MORGAN STANLEY ABS CAPITAL I INC., Depositor, COUNTRYWIDE HOME LOANS SERVICING LP, Servicer, SAXON MORTGAGE SERVICES, INC., Servicer, NC CAPITAL CORPORATION, Responsible Party, and DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee
XXXXXX
XXXXXXX ABS CAPITAL I INC.,
Depositor,
COUNTRYWIDE
HOME LOANS SERVICING LP,
Servicer,
SAXON
MORTGAGE SERVICES, INC.,
Servicer,
NC
CAPITAL CORPORATION,
Responsible
Party,
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
Dated
as
of January 1, 2007
XXXXXX
XXXXXXX ABS CAPITAL I INC. TRUST 2007-NC1
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES 2007-NC1
[
TABLE
OF
CONTENTS
|
ARTICLE
I
|
|
|
DEFINITIONS
|
|
|
ARTICLE
II
|
|
|
CONVEYANCE
OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
|
|
|
Section
2.01
|
Conveyance
of Mortgage Loans
|
|
Section
2.02
|
Acceptance
by the Trustee of the Mortgage Loans
|
|
Section
2.03
|
Representations
and Warranties; Remedies for Breaches of Representations and Warranties
with Respect to the Mortgage Loans
|
|
Section
2.04
|
Execution
and Delivery of Certificates
|
|
Section
2.05
|
REMIC
Matters
|
|
Section
2.06
|
Representations
and Warranties of the Depositor
|
|
Section
2.07
|
Enforcement
of Obligations for Breach of Mortgage Loan
Representations.
|
|
ARTICLE
III
|
|
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
|
|
Section
3.01
|
Servicers
to Service Mortgage Loans.
|
|
Section
3.02
|
Subservicing
Agreements between a Servicer and Subservicers
|
|
Section
3.03
|
Successor
Subservicers
|
|
Section
3.04
|
Liability
of the Servicers
|
|
Section
3.05
|
No
Contractual Relationship between Subservicers and the
Trustee
|
|
Section
3.06
|
Assumption
or Termination of Subservicing Agreements by Trustee
|
|
Section
3.07
|
Collection
of Certain Mortgage Loan Payments
|
|
Section
3.08
|
Subservicing
Accounts
|
|
Section
3.09
|
Collection
of Taxes, Assessments and Similar Items; Escrow
Accounts
|
|
Section
3.10
|
Collection
Accounts
|
|
Section
3.11
|
Withdrawals
from the Collection Accounts
|
|
Section
3.12
|
Investment
of Funds in the related Collection Account and the Distribution
Account
|
|
Section
3.13
|
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage
|
|
Section
3.14
|
Enforcement
of “Due-on-Sale” Clauses; Assumption Agreements
|
|
Section
3.15
|
Realization
upon Defaulted Mortgage Loans
|
|
Section
3.16
|
Release
of Mortgage Files
|
|
Section
3.17
|
Title,
Conservation and Disposition of REO Property
|
|
Section
3.18
|
Notification
of Adjustments
|
|
Section
3.19
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans
|
|
Section
3.20
|
Documents,
Records and Funds in Possession of the Servicers to Be Held for
the
Trustee
|
|
Section
3.21
|
Servicing
Compensation
|
|
Section
3.22
|
Annual
Statement as to Compliance
|
|
Section
3.23
|
Annual
Reports on Assessment of Compliance with Servicing Criteria; Annual
Independent Public Accountants’ Attestation Report
|
|
Section
3.24
|
Trustee
to Act as Servicer
|
|
Section
3.25
|
Compensating
Interest
|
|
Section
3.26
|
Credit
Reporting; Xxxxx-Xxxxx-Xxxxxx Act
|
|
Section
3.27
|
Optional
Purchase of Delinquent Mortgage
Loans
|
|
ARTICLE
IV
|
|
|
DISTRIBUTIONS
AND ADVANCES BY THE SERVICER
|
|
|
Section
4.01
|
Advances
|
|
Section
4.02
|
Priorities
of Distribution
|
|
Section
4.03
|
Monthly
Statements to Certificateholders
|
|
Section
4.04
|
Certain
Matters Relating to the Determination of LIBOR
|
|
Section
4.05
|
Allocation
of Applied Realized Loss Amounts
|
|
Section
4.06
|
Swap
Account
|
|
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 AND THE SERVICERS
|
|
|
Section
6.01
|
Respective
Liabilities of the Depositor and the Servicer
|
|
Section
6.02
|
Merger
or Consolidation of the Depositor or the Servicers
|
|
Section
6.03
|
Limitation
on Liability of the Depositor, the Servicers and Others
|
|
Section
6.04
|
Limitation
on Resignation of a Servicer
|
|
Section
6.05
|
Additional
Indemnification by the Servicers; Third Party
Claims
|
|
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
|
|
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
|
Periodic
Filings
|
|
Section
8.13
|
Tax
Treatment of Swap Payments and Swap Termination
Payments
|
|
Section
8.14
|
Distributions
on the REMIC Regular Interests
|
|
Section
8.15
|
Certain
Interest Shortfalls on the REMIC Regular Interests.
