Execution Copy
ADMINISTRATION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST, SERIES 2007-SL1,
as Issuing Entity
LASALLE BANK NATIONAL ASSOCIATION,
as Administrator
WILMINGTON TRUST COMPANY,
as Owner Trustee,
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
Dated as of May 11, 2007
This Administration Agreement (the "Agreement") is entered into as of
May 11, 2007, among XXXXXXX XXXXX MORTGAGE INVESTORS TRUST, SERIES 2007-SL1, a
Delaware statutory trust (the "Issuing Entity"), LASALLE BANK NATIONAL
ASSOCIATION, not in its individual capacity but solely as Administrator (the
"Administrator"), WILMINGTON TRUST COMPANY, not in its individual capacity but
solely as Owner Trustee (the "Owner Trustee"), and XXXXXXX XXXXX MORTGAGE
INVESTORS, INC., as Depositor (the "Depositor").
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in Appendix A to the Indenture (as defined herein).
WITNESSETH:
WHEREAS, the Issuing Entity is a statutory trust under the Delaware
Statutory Trust Act (12 Del.C. Section 3801 et seq.) created by a Trust
Agreement relating to the Issuing Entity, dated as of May 11, 2007 (the "Trust
Agreement"), among the Depositor and the Owner Trustee;
WHEREAS, the Issuing Entity will issue under an indenture its Xxxxxxx Xxxxx
Mortgage Investors Trust, Series 2007-SL1 Mortgage Loan Asset-Backed Notes (the
"Notes") and, under the Trust Agreement, its Xxxxxxx Xxxxx Mortgage Investors
Trust, Series 2007-SL1 Mortgage Loan Asset-Backed Certificates (the
"Certificates" and collectively with the Notes, the "Securities");
WHEREAS, the Notes will be secured by certain collateral, as more
particularly set forth in the Indenture, dated as of May 11, 2007 (the
"Indenture"), among the Issuing Entity, Citibank, N.A., as indenture trustee (in
such capacity, the "Indenture Trustee"), and LaSalle Bank National Association,
as securities administrator (in such capacity, the "Securities Administrator");
WHEREAS, the Certificates will be issued pursuant to the Trust Agreement
and will represent the undivided beneficial ownership interest in the Issuing
Entity;
WHEREAS, the Issuing Entity has entered into certain agreements in
connection with the issuance of the Securities, including (i) a Mortgage Loan
Servicing Agreement, dated as of May 11, 2007 (the "Mortgage Loan Servicing
Agreement"), among the Issuing Entity, the Depositor, Wilshire Credit
Corporation, as a servicer ("Wilshire"), Xxxxxx Loan Servicing LP ( "Xxxxxx" and
collectively with Wilshire, the "Servicers"), LaSalle Bank National Association,
as master servicer (in such capacity, the "Master Servicer") and Securities
Administrator, and the Indenture Trustee, (ii) an Assignment, Assumption and
Recognition Agreement, dated as of May 11, 2007, among the Sponsor, Xxxxxxx
Xxxxx Credit Corporation, the Depositor and Countrywide Home Loans Servicing LP,
and acknowledged and agreed to by the Master Servicer and the Indenture Trustee
(the "Countrywide AAR"), (iii) the Letter of Representations, dated May 9, 2007
(the "Depository Agreement"), among the Issuing Entity and The Depository Trust
Company relating to the Class A, Class M and Class B Notes and (iv) the
Indenture. The Mortgage Loan Servicing Agreement, the Countrywide AAR, the
Depository Agreement, the Indenture and the Trust Agreement are collectively
referred to herein as the "Related Agreements";
WHEREAS, pursuant to the Related Agreements, the Issuing Entity is required
to perform certain duties in connection with (a) the Notes and the collateral
therefor pledged
MLMI 2007-SL1
Administration Agreement
2
pursuant to the Indenture (the "Collateral") and (b) the beneficial ownership
interests in the Issuing Entity represented by the Certificates (the registered
holder of such interests being referred to herein as the "Certificateholder");
WHEREAS, the Issuing Entity desires to have the Administrator and the
Depositor, respectively, perform certain of the duties of the Issuing Entity
referred to in the preceding clause, and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuing Entity may from time to time request; and
WHEREAS, the Administrator and the Depositor have the capacity to provide
the respective services required hereby and are willing to perform such services
for the Issuing Entity on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
Section 1. Duties of the Administrator.
