay its debts or fails or admits in writing
its inability generally to pay its debts as they become due; (3) makes
a general
assignment, arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a judgment
of
insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors’ rights, or a petition is presented
for its winding-up or liquidation, and, in the case of any such proceeding
or
petition instituted or presented against it, such proceeding or petition
(A)
results in a judgment of insolvency or bankruptcy or the entry of an order
for
relief or the making of an order for its winding-up or liquidation or (B)
is not
dismissed, discharged, stayed or restrained in each case within 30 days
of the
institution or presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant to
a
consolidation, amalgamation or merger); (6) seeks or becomes subject to
the
appointment of an administrator, provisional liquidator, conservator, receiver,
trustee, custodian or other similar official for it or for all or substantially
all its assets; (7) has a secured party take possession of all or substantially
all its assets or has a distress, execution, attachment, sequestration
or other
legal process levied, enforced or sued on or against all or substantially
all
its assets and such secured party maintains possession, or any such process
is
not dismissed, discharged, stayed or restrained, in each case within 30
days
thereafter; (8) causes or is subject to any event with respect to it which,
under the applicable laws of any jurisdiction, has an analogous effect
to any of
the events specified in clauses (1) to (7) (inclusive); or (9) takes any
action
in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the foregoing acts; or
(viii) Merger
Without Assumption.
The
party or any Credit Support Provider of such party consolidates or amalgamates
with, or merges with or into, or transfers all or substantially all its
assets
to, another entity and, at the time of such consolidation, amalgamation,
merger
or transfer:—
(1) the
resulting, surviving or transferee entity fails to assume all the obligations
of
such party or such Credit Support Provider under this Agreement or any
Credit
Support Document to which it or its predecessor was a party by operation
of law
or pursuant to an agreement reasonably satisfactory to the other party
to this
Agreement; or
(2) the
benefits of any Credit Support Document fail to extend (without the consent
of
the other party) to the performance by such resulting, surviving or transferee
entity of its obligations under this Agreement.
(b) Termination
Events.
The
occurrence at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or any Specified Entity of such party of
any
event specified below constitutes an Illegality if the event is specified
in (i)
below, a Tax Event if the event is specified in (ii) below or a Tax Event
Upon
Merger if the event is specified in (iii) below, and, if specified to be
applicable, a Credit Event
Upon
Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:—
(i) Illegality.
Due to
the adoption of, or any change in, any applicable law after the date on
which a
Transaction is entered into, or due to the promulgation of, or any change
in,
the interpretation by any court, tribunal or regulatory authority with
competent
jurisdiction of any applicable law after such date, it becomes unlawful
(other
than as a result of a breach by the party of Section 4(b)) for such party
(which
will be the Affected Party):—
(1) to
perform any absolute or contingent obligation to make a payment or delivery
or
to receive a payment or delivery in respect of such Transaction or to comply
with any other material provision of this Agreement relating to such
Transaction; or
(2) to
perform, or for any Credit Support Provider of such party to perform, any
contingent or other obligation which the party (or such Credit Support
Provider)
has under any Credit Support Document relating to such Transaction;
(ii) Tax
Event.
Due to
(x) any action taken by a taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with respect to
a party
to this Agreement) or (y) a Change in Tax Law, the party (which will be
the
Affected Party) will, or there is a substantial likelihood that it will,
on the
next succeeding Scheduled Payment Date (1) be required to pay to the other
party
an additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4)
(except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or
(2)
receive a payment from which an amount is required to be deducted or withheld
for or on account of a Tax (except in respect of interest under Section
2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid in respect
of
such Tax under Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A)
or (B));
(iii) Tax
Event Upon Merger.
The
party (the “Burdened Party”) on the next succeeding Scheduled Payment Date will
either (1) be required to pay an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest
under
Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an
amount
has been deducted or withheld for or on account of any Indemnifiable Tax
in
respect of which the other party is not required to pay an additional amount
(other than by reason of Section 2(d)(i)(4)(A) or (B)), in either case
as a
result of a party consolidating or amalgamating with, or merging with or
into,
or transferring all or substantially all its assets to, another entity
(which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit
Event Upon Merger.
If
“Credit Event Upon Merger” is specified in the Schedule as applying to the
party, such party (“X”), any Credit Support Provider of X or any applicable
Specified Entity of X consolidates or amalgamates with, or merges with
or into,
or transfers all or substantially all its assets to, another entity and
such
action does not constitute an event described in Section 5(a)(viii) but
the
creditworthiness of the resulting, surviving or transferee entity is materially
weaker than that of X, such Credit Support Provider or such Specified Entity,
as
the case may be, immediately prior to such action (and, in such event,
X or its
successor or transferee, as appropriate, will be the Affected Party);
or
(v) Additional
Termination Event.
If any
“Additional Termination Event” is specified in the Schedule or any Confirmation
as applying, the occurrence of such event (and, in such event, the Affected
Party or Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event
of Default and Illegality.
If an
event or circumstance which would otherwise constitute or give rise to
an Event
of Default also constitutes an Illegality, it will be treated as an Illegality
and will not constitute an Event of Default.
6. Early
Termination
(a) Right
to Terminate Following Event of Default.
If at
any time an Event of Default with respect to a party (the “Defaulting Party”)
has occurred and is then continuing, the other party (the “Non-defaulting
Party”) may, by not more than 20 days notice to the Defaulting Party specifying
the relevant Event of Default, designate a day not earlier than the day
such
notice is effective as an Early Termination Date in respect of all outstanding
Transactions. If, however, “Automatic Early Termination” is specified in the
Schedule as applying to a party, then an Early Termination Date in respect
of
all outstanding Transactions will occur immediately upon the occurrence
with
respect to such party of an Event of Default specified in Section 5(a)(vii)(1),
(3), (5), (6) or, to the extent analogous thereto, (8), and as of the time
immediately preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the occurrence with respect
to such
party of an Event of Default specified in Section 5(a)(vii)(4) or, to the
extent
analogous thereto, (8).
(b) Right
to Terminate Following Termination Event.
(i) Notice.
If a
Termination Event occurs, an Affected Party will, promptly upon becoming
aware
of it, notify the other party, specifying the nature of that Termination
Event
and each Affected Transaction and will also give such other information
about
that Termination Event as the other party may reasonably require.
(ii) Transfer
to Avoid Termination Event.
If
either an Illegality under Section 5(b)(i)(1) or a Tax Event occurs and
there is
only one Affected Party, or if a Tax Event Upon Merger occurs and the Burdened
Party is the Affected Party, the Affected Party will, as a condition to
its
right to designate an Early Termination Date under Section 6(b)(iv), use
all
reasonable efforts (which will not require such party to incur a loss,
excluding
immaterial, incidental expenses) to transfer within 20 days after it gives
notice under Section 6(b)(i) all its rights and obligations under this
Agreement
in respect of the Affected Transactions to another of its Offices or Affiliates
so that such Termination Event ceases to exist.
If
the
Affected Party is not able to make such a transfer it will give notice
to the
other party to that effect within such 20 day period, whereupon the other
party
may effect such a transfer within 30 days after the notice is given under
Section 6(b)(i).
Any
such
transfer by a party under this Section 6(b)(ii) will be subject to and
conditional upon the prior written consent of the other party, which consent
will not be withheld if such other party’s policies in effect at such time would
permit it to enter into transactions with the transferee on the terms
proposed.
(iii) Two
Affected Parties.
If an
Illegality under Section 5(b)(i)(1) or a Tax Event occurs and there are
two
Affected Parties, each party will use all reasonable efforts to reach agreement
within 30 days after notice thereof is given under Section 6(b)(i) on action
to
avoid that Termination Event.
(iv) Right
to Terminate.
If:—
(1) a
transfer under Section 6(b)(ii) or an agreement under Section 6(b)(iii), as
the case may be, has not been effected with respect to all Affected Transactions
within 30 days after an Affected Party gives notice under Section 6(b)(i);
or
(2) an
Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger or an Additional
Termination Event occurs, or a Tax Event Upon Merger occurs and the Burdened
Party is not the Affected Party,
either
party in the case of an Illegality, the Burdened Party in the case of a
Tax
Event Upon Merger, any Affected Party in the case of a Tax Event or an
Additional Termination Event if there is more than one Affected Party,
or the
party which is not the Affected Party in the case of a Credit Event Upon
Merger
or an Additional Termination Event if there is only one Affected Party
may, by
not more than 20 days notice to the other party and provided that the relevant
Termination Event is then continuing, designate a day not earlier than
the day
such notice is effective as an Early Termination Date in respect of all
Affected
Transactions.
(c) Effect
of Designation.
(i) If
notice
designating an Early Termination Date is given under Section 6(a) or (b),
the Early Termination Date will occur on the date so designated, whether
or not
the relevant Event of Default or Termination Event is then
continuing.
(ii) Upon
the
occurrence or effective designation of an Early Termination Date, no further
payments or deliveries under Section 2(a)(i) or 2(e) in respect of the
Terminated Transactions will be required to be made, but without prejudice
to
the other provisions of this Agreement. The amount, if any, payable in
respect
of an Early Termination Date shall be determined pursuant to Section
6(e).
(d) Calculations.
(i) Statement.
On or
as soon as reasonably practicable following the occurrence of an Early
Termination Date, each party will make the calculations on its part, if
any,
contemplated by Section 6(e) and will provide to the other party a statement
(1)
showing, in reasonable detail, such calculations (including all relevant
quotations and specifying any amount payable under Section 6(e)) and (2)
giving
details of the relevant account to which any amount payable to it is to
be paid.
In the absence of written confirmation from the source of a quotation obtained
in determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such
quotation.
(ii) Payment
Date.
An
amount calculated as being due in respect of any Early Termination Date
under
Section 6(e) will be payable on the day that notice of the amount payable
is
effective (in the case of an Early Termination Date which is designated
or
occurs as a result of an Event of Default) and on the day which is two
Local
Business Days after the day on which notice of the amount payable is effective
(in the case of an Early Termination Date which is designated as a result
of a
Termination Event). Such amount will be paid together with (to the extent
permitted under applicable law) interest thereon (before as well as after
judgment) in the Termination Currency, from (and including) the relevant
Early
Termination Date to (but excluding) the date such amount is paid, at the
Applicable Rate. Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed.
(e) Payments
on Early Termination.
If an
Early Termination Date occurs, the following provisions shall apply based
on the
parties’ election in the Schedule of a payment measure, either “Market
Quotation” or “Loss”, and a payment method, either the “First Method” or the
“Second Method”. If the parties fail to designate a payment measure or payment
method in the Schedule, it will be deemed that “Market Quotation” or the “Second
Method”, as the case may be, shall apply. The amount, if any, payable in respect
of an Early Termination Date and determined pursuant to this Section will
be
subject to any Set-off.
(i) Events
of Default.
If the
Early Termination Date results from an Event of Default:—
(1) First
Method and Market Quotation.
If the
First Method and Market Quotation apply, the Defaulting Party will pay
to the
Non-defaulting Party the excess, if a positive number, of (A) the sum of
the
Settlement Amount (determined by the Non-defaulting Party) in respect of
the
Terminated Transactions and the Termination Currency Equivalent of the
Unpaid
Amounts owing to the Non-defaulting Party over (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party.
(2) First
Method and Loss.
If the
First Method and Loss apply, the Defaulting Party will pay to the Non-defaulting
Party, if a positive number, the Non-defaulting Party’s Loss in respect of this
Agreement.
(3) Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, an amount will be payable equal
to (A)
the sum of the Settlement Amount (determined by
the
Non-defaulting
Party) in respect of the Terminated Transactions and the Termination Currency
Equivalent of the Unpaid Amounts owing to the Non-defaulting Party less
(B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the Defaulting Party will pay
it to
the Non-defaulting Party; if it is a negative number, the Non-defaulting
Party
will pay the absolute value of that amount to the Defaulting Party.
(4) Second
Method and Loss.
If the
Second Method and Loss apply, an amount will be payable equal to the
Non-defaulting Party’s Loss in respect of this Agreement. If that amount is a
positive number, the Defaulting Party will pay it to the Non-defaulting
Party;
if it is a negative number, the Non-defaulting Party will pay the absolute
value
of that amount to the Defaulting Party.
(ii) Termination
Events.
If the
Early Termination Date results from a Termination Event:—
(1) One
Affected Party.
If
there is one Affected Party, the amount payable will be determined in accordance
with Section 6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4),
if
Loss applies, except that, in either case, references to the Defaulting
Party
and to the Non-defaulting Party will be deemed to be references to the
Affected
Party and the party which is not the Affected Party, respectively, and,
if Loss
applies and fewer than all the Transactions are being terminated, Loss
shall be
calculated in respect of all Terminated Transactions.
(2) Two
Affected Parties.
If
there are two Affected Parties:—
(A) if
Market
Quotation applies, each party will determine a Settlement Amount in respect
of
the Terminated Transactions, and an amount will be payable equal to (I)
the sum
of (a) one-half of the difference between the Settlement Amount of the
party
with the higher Settlement Amount (“X”) and the Settlement Amount of the party
with the lower Settlement Amount (“Y”) and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the Termination Currency
Equivalent of the Unpaid Amounts owing to Y; and
(B) if
Loss
applies, each party will determine its Loss in respect of this Agreement
(or, if
fewer than all the Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal to one-half
of the
difference between the Loss of the party with the higher Loss (“X”) and the Loss
of the party with the lower Loss (“Y”).
If
the
amount payable is a positive number, Y will pay it to X; if it is a negative
number, X will pay the absolute value of that amount to Y.
(iii) Adjustment
for Bankruptcy.
In
circumstances where an Early Termination Date occurs because “Automatic Early
Termination” applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are appropriate and
permitted by law to reflect any payments or deliveries made by one party
to the
other under this Agreement (and retained by such other party) during the
period
from the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate.
The
parties agree that if Market Quotation applies an amount recoverable under
this
Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such
amount
is payable for the loss of bargain and the loss of protection against future
risks and except as otherwise provided in this Agreement neither party
will be
entitled to recover any additional damages as a consequence of such
losses.
7. Transfer
Subject
to Section 6(b)(ii), neither this Agreement nor any interest or obligation
in or
under this Agreement may be transferred (whether by way of security or
otherwise) by either party without the prior written consent of the other
party,
except that:—
(a) a
party
may make such a transfer of this Agreement pursuant to a consolidation
or
amalgamation with, or merger with or into, or transfer of all or substantially
all its assets to, another entity (but without prejudice to any other right
or
remedy under this Agreement); and
(b) a
party
may make such a transfer of all or any part of its interest in any amount
payable to it from a Defaulting Party under Section 6(e).
Any
purported transfer that is not in compliance with this Section will be
void.
8. Contractual
Currency
(a) Payment
in the Contractual Currency.
Each
payment under this Agreement will be made in the relevant currency specified
in
this Agreement for that payment (the “Contractual Currency”). To the extent
permitted by applicable law, any obligation to make payments under this
Agreement in the Contractual Currency will not be discharged or satisfied
by any
tender in any currency other than the Contractual Currency, except to the
extent
such tender results in the actual receipt by the party to which payment
is owed,
acting in a reasonable manner and in good faith in converting the currency
so
tendered into the Contractual Currency, of the full amount in the Contractual
Currency of all amounts payable in respect of this Agreement. If for any
reason
the amount in the Contractual Currency so received falls short of the amount
in
the Contractual Currency payable in respect of this Agreement, the party
required to make the payment will, to the extent permitted by applicable
law,
immediately pay such additional amount in the Contractual Currency as may
be
necessary to compensate for the shortfall. If for any reason the amount
in the
Contractual Currency so received exceeds the amount in the Contractual
Currency
payable in respect of this Agreement, the party receiving the payment will
refund promptly the amount of such excess.
(b) Judgments.
To the
extent permitted by applicable law, if any judgment or order expressed
in a
currency other than the Contractual Currency is rendered (i) for the payment
of
any amount owing in respect of this Agreement, (ii) for the payment of
any
amount relating to any early termination in respect of this Agreement or
(iii)
in respect of a judgment or order of another court for the payment of any
amount
described in (i) or (ii) above, the party seeking recovery, after recovery
in
full of the aggregate amount to which such party is entitled pursuant to
the
judgment or order, will be entitled to receive immediately from the other
party
the amount of any shortfall of the Contractual Currency received by such
party
as a consequence of sums paid in such other currency and will refund promptly
to
the other party any excess of the Contractual Currency received by such
party as
a consequence of sums paid in such other currency if such shortfall or
such
excess arises or results from any variation between the rate of exchange
at
which the Contractual Currency is converted into the currency of the judgment
or
order for the purposes of such judgment or order and the rate of exchange
at
which such party is able, acting in a reasonable manner and in good faith
in
converting the currency received into the Contractual Currency, to purchase
the
Contractual Currency with the amount of the currency of the judgment or
order
actually received by such party. The term “rate of exchange” includes, without
limitation, any premiums and costs of exchange payable in connection with
the
purchase of or conversion into the Contractual Currency.
(c) Separate
Indemnities.
To the
extent permitted by applicable law, these indemnities constitute separate
and
independent obligations from the other obligations in this Agreement, will
be
enforceable as separate and independent causes of action, will apply
notwithstanding any indulgence granted by the party to which any payment
is owed
and will not be affected by judgment being obtained or claim or proof being
made
for any other sums payable in respect of this Agreement.
(d) Evidence
of Loss.
For the
purpose of this Section 8, it will be sufficient for a party to demonstrate
that
it would have suffered a loss had an actual exchange or purchase been
made.
9. Miscellaneous
(a) Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
with
respect to its subject matter and supersedes all oral communication and
prior
writings with respect thereto.
(b) Amendments.
No
amendment, modification or waiver in respect of this Agreement will be
effective
unless in writing (including a writing evidenced by a facsimile transmission)
and executed by each of the parties or confirmed by an exchange of telexes
or
electronic messages on an electronic messaging system.
(c) Survival
of Obligations.
Without
prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of the parties
under this Agreement will survive the termination of any
Transaction.
(d) Remedies
Cumulative.
Except
as provided in this Agreement, the rights, powers, remedies and privileges
provided in this Agreement are cumulative and not exclusive of any rights,
powers, remedies and privileges provided by law.
(e) Counterparts
and Confirmations.
(i) This
Agreement (and each amendment, modification and waiver in respect of it)
may be
executed and delivered in counterparts (including by facsimile transmission),
each of which will be deemed an original.
(ii) The
parties intend that they are legally bound by the terms of each Transaction
from
the moment they agree to those terms (whether orally or otherwise). A
Confirmation shall he entered into as soon as practicable and may he executed
and delivered in counterparts (including by facsimile transmission) or
be
created by an exchange of telexes or by an exchange of electronic messages
on an
electronic messaging system, which in each case will be sufficient for
all
purposes to evidence a binding supplement to this Agreement. The parties
will
specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.
(f) No
Waiver of Rights.
A
failure or delay in exercising any right, power or privilege in respect
of this
Agreement will not be presumed to operate as a waiver, and a single or
partial
exercise of any right, power or privilege will not be presumed to preclude
any
subsequent or further exercise, of that right, power or privilege or the
exercise of any other right, power or privilege.
(g) Headings.
The
headings used in this Agreement are for convenience of reference only and
are
not to affect the construction of or to be taken into consideration in
interpreting this Agreement.
10. Offices;
Multibranch Parties
(a) If
Section 10(a) is specified in the Schedule as applying, each party that
enters
into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking
office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through
its
head or home office. This representation will be deemed to be repeated
by such
party on each date on which a Transaction is entered into.
(b) Neither
party may change the Office through which it makes and receives payments
or
deliveries for the purpose of a Transaction without the prior written consent
of
the other party.
(c) If
a
party is specified as a Multibranch Party in the Schedule, such Multibranch
Party may make and receive payments or deliveries under any Transaction
through
any Office listed in the Schedule, and the Office through which it makes
and
receives payments or deliveries with respect to a Transaction will be specified
in the relevant Confirmation.
11. Expenses
A
Defaulting Party will, on demand, indemnify and hold harmless the other
party
for and against all reasonable out-of-pocket expenses, including legal
fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
to
which the Defaulting Party is a party or by reason of the early termination
of
any Transaction, including, but not limited to, costs of
collection.
12. Notices
(a) Effectiveness.
Any
notice or other communication in respect of this Agreement may be given
in any
manner set forth below (except that a notice or other communication under
Section 5 or 6 may not be given by facsimile transmission or electronic
messaging system) to the address or number or in accordance with the electronic
messaging system details provided (see the Schedule) and will be deemed
effective as indicated:—
(i) if
in
writing and delivered in person or by courier, on the date it is
delivered;
(ii) if
sent
by telex, on the date the recipient’s answerback is received;
(iii) if
sent
by facsimile transmission, on the date that transmission is received by
a
responsible employee of the recipient in legible form (it being agreed
that the
burden of proving receipt will be on the sender and will not be met by
a
transmission report generated by the sender’s facsimile machine);
(iv) if
sent
by certified or registered mail (airmail, if overseas) or the equivalent
(return
receipt requested), on the date that mail is delivered or its delivery
is
attempted; or
(v) if
sent
by electronic messaging system, on the date that electronic message is
received,
unless
the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered
(or
attempted) or received, as applicable, after the close of business on a
Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change
of Addresses.