|
|
Section
8.16
|
Allocation
of Realized Losses to the REMIC Regular
Interests.
|
|
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
|
|
ARTICLE
X
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
Section
10.01
|
Amendment
|
|
Section
10.02
|
Recordation
of Agreement; Counterparts
|
|
Section
10.03
|
Governing
Law
|
|
Section
10.04
|
Intention
of Parties
|
|
Section
10.05
|
Notices
|
|
Section
10.06
|
Severability
of Provisions
|
|
Section
10.07
|
Assignment;
Sales; Advance Facilities
|
|
Section
10.08
|
Limitation
on Rights of Certificateholders
|
|
Section
10.09
|
Inspection
and Audit Rights
|
|
Section
10.10
|
Certificates
Nonassessable and Fully Paid
|
|
Section
10.11
|
Rule
of Construction
|
|
Section
10.12
|
Waiver
of Jury Trial
|
|
Section
10.13
|
Rights
of the Swap Provider
|
|
Section
10.14
|
Regulation
AB Compliance; Intent of the Parties; Reasonableness. The parties
hereto
acknowledge that interpretations of the requirements of Regulation
AB may
change over time, whether due to interpretive guidance provided
by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agree
to comply
with all reasonable requests made by the Depositor in good faith
for
delivery of information under these provisions on the basis of
evolving
interpretations of Regulation
AB
|
SCHEDULES
|
Schedule I
|
Mortgage
Loan Schedule
|
|
Schedule II
|
Representations
and Warranties of Countrywide Servicing, as Servicer
|
|
Schedule III
|
Representations
and Warranties of the Responsible Party as to the Mortgage
Loans
|
|
Schedule IV
|
Representations
and Warranties of the Responsible Party as to the Responsible
Party
|
|
Schedule V
|
Representations
and Warranties of Xxxxxx Xxxxxxx ABS Capital I Inc. as to the
Mortgage Loans
|
|
Schedule VI
|
Representations
and Warranties of Saxon, as
Servicer
|
EXHIBITS
|
Exhibit A
|
Form
of Class A, Class M and Class B
Certificate
|
|
Exhibit B
|
Form
of Class P Certificate
|
|
Exhibit C
|
Form
of Residual Certificates
|
|
Exhibit D
|
Form
of Class X Certificate
|
|
Exhibit E
|
Form
of Initial Certification of Trustee
|
|
Exhibit F
|
Form
of Document Certification and Exception Report of
Trustee
|
|
Exhibit G
|
Form
of Residual Transfer Affidavit
|
|
Exhibit H
|
Form
of Transferor Certificate
|
|
Exhibit I
|
Form
of Rule 144A Letter
|
|
Exhibit J
|
Form
of Request for Release
|
|
Exhibit K
|
Form
of Contents for Each Mortgage File
|
|
Exhibit L
|
Form
of Certification to be provided with Form 10-K
|
|
Exhibit M
|
Form
of Certification to be provided by the Trustee to be provided to
Depositor
|
|
Exhibit N
|
Form
of Certification to be provided by Saxon to the
Depositor
|
|
Exhibit O
|
Form
of Servicer Power of Attorney
|
|
Exhibit P
|
Servicing
Criteria
|
|
Exhibit
Q
|
Additional
Form 10-D Disclosure
|
|
Exhibit
R
|
Additional
Form 10-K Disclosure
|
|
Exhibit
S
|
Form
8-K Disclosure Information
|
|
Exhibit
T
|
Interest
Rate Swap Agreement
|
|
Exhibit U
|
Purchase
Agreement
|
|
Exhibit V
|
Form
of Additional Disclosure Notification
|
|
Exhibit
W-1
|
Form
of Saxon Servicer Reports
|
|
Exhibit
W-2
|
Form
of Countrywide Servicing Servicer Reports
|
|
Exhibit
X
|
Form
of Countrywide Amendment to Regulation AB
|
|
Exhibit
Y
|
Representations
and Warranties Agreement
|
|
Exhibit
Z
|
Interest
Rate Cap Agreement
|
THIS
POOLING AND SERVICING AGREEMENT, dated as of January 1, 2007, among XXXXXX
XXXXXXX ABS CAPITAL I INC., a Delaware corporation, as depositor (the
“Depositor”),
COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited partnership, as a servicer
(“Countrywide
Servicing”),
SAXON
MORTGAGE SERVICES, INC., a Texas corporation, as a servicer (“Saxon”
and
together with Countrywide Servicing, the “Servicers”),
NC
CAPITAL CORPORATION, a California corporation, as responsible party (the
“Responsible
Party”),
and
DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking association, as trustee
(the “Trustee”).