(a) The Administrator agrees to perform all of the duties of the
Issuing Entity and the Owner Trustee under the Depository Agreement. In addition
to its duties performed under the Depository Agreement, the Administrator shall
take all appropriate action that is the duty of the Issuing Entity and the Owner
Trustee to take with respect to the following matters under the Trust Agreement,
the Mortgage Loan Servicing Agreement and the Indenture (references are to
sections of the Indenture):
(i) causing the preparation of the Notes for execution by the Owner
Trustee or the Administrator upon the registration of any transfer or
exchange of the Notes (Sections 4.02 and 4.04);
(ii) causing the preparation of Definitive Notes in accordance with
the instructions of any Clearing Agency (including the preparation of any
temporary notes), (Sections 4.09 and 4.14);
(iii) the notification to the Owner Trustee of the Issuing Entity's
non-compliance with its negative covenants or restricted payment covenants
upon actual knowledge by a Responsible Officer of the Administrator of such
non-compliance (Sections 3.10 and Section 3.23);
(iv) the execution of all supplements, amendments, instruments of
further assurance and other instruments prepared by the Depositor and
delivered to the Administrator for execution to protect the Collateral
(Section 3.07).
(b) [Reserved].
(c) [Reserved].
3
(d) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuing Entity and shall be, in the Administrator's
opinion, no less favorable to the Issuing Entity than would be available from
unaffiliated parties.
In carrying out the foregoing duties or any of its other obligations under
this Agreement, the Administrator shall have the same rights, indemnifications
and immunities as the Indenture Trustee under the Indenture, including, without
limitation, the right to compensation, reimbursement and indemnification.
Section 2. Duties of the Depositor With Respect to the Indenture.
(a) The Depositor shall take all appropriate action that is the duty
of the Issuing Entity or the Owner Trustee to take with respect to the following
matters under the Indenture (references are to sections of the Indenture):
(i) causing the preparation of the Notes (for execution by the Owner
Trustee or the Administrator) upon their initial issuance and causing the
preparation of an Issuing Entity Request (for execution by the Owner
Trustee or the Securities Administrator) for delivery to the Securities
Administrator regarding the authentication of the Notes (Section 2.02)
(ii) causing the preparation of an Issuing Entity Request and
Officer's Certificate (and executing the same on behalf of the Issuing
Entity) and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Collateral, as defined
in the Indenture (Section 11.01)
(iii) causing the preparation of Issuing Entity Requests (and
executing the same on behalf of the Issuing Entity) and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures;
(iv) causing the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release of
collateral (Sections 8.05 and 11.01);
(v) the delivery of notice to the Indenture Trustee and the Rating
Agency of each Event of Default under the Indenture (Sections 3.24 and
5.01);
(vi) the annual delivery of Opinions of Counsel, in accordance with
Section 3.05 of the Indenture, as to the Trust Estate, and the annual
delivery and execution of the Officers' Certificate (Section 3.09) and the
delivery of the Annual Statement of Compliance (Section 3.11);
(vii) causing the preparation and execution of an Officer's
Certificate and the obtaining of the Opinion of Counsel and the Independent
Certificate relating thereto with
4
respect to any request by the Issuing Entity to the Indenture Trustee or
the Administrator to take any action under the Indenture (Sections 4.11,
8.03, 9.04 and 11.01);
(viii) the appointment of a successor Indenture Trustee (Section
6.09); and
(ix) obtaining and preserving the Issuing Entity's qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, the Collateral and each other instrument and agreement included in
the Trust Estate (Section 3.05).
(b) In addition to the duties of the Depositor set forth above, the
Depositor shall prepare for execution by the Issuing Entity or the Owner Trustee
or shall cause the preparation by other appropriate persons of all such
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Issuing Entity or the Owner Trustee to prepare, file or
deliver pursuant to the Related Agreements, and at the request of the Owner
Trustee shall take all appropriate action that is the duty of the Issuing Entity
or Owner Trustee to take pursuant to the Related Agreements. Subject to Section
5 of this Agreement, and in accordance with the directions of the Owner Trustee,
the Depositor shall administer, perform or supervise the performance of such
other activities in connection with the Collateral (including the Mortgage
Loans) as are not covered by any of the foregoing provisions and as are
expressly requested by the Owner Trustee and are reasonably within the
capability of the Depositor.
Section 3. Records. The Administrator shall maintain appropriate books of
account, if any, and records relating to services performed hereunder, which
books of account and records shall be accessible, with two (2) Business Days
advance notice, for inspection by the Issuing Entity and the Depositor at any
time during normal business hours.
Section 4. Compensation. The Administrator will perform the duties and
provide the services called for under Section 1 above for such compensation as
shall be agreed upon between the Administrator and the Depositor.
Section 5. Additional Information to be Furnished to the Issuing Entity.
The Depositor shall furnish to the Issuing Entity from time to time such
additional information regarding the Collateral as the Issuing Entity shall
reasonably request.