Either
party may by notice to the other change the address, telex or facsimile
number
or electronic messaging system details at which notices or other communications
are to be given to it.
13. Governing
Law and Jurisdiction
(a) Governing
Law.
This
Agreement will be governed by and construed in accordance with the law
specified
in the Schedule.
(b) Jurisdiction.
With
respect to any suit, action or proceedings relating to this Agreement
(“Proceedings”), each party irrevocably:—
(i) submits
to the jurisdiction of the English courts, if this Agreement is expressed
to be
governed by English law, or to the non-exclusive jurisdiction of the courts
of
the State of New York and the United States District Court located in the
Borough of Manhattan in New York City, if this Agreement is expressed to
be
governed by the laws of the State of New York; and
(ii) waives
any objection which it may have at any time to the laying of venue of any
Proceedings brought in any such court, waives any claim that such Proceedings
have been brought in an inconvenient forum and further waives the right
to
object, with respect to such Proceedings, that such court does not have
any
jurisdiction over such party.
Nothing
in this Agreement precludes either party from bringing Proceedings in any
other
jurisdiction (outside, if this Agreement is expressed to be governed by
English
law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing
of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service
of Process.
Each
party irrevocably appoints the Process Agent (if any) specified opposite
its
name in the Schedule to receive, for it and on its behalf, service of process
in
any Proceedings. If for any
reason
any party’s Process Agent is unable to act as such, such party will promptly
notify the other party and within 30 days appoint a substitute process
agent
acceptable to the other party. The parties irrevocably consent to service
of
process given in the manner provided for notices in Section 12. Nothing
in this
Agreement will affect the right of either party to serve process in any
other
manner permitted by law.
(d) Waiver
of Immunities.
Each
party irrevocably waives, to the fullest extent permitted by applicable
law,
with respect to itself and its revenues and assets (irrespective of their
use or
intended use), all immunity on the grounds of sovereignty or other similar
grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by
way of
injunction, order for specific performance or for recovery of property,
(iv)
attachment of its assets (whether before or after judgment) and (v) execution
or
enforcement of any judgment to which it or its revenues or assets might
otherwise be entitled in any Proceedings in the courts of any jurisdiction
and
irrevocably agrees, to the extent permitted by applicable law, that it
will not
claim any such immunity in any Proceedings.
14. Definitions
As
used
in this Agreement:—
“Additional
Termination Event”
has the
meaning specified in Section 5(b).
“Affected
Party”
has the
meaning specified in Section 5(b).
“Affected
Transactions”
means
(a) with respect to any Termination Event consisting of an Illegality,
Tax Event
or Tax Event Upon Merger, all Transactions affected by the occurrence of
such
Termination Event and (b) with respect to any other Termination Event,
all
Transactions.
“Affiliate”
means,
subject to the Schedule, in relation to any person, any entity controlled,
directly or indirectly, by the person, any entity that controls, directly
or
indirectly, the person or any entity directly or indirectly under common
control
with the person. For this purpose, “control” of any entity or person means
ownership of a majority of the voting power of the entity or
person.
“Applicable
Rate”
means:—
(a) in
respect of obligations payable or deliverable (or which would have been
but for
Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in
respect of an obligation to pay an amount under Section 6(e) of either
party
from and after the date (determined in accordance with Section 6(d)(ii))
on
which that amount is payable, the Default Rate;
(c) in
respect of all other obligations payable or deliverable (or which would
have
been but for
Section
2(a)(iii)) by a Non-defaulting Party, the Non-default Rate; and
(d) in
all
other cases, the Termination Rate.
“Burdened
Party”
has the
meaning specified in Section 5(b).
“Change
in Tax Law”
means
the enactment, promulgation, execution or ratification of, or any change
in or
amendment to, any law (or in the application or official interpretation
of any
law) that occurs on or after the date on which the relevant Transaction
is
entered into.
“consent”
includes
a consent, approval, action, authorisation, exemption, notice, filing,
registration or exchange control consent.
“Credit
Event Upon Merger”
has the
meaning specified in Section 5(b).
“Credit
Support Document”
means
any agreement or instrument that is specified as such in this Agreement.
“Credit
Support Provider”
has the
meaning specified in the Schedule.
“Default
Rate”
means a
rate per annum equal to the cost (without proof or evidence of any actual
cost)
to the relevant payee (as certified by it) if it were to fund or of funding
the
relevant amount plus 1% per annum.
“Defaulting
Party”
has the
meaning specified in Section 6(a).
“Early
Termination Date”
means
the date determined in accordance with Section 6(a) or 6(b)(iv).
“Event
of Default”
has the
meaning specified in Section 5(a) and, if applicable, in the
Schedule.
“Illegality”
has the
meaning specified in Section 5(b).
“Indemnifiable
Tax”
means
any Tax other than a Tax that would not be imposed in respect of a payment
under
this Agreement but for a present or former connection between the jurisdiction
of the government or taxation authority imposing such Tax and the recipient
of
such payment or a person related to such recipient (including, without
limitation, a connection arising from such recipient or related person
being or
having been a citizen or resident of such jurisdiction, or being or having
been
organised, present or engaged in a trade or business in such jurisdiction,
or
having or having had a permanent establishment or fixed place of business
in
such jurisdiction, but excluding a connection arising solely from such
recipient
or related person having executed, delivered, performed its obligations
or
received a payment under, or enforced, this Agreement or a Credit Support
Document).
“law”
includes
any treaty, law, rule or regulation (as modified, in the case of tax matters,
by
the practice of any relevant governmental revenue authority) and “lawful” and
“unlawful” will be construed accordingly.
“Local
Business Day”
means,
subject to the Schedule, a day on which commercial banks are open for business
(including dealings in foreign exchange and foreign currency deposits)
(a) in
relation to any obligation under Section 2(a)(i), in the place(s) specified
in
the relevant Confirmation or, if not so specified, as otherwise agreed
by the
parties in writing or determined pursuant to provisions contained, or
incorporated by reference, in this Agreement, (b) in relation to any other
payment, in the place where the relevant account is located and, if different,
in the principal financial centre, if any, of the currency of such payment,
(c)
in relation to any notice or other communication, including notice contemplated
under Section 5(a)(i), in the city specified in the address for notice
provided
by the recipient and, in the case of a notice contemplated by Section 2(b),
in
the place where the relevant new account is to be located and (d) in relation
to
Section 5(a)(v)(2), in the relevant locations for performance with respect
to
such Specified Transaction.
“Loss”
means,
with respect to this Agreement or one or more Terminated Transactions,
as the
case may be, and a party, the Termination Currency Equivalent of an amount
that
party reasonably determines in good faith to be its total losses and costs
(or
gain, in which case expressed as a negative number) in connection with
this
Agreement or that Terminated Transaction or group of Terminated Transactions,
as
the case may be, including any loss of bargain, cost of funding or, at
the
election of such party but without duplication, loss or cost incurred as
a
result of its terminating, liquidating, obtaining or reestablishing any
hedge or
related trading position (or any gain resulting from any of them). Loss
includes
losses and costs (or gains) in respect of any payment or delivery required
to
have been made (assuming satisfaction of each applicable condition precedent)
on
or before the relevant Early Termination Date and not made, except, so
as to
avoid duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies.
Loss
does not include a party’s legal fees and out-of-pocket expenses referred to
under Section 11. A party will determine its Loss as of the relevant Early
Termination Date, or, if that is not reasonably practicable, as of the
earliest
date thereafter as is reasonably practicable. A party may (but need not)
determine its Loss by reference to quotations of relevant rates or prices
from
one or more leading dealers in the relevant markets.
“Market
Quotation”
means,
with respect to one or more Terminated Transactions and a party making
the
determination, an amount determined on the basis of quotations from Reference
Market-makers. Each quotation will be for an amount, if any, that would
be paid
to such party (expressed as a negative number) or by such party (expressed
as a
positive number) in consideration of an agreement between such party (taking
into account any existing Credit Support Document with respect to the
obligations of such party) and the quoting Reference Market-maker to enter
into
a transaction (the “Replacement Transaction”) that would have the effect of
preserving for such party the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that date. For this purpose,
Unpaid
Amounts in respect of the Terminated Transaction or group of Terminated
Transactions are to be excluded but, without limitation, any payment or
delivery
that would, but for the relevant Early Termination Date, have been required
(assuming satisfaction of each applicable condition precedent) after that
Early
Termination Date is to be included. The Replacement Transaction would be
subject
to such documentation as such party and the Reference Market-maker may,
in good
faith, agree. The party making the determination (or its agent) will request
each Reference Market-maker to provide its quotation to the extent reasonably
practicable as of the same day and time (without regard to different time
zones)
on or as soon as reasonably practicable after the relevant Early Termination
Date. The day and time as of which those quotations are to be obtained
will be
selected in good faith by the party obliged to make a determination under
Section 6(e), and, if each party is so obliged, after consultation with
the
other. If more than three quotations are provided, the Market Quotation
will be
the arithmetic mean of the quotations, without regard to the quotations
having
the highest and lowest values. If exactly three such quotations are provided,
the Market Quotation will be the quotation remaining after disregarding
the
highest and lowest quotations. For this purpose, if more than one quotation
has
the same highest value or lowest value, then one of such quotations shall
be
disregarded. If fewer than three quotations are provided, it will be deemed
that
the Market Quotation in respect of such Terminated Transaction or group
of
Terminated Transactions cannot be determined.
“Non-default
Rate”
means a
rate per annum equal to the cost (without proof or evidence of any actual
cost)
to the Non-defaulting Party (as certified by it) if it were to fund the
relevant
amount.
“Non-defaulting
Party”
has the
meaning specified in Section 6(a).
“Office”
means a
branch or office of a party, which may be such party’s head or home
office.
“Potential
Event of Default”
means
any event which, with the giving of notice or the lapse of time or both,
would
constitute an Event of Default.
“Reference
Market-makers”
means
four leading dealers in the relevant market selected by the party determining
a
Market Quotation in good faith (a) from among dealers of the highest credit
standing which satisfy all the criteria that such party applies generally
at the
time in deciding whether to offer or to make an extension of credit and
(b) to
the extent practicable, from among such dealers having an office in the
same
city.
“Relevant
Jurisdiction”
means,
with respect to a party, the jurisdictions (a) in which the party is
incorporated, organised, managed and controlled or considered to have its
seat,
(b) where an Office through which the party is acting for purposes of this
Agreement is located, (c) in which the party executes this Agreement and
(d) in
relation to any payment, from or through which such payment is
made.
“Scheduled
Payment Date”
means a
date on which a payment or delivery is to be made under Section 2(a)(i)
with
respect to a Transaction.
“Set-off”
means
set-off, offset, combination of accounts, right of retention or withholding
or
similar right or requirement to which the payer of an amount under Section
6 is
entitled or subject (whether arising under this Agreement, another contract,
applicable law or otherwise) that is exercised by, or imposed on, such
payer.
“Settlement
Amount”
means,
with respect to a party and any Early Termination Date, the sum
of:—
(e) the
Termination Currency Equivalent of the Market Quotations (whether positive
or
negative) for each Terminated Transaction or group of Terminated Transactions
for which a Market Quotation is determined; and
(f) such
party’s Loss (whether positive or negative and without reference to any Unpaid
Amounts) for each Terminated Transaction or group of Terminated Transactions
for
which a Market Quotation cannot be determined or would not (in the reasonable
belief of the party making the determination) produce a commercially reasonable
result.
“Specified
Entity”
has the
meanings specified in the Schedule.
“Specified
Indebtedness”
means,
subject to the Schedule, any obligation (whether present or future, contingent
or otherwise, as principal or surety or otherwise) in respect of borrowed
money.
“Specified
Transaction”
means,
subject to the Schedule, (a) any transaction (including an agreement with
respect thereto) now existing or hereafter entered into between one party
to
this Agreement (or any Credit Support Provider of such party or any applicable
Specified Entity of such party) and the other party to this Agreement (or
any
Credit Support Provider of such other party or any applicable Specified
Entity
of such other party) which is a rate swap transaction, basis swap, forward
rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option
or any other similar transaction (including any option with respect to
any of
these transactions), (b) any combination of these transactions and (c)
any other
transaction identified as a Specified Transaction in this Agreement or
the
relevant confirmation.
“Stamp
Tax”
means
any stamp, registration, documentation or similar tax.
“Tax”
means
any present or future tax, levy, impost, duty, charge, assessment or fee
of any
nature (including interest, penalties and additions thereto) that is imposed
by
any government or other taxing authority in respect of any payment under
this
Agreement other than a stamp, registration, documentation or similar
tax.
“Tax
Event”
has the
meaning specified in Section 5(b).
“Tax
Event Upon Merger”
has the
meaning specified in Section 5(b).
“Terminated
Transactions”
means
with respect to any Early Termination Date (a) if resulting from a Termination
Event, all Affected Transactions and (b) if resulting from an Event of
Default,
all Transactions (in either case) in effect immediately before the effectiveness
of the notice designating that Early Termination Date (or, if “Automatic Early
Termination” applies, immediately before that Early Termination
Date).
“Termination
Currency”
has the
meaning specified in the Schedule.
“Termination
Currency Equivalent”
means,
in respect of any amount denominated in the Termination Currency, such
Termination Currency amount and, in respect of any amount denominated in
a
currency other than the Termination Currency (the “Other Currency”), the amount
in the Termination Currency determined by the party making the relevant
determination as being required to purchase such amount of such Other Currency
as at the relevant Early Termination Date, or, if the relevant Market Quotation
or Loss (as the case may be), is determined as of a later date, that later
date,
with the Termination Currency at the rate equal to the spot exchange rate
of the
foreign exchange agent (selected as provided below) for the purchase of
such
Other Currency with the Termination Currency at or about 11:00 a.m. (in
the city
in which such foreign exchange agent is located) on such date as would
be
customary for the determination of such a rate for the purchase of such
Other
Currency for value on the relevant Early Termination Date or that later
date.
The foreign exchange agent will, if only one party is obliged to make a
determination under Section 6(e), be selected in good faith by that party
and
otherwise will be agreed by the parties.
“Termination
Event”
means an
Illegality, a Tax Event or a Tax Event Upon Merger or, if specified to
be
applicable, a Credit Event Upon Merger or an Additional Termination
Event.
“Termination
Rate”
means a
rate per annum equal to the arithmetic mean of the cost (without proof
or
evidence of any actual cost) to each party (as certified by such party)
if it
were to fund or of funding such amounts.
“Unpaid
Amounts”
owing to
any party means, with respect to an Early Termination Date, the aggregate
of (a)
in respect of all Terminated Transactions, the amounts that became payable
(or
that would have become payable but for Section 2(a)(iii)) to such party
under
Section 2(a)(i) on or prior to such Early Termination Date and which remain
unpaid as at such Early Termination Date and (b) in respect of each Terminated
Transaction, for each obligation under Section 2(a)(i) which was (or would
have
been but for Section 2(a)(iii)) required to be settled by delivery to such
party
on or prior to such Early Termination Date and which has not been so settled
as
at such Early Termination Date, an amount equal to the fair market value
of that
which was (or would have been) required to be delivered as of the originally
scheduled date for delivery, in each case together with (to the extent
permitted
under applicable law) interest, in the currency, of such amounts, from
(and
including) the date such amounts or obligations were or would have been
required
to have been paid or performed to (but excluding) such Early Termination
Date,
at the Applicable Rate. Such amounts of interest will be calculated on
the basis
of daily compounding and the actual number of days elapsed. The fair market
value of any obligation referred to in clause (b) above shall be reasonably
determined by the party obliged to make the determination under Section
6(e) or,
if each party is so obliged, it shall be the average of the Termination
Currency
Equivalents of the fair market values reasonably determined by both
parties.
IN
WITNESS WHEREOF the parties have executed this document on the respective
dates
specified below with
effect from the date specified on the first page of this document.
|
CREDIT
SUISSE INTERNATIONAL
|
U.S.
BANK NATIONAL ASSOCIATION,
NOT
INDIVIDUALLY, BUT SOLELY AS
TRUSTEE
ON BEHALF OF
THE
SUPPLEMENTAL INTEREST TRUST
CREATED
UNDER THE
POOLING
AND SERVICING AGREEMENT
FOR
THE HOME
EQUITY MORTGAGE
TRUST
2006-5,
HOME EQUITY MORTGAGE PASS THROUGH CERTIFICATES, SERIES
2006-5
|
|
("Party
A")
|
("Party
B")
|
|
By:
_______________________________
Name:
Title:
|
|
|
By:
_______________________________
Name:
Title:
|
By:
_______________________________
Name:
Title:
|
Swap
Schedule
SCHEDULE
to
the
Master
Agreement
dated
as
of October 31, 2006
between
|
CREDIT
SUISSE
INTERNATIONAL
|
And
|
U.S.
BANK NATIONAL ASSOCIATION,
NOT
INDIVIDUALLY, BUT SOLELY
AS
TRUSTEE
ON BEHALF OF
THE
SUPPLEMENTAL INTEREST
TRUST
CREATED
UNDER THE
POOLING
AND SERVICING
AGREEMENT
FOR THE HOME
EQUITY
MORTGAGE TRUST
2006-5,
HOME EQUITY
MORTGAGE
PASS THROUGH
CERTIFICATES,
SERIES 2006-5
|
|
_________________________________
("Party
A")
|
_________________________________________
("Party
B")
|
Part
1
Termination
Provisions.
(a) "Specified
Entity"
means in
relation to Party A for the purpose of:
|
Section
5(a)(v),
|
Not
Applicable
|
|
Section
5(a)(vi),
|
Not
Applicable
|
|
Section
5(a)(vii),
|
Not
Applicable
|
|
Section
5(b)(iv),
|
Not
Applicable
|
and
in
relation to Party B for the purpose of:
|
Section
5(a)(v),
|
Not
Applicable
|
|
Section
5(a)(vi),
|
Not
Applicable
|
|
Section
5(a)(vii),
|
Not
Applicable
|
|
Section
5(b)(iv),
|
Not
Applicable
|
(b) "Specified
Transaction"
will
have the meaning specified in Section 14 of this Agreement.
(c) Certain
Events of Default.
The
following Events of Default will apply to the parties as specified below,
and
the definition of "Event of Default" in Section 14 is deemed to be modified
accordingly:
Section
5(a)(i) (Failure
to Pay or Deliver)
will
apply to Party A and Party B.
Section
5(a)(ii) (Breach
of Agreement)
will
not apply to Party A or Party B.
Section
5(a)(iii) (Credit
Support Default)
will
apply to Party A and will not apply to Party B, unless Party A has posted
collateral under the Credit Support Annex, in which case it will apply
to Party
B.
Section
5(a)(iv) (Misrepresentation)
will
not apply to Party A or Party B.
Section
5(a)(v) (Default
under Specified Transaction)
will
not apply to Party A or Party B.
Section
5(a)(vi) (Cross
Default)
will
not apply to Party A or Party B.
Section
5(a)(vii) (Bankruptcy)
will
apply to Party A and Party B;
provided
that
clause (2) thereof shall not apply to Party B.
Section
5(a)(viii) (Merger
without Assumption)
will
apply to Party A and will not apply to Party B.
(d) Termination
Events.
The
following Termination Events will apply to the parties as specified
below:
Section
5(b)(i) (Illegality)
will
apply to Party A and Party B.
Section
5(b)(ii) (Tax
Event)
will
apply to Party A and Party B.
Section
5(b)(iii) (Tax
Event upon Merger)
will
apply to Party A and Party B.
Section
5(b)(iv) (Credit
Event upon Merger)
will
not apply to Party A or Party B.
(e) The
"Automatic
Early Termination"
provision of Section 6(a) of this Agreement will not apply to Party A or
Party
B.
(f) Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
|
(i)
|
Loss
will apply.
|
|
(ii)
|
The
Second Method will apply.
|
(g) "Termination
Currency"
means
United States Dollars.
(h) Additional
Termination Events.
The
following Additional Termination Events will apply, in each case with respect
to
Party B as the sole Affected Party (unless otherwise provided
below):
15. (i)Party
A
fails to comply with the Downgrade Provisions as set forth in Part 5(b).
For all
purposes of this Agreement, Party A shall be the sole Affected Party with
respect to the occurrence of a Termination Event described in this Part
1(h)(i).
|
(ii)
|
The
Pooling and Servicing Agreement dated
as of October 1, 2006 among Credit Suisse First Boston Mortgage
Securities
Corp., as Depositor, DLJ Mortgage Capital, Inc., as Seller, Ocwen
Loan
Servicing, LLC, as Servicer, Select Portfolio Servicing, Inc.,
as Master
Servicer and U.S. Bank National Association, as Trustee, as
amended and supplemented from time to time (the
PSA
or
the Pooling
and Servicing Agreement)
or
other transaction document is amended or modified without the
prior
written consent of Party A, where such consent is required under
the terms
of the PSA (such consent not to be unreasonably
withheld).
|
(iii)
The
termination of the Trust pursuant to Article IX of the PSA, provided,
however, that notwithstanding Section 6(b)(iv) of this Agreement, either
party
may designate an Early Termination Date in respect of this Additional
Termination Event.
|
(iv)
|
Upon
the occurrence of a Swap Disclosure Event (as defined in Part
5(u) below)
Party A has not, within 10 days after such Swap Disclosure Event,
complied
with any of the provisions set forth in Part 5(u)(iii) below.
For all
purposes of this Agreement, Party A shall be the sole Affected
Party with
respect to the occurrence of an Additional Termination Event
described in
this Part 1(h)(iv).
|
Part
2
Tax
Representations.
(a) Payer
Representations.
For the
purpose of Section 3(e) of this Agreement, Party A will make the following
representation and Party B will make the following representation:
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment
(other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement. In making this representation,
it
may rely on (i) the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement, (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and
the
accuracy and effectiveness of any document provided by the other party
pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii) the satisfaction
of
the agreement of the other party contained in Section 4(d) of this Agreement,
provided
that it
shall not be a breach of this representation where reliance is placed on
clause
(ii) and the other party does not deliver a form or document under Section
4(a)(iii) of this Agreement by reason of material prejudice to its legal
or
commercial position.
(b) Payee
Representations.
For the
purpose of Section 3(f) of this Agreement, Party A and Party B make the
representations specified below, if any:
| (i) |
Party
A makes the following representation to Party
B:
|
| (A) |
Party
A is entering into each Transaction in the ordinary course of its
trade
as, and is, a recognized UK bank as defined in Section 840A of
the UK
Income and Corporation Taxes Act of 1988.
|
| (B) |
Party
A has been approved as a Withholding Foreign Partnership by the
US
Internal Revenue Service.
|
| (C) |
Party
A's Withholding Foreign Partnership Employer Identification Number
is
00-0000000.
|
| (D) |
Party
A is a partnership that agrees to comply with any withholding obligation
under Section 1446 of the Internal Revenue
Code.
|
| (ii) |
Party
B makes
the
following representation to Party A:
|
The
beneficial owner of the payments made to it under this Agreement is either
(i) a
“U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of United
States Treasury Regulations) for United States federal income tax purposes
and
an “Exempt recipient” within the meaning of section 1.6049-4(c)(1)(ii) of United
States Treasury Regulations, or (ii) a “non-U.S. branch of a foreign person” as
that term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury
Regulations (the "Regulations") for United States federal income tax purposes,
and it is a "foreign person" as that term is used in section 1.6041-4(a)(4)
of
the Regulations for United States federal income tax purposes.
Part
3
Agreement
to Deliver Documents.
For
the
purpose of Sections 4(a)(i) and (ii) of this Agreement, each party agrees
to
deliver the following documents, as applicable:
(a) Tax
forms, documents or certificates to be delivered are:— None
(b)
Other
documents to be delivered are:—
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and Party B
|
Certified
copy of the board of directors resolution (or equivalent authorizing
documentation) which sets forth the authority of each signatory
to this
Agreement and each Credit Support Document (if any) signing on
its behalf
and the authority of such party to enter into Transactions contemplated
and performance of its obligations hereunder.
|
Concurrently
with the execution and delivery of this Agreement.
|
Yes
|
|
Party
A and Party B
|
Incumbency
certificate (or, if available the current authorized signature
book or
equivalent authorizing documentation) specifying the names, titles,
authority and specimen signatures of the persons authorized to
execute
this Agreement which sets forth the specimen signatures of each
signatory
to this Agreement, each Confirmation and each Credit Support
Document (if
any) signing on its behalf.
|
Concurrently
with the execution and delivery of this Agreement unless previously
delivered and still in full force and effect.
|
Yes
|
|
Party
A and B
|
An
opinion of counsel to such party (or, in the case of Party B,
counsel to
the Trustee) as to the enforceability of this Agreement that
is reasonably
satisfactory in form and substance to the other party.
|
Concurrently
with the execution and delivery of the Confirmation unless previously
delivered and still in full force and effect.
|
No
|
|
Party
B
|
All
opinions of counsel to Party B and counsel to the Servicer, delivered
as
of the Closing Date
|
Upon
execution of this Agreement
|
No
|
|
Party
B
|
Such
other information in connection with the Certificates or the
PSA in the
possession of Party B as Party A may reasonably request.
|
Upon
request
|
No
|
|
Party
B
|
An
executed copy of the PSA .
|
Within
30 days after the date of this Agreement.
|
Yes
|
Part
4.
Miscellaneous.
(a) Addresses
for Notices.
For the
purposes of Section 12(a) of this Agreement:
Party
A:
|
(1)
|
Address
for notices or communications to Party A (other than by
facsimile):-
|
|
Address:
|
One
Cabot Square
|
Attention:
|
(1)
|
Head
of Credit Risk Management;
|
|
Xxxxxx
X00 0XX
|
(2)
|
Managing
Director -
|
||
|
England
|
(3)
|
Operations
Department;
|
||
|
Managing
Director - Legal Department
|
Director
- Legal Department
|
Telex
No.:
|
264521
|
Answerback:
|
CSI
G
|
|
|
(For
all purposes.)
|
(2) For
the
purpose of facsimile notices or communications under this Agreement (other
than
a notice or communication under Section 5 or 6):-
|
Facsimile
No.:
|
44
20 7888 2686
|
|
|
Attention:
|
Managing
Director - Legal Department
|
Telephone
number for oral confirmation of receipt of facsimile in legible form: 44
20 7888
2028
Designated
responsible employee for the purposes of Section 12(a)(iii): Senior Legal
Secretary
a)
Party
B:
Address
for notices or communications to Party B:
U.S.
Bank
National Association, Trustee
00
Xxxxxxxxxx Xxxxxx
Xx.
Xxxx,
XX 00000
Attn:
Corporate Trust Structured Finance, Ref. CSFBMSC HEMT 2006-5
(b) Process
Agent. For
the
purposes of Section 13(c) of this Agreement:
Party
A
appoints as its Process Agent:
Credit
Suisse Securities (USA) LLC
Eleven
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
General
Counsel
Legal
and
Compliance Department
Party
B
appoints as its Process Agent: Not applicable.
(c) Offices.
With
respect to Party A, the provisions of Section 10(a) will apply to this
Agreement.
(d) Multibranch
Party.
For the
purpose of Section 10(c) of this Agreement:
Party
A
is not a Multibranch Party.
Party
B
is not a Multibranch Party.
(e) Calculation
Agent.
The
Calculation Agent is Party A.
(f) Credit
Support Document.
Credit
Support Document means:-
With
respect to Party A: The Credit Support Annex and any guarantee that is
provided
to Party B pursuant to Part 5 (b) below.
With
respect to Party B: The Credit Support Annex.
(g) Credit
Support Provider.
Credit
Support Provider means in relation to Party A: Not applicable or if a guarantee
is provided to Party B pursuant to Part 5 (b) below, the guarantor providing
such guarantee.
Credit
Support Provider means in relation to Party B: Not applicable.
(h) Governing
Law.
This
Agreement and, to the fullest extent permitted by applicable law, all matters
arising out of or relating in any way to this Agreement will be governed
by and
construed in accordance with the laws of the State of New York (without
reference to choice of law doctrine other than New York General Obligation
Law
Sections 5-1401 and 5-1402).
(i) Netting
of Payments.
Subparagraph (ii) of Section 2(c) of this Agreement will apply to all
Transactions.
(j) "Affiliate."
Each of
Party A and Party B shall be deemed to have no Affiliates.
Part
5.
Other
Provisions.
|
(a)
|
Definitions.
|
Any
capitalized terms used but not otherwise defined in this Agreement shall
have
the meanings assigned to them (or incorporated by reference) in the PSA.
In the
event of any inconsistency between the terms of this Agreement and the
terms of
the PSA, this Agreement will govern.
(b)
Downgrade
Provisions.
(1) It
shall
be a collateralization event (Collateralization
Event)
if:
(A)
(i) the unsecured, unguaranteed and otherwise unsupported long-term senior
debt obligations of Party A are rated below "A1" by Xxxxx'x Investors
Service, Inc. (Moody's)
or are
rated "A1" by Moody's and such rating is on watch for possible downgrade
(but
only for so long as it is on watch for possible downgrade) and (ii) the
unsecured, unguaranteed and otherwise unsupported short-term debt obligations
of
Party A are rated below "P-1" by Moody's, or are rated "P-1" by Moody's and
such rating is on watch for possible downgrade (but only for so long as
it is on
watch for possible downgrade),
(B)
no
short-term rating is available from Moody’s and the unsecured, unguaranteed and
otherwise unsupported long-term senior debt obligations of Party A are
rated below "Aa3" by Moody's, or are rated "Aa3" by Moody's and such rating
is
on watch for possible downgrade (but only for so long as it is on watch
for
possible downgrade),
(C)
either (i) the unsecured, unguaranteed and otherwise unsupported short-term
debt
obligations of Party A are rated below "A-1" by Standard & Poor's
Rating Services, a division of The XxXxxx-Xxxx Companies, Inc. (S&P)
or (ii)
if Party A does not have a short-term rating from S&P, the unsecured,
unguaranteed and otherwise unsupported long-term senior debt obligations
of
Party A are rated below "A+" by S&P, or
(D)
either (i) the unsecured, unguaranteed and otherwise unsupported long-term
senior debt obligations of Party A are rated below "A" by Fitch, Inc.
(Fitch),
or
(ii) the unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of Party A are rated below "F-1" by Fitch.
During
any period in which a Collateralization Event is occurring, Party A shall,
at its own expense and within thirty (30) calendar days of such
Collateralization Event, either (i) post collateral according to the terms
of
the 1994 ISDA Credit Support Annex to this Schedule, including Paragraph
13
thereof (the Credit
Support Annex),
(ii)
furnish a guarantee of Party A's obligations under this Agreement that
is
subject to the satisfaction of the S&P Ratings Condition from a guarantor
that satisfies the Hedge Counterparty Ratings Requirement (as defined herein),
or (iii) obtain a substitute counterparty (and provide prior written notice
to
each Rating Agency with respect thereto) that (a) is reasonably acceptable
to
Party B, (b) satisfies the Hedge Counterparty Ratings Requirement and (c)
assumes the obligations of Party A under this Agreement (through an
assignment and assumption agreement in form and substance reasonably
satisfactory to Party B) or replaces the outstanding Transactions hereunder
with transactions on identical terms, except that Party A shall be replaced
as counterparty, provided
that
such substitute counterparty, as of the date of such assumption or replacement,
must not, as a result thereof, be required to withhold or deduct on account
of
tax under the Agreement or the new transactions, as applicable, and such
assumption or replacement must not lead to a termination event or event
of
default occurring in respect of the new transactions, as applicable,
provided further,
that
satisfaction of the S&P Ratings Condition shall be required for any transfer
of any Transactions under this clause (iii) unless such transfer is in
connection with the assignment and assumption of this Agreement by such
substitute counterparty without modification of its terms, other than the
following terms: party name, dates relevant to the effective date of such
transfer, tax representations (provided that the representations in Part
2(a)
are not modified) and any other representations regarding the status of
the
substitute counterparty of the type included in Section (c) of this Part
5 and
notice information (in which case, Party A shall provide written notice
to
S&P with respect thereto). To the extent that Party A elects or is required
to post collateral pursuant to this Part 5(b)(1), Party A shall deliver
to each
Rating Agency within thirty (30) calendar days of the occurrence of such
Collateralization Event an opinion acceptable to S&P as to the
enforceability of the Credit Support Annex and which confirms that,
notwithstanding the commencement of a case under the Bankruptcy Code with
respect to Party A, the collateral will (a) be available to meet swap
obligations notwithstanding the automatic stay and (b) if delivered
pre-bankruptcy, will not be subject to recovery as preferences or constructive
fraudulent conveyances, in each case subject to standard qualifications
and
assumptions.
Hedge
Counterparty Ratings Requirement
shall
mean (a) either (i) the unsecured, unguaranteed and otherwise unsupported
short-term debt obligations of the substitute counterparty are rated at
least
"A-1" by S&P or (ii) if the substitute counterparty does not have a
short-term rating from S&P, the unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of the substitute counterparty
are
rated at least "A+" by S&P, (b) either (i) the unsecured, unguaranteed and
otherwise unsupported long-term senior debt obligations of such substitute
counterparty are rated at least "A1" by Moody’s (and if rated "A1" by Moody’s,
such rating is not on watch for possible downgrade) and the unsecured,
unguaranteed and otherwise unsupported short-term debt obligations of such
substitute counterparty are rated at least "P-1" by Moody’s, or (ii) if such
substitute counterparty does not have a short-term debt rating from Moody’s, the
unsecured, unguaranteed and otherwise unsupported long-term senior debt
obligations of such substitute counterparty are rated at least "Aa3" by
Moody’s
(and if rated "Aa3" by Moody’s, such rating is not on watch for possible
downgrade), and (c) either (i) the unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of such substitute counterparty
are rated at least "A" by Fitch or (ii) the unsecured, unguaranteed and
otherwise unsupported short-term debt obligations of such substitute
counterparty are rated at least "F1" by Fitch. For the purpose of this
definition, no direct or indirect recourse against one or more shareholders
of
the substitute counterparty (or against any Person in control of, or controlled
by, or under common control with, any such shareholder) shall be deemed
to
constitute a guarantee, security or support of the obligations of the substitute
counterparty.
S&P
Ratings Condition
shall
mean prior written confirmation from S&P that a proposed action will not
cause the downgrade or withdrawal of the then current ratings of any outstanding
Certificates.
Rating
Agency
shall
mean each of S&P, Xxxxx'x, Fitch and Dominion Bond Rating Service,
Inc.
(2) It
shall
be a ratings event (Ratings
Event)
if at
any time after the date hereof Party A shall fail to satisfy the Hedge
Counterparty Ratings Threshold. Hedge
Counterparty Ratings Threshold
shall
mean (A) the unsecured, unguaranteed and otherwise unsupported long-term
senior
debt obligations of Party A are rated at least "BBB-" by S&P, (B) the
unsecured, unguaranteed and otherwise unsupported long-term senior debt
obligations of Party A are rated at least "A2" by Moody’s (or "A1" if Party
A does not have a short term rating from Moody's) (and such rating is not
on
watch for possible downgrade) and the unsecured, unguaranteed and otherwise
unsupported short-term debt obligations of Party A are rated at least "P-1"
by Moody’s,
and (C)
either (i) the unsecured, unguaranteed and otherwise unsupported long-term
senior debt obligations of Party A are rated at least "BBB+" by Fitch, or
(ii) the unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of Party A are rated at least "F-2" by Fitch.
(3) Following
a Ratings Event, Party A shall take the following actions:
(a) Party A,
at its sole expense, shall (i) commence actively to seek to obtain a substitute
counterparty and, in the case of a Ratings Event pursuant to subparagraph
(A) of
the definition of "Hedge Counterparty Ratings Threshold" or if at any time
after
the date hereof S&P withdraws all of Party A's ratings and no longer rates
Party A, Party A shall within 10 Business Days, subject to extension upon
S&P Ratings Condition, of the Ratings Event obtain a substitute counterparty
(and provide written notice to each Rating Agency with respect thereto),
that
(A) satisfies the Hedge Counterparty Ratings Requirement and (B) assumes
the
obligations of Party A under this Agreement (through an assignment and
assumption agreement in form and substance reasonably satisfactory to
Party B) or replaces the outstanding Transactions hereunder with
transactions on identical terms, except that Party A shall be replaced as
counterparty, provided
that
such substitute counterparty, as of the date of such assumption or replacement,
must not, as a result thereof, be required to withhold or deduct on account
of
tax under the Agreement or the new transactions, as applicable, and such
assumption or replacement must not lead to a termination event or event
of
default occurring in respect of the new transactions, as applicable;
provided
further
that
satisfaction of the S&P Ratings Condition shall be required within such 10
Business Days or longer period, as applicable, for any transfer of any
Transaction under this clause (a)(i) unless such transfer is in connection
with
the assignment and assumption of this Agreement without modification of
its
terms by such counterparty, other than the following terms: party name,
dates
relevant to the effective date of such transfer, tax representations (provided
that the representations in Part 2(a) are not modified) and any other
representations regarding the status of the substitute counterparty of
the type
included in Section (c) of this Part 5 and notice information (in which
case,
Party A shall provide written notice to S&P with respect thereto) and (ii)
be required to post collateral as set forth in (b) below;
(b) in
the
case of a Ratings Event pursuant to subparagraph (B) or (C) of the definition
of
"Hedge Counterparty Ratings Threshold", if Party A has not obtained a
substitute counterparty as set forth in (3)(a) above within 30 days of the
Ratings Event, then Party A shall continue to seek a substitute
counterparty and, on or prior to the expiration of such period, post collateral
according to the terms of the Credit Support Annex. Notwithstanding anything
contained herein to the contrary, if Party A is required to transfer its
rights
and obligations under this Agreement pursuant to this Part 5(b)(3) as a
result
of a rating issued by S&P, Party A shall, at all times prior to such
transfer, be required to post collateral in accordance with (i) the terms
of the
Credit Support Annex or (ii) an agreement with Party B providing for the
posting
of collateral, which agreement shall be subject to Rating Agency Approval
and
will require Party A to post the required collateral.
Rating
Agency Approval
shall
mean prior written confirmation from S&P, Moody's, Dominion Bond Rating
Service that such amendment will not cause them to downgrade or withdraw
its
then-current ratings of any outstanding Certificates.
(c) Section
3(a) of this Agreement is hereby amended to include the following additional
representations after paragraph 3(a)(v):
(vi)
Eligible
Contract Participant.
It is an
"eligible contract participant" as defined in section 1a(12) of the U.S.
Commodity Exchange Act.
(vii)
Individual
Negotiation.
This
Agreement and each Transaction hereunder is subject to individual negotiation
by
the parties.
(viii)
Relationship
between Party A and Party B.
Subject
as provided in Part 5(g), each of Party A and Party B will be deemed to
represent to the other on the date on which it enters into a Transaction
or an
amendment thereof that (absent a written agreement between Party A and
Party B
that expressly imposes affirmative obligations to the contrary for that
Transaction):
(1) Principal.
It is
acting as principal and not as agent when entering into this Agreement
and each
Transaction.
(2) Non-Reliance.
It
is
acting for its own account and it has made its own independent decisions
to
enter into that Transaction and as to whether that Transaction is appropriate
or
proper for it based upon its own judgment and upon advice from such advisors
as
it has deemed necessary. It is not relying on any communication (written
or
oral) of the other party as investment advice or as a recommendation to
enter
into that Transaction; it being understood that information and explanations
related to the terms and conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into that Transaction. No
communication (written or oral) received from the other party shall be
deemed to
be an assurance or guarantee as to the expected results of that
Transaction.
(3) Evaluation
and Understanding. It
is
capable of evaluating and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the terms,
conditions and risks of this Agreement and each Transaction hereunder.
It is
also capable of assuming, and assumes, all financial and other risks of
this
Agreement and each Transaction hereunder.
(4) Status
of Parties. The
other
party is not acting as a fiduciary or an advisor for it in respect of that
Transaction.
(5)
Eligible
Contract Participant. It
is an
"eligible swap participant" as such term is defined in Section 35.1 (b)
(2) of
the regulations (17 C.F.R. 35) promulgated under, and an "eligible contract
participant" as defined in Section 1 (a)(12) of the Commodity Exchange
Act, as
amended.
(d) Section
4
is hereby amended by adding the following new agreement:
(f)
Actions
Affecting Representations. Party
B
agrees not to take any action during the term of this Agreement or any
Transaction hereunder that renders or could render any of the representations
and warranties in this Agreement untrue, incorrect, or incomplete, and,
if any
event or condition occurs that renders or could render any such representation
untrue, incorrect, or incomplete, Party B will immediately give written
notice
thereof to Party A.
(e) Transfer.