Section 6. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuing Entity or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuing Entity, the
Administrator shall have no authority to act for or represent the Issuing Entity
or the Owner Trustee in any way and shall not otherwise be deemed an agent of
the Issuing Entity or the Owner Trustee.
Section 7. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator or the Depositor, respectively, and either of the
Issuing Entity or the Owner Trustee, as members of any partnership, joint
venture, association, syndicate, unincorporated business or other separate
entity, (ii) shall be construed to impose any liability as such on any of
5
them or (iii) shall be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
Section 8. Other Activities of the Administrator and the Depositor. Nothing
herein shall prevent the Administrator, the Depositor or their respective
Affiliates from engaging in other businesses or, in its sole discretion, from
acting in a similar capacity as an Administrator for any other person or entity
even though such person or entity may engage in business activities similar to
those of the Issuing Entity or the Owner Trustee.
Section 9. Term of Agreement; Resignation and Removal of the Administrator.
(a) This Agreement shall continue in force until the termination of
the Trust Agreement and the Indenture in accordance with its terms, upon which
event this Agreement shall automatically terminate.
(b) Subject to Section 9(e) hereof, the Administrator may resign its
duties hereunder by providing the Issuing Entity with at least 60 days' prior
written notice.
(c) Subject to Section 9(e) hereof, the Issuing Entity may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(d) Subject to Section 9(e) hereof, the Issuing Entity may remove the
Administrator immediately upon written notice of termination from the Issuing
Entity to the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice of such default, shall not
cure such default within thirty (30) days (or, if such default cannot be
cured in such time, shall not give within thirty (30) days such assurance
of cure as shall be reasonably satisfactory to the Issuing Entity); or
(ii) a court having jurisdiction in the premises shall (x) enter a
decree or order for relief, which decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or (y) appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the Administrator
or any substantial part of its property, or (z) order the winding-up or
liquidation of the Administrator's affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official
for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial
part of its property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
6
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 9(d) shall occur, it shall give written notice
thereof to the Issuing Entity, the Depositor and the Indenture Trustee within
seven Business days after the occurrence of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Issuing Entity (or the Depositor on its behalf) and (ii) such
successor Administrator shall have agreed in writing to be bound by the terms of
this Agreement in the same manner as the Administrator is bound hereunder.
If a successor Administrator does not take office within 60 days after the
retiring Administrator resigns or is removed, the resigning or removed
Administrator or the Issuing Entity may petition any court of competent
jurisdiction for the appointment of a successor Administrator.
(f) The appointment of any successor Administrator shall be effective
only if such successor Administrator will not cause a downgrading of any class
of Notes by the Rating Agencies.
(g) Subject to Sections 9(e) and 9(f), the Administrator acknowledges
that upon the appointment of a successor Securities Administrator pursuant to
the Indenture, the Administrator shall immediately resign and such successor
Securities Administrator shall automatically become the Administrator under this
Agreement. Any such successor Securities Administrator shall be required to
agree to assume the duties of the Administrator under the terms and conditions
of this Agreement in its acceptance of appointment as successor Administrator.
Section 10. Action upon Termination, Resignation or Removal of the
Administrator. Promptly upon the effective date of termination of this Agreement
pursuant to Section 9(a) hereof or the resignation or removal of the
Administrator pursuant to Section 9(b) or (c) hereof, respectively, the
Administrator shall be entitled to be paid all fees and reimbursable expenses
accruing to it to the date of such termination, resignation or removal. The
Administrator shall forthwith upon such termination pursuant to Section 9(a)
deliver to the successor Administrator all property and documents of or relating
to the Collateral then in the custody of the Administrator, or if this Agreement
has been terminated, to the Depositor. In the event of the resignation or
removal of the Administrator pursuant to Section 9(b), (c) or (d), respectively,
the Administrator shall cooperate with the Issuing Entity and take all
reasonable steps requested to assist the Issuing Entity in making an orderly
transfer of the duties of the Administrator.
Section 11. Notices. Any notice, report or other communication given
hereunder shall be in writing, delivered by mail, overnight courier or facsimile
and addressed as follows:
(a) if to the Issuing Entity, to:
Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2007-SL1
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
7
Attention: Corporate Trust Administration
Fax: (000) 000-0000
(b) if to the Administrator, to:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Client Manager - Xxxxxxx Xxxxx Mortgage Investors
Trust, Series 2007-SL1
Fax: (000) 000-0000
(c) if to the Owner Trustee, to:
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
(d) if to the Depositor, to:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, hand delivered or
faxed to the address of such party as provided above.
Section 12. Amendments.