Section
7
is hereby amended to read in its entirety as follows:
Except
as
stated under Section 6(b)(ii), provided that to the extent Party A makes
a
transfer pursuant to Section 6(b)(ii) it will provide a prior written notice
to
the Rating Agencies of such transfer, neither Party A nor Party B is permitted
to assign, novate or transfer (whether by way of security or otherwise)
as a
whole or in part any of its rights,
obligations or interests under this Agreement or any Transaction without
the
prior written consent of the other party; provided,
however,
that
(i) Party A may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer
of
substantially all of its assets to, another entity, or an incorporation,
reincorporation or reconstitution, and (ii) Party A may transfer this Agreement
to any Person that is an office, branch or affiliate of Party A (any such
Person, office, branch or affiliate, a Transferee)
on at
least five Business Days’ prior written notice to Party B; provided
that,
with respect to clause (ii), (A) as of the date of such transfer the Transferee
will not be required to withhold or deduct on account of a Tax from any
payments
under this Agreement unless the Transferee will be required to make payments
of
additional amounts pursuant to Section 2(d)(i)(4) of this Agreement in
respect
of such Tax; (B) a Termination Event or Event of Default does not occur
under
this Agreement as a result of such transfer; (C) such notice is accompanied
by a
written instrument pursuant to which the Transferee acquires and assumes
the
rights and obligations of Party A so transferred; and (D) Party A will
be
responsible for any costs or expenses incurred in connection with such
transfer.
Party B will execute such documentation as is reasonably deemed necessary
by
Party A for the effectuation of any such transfer. Notwithstanding the
foregoing, no transfer shall be made unless the transferring party obtains
a
written acknowledgment from each of the Rating Agencies that, notwithstanding
such transfer, the then-current ratings of the Certificates will not be
reduced
or withdrawn,
provided, however,
that
this provision shall not apply to any transfer that is made pursuant to
the
provisions of Part 5(b) of this Agreement.
Except
as
specified otherwise in the documentation evidencing a transfer, a transfer
of
all the obligations of Party A made in compliance with this Section 7 will
constitute an acceptance and assumption of such obligations (and any related
interests so transferred) by the Transferee, a novation of the transferee
in
place of Party A with respect to such obligations (and any related interests
so
transferred), and a release and discharge by Party B of Party A from, and
an
agreement by Party B not to make any claim for payment, liability, or otherwise
against Party A with respect to, such obligations from and after the effective
date of the transfer.
In
addition, Party A may transfer this Agreement without the prior written
consent
of the Trustee on behalf of Party B but with prior written notice to S&P, to
an Affiliate of Party A that satisfies the Hedge Counterparty Rating
Requirements or that has furnished a guarantee, subject to S&P Ratings
Condition, of the obligations under this Agreement from a guarantor that
satisfies the Hedge Counterparty Rating Requirements; provided that satisfaction
of the S&P Ratings Condition will be required unless such transfer is in
connection with the assignment and assumption of this Agreement by such
an
Affiliate without modification of its terms, other than the following terms:
party name, dates relevant to the effective date of such transfer, tax
representations (provided that the representations in Part 2(a) are not
modified
and that, as of the date of such transfer, the Affiliate will not be required
to
withhold or deduct on account of a Tax from any payments under this Agreement
unless the Affiliate will be required to make payments of additional amounts
pursuant to Section 2(d)(i)(4) of this Agreement in respect of such Tax.)
and
any other representations regarding the status of such an Affiliate the
substitute counterparty of the type included in Section (c) of this Part
5 and
notice information (in which case, Party A shall provide written notice
to
S&P with respect thereto).
(f) Trustee
Capacity. It
is
expressly understood and agreed by the parties hereto that (i) this Agreement
is
executed and delivered by U.S. Bank National Association (the
Supplemental Interest Trust Trustee)
not
individually or personally but solely as trustee of the Supplemental Interest
Trust created pursuant to the PSA (the Supplemental
Interest Trust),
in the
exercise of the powers and authority conferred and vested in it under the
PSA,
(ii) each of the representations, undertakings and agreements herein made
on the
part of the Supplemental Interest Trust is made and intended not as personal
representations, undertakings and agreements by the Supplemental Interest
Trust
Trustee but is made and intended for the purpose of binding only the
Supplemental Interest Trust, (iii) nothing herein contained shall be construed
as creating any liability on the part of the Supplemental Interest Trust
Trustee, individually or personally, to perform any covenant either expressed
or
implied contained herein, all such liability, if any, being expressly waived
by
the parties hereto and by any Person claiming by, through or under the
parties
hereto and (iv) under no circumstances shall the Supplemental Interest
Trust
Trustee be personally liable for the payment of any indebtedness or expenses
of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Supplemental
Interest Trust under this Agreement or any other related documents as to
all of
which recourse shall be had solely to the assets of the Supplemental Interest
Trust in accordance with the terms of the Pooling and Servicing
Agreement.
(g) Proceedings.
Party A
shall not institute against or cause any other person to institute against,
or
join any other person in instituting against Party B or the trust created
pursuant to the Pooling Servicing Agreement, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under
any federal or state bankruptcy, dissolution or similar law, for a period
of one
year and one day, or
if
longer the applicable preference period then in effect,
following indefeasible payment in full of the Certificates.
Nothing
shall preclude, or be deemed to stop, Party A (i) from taking any action
prior
to the expiration of the aforementioned one year and one day period, or
if
longer the applicable preference period then in effect, in (A) any case
or
proceeding voluntarily filed or commenced by Party B or (B) any involuntary
insolvency proceeding filed or commenced by a Person other than Party A,
(ii)
from commencing against Party B or any of the Mortgage Loans any legal
action
which is not a bankruptcy, reorganization, arrangement, insolvency, moratorium,
liquidation or similar proceeding or (iii) from taking any action (not
otherwise
mentioned in this paragraph) which will prevent an impairment of any right
afforded to it under the PSA as a third party beneficiary. This provision
shall
survive termination of this Agreement.
(h) Change
of Account.
Section
2(b) of this Agreement is hereby amended by the addition of the following
after
the word "delivery" in the first line thereof:-
"to
another account in the same
legal
and tax jurisdiction as the original account"
(i) Pooling
and Servicing Agreement.
Party
B
will provide at least ten days’ prior written notice to Party A of any proposed
amendment or modification to the PSA and Party B will
obtain the prior written consent of Party A to any such amendment or
modification, where such consent is required under the terms of the PSA
(such
consent not to be unreasonably withheld).
(j) Set-off.
Notwithstanding
any provision of this Agreement or any other existing or future agreements,
each
of Party A and Party B irrevocably waives as to itself any and all contractual
rights it may have to set off, net, recoup or otherwise withhold or suspend
or
condition its payment or performance of any obligation to the other party
under
this Agreement against any obligation of one party hereto to the other
party
hereto arising outside of this Agreement. The provisions for set-off set
forth
in Section 6(e) of this Agreement shall not apply for purposes of this
Transaction.
(k) Notice
of Certain Events or Circumstances.
Each
party agrees, upon learning of the occurrence or existence of any event
or
condition that constitutes (or that with the giving of notice or passage
of time
or both would constitute) an Event of Default or Termination Event with
respect
to such party, promptly to give the other party notice of such event or
condition (or, in lieu of giving notice of such event or condition in the
case
of an event or condition that with the giving of notice or passage of time
or
both would constitute an Event of Default or Termination Event with respect
to
the party, to cause such event or condition to cease to exist before becoming
an
Event of Default or Termination Event); provided
that
failure to provide notice of such event or condition pursuant to this Part
5(l)
shall not constitute an Event of Default or a Termination Event.
(l) Regarding
Party A.
Party
B
acknowledges and agrees that Party A has had and will have no involvement
in
and, accordingly Party A accepts no responsibility for: (i) the establishment,
structure, or choice of assets of Party B; (ii) the selection of any
person
performing services for or acting on behalf of Party B; (iii) the selection
of
Party A as the Counterparty;
(iv)
the terms of the Certificates; (v) the preparation of or passing on the
disclosure and other information contained in any offering circular for
the
Certificates, the PSA, or any other agreements or documents used by Party
B or
any other party in connection with the marketing and sale of the Certificates
(other than information provided by Party A for purposes of the disclosure
document relating to the Certificates); (vi) the ongoing operations and
administration of Party B, including the furnishing of any information
to Party
B which is not specifically required under this Agreement; or (vii) any
other
aspect of Party B’s existence.
(m) Rating
Agency Approval on Amendment.
In
addition to the requirements of Section 9, this Agreement will not be amended
unless Party B shall have received Rating Agency Approval.
(n) Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of subparagraph
(i)
thereof the word "non-": and (ii) deleting the final paragraph
thereof.
(o) Limited
Recourse Non-petition.
The
liability of Party B in relation to this Agreement and any Confirmation
hereunder is limited in recourse to assets in the Trust and payments of
interest
proceeds and principal proceeds thereon applied in accordance with the
terms of
the PSA. Upon application of all of the assets in the Trust (and proceeds
thereon) in accordance with the PSA, Party A shall not be entitled to take
any
further steps against Party B to recover any sums due but still unpaid
hereunder
or thereunder, all claims in respect of which shall be
extinguished.
(p) Party
A
hereby agrees that, notwithstanding any provision of this agreement to
the
contrary, Party B's obligations to pay any amounts owing under Section
6(e) of
this Agreement where Party A is either the Defaulting Party or the sole
Affected
Party shall be subject to the payment priority described at Section 4.02
of the
PSA and Party A's right to receive payment of such amounts shall be subject
to
the payment priority described at Section 4.02 of the PSA.
(q) Waiver
of Jury Trial.
Each
party waives, to the fullest extent permitted by applicable law, any right
it
may have to a trial by jury in respect of any suit, action or proceeding
relating to this Agreement or any Credit Support Document. Each party certifies
(i) that no representative, agent or attorney of the other party or any
Credit
Support Provider has represented, expressly or otherwise, that such other
party
would not, in the event of such a suit, action or proceeding, seek to enforce
the foregoing waiver and (ii) acknowledges that it and the other party
have been
induced to enter into this Agreement and provide for any Credit Support
Document, as applicable, by, among other things, the mutual waivers and
certifications in this Section.
(r) Consent
to Recording.
Each
party (i) consents to the recording of the telephone conversations of trading
and marketing personnel of the parties and their Affiliates in connection
with
this Agreement or any potential transaction and (ii) if applicable, agrees
to
obtain any necessary consent of, and give notice of such recording to,
such
personnel of it and its Affiliates.
(s) Severability.
If any
term, provision, covenant, or condition of this Agreement, or the application
thereof to any party or circumstance, shall be held to be illegal, invalid
or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants and conditions hereof shall continue in full force
and
effect as if this Agreement had been executed with the illegal, invalid
or
unenforceable portion eliminated, so long as this Agreement as so modified
continues to express, without material change, the original intentions
of the
parties as to the subject matter of this Agreement and the deletion of
such
portion of this Agreement will not substantially impair the respective
benefits
or expectations of the parties to this Agreement.
(t) Escrow
Payments.
If
(whether by reason of the time difference between the cities in which payments
are to be made or otherwise) it is not possible for simultaneous payments
to be
made on any date on which both parties are required to make payments hereunder,
either party may at its option and in its sole discretion notify the other
party
that payments on that date are to be made in escrow. In this case deposit
of the
payment due earlier on that date shall be made by 2:00 pm (local time at
the
place for the earlier payment) on that date with an escrow agent selected
by the
notifying party, accompanied by irrevocable payment instructions (i) to
release
the deposited payment to the intended recipient upon receipt by the escrow
agent
of the required deposit of the corresponding payment from the other party
on the
same date accompanied by irrevocable payment instructions to the same effect
or
(ii) if the required deposit of the corresponding payment is not made on
that
same date, to return the payment deposited to the party that paid it into
escrow. The party that elects to have payments made in escrow shall pay
all
costs of the escrow arrangements.
(u) Compliance
with Regulation AB.
(i) Party
A
agrees and acknowledges that Credit Suisse First Boston Mortgage Securities
Corp. (CSFBMSC)
is
required under Regulation AB under the Securities Act of 1933, as amended,
and
the Securities Exchange Act of 1934, as amended (the Exchange
Act)
(Regulation
AB),
to
disclose certain financial information regarding Party A or its group of
affiliated entities, if applicable, depending on the aggregate “significance
percentage” of this Agreement and any other derivative contracts between Party A
or its group of affiliated entities, if applicable, and Party B, as calculated
from time to time in accordance with Item 1115 of Regulation AB.
(ii) It
shall
be a swap disclosure event (Swap
Disclosure Event)
if, on
any Business Day during the term of the Transaction, CSFBMSC requests from
Party
A the applicable financial information described in Item 1115 of Regulation
AB
(such request to be based on a reasonable determination by CSFBMSC, in
good
faith, that such information is required under Regulation AB as a result
of the
aggregate "significance percentage" exceeding 10%) (the Swap
Financial Disclosure).
(iii) Upon
the
occurrence of a Swap Disclosure Event, Party A, at its own expense, shall
(a)
provide to CSFBMSC the Swap Financial Disclosure, (b) secure another entity
to
replace Party A as party to this Agreement on terms substantially similar
to
this Agreement and subject to prior notification to the Rating Agencies,
provided,
that
satisfaction of the S&P Ratings Condition shall be required for any transfer
of any Transactions under this clause (iii) unless such transfer is in
connection with the assignment and assumption of this Agreement by such
substitute counterparty without modification of its terms, other than the
following terms: party name, dates relevant to the effective date of such
transfer, tax representations (provided that the representations in Part
2(a)
are not modified) and any other representations regarding the status of
the
substitute counterparty of the type included in Section (c) of this Part
5 and
notice information (in which case, Party A shall provide written notice
to
S&P with respect thereto), which entity (or a guarantor therefor) meets or
exceeds the Hedge Counterparty Ratings Requirement and which entity is
able to
comply with the financial information disclosure requirements of Item 1115
of
Regulation AB or (c) obtain a guaranty of the Party A’s obligations under this
Agreement from an affiliate of the Party A that is able to comply with
the
financial information disclosure requirements of Item 1115 of Regulation
AB,
such that disclosure provided in respect of the affiliate will satisfy
any
disclosure requirements applicable with respect to the Counterparty, and
cause
such affiliate to provide Swap Financial Disclosure. If permitted by Regulation
AB, any required Swap Financial Disclosure may be provided by incorporation
by
reference from reports filed pursuant to the Exchange
Act.
(v)Third
Party Beneficiary.
CSFBMSC
shall
be
an express third party beneficiary of this Agreement as if a party hereto
to the
extent of the Depositor 's rights explicitly specified herein
(w) Section
5(a)(iii)(1) of this Agreement is hereby deleted and replaced with the
following:
"(1)
The
occurrence of an Event of Default under any Credit Support Document if
such
Event of Default is continuing after any applicable grace period has
elapsed;"
(x)
Gross
Up. The
provisions of Section 2 (d)(i)(4) and 2(d)(ii) of this Agreement shall
not apply
to Party B and Party B shall not be required to pay any additional amounts
referred to therein.
IN
WITNESS WHEREOF,
the
parties have executed this document by their duly authorized officers with
effect from the date so specified on the first page hereof.
|
CREDIT
SUISSE INTERNATIONAL
|
U.S.
BANK NATIONAL ASSOCIATION,
NOT
INDIVIDUALLY, BUT SOLELY
AS
TRUSTEE ON
BEHALF
OF THE SUPPLEMENTAL INTEREST TRUST CREATED UNDER THE POOLING
AND SERVICING
AGREEMENT FOR THE HOME EQUITY
MORTGAGE
TRUST 2006-5, HOME
EQUITY MORTGAGE
PASS
THROUGH
CERTIFICATES,
SERIES 2006-5
|
|
By:
_______________________________
Name:
Title:
|
By:
_______________________________
Name:
Title:
|
|
By:
_______________________________
Name:
Title:
|
EXHIBIT
DD
FORM
OF CONFIRMATION TO THE SWAP AGREEMENT
|
[Missing
Graphic Reference]
|
CREDIT SUISSE INTERNATIONAL | |
|
One
Cabot Square
|
Telephone
000 0000 0000
|
|
|
Xxxxxx
X00 0XX
|
xxx.xxxxxx-xxxxxx.xxx
|
|
Facsimile
Cover Sheet
|
To:
|
Credit
Suisse Management LLC
|
|
Attention:
|
NY
IRP Derivative Documentation
|
|
Fax
number:
|
x0
000 000 0000
|
|
Date:
|
31
October 2006
|
|
Pages
(including cover page):
|
9
|
Our
Reference No: External ID: 9350372/ Risk ID: 562910088
Credit
Suisse International has entered into a transaction with you as attached.
Please
find attached a letter agreement (the "Confirmation") which confirms the
terms
and conditions of the above transaction.
If
you
agree with the terms specified therein, please
arrange for the Confirmation to be signed by your authorised
signatories
and
return a signed copy to this office to the facsimile listed below.
|
For
Interest Rate Products:
Telephone
Numbers: (000) 000-0000
Facsimile
number: (000) 000-0000
Email:
xxxx.xxx-xxx-xxxxxx-xx@xxxxxx-xxxxxx.xxx
|
|
For
Equity Derivatives:
Telephone
numbers: (000) 000-0000 / (000) 000-0000 / (000) 000-0000
Facsimile
number: (000) 000-0000
|
|
For
Credit Derivatives:
Telephone
Numbers: (000) 000-0000
Facsimile
number: (000) 000-0000
Email:
xxxx.xxx-xxx-xxxxxx-xx@xxxxxx-xxxxxx.xxx
|
|
We
are
delighted to have entered into this transaction with you.
CONFIDENTIALITY
NOTICE: This facsimile is intended only for the use of the individual or
entity
to which it is addressed and may contain information which is privileged
and
confidential. If the reader of this message is not the intended recipient
or an
employee or agent responsible for delivering the message to the intended
recipient, you are hereby notified that any dissemination, distribution
or
copying of this communication is strictly prohibited. If you have received
this
communication in error, please notify us immediately by telephone and return
the
original message to us by mail. Thank you.
31
October 2006
Credit
Suisse Management LLC
External
ID: 9350372
Dear
Sir/Madam
The
purpose of this letter agreement (this "Confirmation") is to confirm the
terms
and conditions of the Transaction entered into between us on the Trade
Date
specified below (the "Transaction"). This Confirmation constitutes a
"Confirmation" as referred to in the Agreement specified below.
In
this Confirmation "CSi" means Credit Suisse International and "Counterparty"
means Credit Suisse Management LLC.
| 1. |
The
definitions and provisions contained in the 2000 ISDA Definitions
(as
published by the International Swaps and Derivatives Association,
Inc.)
(the "Definitions") are incorporated into this Confirmation. In
the event
of any inconsistency between those definitions and provisions and
this
Confirmation, this Confirmation will govern. References herein
to a
"Transaction" shall be deemed to be references to a "Swap Transaction"
for
the purposes of the 2000 ISDA
Definitions.
|
This
Confirmation supplements, forms part of, and is subject to, the 1987 Interest
Rate and Currency Exchange Agreement dated as of 16 July 1990 as amended
and
supplemented from time to time (the "Agreement"), between you and us. All
provisions contained in the Agreement govern this Confirmation except as
expressly modified below.
CSi
and Counterparty each represents to the other that it has entered into
this Swap
Transaction in reliance upon such tax, accounting, regulatory, legal, and
financial advice as it deems necessary and not upon any view expressed
by the
other.
Capitalized
terms used but not defined herein or in the Definitions shall have the
meanings
given to such terms in the Pooling and Servicing Agreement dated as of
1 October
2006, among Credit Suisse First Boston Mortgage Securities Corp. as Depositor,
DLJ Mortgage Captial, Inc. as Seller, Ocwen Loan Servicing, LLC as Servicer,
Select Portfolio Servicing, Inc. as Servicer and Master Servicer and U.S.
Bank
National Association as Trustee for Home Equity Mortgage Trust 2006-5,
as
amended and supplemented from time to time (the "PSA
").
| 2. |
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
Notional
Amount:
For
any
Payment Date:
1.
If the
aggregate Class Principal Balance of the Offered Certificates (other than
the
Class A-IO and Class A-R Certificates) for the immediately preceding
Distribution Date after giving effect to distributions on such preceding
Distribution Date (or as of the Closing Date for the first Payment Date)
is
greater than the Lower Bound and less than the Upper Bound for the related
Calculation Period, the Notional Amount will be the excess, if any, of
(i) the
aggregate Class Principal Balance of the Offered Certificates (other than
the
Class A-IO and Class A-R Certificates) for the immediately preceding
Distribution Date after giving effect to distributions on such preceding
Distribution Date (or as of the Closing Date for the first Payment Date
) over
(ii) the aggregate Class Principal Balance of the Class A-1 Certificates
for the
immediately preceding Distribution Date after giving effect to distributions
on
such preceding Distribution Date (or as of the Closing Date for the first
Payment Date)
2.
If the
aggregate Class Principal Balance of the Offered Certificates (other than
the
Class A-IO and Class A-R Certificates) for the immediately preceding
Distribution Date after giving effect to distributions on such preceding
Distribution Date (or as of the Closing Date for the first Payment Date)
is less
than or equal to the Lower Bound for the related Calculation Period, the
Notional Amount will be the excess, if any, of (i) the Lower Bound over
(ii) the
aggregate Class Principal Balance of the Class A-1 Certificates for the
immediately preceding Distribution Date after giving effect to distributions
on
such preceding Distribution Date (or as of the Closing Date for the first
Payment Date).