(a) This Agreement may be amended from time to time by the parties
hereto as specified in this Section, provided that any amendment be accompanied
by the written consent of the Indenture Trustee and an Opinion of Counsel shall
be furnished to the Indenture Trustee (which Opinion of Counsel shall not be at
the expense of the Indenture Trustee) stating that such amendment complies with
the provisions of this Section.
(b) If the purpose of the amendment is to prevent the imposition of
any federal or state taxes at any time that any Notes are outstanding (i.e.,
technical in nature), it shall not be necessary to obtain the consent of any
Noteholder, but the Indenture Trustee shall be furnished with an Opinion of
Counsel (which opinion shall not be at the expense of the Indenture Trustee)
that such amendment is necessary or helpful to prevent the imposition of such
taxes and is not materially adverse to any Noteholder.
(c) If the purpose of the amendment is to add or eliminate or change
any provision of this Agreement, it shall not be necessary to obtain the consent
of any Noteholder,
8
but the Indenture Trustee shall be furnished with either (i) a letter from each
of the Rating Agencies confirming that such amendment will not cause the Rating
Agency to qualify, downgrade or withdraw their then-current rating of the Notes
without giving effect to the Policy or (ii) an Opinion of Counsel, from the
party requesting such amendment, stating that such amendment will not materially
and adversely affect any of the Noteholders.
(d) Promptly after the execution of any such amendment, the
Administrator shall furnish a copy of such amendment to each Holder, the
Depositor and to the Rating Agencies.
Section 13. Successors and Assigns. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in writing
by the Owner Trustee and the Depositor. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Owner Trustee or the Depositor to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization executes
and delivers to the Issuing Entity, the Owner Trustee and the Depositor an
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
Section 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND,
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAWS, WHICH SHALL APPLY HERETO), AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 15. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
Section 16. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall together constitute one and the same
agreement.
Section 17. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 18. Not Applicable to LaSalle Bank National Association in Other
Capacities. Nothing in this Agreement shall affect any obligation LaSalle Bank
National Association may have in any other capacity.
9
Section 19. Limitation of Liability of Owner Trustee. Notwithstanding
anything contained herein to the contrary, this Agreement has been countersigned
by Wilmington Trust Company not in its individual capacity but solely in its
capacity as Owner Trustee of the Issuing Entity and in no event shall Wilmington
Trust Company in its individual capacity or any beneficial owner of the Issuing
Entity have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuing Entity hereunder, as to all of
which recourse shall be had solely to the assets of the Issuing Entity. For all
purposes of this Agreement, in the performance of any duties or obligations of
the Issuing Entity hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles VI, VII and
VIII of the Trust Agreement.
Section 20. Limitation of Liability of the Administrator; Indemnification.
Notwithstanding anything herein to the contrary, this Agreement has been signed
by LaSalle Bank National Association not in its individual capacity but solely
in its capacity as Administrator and in no event shall the Administrator in its
individual capacity have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuing Entity hereunder, as
to all of which recourse shall be had solely to the assets of the Issuing
Entity. The Administrator shall not have any duties or obligations other than
those expressly set forth in this Agreement, and no implied duties on its part
shall be read into this Agreement.
Section 21. Benefit of Agreement. It is expressly agreed that in performing
its duties under this Agreement, the Administrator will act for the benefit of
holders of the Securities as well as for the benefit of the Issuing Entity, and
that such obligations on the part of the Administrator shall be enforceable at
the instance of the Indenture Trustee and the Issuing Entity.
Section 22. Bankruptcy Matters. No party to this Agreement shall take any
action to cause the Depositor or the Issuing Entity to dissolve in whole or in
part or file a voluntary petition or otherwise initiate proceedings to have the
Depositor or the Issuing Entity adjudicated bankrupt or insolvent, or consent to
the institution of bankruptcy or insolvency proceedings against the Depositor or
the Issuing Entity, or file a petition seeking or consenting to reorganization
or relief of the Depositor or the Issuing Entity as debtor under any applicable
federal or state law relating to bankruptcy, insolvency, or other relief for
debtors with respect to the Depositor or the Issuing Entity; or seek or consent
to the appointment of any trustee, receiver, conservator, assignee,
sequestrator, custodian, liquidator (or other similar official) of the Depositor
or the Issuing Entity or of all or any substantial part of the properties and
assets of the Depositor or the Issuing Entity, or cause the Issuing Entity to
make any general assignment for the benefit of creditors of the Depositor or the
Issuing Entity, or take any action in furtherance of any of the above actions.
10
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST,
SERIES 2007-SL1,
By: Wilmington Trust Company, not in its
individual capacity but solely as
Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LASALLE BANK NATIONAL ASSOCIATION, as
Administrator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WILMINGTON TRUST COMPANY, as Owner
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
11