3.
If the
aggregate Class Principal Balance of the Offered Certificates (other than
the
Class A-IO and Class A-R Certificates) for the immediately preceding
Distribution Date after giving effect to distributions on such preceding
Distribution Date (or as of the Closing Date for the First Payment Date)
is
greater than or equal to the Upper Bound, for the related Calculation Period,
the Notional Amount will be excess, if any, of (i) the Upper Bound over
(ii) the
aggregate Class Principal Balance of the Class A-1 Certificates for the
immediately preceding distribution date after giving effect to distributions
on
such preceding Distribution Date (or as of the Closing Date for the first
Payment Date).
|
Trade
Date:
|
18
October 2006
|
|
Effective
Date:
|
31
October 2006
|
|
Termination
Date:
|
25
October 2011, subject to adjustment in accordance with the Following
Business Day Convention
|
|
Fixed
Amounts:
|
|
|
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Rate Payer
|
|
|
Period
End Dates:
|
The
25th
calendar day of each month, commencing on 25 November 2006, subject
to No
Adjustment.
|
|
Fixed
Rate Payer Payment
|
|
|
Dates:
|
One
Business Day prior to Fixed Rate Payer Period End Date.
|
|
Fixed
Rate Payer
|
|
|
Initial
Calculation Period
|
From
and including 31 October 2006 up to but excluding the Fixed Rate
Payer
Period End Date scheduled to occur on 25 November 2006.
|
|
Fixed
Rate:
|
5.100
% per annum
|
|
Fixed
Rate
|
|
|
Day
Count Fraction:
|
30/360
|
|
Floating
Amounts:
|
|
|
Floating
Rate Payer:
|
CSi
|
|
Floating
Rate Payer
|
|
|
Period
End Dates:
|
The
25th
calendar day of each month commencing on 25 November 2006, subject
to
adjustment in accordance with the Following Business Day
Convention.
|
|
Floating
Rate Payer
|
|
|
Payment
Dates:
|
One
Business Day prior to the Fixed Rate Payer Period End
Date.
|
|
Floating
Rate Payer
|
|
|
Initial
Calculation Period
|
From
and including 31 October 2006 up to but excluding the Floating
Rate payer
Period End Date scheduled to occur on 27 November 2006.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Floating
Rate
|
|
|
Day
Count Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period
|
|
Compounding:
|
Inapplicable
|
|
Business
Day:
|
New
York, Illinois, Minnesota ,
|
|
Utah
or Florida
|
|
|
Calculation
Agent:
|
CSi
|
| 3. |
Upfront
Payment:
|
Upfront
Payer: CSi
|
Upfront
Amount:
|
USD
3,568,500
|
|
Upfront
Payment Date:
|
Effective
Date
|
| 4. |
Account
Details:
|
|
Payments
to CSi:
|
As
advised separately in writing
|
|
Payments
to Counterparty:
|
As
advised separately in writing
|
5. Calculation
of Market Quotation or Loss following a designation of an Early Termination
Date:
Upon
designation of an Early Termination Date with respect to this Transaction,
the
relevant party in calculating the Market Quotation or Loss, as appropriate,
for
this Transaction shall take into account the anticipated amortization of
the
Aggregate Class Principal of the Certificates for all Calculation Periods
that
would otherwise have ended on Period End Dates that would otherwise have
fallen
after such Early Termination Date.
For
the
purpose of facilitating this Transaction, an Affiliate of CSi, which is
organized in the United States of America (the “Agent”), has acted as agent for
CSi. The Agent is not a principal with respect to this Transaction and
shall
have no responsibility or liability to the parties as a principal with
respect
to this Transaction.
Credit
Suisse International is authorized and regulated by the Financial Services
Authority and has entered into this transaction as principal. The time
at which
the above transaction was executed will be notified to Counterparty on
request.
ADDITIONAL
TERMS
|
Period
|
Payment
Date
|
Lower
Bound
|
Upper
Bound
|
|
1
|
25-Nov-06
|
784,000,000
|
784,000,000
|
|
2
|
25-Dec-06
|
768,320,000
|
768,416,000
|
|
3
|
25-Jan-07
|
751,760,000
|
752,040,000
|
|
4
|
25-Feb-07
|
731,520,000
|
734,824,000
|
|
5
|
25-Mar-07
|
705,200,000
|
716,824,000
|
|
6
|
25-Apr-07
|
677,840,000
|
698,064,000
|
|
7
|
25-May-07
|
656,400,000
|
768,616,000
|
|
8
|
25-Jun-07
|
632,640,000
|
658,504,000
|
|
9
|
25-Jul-07
|
600,880,000
|
637,816,000
|
|
10
|
25-Aug-07
|
571,520,000
|
617,672,000
|
|
11
|
25-Sep-07
|
537,120,000
|
598,088,000
|
|
12
|
25-Oct-07
|
498,720,000
|
579,048,000
|
|
13
|
25-Nov-07
|
467,680,000
|
560,528,000
|
|
14
|
25-Dec-07
|
436,400,000
|
542,520,000
|
|
15
|
25-Jan-08
|
407,520,000
|
525,024,000
|
|
16
|
25-Feb-08
|
385,600,000
|
508,000,000
|
|
17
|
25-Mar-08
|
365,040,000
|
491,464,000
|
|
18
|
25-Apr-08
|
349,200,000
|
475,384,000
|
|
19
|
25-May-08
|
333,680,000
|
459,768,000
|
|
20
|
25-Jun-08
|
317,680,000
|
444,592,000
|
|
21
|
25-Jul-08
|
298,960,000
|
429,856,000
|
|
22
|
25-Aug-08
|
278,960,000
|
415,536,000
|
|
23
|
25-Sep-08
|
254,880,000
|
401,624,000
|
|
24
|
25-Oct-08
|
235,840,000
|
388,120,000
|
|
25
|
25-Nov-08
|
219,440,000
|
375,024,000
|
|
26
|
25-Dec-08
|
204,000,000
|
362,312,000
|
|
27
|
25-Jan-09
|
189,200,000
|
349,976,000
|
|
28
|
25-Feb-09
|
173,680,000
|
338,016,000
|
|
29
|
25-Mar-09
|
163,840,000
|
326,408,000
|
|
30
|
25-Apr-09
|
151,440,000
|
315,160,000
|
|
31
|
25-May-09
|
142,640,000
|
304,248,000
|
|
32
|
25-Jun-09
|
132,160,000
|
293,656,000
|
|
33
|
25-Jul-09
|
122,800,000
|
283,424,000
|
|
34
|
25-Aug-09
|
111,680,000
|
273,528,000
|
|
35
|
25-Sep-09
|
100,320,000
|
263,952,000
|
|
36
|
25-Oct-09
|
91,920,000
|
254,688,000
|
|
37
|
25-Nov-09
|
84,240,000
|
245,736,000
|
|
38
|
25-Dec-09
|
-
|
237,080,000
|
|
39
|
25-Jan-10
|
-
|
228,704,000
|
|
40
|
25-Feb-10
|
-
|
220,592,000
|
|
41
|
25-Mar-10
|
-
|
212,768,000
|
|
42
|
25-Apr-10
|
-
|
205,192,000
|
|
43
|
25-May-10
|
-
|
197,864,000
|
|
44
|
25-Jun-10
|
-
|
190,776,000
|
|
45
|
25-Jul-10
|
-
|
183,928,000
|
|
46
|
25-Aug-10
|
-
|
177,296,000
|
|
47
|
25-Sep-10
|
-
|
170,888,000
|
|
48
|
25-Oct-10
|
-
|
164,696,000
|
|
49
|
25-Nov-11
|
-
|
158,704,000
|
|
50
|
25-Dec-11
|
-
|
152,904,000
|
|
51
|
25-Jan-11
|
-
|
147,304,000
|
|
52
|
25-Feb-11
|
-
|
141,888,000
|
|
53
|
25-Mar-11
|
-
|
136,648,000
|
|
54
|
25-Apr-11
|
-
|
131,576,000
|
|
55
|
25-May-11
|
-
|
126,680,000
|
|
56
|
25-Jun-11
|
-
|
121,936,000
|
|
57
|
25-Jul-11
|
-
|
117,352,000
|
|
58
|
25-Aug-11
|
-
|
112,920,000
|
|
59
|
25-Sep-11
|
-
|
108,640,000
|
|
60
|
25-Oct-11
|
-
|
104,488,000
|
Please
confirm that the foregoing correctly sets forth the terms of our agreement
by
signing and returning this Confirmation.
|
Yours
faithfully,
Credit
Suisse International
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Confirmed
as of the date first written above:
Credit
Suisse Management LLC
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Our
Reference No: External ID: 9350372 / Risk ID: 562910088
|
[Missing
Graphic Reference]
|
CREDIT SUISSE INTERNATIONAL | |
|
One
Cabot Square
|
Telephone
000 0000 0000
|
|
|
Xxxxxx
X00 0XX
|
xxx.xxxxxx-xxxxxx.xxx
|
|
Facsimile
Cover Sheet
|
To:
|
U.S.
Bank National Association, not individually, but solely as trustee
on
behalf of the Supplemental Interest Trust created under the Pooling
Servicing Agreement for the Home Equity Mortgage Trust 2006-5,
Home Equity
Mortgage Pass-Through Certificates, Series 2006-5
|
|
Attention:
|
Xxxxxxxx
Xxxxx, CSi Marketer
|
|
Fax
number:
|
To
be delivered by Xxxxxxxx Xxxxx
|
|
Date:
|
31
October 2006
|
|
Pages
(including cover page):
|
10
|
Our
Reference No: External ID: 9350372
/ Risk
ID: 562910088
Credit
Suisse International has entered into a transaction with you as attached.
Please
find attached a letter agreement (the "Confirmation") which confirms the
terms
and conditions of the above transaction.
If
you
agree with the terms specified therein, please
arrange for the Confirmation to be signed by your authorised
signatories
and
return a signed copy to this office to the facsimile listed below.
|
For
Interest Rate Products:
Telephone
Numbers: (000) 000-0000
Facsimile
number: (000) 000-0000
Email:
xxxx.xxx-xxx-xxxxxx-xx@xxxxxx-xxxxxx.xxx
|
|
For
Equity Derivatives:
Telephone
numbers: (000) 000-0000 / (000) 000-0000 / (000) 000-0000
(Facsimile
number: (000) 000-0000
|
|
For
Credit Derivatives:
Telephone
Numbers: (000) 000-0000
Facsimile
number: (000) 000-0000
Email:
xxxx.xxx-xxx-xxxxxx-xx@xxxxxx-xxxxxx.xxx
|
|
We
are delighted to have entered into this transaction with
you.
CONFIDENTIALITY
NOTICE: This facsimile is intended only for the use of the individual or
entity
to which it is addressed and may contain information which is privileged
and
confidential. If the reader of this message is not the intended recipient
or an
employee or agent responsible for delivering the message to the intended
recipient, you are hereby notified that any dissemination, distribution
or
copying of this communication is strictly prohibited. If you have received
this
communication in error, please notify us immediately by telephone and return
the
original message to us by mail. Thank you.
31
October 2006
U.S.
Bank
National Association, not individually, but
solely
as
trustee on behalf of the Supplemental Interest Trust created under the
Pooling
Servicing Agreement for the Home Equity Mortgage Trust 2006-5, Home Equity
Mortgage Pass-Through Certificates, Series 2006-5
External
ID: 9350372
Dear
Sir/Madam
The
purpose of this letter agreement (this "Confirmation") is to confirm the
terms
and conditions of the Transaction entered into between us on the Trade
Date
specified below (the "Transaction"). This Confirmation constitutes a
"Confirmation" as referred to in the Agreement specified below.
In
this Confirmation "CSi" means Credit Suisse International and "Counterparty"
means U.S. Bank National Association, not individually, but solely as trustee
on
behalf of the Supplemental Interest Trust created under the Pooling Servicing
Agreement for the Home Equity Mortgage Trust 2006-5, Home Equity Mortgage
Pass
Through Certificates, Series 2006-5.
| 1. |
The
definitions and provisions contained in the 2000 ISDA Definitions
(as
published by the International Swaps and Derivatives Association,
Inc.)
(the "Definitions") are incorporated into this Confirmation. In
the event
of any inconsistency between those definitions and provisions and
this
Confirmation, this Confirmation will govern. References herein
to a
"Transaction" shall be deemed to be references to a "Swap Transaction"
for
the purposes of the 2000 ISDA
Definitions.
|
This
Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master
Agreement dated as of 31 October 2006 as amended and supplemented from
time to
time (the "Agreement"), between you and us. All provisions contained in
the
Agreement govern this Confirmation except as expressly modified
below.
CSi
and
Counterparty each represents to the other that it has entered into this
Swap
Transaction in reliance upon such tax, accounting, regulatory, legal, and
financial advice as it deems necessary and not upon any view expressed
by the
other.
Capitalized
terms used but not defined herein or in the Definitions shall have the
meanings
given to such terms in the Pooling Servicing Agreement dated as of October
1,
2006, among
Credit Suisse First Boston Mortgage Securities Corp., as Depositor, DLJ
Mortgage
Capital, Inc., as Seller, Ocwen Loan Servicing, LLC, as Servicer, Select
Portfolio Servicing, Inc., as Servicer and Master Servicer and U.S. Bank
National Association, as Trustee for
Home
Equity Mortgage Trust 2006-5, as amended and supplemented from time to
time (the
"PSA ").
| 2. |
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
Notional
Amount:
For
any
Payment Date:
1.
If the
aggregate Class Principal Balance of the Offered Certificates (other than
the
Class A-IO and the Class A-R Certificates) for the immediately preceding
Distribution Date after
giving effect to distributions on such preceding Distribution Date
(or as
of the Closing Date for the first Payment Date) is greater than the Lower
Bound
and less than the Upper Bound for the related Calculation Period, the Notional
Amount will be the excess, if any, of (i) the aggregate Class Principal
Balance
of the Offered Certificates (other than the Class A-IO and the Class A-R
Certificates) for the immediately preceding Distribution Date after giving
effect to distributions on such preceding Distribution Date (or as of the
Closing Date for the first Payment Date ) over (ii) the aggregate Class
Principal Balance of the Class A-1 Certificates for the immediately preceding
Distribution Date after giving effect to distributions on such preceding
Distribution Date (or as of the Closing Date for the first Payment
Date)
2.
If the
aggregate Class Principal Balance of the Offered Certificates (other than
the
Class A-IO and Class A-R Certificates) for the immediately preceding
Distribution Date after giving effect to distributions on such preceding
Distribution Date (or as of the Closing Date for the first Payment Date)
is less
than or equal to the Lower Bound for the related Calculation Period, the
Notional Amount will be the excess, if any, of (i) the Lower Bound over
(ii) the
aggregate Class Principal Balance of the Class A-1 Certificates for the
immediately preceding Distribution Date after giving effect to distributions
on
such preceding Distribution Date (or as of the Closing Date for the first
Payment Date).
3.
If the
aggregate Class Principal Balance of the Offered Certificates (other than
the
Class A-IO and Class A-R Certificates) for the immediately preceding
Distribution Date after giving effect to distributions on such preceding
Distribution Date (or as of the Closing Date for the First Payment Date)
is
greater than or equal to the Upper Bound for the related Calculation Period,
the
Notional Amount will be excess, if any, of (i) the Upper Bound over (ii)
the
aggregate Class Principal Balance of the Class A-1 Certificates for the
immediately preceding distribution date after giving effect to distributions
on
such preceding Distribution Date (or as of the Closing Date for the first
Payment Date).
|
Trade
Date:
|
18
October 2006
|
|
Effective
Date:
|
31
October 2006
|
|
Termination
Date:
|
25
October 2011, subject to adjustment in accordance with the Following
Business Day Convention
|
|
Fixed
Amounts:
|
|
|
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Rate Payer
|
|
|
Period
End Dates:
|
The
25th
calendar day of each month, commencing on 25 November 2006, subject
to No
Adjustment.
|
|
Fixed
Rate Payer Payment
|
|
|
Dates:
|
One
Business Day prior to Fixed Rate Payer Period End Date.
|
|
Fixed
Rate Payer
|
|
|
Initial
Calculation Period
|
From
and including 31 October 2006 up to but excluding the Fixed Rate
Payer
Period End Date scheduled to occur on 25 November 2006.
|
|
Fixed
Rate:
|
5.1000
% per annum
|
|
Fixed
Rate
|
|
|
Day
Count Fraction:
|
30/360
|
|
Floating
Amounts:
|
|
|
Floating
Rate Payer:
|
CSi
|
|
Floating
Rate Payer
|
|
|
Period
End Dates:
|
The
25th
calendar day of each month commencing on 25 November 2006, subject
to
adjustment in accordance with the Following Business Day
Convention.
|
|
Floating
Rate Payer
|
|
|
Payment
Dates:
|
One
Business Day prior to the Fixed Rate Payer Period End
Date.
|
|
Floating
Rate Payer
|
|
|
Initial
Calculation Period
|
From
and including 31 October 2006 up to but excluding the Floating
Rate payer
Period End Date scheduled to occur on 27 November 2006.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Floating
Rate
|
|
|
Day
Count Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period
|
|
Compounding:
|
Inapplicable
|
|
Business
Day:
|
New
York, Illinois, Minnesota, Utah or
|
|
Florida
|
|
|
Calculation
Agent:
|
CSi
|
| 3. |
Upfront
Payment:
|
Upfront
Payer: CSi
Upfront
Amount: USD
3,568,500
Upfront
Payment Date:
Effective Date
| 4. |
Account
Details:
|
Payments
to CSi: As
advised separately in writing
Payments
to Counterparty:
U.S.
Bank
National Association
ABA:
000000000
DDA:
173103322058
Ref:
CSFBMSC-HEMT 2006-5
Attn:
Xxxx Xxxxxxxxx
| 5. |
Calculation
of Market Quotation or Loss following a designation of an Early
Termination Date:
|
Upon
designation of an Early Termination Date with respect to this Transaction,
the
relevant party in calculating the Market Quotation or Loss, as appropriate,
for
this Transaction shall take into account the anticipated amortization of
the
Aggregate Class Principal of the Certificates for all Calculation Periods
that
would otherwise have ended on Period End Dates that would otherwise have
fallen
after such Early Termination Date.
For
the purpose of facilitating this Transaction, an Affiliate of CSi, which
is
organized in the United States of America (the “Agent”), has acted as agent for
CSi. The Agent is not a principal with respect to this Transaction and
shall
have no responsibility or liability to the parties as a principal with
respect
to this Transaction.
Credit
Suisse International is authorized and regulated by the Financial Services
Authority and has entered into this transaction as principal. The time
at which
the above transaction was executed will be notified to Counterparty on
request.
ADDITIONAL
TERMS
|
Period
|
Payment
Date
|
Lower
Bound
|
Upper
Bound
|
|
1
|
25-Nov-06
|
784,000,000
|
784,000,000
|
|
2
|
25-Dec-06
|
768,320,000
|
768,416,000
|
|
3
|
25-Jan-07
|
751,760,000
|
752,040,000
|
|
4
|
25-Feb-07
|
731,520,000
|
734,824,000
|
|
5
|
25-Mar-07
|
705,200,000
|
716,824,000
|
|
6
|
25-Apr-07
|
677,840,000
|
698,064,000
|
|
7
|
25-May-07
|
656,400,000
|
678,616,000
|
|
8
|
25-Jun-07
|
632,640,000
|
658,504,000
|
|
9
|
25-Jul-07
|
600,880,000
|
637,816,000
|
|
10
|
25-Aug-07
|
571,520,000
|
617,672,000
|
|
11
|
25-Sep-07
|
537,120,000
|
598,088,000
|
|
12
|
25-Oct-07
|
498,720,000
|
579,048,000
|
|
13
|
25-Nov-07
|
467,680,000
|
560,528,000
|
|
14
|
25-Dec-07
|
436,400,000
|
542,520,000
|
|
15
|
25-Jan-08
|
407,520,000
|
525,024,000
|
|
16
|
25-Feb-08
|
385,600,000
|
508,000,000
|
|
17
|
25-Mar-08
|
365,040,000
|
491,464,000
|
|
18
|
25-Apr-08
|
349,200,000
|
475,384,000
|
|
19
|
25-May-08
|
333,680,000
|
459,768,000
|
|
20
|
25-Jun-08
|
317,680,000
|
444,592,000
|
|
21
|
25-Jul-08
|
298,960,000
|
429,856,000
|
|
22
|
25-Aug-08
|
278,960,000
|
415,536,000
|
|
23
|
25-Sep-08
|
254,880,000
|
401,624,000
|
|
24
|
25-Oct-08
|
325,840,000
|
388,120,000
|
|
25
|
25-Nov-08
|
219,440,000
|
375,024,000
|
|
26
|
25-Dec-08
|
204,000,000
|
362,312,000
|
|
27
|
25-Jan-09
|
189,200,000
|
349,976,000
|
|
28
|
25-Feb-09
|
173,680,000
|
338,016,000
|
|
29
|
25-Mar-09
|
163,840,000
|
326,408,000
|
|
30
|
25-Apr-09
|
151,440,000
|
315,160,000
|
|
31
|
25-May-09
|
142,640,000
|
304,248,000
|
|
32
|
25-Jun-09
|
132,160,000
|
293,656,000
|
|
33
|
25-Jul-09
|
122,800,000
|
283,424,000
|
|
34
|
25-Aug-09
|
111,680,000
|
273,528,000
|
|
35
|
25-Sep-09
|
100,320,000
|
263,952,000
|
|
36
|
25-Oct-09
|
91,920,000
|
254,688,000
|
|
37
|
25-Nov-09
|
84,240,000
|
245,736,000
|
|
38
|
25-Dec-09
|
-
|
237,080,000
|
|
39
|
25-Jan-10
|
-
|
228,704,000
|
|
40
|
25-Feb-10
|
-
|
220,592,000
|
|
41
|
25-Mar-10
|
-
|
212,768,000
|
|
42
|
25-Apr-10
|
-
|
205,192,000
|
|
43
|
25-May-10
|
-
|
197,864,000
|
|
44
|
25-Jun-10
|
-
|
190,776,000
|
|
45
|
25-Jul-10
|
-
|
183,928,000
|
|
46
|
25-Aug-10
|
-
|
177,296,000
|
|
47
|
25-Sep-10
|
-
|
170,888,000
|
|
48
|
25-Oct-10
|
-
|
164,696,000
|
|
49
|
25-Nov-10
|
-
|
158,704,000
|
|
50
|
25-Dec-10
|
-
|
152,904,000
|
|
51
|
25-Jan-11
|
-
|
147,304,000
|
|
52
|
25-Feb-11
|
-
|
141,888,000
|
|
53
|
25-Mar-11
|
-
|
136,648,000
|
|
54
|
25-Apr-11
|
-
|
131,576,000
|
|
55
|
25-May-11
|
-
|
126,680,000
|
|
56
|
25-Jun-11
|
-
|
121,936,000
|
|
57
|
25-Jul-11
|
-
|
117,352,000
|
|
58
|
25-Aug-11
|
-
|
112,920,000
|
|
59
|
25-Sep-11
|
-
|
108,640,000
|
|
60
|
25-Oct-11
|
-
|
104,488,000
|
Please
confirm that the foregoing correctly sets forth the terms of our agreement
by
signing and returning this Confirmation.
|
Yours
faithfully,
Credit
Suisse International
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Confirmed
as of the date first written above:
U.S.
Bank
National Association, not individually, but solely
as
trustee on behalf of the Supplemental Interest Trust created under the
Pooling
Servicing Agreement for the Home Equity Mortgage Trust 2006-5, Home Equity
Mortgage Pass-Through Certificates, Series 2006-5
|
By:
|
|
|
Name:
|
|
|
Title:
|
Our
Reference No: External ID: 9350372 / Risk ID: 562910088
CSA
Elections
and Variables
to
the ISDA Credit Support Annex
dated
as of October 31, 2006
between
|
CREDIT
SUISSE INTERNATIONAL
|
And
|
U.S.
BANK NATIONAL ASSOCIATION,
NOT
INDIVIDUALLY, BUT SOLELY AS
TRUSTEE
ON BEHALF OF
THE
SUPPLEMENTAL INTEREST TRUST
CREATED
UNDER THE
POOLING
AND SERVICING AGREEMENT FOR
THE
HOME EQUITY MORTGAGE TRUST 2006-5, HOME EQUITY MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-5
|
|
_______________________________________
("Party
A")
|
_________________________________________
("Party
B")
|
Paragraph
13.
(a) Security
Interest for "Obligations".
The
term
"Obligations" as used in this Annex includes the following additional
obligations:
With
respect to Party A: None.
With
respect to Party B: None.
|
(b)
|
Credit
Support Obligations.
|
|
(i)
|
Delivery
Amount, Return Amount and Credit Support
Amount.
|
|
(A)
|
"Delivery
Amount"
has the meaning specified in Paragraph 3(a), except that the
words "upon a
demand made by the Secured Party" shall be deleted and the word
"that" on
the second line of Paragraph 3(a) shall be replaced with the
word "a".
Paragraph 4(b) is hereby amended by the insertion of the words
"(i) in
respect of a Transfer pursuant to Paragraph 3(b)," immediately
prior to
the words "if a demand for" and the insertion of the words ";
and (ii) in
respect of a Transfer pursuant to Paragraph 3(a), the relevant
Transfer
will be made not later than the close of business on the Local
Business
Day following the Valuation Date" immediately prior to the
period.
|
|
(B)
|
"Return
Amount"
has the meaning specified in Paragraph
3(b).
|
(C)
"Credit
Support Amount"
for a
Valuation Date shall mean one of the following depending on whether or
not the
specified events have occurred on such Valuation Date:-
|
(i)
|
if
a Collateralization Event has not occurred, or has occurred but
is not
continuing, "Credit
Support Amount"
shall mean zero (0);
|
|
(ii)
|
if
a Ratings Event has occurred and is continuing or a Collateralization
Event has occurred other than pursuant to Part 5(b)(1)(C) and
is
continuing, "Credit
Support Amount"
shall mean an amount in USD equal to the greater of (a) the Secured
Party’s Exposure and (b) an amount equal to the Floating Amount payable
by
Party A pursuant to the Transaction in respect of the first Floating
Rate
Payer Payment Date scheduled to occur on or after the date on
which the
Delivery Amount as a result of such Collateralization Event is
due;
|
|
(iii)
|
if
a Collateralization Event has occurred pursuant to Part 5(b)(1)(C)
and is
continuing, "Credit
Support Amount"
shall mean an amount in USD equal to the greater of (a) the sum
of (i)
Party B's Exposure and (ii) the Notional Volatility Buffer and
(b)
zero.
"Notional
Volatility Buffer",
as determined by the Valuation Agent for any date, means the
product of
(i) the Notional Amount of the Transaction on such date, (ii)
the Payment
Factor, and (iii) the Volatility Buffer Percentage for such date
as set
out in the table below on such
date,
|
|
Party
A S&P Rating on such date
|
Volatility
Buffer Percentage
|
|
|
|
|
S&P
S-T Rating of A-1 or above
|
0.00%
|
|
S&P
S-T Rating of A-2
|
3.25%
|
|
S&P
S-T Rating of A-3
|
4.00%
|
|
S&P
L-T Rating of BB+ or lower
|
4.50%
|
L-T
Rating
means
with respect to any Person, the unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of such Person.
S-T
Rating
means
with respect to any Person, the unsecured, unguaranteed and otherwise
unsupported short-term debt obligations of such Person.
Payment
Factor
means
1.
|
(ii)
|
Eligible
Collateral.
On
any date, the following items will qualify as "Eligible
Collateral"
for Party A:
|
|
Valuation
Percentage
|
||
|
(A)
|
Cash
|
100%
|
|
(B)
|
negotiable
debt obligations issued after 18 July 1984 by the U.S. Treasury
Department having a residual maturity on such date f less than
1 year
|
98.0%
|
|
(C)
|
coupon-bearing
negotiable debt obligations issued after 18 July 1984 by the
U.S. Treasury
Department having a residual maturity on such date equal to or
greater
than 1 year but less than 5 years
|
93.8%
|
|
(D)
|
coupon-bearing
negotiable debt obligations issued after 18 July 1984 by the
U.S. Treasury
Department having a residual maturity on such date equal to or
greater
than 5 years but less than 10 years
|
90.3%
|
(iii)
Other
Eligible Support.
None.
(iv)
Thresholds.
|
(A)
|
"Independent
Amount"
means with respect to Party A: Not applicable.
|
|
|
"Independent
Amount"
means with respect to Party B: Not applicable.
|
||
|
(B)
|
"Threshold"
means with respect to Party A and Party B: Not
applicable.
|
|
|
(C)
|
"Minimum
Transfer Amount"
means with respect to Party A: $50,000.
|
|
|
"Minimum
Transfer Amount"
means with respect to Party B: Not applicable.
|
||
|
(D)
|
Rounding.
The Delivery Amount and the Return Amount will be rounded up
and down
respectively to the nearest integral multiple of $1,000, provided
that
this "Rounding" provision shall not apply in respect of any Return
Amount
payable in respect of any date on which Party B's Exposure is
less than or
equal to zero.
|
(c) Valuation
and Timing.
|
(i)
|
"Valuation
Agent"
means Party A. Calculations by Party A will be made by reference
to
commonly accepted market sources.
|
|
|
(ii)
|
"Valuation
Date"
means,
|
|
(A)
|
in
the event that (1) no Collateralization Event has occurred, or
has
occurred but is not continuing, (2) a Collateralization Event
has occurred
other than pursuant to Part 5(b)(1)(C) and is continuing, or
(3) two or
more Collateralization Events have occurred pursuant to Part
5(b)(1)(C)
and any other subparagraph of Part 5(b)(1) and are continuing,
each Local
Business Day which, if treated as a Valuation Date, would result
in a
Delivery Amount or a Return Amount; and
|
||
|
(B)
|
in
the event that a Collateralization Event has occurred solely
pursuant to
Part 5(b)(1)(C) and is continuing, or a Ratings Event has occurred
and
Party A has not obtained a substitute counterparty as set forth
in Part
5(b)(3) the last Local Business Day of each calendar
week.
|
|
(iii)
|
"Valuation
Time"
means the close of business in the city of the Valuation Agent
on the
Local Business Day before the Valuation Date or date of calculation,
as
applicable, provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same date.
|
|
|
(iv)
|
"Notification
Time"
means 4:00 p.m., London time, on a Local Business Day.
|
(d) Conditions
Precedent and Secured Party's Rights and Remedies.
No
events
shall constitute a "Specified Condition."
|
(e)
|
Substitution.
|
|
(i)
|
"Substitution
Date"
has the meaning specified in Paragraph 4(d)(ii).
|
|
|
(ii)
|
Consent.
The Pledgor must obtain the Secured Party's prior consent to
any
substitution pursuant to Paragraph 4(d) and
shall give to the Secured Party not less than two (2) Local Business
Days’
notice thereof specifying the items of Posted Credit Support
intended for
substitution.
|
|
(f)
|
Dispute
Resolution.
|
|
(i)
|
"Resolution
Time"
means 4:00 p.m. London time on the Local Business Day following
the date
on which the notice of the dispute is given under Paragraph
5.
|
|
|
(ii)
|
Value.
For the purpose of Paragraphs 5(i)(C) and 5(ii), on any date,
the Value of
Eligible Collateral and Posted Collateral will be calculated
as follows:
|
|
(A)
|
with
respect to any Cash; the amount thereof; and
|
||
|
(B)
|
with
respect to any Eligible Collateral comprising securities; the
sum of
(a)(x) the last bid price on such date for such securities on
the
principal national securities exchange on which such securities
are
listed, multiplied by the applicable Valuation Percentage or
(y) where any
such securities are not listed on a national securities exchange,
the bid
price for such securities quoted as at the close of business
on such date
by any principal market maker for such securities chosen by the
Valuation
Agent, multiplied by the applicable Valuation Percentage or (z)
if no such
bid price is listed or quoted for such date, the last bid price
listed or
quoted (as the case may be), as of the day next preceding such
date on
which such prices were available; multiplied by the applicable
Valuation
Percentage; plus (b) the accrued interest on such securities
(except to
the extent that such interest shall have been paid to the Pledgor
pursuant
to Paragraph 6(d)(ii) or included in the applicable price referred
to in
subparagraph (a) above) as of such
date.
|
|
(iii)
|
Alternative.
The provisions of Paragraph 5 will apply provided the obligation
of the
appropriate party to deliver the undisputed amount to the other
party will
not arise prior to the time that would otherwise have applied
to the
Transfer pursuant to, or deemed made, under Paragraph 3 if no
dispute had
arisen.
|
|
(g)
|
Holding
and Using Posted
Collateral.
|
|
(i)
|
Eligibility
to Hold Posted Collateral; Custodians:
|
|
|
The
Supplemental Interest Trust Trustee (as defined in the PSA) will
be
entitled to hold Posted Collateral pursuant to Paragraph
6(b).
|
||
|
(ii)
|
Use
of Posted Collateral.
The provisions of Paragraph 6(c) will not apply to Party B. Therefore,
Party B will not have any of the rights specified in Paragraph
6(c)(i) or
6(c)(ii).
|
|
(h)
|
Distributions
and Interest Amount.
|
|
(i)
|
Interest
Rate.
The "Interest
Rate"
will be the annualized rate of return actually achieved on Posted
Collateral in the form of Cash during the relevant Interest
Period.
|
|
|
(ii)
|
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on any Local
Business Day
on which Posted Collateral in the form of Cash is Transferred
to the
Pledgor pursuant to Paragraph 3(b), provided that such Interest
Amount has
been received prior thereto.
|
|
|
(iii)
|
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will apply.
|
|
|
(i)
|
Additional
Representation(s).
|
There
are
no additional representations by either party.
|
(j)
|
Demands
and Notices.
|
All
demands, specifications and notices under this Annex will be made pursuant
to
the Notices Section of this Agreement, save that any demand, specification
or
notice:
|
(i)
shall be given to or made at the following
addresses:
|
If
to
Party A:
|
Address:
|
One
Xxxxx Xxxxxx
|
||
|
Xxxxxx
X00 0XX
|
|||
|
Xxxxxxx
|
|
Telephone:
|
00
00 0000 0000
|
||
|
Facsimile:
|
44
20 7883 7987
|
||
|
Attention:
|
Collateral
Management Unit
|
If
to
Party B:
As
set
forth in Part 4(a) of the Schedule;
or
at
such other address as the relevant party may from time to time designate
by
giving notice (in accordance with the terms of this paragraph) to the other
party;
|
(ii)
|
shall
(unless otherwise stated in this Annex) be deemed to be effective
at the
time such notice is actually received unless such notice is received
on a
day which is not a Local Business Day or after the Notification
Time on
any Local Business Day in which event such notice shall be deemed
to be
effective on the next succeeding Local Business
Day.
|
|
(k)
|
Address
for Transfers.
|
|
Party
A: To be notified to Party B by Party A at the time of the request
for the
Transfer.
|
|
Party
B:
|
U.S.
Bank National Association
|
|
|
ABA:
000000000
|
||
|
DDA:
173103322058
|
||
|
Ref:
CSFBMSC HEMT 2006-5
|
||
|
Attn:
Xxxx Xxxxxxxxx
|
|
(l)
|
Other
Provisions.
|
|
(i)
|
Additional
Definitions
|
As
used
in this Annex:
|
"Equivalent
Collateral" means,
with respect to any security constituting Posted Collateral,
a security of
the same issuer and, as applicable, representing or having the
same class,
series, maturity, interest rate, principal amount or liquidation
value and
such other provisions as are necessary for that security and
the security
constituting Posted Collateral to be treated as equivalent in
the market
for such securities;
|
|
"Local
Business Day" means:
(i) any day on which commercial banks are open for business (including
dealings in foreign exchange and foreign currency deposits) in
London, and
(ii) in relation to a Transfer of Eligible Collateral, a day
on which the
clearance system agreed between the parties for the delivery
of Eligible
Collateral is open for acceptance and execution of settlement
instructions
(or in the case of a Transfer of Cash or other Eligible Collateral
for
which delivery is contemplated by other means, a day on which
commercial
banks are open for business (including dealings for foreign exchange
and
foreign currency deposits) in New York and such other places
as the
parties shall agree);
|
|
(ii)
|
Transfer
Timing
|
(a)
Paragraph
4(b) shall be deleted and replaced in its entirety by the following paragraph:
"Subject
to Paragraphs 4(a) and 5 and unless otherwise specified, if a demand for
the
Transfer of Eligible Credit Support or Posted Credit Support is made by
the
Notification Time, then the relevant Transfer will be made not later than
the
close of business on the second Local Business Day thereafter; if a demand
is
made after the Notification Time then the relevant Transfer will be made
not
later than the close of business on the third Local Business Day
thereafter."
|
(b)
|
Paragraph
6(d)(1) shall be amended so that the reference therein to "the
following
Local Business Day" shall be replaced by reference to "the second
Local
Business Day thereafter".
|
|
(iii)
|
Events
of Default
|
|
Paragraph
7 shall be deleted and replaced in its entirety by the following
paragraph:
|
"For
the
purposes of Section 5(a)(i) of this Agreement, an Event of Default will
exist
with respect to a party if that party fails (or fails to cause its Custodian)
to
make, when due, any Transfer of Posted Credit Support or the Interest Amount,
as
applicable, required to be made by it and that failure continues for two
Local
Business Days after the notice of that failure is given to that
party".
.
|
(iv)
|
Return
of Fungible
Securities
|
|
In
lieu of returning to the Pledgor pursuant to Paragraphs 3(b),
4(d), 5 and
8(d) any Posted Collateral comprising securities the Secured
Party may
return Equivalent Collateral.
|
|
(v)
|
Covenants
of the Pledgor
|
|
So
long as the Agreement is in effect, the Pledgor covenants that
it will
keep the Posted Collateral free from all security interests or
other
encumbrances created by the Pledgor, except the security interest
created
hereunder and any security interests or other encumbrances created
by the
Secured Party; and will not sell, transfer, assign, deliver or
otherwise
dispose of, or grant any option with respect to any Posted Collateral
or
any interest therein, or create, incur or permit to exist any
pledge,
lien, mortgage, hypothecation, security interest, charge, option
or any
other encumbrance with respect to any Posted Collateral or any
interest
therein, without the prior written consent of the Secured
Party.
|
|
(vi)
|
No
Counterclaim
|
|
A
party's rights to demand and receive the Transfer of Eligible
Collateral
as provided hereunder and its rights as Secured Party against
the Posted
Collateral or otherwise shall be absolute and subject to no counterclaim,
set-off, deduction or defense in favor of the Pledgor except
as
contemplated in Sections 2 and 6 of the Agreement and Paragraph
8 of this
Annex.
|
(vii)
Holding
Collateral
|
The
Secured Party shall cause any Custodian appointed hereunder to
open and
maintain a segregated account and to hold, record and identify
all the
Posted Collateral in such segregated account and, subject to
Paragraphs
8(a), such Posted Collateral shall at all times be and remain
the property
of the Pledgor and shall at no time constitute the property of,
or be
commingled with the property of, the Secured Party or the
Custodian.
|
(viii) Security
and Performance
Eligible
Collateral Transferred to the Secured Party constitutes security and performance
assurance without which the Secured Party would not otherwise enter into
and
continue any and all Transactions.
(ix) Agreement
as to Single Secured Party and Pledgor
|
Party
A and Party B agree that, notwithstanding anything to the contrary
in the
recital to this Annex, Paragraph 1(b), Paragraph 2 or the definitions
in
Paragraph 12, (a) the term "Secured
Party"
as used in this Annex means only Party B, (b) the term "Pledgor"
as used in this Annex means only Party A, (c) only Party A makes
the
pledge and grant in Paragraph 2, the acknowledgment in the final
sentence
of Paragraph 8(a) and the representations in Paragraph 9 and
(d) only
Party A will be required to make Transfers of Eligible Credit
Support
hereunder.
|
(x) External
Verification of Xxxx-to-Market Valuations.
Every
month after a Collateralization Event has occurred pursuant to Part 5(b)(1)(C)
and is continuing, then, unless otherwise agreed in writing with S&P, Party
A will verify its determination of Exposure of the Transaction on the next
Valuation Date by seeking quotations from two (2) Reference Market-makers
for
their determination of Exposure of the Transaction on such Valuation Date
and
the Valuation Agent will use the greater of either (a) its own determination
or
(b) the highest quotation for a Reference Market-maker, if applicable,
for the
next Valuation Date; provided,
that
this Paragraph 13(l)(x) shall only apply to the extent that the Notes
outstanding at such time (as defined in the PSA) are rated higher by S&P
than the S&P L-T Rating of Party A; and provided
further,
that
Party A shall not seek verification of its determination of Exposure as
described above from the same Reference Market-maker more than four times
in any
twelve-month period.
(xi) Expenses.
Notwithstanding
Paragraph 10(a), the Pledgor will be responsible for, and will reimburse
the
Secured Party for, all transfer costs involved in the Transfer of Eligible
Collateral from the Pledgor to the Secured Party (or any agent or custodian
for
safekeeping of the Secured Party) or from the Secured Party (or any agent
or
custodian for safekeeping of the Secured Party ) to the Pledgor pursuant
to
paragraph 4(d).
|
CREDIT
SUISSE INTERNATIONAL
|
U.S.
BANK NATIONAL ASSOCIATION,
NOT
INDIVIDUALLY, BUT SOLELY AS
TRUSTEE
ON BEHALF OF
THE
SUPPLEMENTAL INTEREST TRUST
CREATED
UNDER THE
POOLING
AND SERVICING AGREEMENT FOR
THE
HOME EQUITY MORTGAGE TRUST 2006-5, HOME EQUITY MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-5
|
|
By:
______________________________________
Name:
Title:
|
By:
______________________________________
Name:
Title:
|
|
By:
______________________________________
Name:
Title:
|
EXHIBIT
EE
Servicing
Criteria to Be Addressed in Assessment of Compliance
Key:
X
- obligation
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.
|
Reg
AB Reference
|
Servicing
Criteria
|
Servicer
and Special Servicer
|
Custodian
|
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
(Ocwen
only)
|
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.
|
X
|
|||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
N/A
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|||
|
Cash
Collection and Administration
|
|||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in
the
transaction agreements.
|
X
|
|||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction agreements.
|
X
|
|||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
N/A
|
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
|
|||
|
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
|
|||
|
Investor
Remittances and Reporting
|
|||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
|||
|
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
|
|||
|
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
|
|||
|
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
|
|||
|
Pool
Asset Administration
|
|||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
X
|
||
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
X
|
||
|
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
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with
the related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
|
X
|
|||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
|||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
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
|
|||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
|||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
|||
|
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.
|
X
|
|||
|
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.
|
X
|
|||
|
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.
|
X
|
|||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
N/A
|
X
|
EXHIBIT
FF
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
As
to each item described below, the entity indicated as the Responsible Party
shall be primarily responsible for reporting the information to the Trustee
pursuant to Section 8.12(a)(i), (ii) and (iii). If the Trustee is indicated
below as to any item, then the Trustee is primarily responsible for obtaining
that information.
Under
Item 1 of Form 10-D: a) items marked “4.06 statement” are required to be
included in the Monthly Statement under Section 4.06, provided by the Trustee
based on information received from the Servicers to the extent required
of the
Servicers under the Pooling and Servicing Agreement; and b) items marked
“Form
10-D report” are required to be in the Form 10-D report but not the 4.06
statement, provided by the party indicated. Information under all other
Items of
Form 10-D is to be included in the Form 10-D report. Items indicated as
“N/A”
are not applicable to the transaction.
For
purposes of this Exhibit, “Servicer” includes the Special Servicer.
|
Form
|
Item
|
Description
|
Responsible
Party
|
|
10-D
|
|||
|
1
|
Distribution
and Pool Performance Information
|
||
|
Item
1121(a) - Distribution and Pool Performance
Information
|
|||
|
(1)
Any applicable record dates, accrual dates, determination dates
for
calculating distributions and actual distribution dates for the
distribution period.
|
4.06
statement
|
||
|
(2)
Cash flows received and the sources thereof for distributions,
fees and
expenses.
|
4.06
statement
|
||
|
(3)
Calculated amounts and distribution of the flow of funds for
the period
itemized by type and priority of payment, including:
|
4.06
statement
|
||
|
(i)
Fees or expenses accrued and paid, with an identification of
the general
purpose of such fees and the party receiving such fees or
expenses.
|
4.06
statement
|
||
|
(ii)
Payments accrued or paid with respect to enhancement or other
support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of
the general
purpose of such payments and the party receiving such
payments.
|
N/A
|
||
|
(iii)
Principal, interest and other distributions accrued and paid
on the
asset-backed securities by type and by class or series and any
principal
or interest shortfalls or carryovers.
|
4.06
statement
|
||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
4.06
statement
|
||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
4.06
statement
|
||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
4.06
statement
|
||
|
(6)
Beginning and ending balances of transaction accounts, such as
reserve
accounts, and material account activity during the period.
|
4.06
statement
|
||
|
(7)
Any amounts drawn on any credit enhancement or other support
identified in
Item 1114 of Regulation AB, as applicable, and the amount of
coverage
remaining under any such enhancement, if known and
applicable.
|
N/A
|
||
|
(8)
Number and amount of pool assets at the beginning and ending
of each
period, and updated pool composition information, such as weighted
average
coupon, weighted average life, weighted average remaining term,
pool
factors and prepayment amounts.
|
4.06
statement
Updated
pool composition information fields to be as reasonably requested
by
Depositor in writing to each Servicer and the Trustee at least
30 days
prior to the related Servicer Data Remittance Date from time
to
time
|
||
|
(9)
Delinquency and loss information for the period.
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool
assets.
|
4.06
statement.
Form
10-D report: Servicer/Depositor
|
||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of
funds
advanced and the general source of funds for
reimbursements.
|
4.06
statement
|
||
|
(11)
Any material modifications, extensions or waivers to pool asset
terms,
fees, penalties or payments during the distribution period or
that have
cumulatively become material over time.
|
Form
10-D report: Depositor
|
||
|
(12)
Material breaches of pool asset representations or warranties
or
transaction covenants.
|
Form
10-D report: Seller (subject to Depositor approval)
|
||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger
and whether
the trigger was met.
|
4.06
statement
|
||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
|
Form
10-D report: Depositor
|
||
|
[information
regarding] any pool asset changes (other than in connection with
a pool
asset converting into cash in accordance with its terms), such
as
additions or removals in connection with a prefunding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any prefunding or revolving accounts, if
applicable.
|
Form
10-D report: Seller (subject to Depositor approval)
|
||
|
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
Form
10-D report: Seller (subject to Depositor approval)
|
||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
Seller
(subject to Depositor approval)
|
||
|
2
|
Legal
Proceedings
|
||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders,
including
proceedings known to be contemplated by governmental
authorities:
|
|||
|
Sponsor
(Seller)
|
Seller
|
||
|
Depositor
|
Depositor
|
||
|
Trustee
|
Trustee
|
||
|
Issuing
entity
|
Depositor
|
||
|
Servicer
or any Subservicer to which Servicer delegates servicing function
to that
is servicing 20% or more of pool assets at time of report
|
Servicer
|
||
|
Master
Servicer
|
Master
Servicer
|
||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
Depositor
|
||
|
Custodian
|
Custodian
|
||
|
3
|
Sales
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
|
||
|
4
|
Defaults
Upon Senior Securities
|
||
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default of which the Trustee has
received
written notice or has actual knowledge (after expiration of any
grace
period and provision of any required notice)
|
Trustee
|
||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
||
|
Information
from Item 4 of Part II of Form 10-Q
|
Trustee
|
||
|
6
|
Significant
Obligors of Pool Assets
|
||
|
Item
1112(b) - Significant
Obligor Financial Information*
|
N/A
|
||
|
*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.
|
|||
|
7
|
Significant
Enhancement Provider Information
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
N/A
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information*
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
Depositor
Depositor
|
||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|||
|
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
|
The
Responsible Party for the applicable Form 8-K item as indicated
below
|
||
|
9
|
Exhibits
|
||
|
Distribution
report
|
Trustee
|
||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
||
|
8-K
|
|||
|
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
|
Any
of the following that is entering into a material definitive
agreement:
Servicer, Master Servicer, Trustee, Seller, Depositor
|
||
|
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.
|
Any
of the following that is requesting termination of a material
definitive
agreement: Servicer, Master Servicer, Trustee, Seller,
Depositor
|
||
|
1.03
|
Bankruptcy
or Receivership
|
||
|
Disclosure
is required regarding the bankruptcy or receivership, if known
to the
Depositor, with respect to any of the following:
Sponsor
(Seller), Depositor, Master Servicer, affiliated Servicer, other
Servicer
servicing 20% or more of pool assets at time of report, other
material
servicers, Trustee, significant obligor, credit enhancer (10%
or more),
derivatives counterparty, Custodian
|
Any
of the following that is in bankruptcy or receivership: Servicer,
Master
Servicer, Trustee, Seller, Depositor, Custodian
|
||
|
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 4.06 statement
|
Trustee
|
||
|
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
(or Depositor, if the Trustee is not a party to such agreement
or required
to provide prior written consent to such amendment)
|
||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
Depositor
|
||
|
5.06
|
Change
in Shell Company Status
|
||
|
[Not
applicable to ABS issuers]
|
N/A
|
||
|
6.01
|
ABS
Informational and Computational Material
|
Depositor
|
|
|
[Not
included in reports to be filed under Section 8.12]
|
|||
|
6.02
|
Change
of Servicer or Trustee
|
||
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers, certificate
administrator or trustee. Reg AB disclosure about any new servicer
or
trustee is also required.
|
Trustee
|
||
|
6.03
|
Change
in Credit Enhancement or Other 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.
Reg AB disclosure about any new enhancement provider is also
required.
|
Trustee
|
||
|
6.04
|
Failure
to Make a Required Distribution
|
Trustee
|
|
|
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
|
||
|
7.01
|
Regulation
FD Disclosure
|
Depositor
|
|
|
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 security
holders.
|
Depositor
|
||
|
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event
|
|
|
10-K
|
|||
|
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
|
The
Responsible Party for the applicable Form 8-K item as indicated
above
|
||
|
15
|
Exhibits
and Financial Statement Schedules
|
||
|
Item
1112(b) - Significant
Obligor Financial Information
|
N/A
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
N/A
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
Depositor
Depositor
|
||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders,
including
proceedings known to be contemplated by governmental
authorities:
Sponsor
(Seller)
Depositor
Trustee
Issuing
entity
Servicer
or any other Subservicer to which Servicer delegates servicing
function to
that is servicing 20% or more of pool assets at time of
report
Master
Servicer
Originator
of 20% or more of pool assets as of the Cut-off Date
Custodian
|
Seller
Depositor
Trustee
Depositor
Servicer
Master
Servicer
Depositor
Custodian
|
||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
Sponsor
(Seller)
Depositor
Trustee
Servicer
or any other Subservicer to which Servicer delegates servicing
function to
that is servicing 20% or more of pool assets at time of
report
Master
Servicer
Originator
Custodian
Counterparty
|
Seller
Depositor
Trustee
Servicer
Master
Servicer
Depositor
Custodian
Depositor
|
||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
Trustee,
Servicer, Master Servicer, Custodian
|
||
|
Item
1123 - Servicer Compliance Statement
|
Servicer,
Master Servicer
|
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
SCHEDULE
II
SELLER'S
REPRESENTATIONS AND WARRANTIES
(i) The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation;
(ii) the
Seller has full corporate power to own its property, to carry on its business
as
presently conducted and to enter into and perform its obligations under
this
Agreement;
(iii) the
execution and delivery by the Seller of this Agreement have been duly authorized
by all necessary corporate action on the part of the Seller; and neither
the
execution and delivery of this Agreement, nor the consummation of the
transactions herein contemplated hereby, 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 Seller or its properties or the
certificate of incorporation or by-laws of the Seller, except those conflicts,
breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Seller's ability to enter into this Agreement and
to
consummate the transactions contemplated hereby;
(iv) the
execution, delivery and performance by the Seller of this Agreement and
the
consummation of the transactions contemplated hereby do not require the
consent
or approval of, the giving of notice to, the registration with, or the
taking of
any other action in respect of, any state, federal or other governmental
authority or agency, except those consents, approvals, notices, registrations
or
other actions as have already been obtained, given or made and, in connection
with the recordation of the Mortgages, powers of attorney or assignments
of
Mortgages not yet completed;
(v) this
Agreement has been duly executed and delivered by the Seller and, assuming
due
authorization, execution and delivery by the Trustee, the Servicers and
the
Depositor, constitutes a valid and binding obligation of the Seller enforce
able
against it in accordance with its terms (subject to applicable bankruptcy
and
insolvency laws and other similar laws affecting the enforcement of the
rights
of creditors generally); and
(vi) there
are no actions, litigation, suits or proceedings pending or to the knowledge
of
the Seller, threatened against the Seller before or by any court, administrative
agency, arbitrator or governmental body (i) with respect to any of the
transactions contemplated by this Agreement or (ii) with respect to any
other
matter which in the judgment of the Seller if determined adversely to the
Seller
would reasonably be expected to materially and adversely affect the Seller's
ability to perform its obligations under this Agreement; and the Seller
is not
in default with respect to any order of any court, administrative agency,
arbitrator or governmental body so as to materially and adversely affect
the
transactions contemplated by this Agreement.
SCHEDULE
III A
REPRESENTATIONS
AND WARRANTIES of SELECT PORTFOLIO SERVICING, INC.
SPS,
in its capacity as Servicer and Master Servicer, hereby makes the
representations and warranties set forth in this Schedule III D to the
Depositor
and the Trustee, as of the Closing Date, or if so specified herein, as
of the
Cut-off Date or such other date as may be specified.
(i) SPS
is a corporation duly formed, validly existing and in good standing under
the
laws of the jurisdiction of its incorporation and is qualified under the
laws of
each state where required by applicable law or is otherwise exempt under
applicable law from such qualification.
(ii) SPS
has all requisite corporate power, authority and capacity to enter into
the
Agreement and to perform the obligations required of it thereunder. The
Agreement (assuming the due authorization and execution of the Agreement
by the
other parties thereto) constitutes a valid and legally binding agreement
of SPS
enforceable in accordance with its terms, except as such enforceability
may be
limited by bankruptcy, insolvency, moratorium, reorganization and similar
laws,
and by equitable principles affecting the enforceability of the rights
of
creditors.
(iii) None
of the execution and delivery of the Agreement, the consummation of any
other
transaction contemplated therein, or the fulfillment of or compliance with
the
terms of the Agreement, will result in the breach of, or constitute a default
under, any term or provision of the organizational documents of SPS or
conflict
with, result in a material breach, violation or acceleration of or constitute
a
material default under, the terms of any indenture or other agreement or
instrument to which SPS is a party or by which it is bound, or any statute,
order, judgment, or regulation applicable to SPS of any court, regulatory
body,
administrative agency or governmental body having jurisdiction over
SPS.
(iv) There
is no action, suit, proceeding or investigation pending, or to SPS ’s knowledge
threatened, against SPS before any court, administrative agency or other
tribunal (a) asserting the invalidity of the Agreement, (b) seeking to
prevent
the consummation of any of the transactions contemplated thereby or (c)
which
might reasonably be expected to materially and adversely affect the performance
by SPS of its obligations under, or the validity or enforceability of,
the
Agreement.
(v) No
consent, approval, authorization or order of any court, regulatory body
or
governmental agency or court is required, under state or federal law prior
to
the execution, delivery and performance by SPS of the Agreement or the
consummation of the transactions contemplated by the Agreement.
SCHEDULE
III B
[RESERVED]
SCHEDULE
III C
OCWEN
REPRESENTATIONS AND WARRANTIES
(i) Ocwen
is a limited liability company duly organized, validly existing and in
good
standing under the laws of the state of its organization;
(ii) Ocwen
has full corporate power to own its property, to carry on its business
as
presently conducted and to enter into and perform its obligations under
this
Agreement;
(iii) The
execution and delivery by Ocwen of this Agreement have been duly authorized
by
all necessary corporate action on the part of Ocwen; and neither the execution
and delivery of this Agreement, nor the consummation of the transactions
herein
contemplated hereby, 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 Ocwen or its properties or the certificate of incorporation
or bylaws
of Ocwen, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on Ocwen ability
to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(iv) This
Agreement has been duly executed and delivered by Ocwen and, assuming due
authorization, execution and delivery by the Trustee, the Seller and the
Depositor, constitutes a valid and binding obligation of Ocwen enforceable
against it in accordance with its terms (subject to applicable bankruptcy
and
insolvency laws and other similar laws affecting the enforcement of the
rights
of creditors generally); and
(v) There
are no actions, litigation, suits or proceedings pending or to the knowledge
of
Ocwen, threatened against Ocwen 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 Ocwen if determined adversely to Ocwen would reasonably
be
expected to materially and adversely affect Ocwen’s ability to perform its
obligations under this Agreement, other than as Servicer has previously
advised
Seller; and Ocwen is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to materially
and
adversely affect the transactions contemplated by this Agreement.
SCHEDULE
III D
[RESERVED]
SCHEDULE
IV
REPRESENTATIONS
AND WARRANTIES RELATING TO THE MORTGAGE LOANS
DLJMC,
in its capacity as Seller, hereby makes the representations and warranties
set
forth in this Schedule IV to the Depositor and the Trustee, as of the Closing
Date, or the date specified herein, with respect to the Mortgage Loans
identified on Schedule I hereto.
(i) The
Seller or its affiliate is the sole owner of record and holder of the Mortgage
Loan and the indebtedness evidenced by the Mortgage Note. Immediately prior
to
the transfer and assignment to the Depositor on the Closing Date, the Mortgage
Loan, including the Mortgage Note and the Mortgage, were not subject to
an
assignment or pledge, and the Seller had good and marketable title to and
was
the sole owner thereof and had full right to transfer and sell the Mortgage
Loan
to the Depositor free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest and has the full right and authority
subject
to no interest or participation of, or agreement with, any other party,
to sell
and assign the Mortgage Loan and following the sale of the Mortgage Loan,
the
Depositor will own such Mortgage Loan free and clear of any encumbrance,
equity,
participation interest, lien, pledge, charge, claim or security
interest.
(ii) Any
and all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity or disclosure laws applicable
to the
Mortgage Loan have been complied with in all material respects.
(iii) The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments which
have
been recorded to the extent any such recordation is required by law, or,
necessary to protect the interest of the Depositor. No instrument of waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement and which assumption agreement is part of the Mortgage
File and the terms of which are reflected in the Mortgage Loan Schedule;
the
substance of any such waiver, alteration or modification has been approved
by
the issuer of any related Primary Insurance Policy and title insurance
policy,
to the extent required by the related policies.
(iv) The
Mortgage Loan complies with all the terms, conditions and requirements
of the
originator's underwriting standards in effect at the time of origination
of such
Mortgage Loan.
(v) The
information set forth in the Mortgage Loan Schedule, attached to the Agreement
as Schedule I, is complete, true and correct in all material respects as
of the
Cut-off Date.
(vi) With
respect to any first lien Mortgage Loan, the related Mortgage is a valid,
subsisting, enforceable and perfected first lien on the Mortgaged Property
and,
with respect to any second lien Mortgage Loan, the related Mortgage is
a valid,
subsisting, enforceable and perfected second lien on the Mortgaged Property,
and
all buildings on the Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems affixed to such
buildings, and all additions, alterations and replacements made at any
time with
respect to the foregoing securing the Mortgage Note's original principal
balance. The Mortgage and the Mortgage Note do not contain any evidence
of any
security interest or other interest or right thereto. Such lien is free
and
clear of all adverse claims, liens and encumbrances having priority over
the
first or second lien, as applicable, of the Mortgage subject only to (1)
with
respect to any Second Mortgage Loan, the related First Mortgage Loan, (2)
the
lien of non-delinquent current real property taxes and assessments not
yet due
and payable, (3) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of recording
which are acceptable to mortgage lending institutions generally and either
(A)
which are referred to or otherwise considered in the appraisal made for
the
originator of the Mortgage Loan, or (B) which do not adversely affect the
appraised value of the Mortgaged Property as set forth in such appraisal,
and
(4) other matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates (1) with respect to any First Mortgage Loan, a
valid,
subsisting, enforceable and perfected first lien and first priority security
interest and (2) with respect to any second lien Mortgage Loan, a valid,
subsisting, enforceable and perfected second lien and second priority security
interest, in each case, on the property described therein, and the Seller
has
the full right to sell and assign the same to the Depositor.
(vii) There
are no mechanics' or similar liens or claims which have been filed for
work,
labor or material (and no rights are outstanding that under law could give
rise
to such liens) affecting the related Mortgaged Property which are or may
be
liens prior to or equal to the lien of the related Mortgage.
(viii) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and
which
has been assessed but is not yet due and payable.
(ix) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note
or the
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto.
(x) The
Mortgaged Property is not subject to any material damage by waste, fire,
earthquake, windstorm, flood or other casualty. At origination of the Mortgage
Loan there was, and there currently is, no proceeding pending for the total
or
partial condemnation of the Mortgaged Property.
(xi) All
improvements subject to the Mortgage which were considered in determining
the
appraised value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within
the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are
insured
against by a title insurance policy and all improvements on the property
comply
with all applicable zoning and subdivision laws and ordinances.
(xii) Seller
has delivered or caused to be delivered to the Trustee or the Custodian
on
behalf of the Trustee the original Mortgage bearing evidence that such
instruments have been recorded in the appropriate jurisdiction where the
Mortgaged Property is located as determined by the Seller (or, in lieu
of the
original of the Mortgage or the assignment thereof, a duplicate or conformed
copy of the Mortgage or the instrument of assignment, if any, together
with a
certificate of receipt from the Seller or the settlement agent who handled
the
closing of the Mortgage Loan, certifying that such copy or copies represent
true
and correct copy(ies) of the original(s) and that such original(s) have
been or
are currently submitted to be recorded in the appropriate governmental
recording
office of the jurisdiction where the Mortgaged Property is located) or
a
certification or receipt of the recording authority evidencing the
same.
(xiii) The
Mortgage File contains each of the documents specified in Section 2.01(b)
of the
Agreement.
(xiv) As
of the Closing Date, each Mortgage Loan shall be serviced in all material
respects in accordance with the terms of the Agreement.
(xv) All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by an insurer acceptable under the FNMA Guides, against loss
by
fire, hazards of extended coverage and such other hazards as are provided
for in
the FNMA Guides or by FHLMC, as well as all additional requirements set
forth in
this Agreement. All such standard hazard policies are in full force and
effect
and on the date of origination contained a standard mortgagee clause naming
the
Seller and its successors in interest and assigns as loss payee and such
clause
is still in effect and all premiums due thereon have been paid. If at the
time
of origination, the Mortgage Loan was required to have flood insurance
coverage
in accordance with the Flood Disaster Protection Act of 1973, as amended,
such
Mortgage Loan is covered by a flood insurance policy meeting the requirements
of
the current guidelines of the Federal Insurance Administration which policy
conforms to FNMA and FHLMC requirements, as well as all additional requirements
set forth in this Agreement. Such policy was issued by an insurer acceptable
under FNMA or FHLMC guidelines. The Mortgage obligates the Mortgagor thereunder
to maintain all such insurance at the Mortgagor's cost and expense, and
upon the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor.
(xvi) With
respect to each Mortgage Loan that has a Prepayment Penalty feature, each
such
Prepayment Penalty is enforceable and, at the time such Mortgage Loan was
originated, each Prepayment Penalty complied with applicable federal, state
and
local law, subject to federal preemption where applicable.
(xvii) As
of the
Closing Date, no more than 1.0% of the Initial Mortgage Loans are 30 to
59 days
contractually delinquent in payment, no more than 0.5% of the Initial Mortgage
Loans are 60 to 89 days contractually delinquent in payment (in each case
based
on the Aggregate Collateral Balance as of the Cut-off Date), and none of
the
Initial Mortgage Loans are 90 days or more contractually delinquent in
payment.
(xviii) The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and bi nding obligation of the maker thereof, enforceable
in all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the
rights of creditors and by general equitable principles.
(xix) To
the knowledge of the Seller, (i) no proceeds from any Mortgage Loan were
used to
finance single-premium credit insurance policies, (ii) no Mortgage Loan
originated prior to October 1, 2002 will impose a Prepayment Penalty for
a term
in excess of five years and no Mortgage Loan originated on or after October
1,
2002 will impose a Prepayment Penalty for a term in excess of three years,
(iii)
the related Servicer of each Mortgage Loan has fully furnished, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information on a monthly basis and (iv) the original
principal balance of each Mortgage Loan is within Xxxxxxx Mac's dollar
amount
for conforming one- to four-family mortgage loans. No Mortgage Loan secured
by a
Mortgaged Property located in the State of Georgia was originated on or
after
October 1, 2002 and before March 7, 2003 and no Mortgage Loan secured by
Mortgaged Property located in the State of Georgia that was originated
on or
after March 7, 2003 is a “high cost home loan” as defined in the Georgia Fair
Lending Act (HB 1361), as amended.
(xx) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws.
(xxi) No
Mortgage Loan is classified as (a) a “high cost mortgage loan” under the Home
Ownership and Equity Protection Act of 1994 or (b) a “high cost home,”
“covered,” “high cost,” “high risk home” or “predatory” loan under any other
applicable state, federal or local law (or a similarly classified loan
using
different terminology under a law imposing heightened regulatory scrutiny
or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees).
(xxii) No
Mortgage Loan is a High Cost Loan or Covered Loan as such terms are defined
in
the then current Version 5.7 Revised; Appendix E of the Standard & Poor's
LEVELS® Glossary.
(xxiii) With
respect to any Mortgage Loan originated on or after October 1, 2004, either
(a)
the related Mortgage and the related Mortgage Note does not contain a mandatory
arbitration clause (that is, a clause that requires the related Mortgagor
to
submit to arbitration to resolve any dispute arising out of or relating
in any
way to the Mortgage Loan) or (b) the related Mortgage and the related Mortgage
Note contained a mandatory arbitration clause as of the related origination
date
and such clause has or will be waived by the originator or an entity designated
by the Seller in writing no later than sixty (60) days after the related
Closing
Date which notice included or will include the following language: “WE ARE
HEREBY NOTIFYING YOU THAT THE MANDATORY ARBITRATION CLAUSE OF YOUR LOAN,
REQUIRING THAT YOU SUBMIT TO ARBITRATION TO RESOLVE ANY DISPUTE ARISING
OUT OF
OR RELATING IN ANY WAY TO YOUR MORTGAGE LOAN, IS IMMEDIATELY NULL AND VOID.
YOU
ARE FREE TO CHOOSE TO EXERCISE ANY OF YOUR RIGHTS OR ENFORCE ANY REMEDIES
UNDER
YOUR MORTGAGE LOAN THROUGH THE COURT SYSTEM.” A copy of the written notice
referred to in the immediately preceding sentence, if applicable, shall
be
retained in the related Mortgage File.
(xxiv) No
Mortgage Loan had a combined loan-to-value ratio at the time of origination
of
more than 100%.
(xxv) Each
Mortgage Loan constitutes a qualified mortgage loan under Section 860G(a)(3)(A)
of the Code and Treasury Regulations Section 1.860G-2(a)(1).
SCHEDULE
V
CLASS
A-IO NOTIONAL AMOUNT
|
Distribution
Date
|
Class
A-IO Notional
Balance
($)
|
|
November
2006
|
80,000,000
|
|
December
2006
|
74,118,790
|
|
January
2007
|
68,669,938
|
|
February
2007
|
63,621,658
|
|
March
2007
|
58,944,504
|
|
April
2007
|
54,611,191
|
|
May
2007
|
50,596,443
|
|
June
2007
|
46,876,839
|
|
July
2007
|
43,430,682
|
|
August
2007
|
40,237,870
|
|
September
2007
|
37,279,778
|
|
October
2007
|
34,539,150
|
|
November
2007
|
32,000,000
|
|
December
2007
|
29,647,516
|
|
January
2008
|
27,467,975
|
|
February
2008
|
25,448,663
|
|
March
2008
|
23,577,802
|
|
April
2008
|
21,844,477
|
|
May
2008
|
20,238,577
|
|
June
2008
|
18,750,735
|
|
July
2008
|
17,372,273
|
|
August
2008
|
16,095,148
|
|
September
2008
|
14,911,911
|
|
October
2008
|
13,815,660
|
|
November
2008
|
12,800,000
|
|
December
2008
|
11,859,006
|
|
January
2009
|
10,987,190
|
|
February
2009
|
10,179,465
|
|
March
2009
|
9,431,121
|
|
April
2009
|
8,737,791
|
|
May
2009 and thereafter
|
0
|
EXHIBIT
GG
|
|
 |
|
Servicer
Modification Review Package
|
|
|||||
|
|
|
|
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Servicer
Information:
|
|
|
|
|
|
|
|
||
|
|
Servicer
Name
|
|
ABC
Servicer
|
|
|||||
|
|
|
|
|
|
|
|
|
|
|
|
|
Servicer
Rating Xxxxx'x/Fitch/S&P
|
|
Plus
|
Plus
|
Plus
|
|
|||
|
|
|
|
|
|
|
|
|
|
|
|
|
Servicer
Contact
|
|
|
|
|||||
|
|
Servicer
Contact Email Address
|
|
|
|
|||||
|
|
Servicer
Contact Phone Number
|
|
|
|
|||||
|
|
Date
Modification Review Submitted
|
|
|
|
|||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan
Information:
|
|
|
|
|
|
|
|
||
|
|
Servicer
Loan Number/CS Loan Number/SPS Loan Number
|
|
|
|
|
|
|||
|
|
Borrower
Name
|
|
|
|
|||||
|
|
Co-Borrower
Name
|
|
|
|
|||||
|
|
Property
Address
|
|
|
|
|||||
|
|
Property
City, State, Zip
|
|
|
|
|||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Servicer
Reviewer Initials
|
|
SPS
Reviewer Initials
|
|
Date
SPS Review Complete
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Borrower
Financial Documentation:
|
|
|
|
|
|
|
|
||
|
|
Most
Recent Month's Pay Stub or Disability Income
|
|
|
|
|
|
|
|
|
|
|
a)
Pay Stub
|
|
|
|
|
|
|
|
|
|
|
b)
Disability/Social Security/Retirement Stub
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Most
Recent Month's Bank Statements For All Accounts
|
|
|
|
|
|
|
|
|
|
|
a)
Bank Statement
|
|
|
|
|
|
|
|
|
|
|
b)
XXX Statement
|
|
|
|
|
|
|
|
|
|
|
c)
401K Statement
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Most
Recent Year's Federal Tax Return And All Schedules, 1098's, And
W-2's
|
|
|
|
|
|
|
|
|
|
|
a)
Tax Return And Schedules
|
|
|
|
|
|
|
|
|
|
|
b)
1098 Form
|
|
|
|
|
|
|
|
|
|
|
c)
W-2 Form
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Written
or Verbal Financial Information Form
|
|
|
|
|
|
|
|
|
|
|
a)
Borrower Financial Assessment Tab Must Be Completed
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payment
History (Must Include Up to 6 Month's of History)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Credit
Bureau Report (Up To 3 Month's Old)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hardship
Letter
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan/Property
Documentation:
|
|
|
|
|
|
|
|
||
|
|
Loan
Documents
|
|
|
|
|
|
|
|
|
|
|
a)
Mortgage
|
|
|
|
|
|
|
|
|
|
|
b)
Note
|
|
|
|
|
|
|
|
|
|
|
c)
Riders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title
Report
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BPO
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Servicer
Documentation:
|
|
|
|
|
|
|
|
||
|
|
Breakdown
of Total Outstanding Debt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructure
Proposal (Restructure Proposal Tab Must Be Completed)
|
|
|
|
|
|
|
|
|
|
|
Restructure
Proposal
|
|
||||
|
|
|
|
||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer
Information:
|
|
|
|
|
||
|
|
Servicer
Loan Number/CS Loan Number/SPS Loan Number
|
|
|
|
|
|
|
|
Borrower
Name
|
0
|
|
|||
|
|
Co-Borrower
Name
|
0
|
|
|||
|
|
Property
Address
|
0
|
|
|||
|
|
Property
City, State, Zip
|
0
|
|
|||
|
|
|
|
|
|
|
|
|
|
Capacity
To Pay Amount
|
|
|
|
|
|
|
|
Third
Party Contribution
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan/Property
Information:
|
|
|
|
|
||
|
|
Original
Loan Terms:
|
|
|
|
|
|
|
|
Original
UPB
|
|
|
|
|
|
|
|
Origination
Date
|
|
|
|
|
|
|
|
Original
Term
|
|
|
|
|
|
|
|
Original
Maturity Date
|
|
|
|
|
|
|
|
Original
Rate Type
|
|
|
|
|
|
|
|
Original
P&I Payment
|
|
|
|
|
|
|
|
Original
Interest Rate
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
Loan Terms:
|
|
|
|
|
|
|
|
Current
UPB
|
|
|
|
|
|
|
|
Current
Interest Rate
|
|
|
|
|
|
|
|
Current
P&I Payment
|
|
|
|
|
|
|
|
Current
Escrow Installment
|
|
|
|
|
|
|
|
Current
BPO Date
|
|
|
|
|
|
|
|
Current
BPO Value
|
|
|
|
|
|
|
|
Current
LTV
|
|
|
|
|
|
|
|
Current
Due Date
|
|
|
|
|
|
|
|
Payments
Delinquent
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Debt Information:
|
|
|
|
|
||
|
|
Good
Through Date
|
|
|
|
|
|
|
|
Principal
Due
|
|
|
|
|
|
|
|
Accrued
Interest
|
|
|
|
|
|
|
|
Escrow
Advances
|
|
|
|
|
|
|
|
Corporate
Advances
|
|
|
|
|
|
|
|
Fees
(NSF, Late, Etc.)
|
|
|
|
|
|
|
|
Pending
Advances (Services Ordered, Not Yet Paid)
|
|
|
|
|
|
|
|
Suspense
Balance
|
|
|
|
|
|
|
|
Escrow
Balance
|
|
|
|
|
|
|
|
Restricted
Escrow Balance
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Old Debt
|
$
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructure
Proposal:
|
|
|
|
|
||
|
|
Terms:
|
|
|
|
|
|
|
|
Proposed
Effective Date
|
|
|
|
|
|
|
|
Proposed
First Payment Date
|
|
|
|
|
|
|
|
Proposed
Term
|
|
|
|
|
|
|
|
Proposed
Maturity Date
|
|
|
|
|
|
|
|
Proposed
Rate Type
|
|
|
|
|
|
|
|
Proposed
Interest Rate
|
|
|
|
|
|
|
|
Proposed
LTV
|
|
|
|
|
|
|
|
Proposed
P&I Payment
|
#NAME?
|
|
|
|
|
|
|
Proposed
Escrow Installment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal
and Interest:
|
|
|
|
|
|
|
|
Principal
Due
|
|
|
|
|
|
|
|
Interest
Accrued
|
$
-
|
|
|
|
|
|
|
Capitalized
Interest
|
$
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Advances
and Fees:
|
|
|
|
|
|
|
|
Escrow
Advances
|
|
|
|
|
|
|
|
Corporate
Advances
|
|
|
|
|
|
|
|
Fees
(NSF, Late, Etc.)
|
$
-
|
|
|
|
|
|
|
Pending
Advances (Services Ordered, Not Yet Paid)
|
$
-
|
|
|
|
|
|
|
Ballooned
Advances
|
|
|
|
|
|
|
|
Ballooned
Interest
|
|
|
|
|
|
|
|
Ballooned
Fees
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Write-Offs:
|
|
|
|
|
|
|
|
Principal
|
$
-
|
|
|
|
|
|
|
Interest
|
$
-
|
|
|
|
|
|
|
Corporate
Advances
|
$
-
|
|
|
|
|
|
|
Fees
(NSF, Late, Etc.)
|
|
|
|
|
|
|
|
Other
|
$
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Suspense
Funds:
|
|
|
|
|
|
|
|
Suspense
Balance
|
|
|
|
|
|
|
|
Escrow
Balance
|
$
-
|
|
|
|
|
|
|
Restricted
Escrow Balance
|
$
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
New Debt
|
$
-
|
|
|
|
|
|
|
Total
Write-offs
|
$
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variance
(Must Equal Zero)
|
$
-
|
|
|
|
|
|
|
|
Borrower
Financial Assessment
|
||||
|
|
|
|
||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General
Information:
|
|
|
|
|
||
|
|
Servicer
Loan Number/CS Loan Number/SPS Loan Number
|
|
|
|||
|
|
Borrower
Name
|
0
|
||||
|
|
Co-Borrower
Name
|
0
|
||||
|
|
Property
Address
|
0
|
||||
|
|
Property
City, State, Zip
|
0
|
||||
|
|
|
|
|
|
|
|
|
|
Lien
Position
|
First
|
|
|
|
|
|
|
Number
of Units
|
|
|
|
|
|
|
|
Occupancy
Status
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
Information:
|
|
|
|
|
||
|
|
Borrower:
|
|
|
|
|
|
|
|
|
Income
Source Type
|
Employer
|
|
|
|
|
|
|
Income
Source Name
|
|
|||
|
|
|
Customer's
Title
|
|
|||
|
|
|
Income
Source Address
|
|
|||
|
|
|
Income
Source City, State, Zip
|
|
|||
|
|
|
Income
Source Phone Number
|
|
|||
|
|
|
|
|
|
|
|
|
|
|
Start
Date/End Date
|
|
|
Through
Present
|
|
|
|
|
|
|
|
|
|
|
|
|
Monthly
Take Home Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Co-Borrower:
|
|
|
|
|
|
|
|
|
Income
Source Type
|
Employer
|
|
|
|
|
|
|
Income
Source Name
|
|
|||
|
|
|
Customer's
Title
|
|
|||
|
|
|
Income
Source Address
|
|
|||
|
|
|
Income
Source City, State, Zip
|
|
|||
|
|
|
Income
Source Phone Number
|
|
|||
|
|
|
|
|
|
|
|
|
|
|
Start
Date/End Date
|
|
|
Through
Present
|
|
|
|
|
|
|
|
|
|
|
|
|
Monthly
Take Home Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assets:
|
|
|
|
|
||
|
|
Cash
|
$
-
|
|
|
|
|
|
|
Checking
Account
|
$
-
|
|
|
|
|
|
|
Savings
Account
|
$
-
|
|
|
|
|
|
|
Retirement
Account
|
$
-
|
|
|
|
|
|
|
Other
Real Estate
|
$
-
|
|
|
|
|
|
|
Auto
1
|
|
|
|
|
|
|
|
|
Make/Model/Year
|
|
|
|
|
|
|
Auto
2
|
|
|
|
|
|
|
|
|
Make/Model/Year
|
|
|
|
|
|
|
Life
Insurance
|
$
-
|
|
|
|
|
|
|
Personal
Property
|
$
-
|
|
|
|
|
|
|
Other
Assets
|
|
|
|
|
|
|
|
|
Amount
1
|
$
-
|
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
Amount
2
|
$
-
|
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
Amount
3
|
$
-
|
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Assests
|
$
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Monthly
Payment
|
|
Outstanding
Balance
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Self
Employment/Business Expenses:
|
|
|
|
|
||
|
|
Expense
1
|
$
-
|
|
$
-
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expense
2
|
$
-
|
|
$
-
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expense
3
|
$
-
|
|
$
-
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expense
4
|
$
-
|
|
0
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expense
5
|
$
-
|
|
0
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Payments
|
$
-
|
|
$
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Household
Debts and Loans:
|
|
|
|
|
||
|
|
Other
Mortgage Payment
|
$
-
|
|
$
-
|
|
|
|
|
Major
Credit Cards
|
|
|
|
|
|
|
|
Retail
Credit Cards
|
$
-
|
|
$
-
|
|
|
|
|
School
Expenses
|
$
-
|
|
$
-
|
|
|
|
|
Income
Tax Repayment
|
|
|
|
|
|
|
|
Signature
Loan
|
$
-
|
|
$
-
|
|
|
|
|
Auto
Loan 1
|
|
|
|
|
|
|
|
Auto
Loan 2
|
$
-
|
|
$
-
|
|
|
|
|
Student
Loan 1
|
$
-
|
|
$
-
|
|
|
|
|
Student
Loan 2
|
$
-
|
|
$
-
|
|
|
|
|
Other
Loan 1
|
$
-
|
|
$
-
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
Loan 2
|
$
-
|
|
$
-
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Debts
|
$
-
|
|
$
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Household
Expenses:
|
|
|
|
|
||
|
|
HOA
Fee
|
$
-
|
|
$
-
|
|
|
|
|
Homeowner's
Insurance (If Not Escrowed)
|
$
-
|
|
$
-
|
|
|
|
|
Property
Taxes (If Not Escrowed)
|
|
|
$
-
|
|
|
|
|
Electricity
|
|
|
$
-
|
|
|
|
|
Heating
(Gas, Oil)
|
|
|
$
-
|
|
|
|
|
Water
and Sewer
|
|
|
$
-
|
|
|
|
|
Cable
TV
|
$
-
|
|
$
-
|
|
|
|
|
Groceries
|
|
|
|
|
|
|
|
Telephone
|
|
|
$
-
|
|
|
|
|
Vehicle
Fuel
|
|
|
$
-
|
|
|
|
|
Vehicle
Insurance
|
|
|
$
-
|
|
|
|
|
Vehicle
Maintenance
|
|
|
$
-
|
|
|
|
|
Child
Care
|
$
-
|
|
$
-
|
|
|
|
|
Health
Insurance (If Not Deducted From Payroll)
|
$
-
|
|
$
-
|
|
|
|
|
Medical
Expenses
|
|
|
$
-
|
|
|
|
|
Support
Payment
|
$
-
|
|
$
-
|
|
|
|
|
Religious
Contribution
|
$
-
|
|
$
-
|
|
|
|
|
Other
1
|
$
-
|
|
$
-
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
2
|
$
-
|
|
$
-
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
3
|
$
-
|
|
$
-
|
|
|
|
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Expenses
|
$
-
|
|
$
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial
Summary:
|
|
|
|
|
||
|
|
Total
Monthly Income
|
$
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Debt (Less Contractual)
|
$
-
|
|
|
|
|
|
|
Total
Monthly Business Expenses
|
$
-
|
|
|
|
|
|
|
Total
Monthly Payments (Less Contractual)
|
$
-
|
|
|
|
|
|
|
Contractual
Payment
|
#NAME?
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt
to Income:
|
|
|
|
|
||
|
|
Debt
To Income (Less Contractual Payment)
|
|
|
|
|
|
|
|
Debt
To Income (Including Contractual Payment)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
Available for Re-Payment Plan
|
|
|
|
|
|
|
|
Debt
to Coverage Ratio
|
|
|
|
|
|
|
|
|
|
|
|
|
|