W
I T
N E S S E T H:
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates.
REMIC
I
As
provided herein, the Trustee will make an election to treat the segregated
pool
of assets consisting of the Trust Fund (exclusive of the Excess Reserve Fund
Account and, for the avoidance of doubt, the Supplemental Interest Trust and
the
Swap Agreement) as a REMIC for federal income tax purposes, and such segregated
pool of assets will be designated as “REMIC I”. The Class R-I Interest will
represent the sole class of “residual interests” in REMIC I for purposes of the
REMIC Provisions.
The
following table irrevocably sets forth the designation, the Uncertificated
REMIC
I Pass-Through Rate, the initial Uncertificated Principal Balance, and for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each of the REMIC I Regular Interests. None
of the REMIC I Regular Interests will be certificated.
|
Designation
|
Uncertificated
REMIC I
Pass-Through
Rate
|
Initial
Uncertificated
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
||||
|
I
|
(2)
|
$
|
158,280,212.97
|
November
2036
|
|||
|
I-1-A
|
(2)
|
$
|
5,376,801.32
|
November
2036
|
|||
|
I-1-B
|
(2)
|
$
|
5,376,801.32
|
November
0000
|
|||
|
X-0-X
|
(2)
|
$
|
5,150,793.94
|
November
2036
|
|||
|
I-2-B
|
(2)
|
$
|
5,150,793.94
|
November
0000
|
|||
|
X-0-X
|
(2)
|
$
|
4,932,030.80
|
November
2036
|
|||
|
I-3-B
|
(2)
|
$
|
4,932,030.80
|
November
0000
|
|||
|
X-0-X
|
(2)
|
$
|
4,722,629.87
|
November
2036
|
|||
|
I-4-B
|
(2)
|
$
|
4,722,629.87
|
November
0000
|
|||
|
X-0-X
|
(2)
|
$
|
4,522,187.83
|
November
2036
|
|||
|
I-5-B
|
(2)
|
$
|
4,522,187.83
|
November
0000
|
|||
|
X-0-X
|
(2)
|
$
|
4,330,318.79
|
November
2036
|
|||
|
I-6-B
|
(2)
|
$
|
4,330,318.79
|
November
0000
|
|||
|
X-0-X
|
(2)
|
$
|
4,146,653.56
|
November
2036
|
|||
|
I-7-B
|
(2)
|
$
|
4,146,653.56
|
November
0000
|
|||
|
X-0-X
|
(2)
|
$
|
3,986,430.23
|
November
2036
|
|||
|
I-8-B
|
(2)
|
$
|
3,986,430.23
|
November
0000
|
|||
|
X-0-X
|
(2)
|
$
|
19,054,858.27
|
November
2036
|
|||
|
I-9-B
|
(2)
|
$
|
19,054,858.27
|
November
2036
|
|||
|
I-10-A
|
(2)
|
$
|
4,294,053.80
|
November
2036
|
|||
|
I-10-B
|
(2)
|
$
|
4,294,053.80
|
November
2036
|
|||
|
I-11-A
|
(2)
|
$
|
2,771,450.53
|
November
2036
|
|||
|
I-11-B
|
(2)
|
$
|
2,771,450.53
|
November
2036
|
|||
|
I-12-A
|
(2)
|
$
|
2,655,924.48
|
November
2036
|
|||
|
I-12-B
|
(2)
|
$
|
2,655,924.48
|
November
2036
|
|||
|
I-13-A
|
(2)
|
$
|
2,545,260.32
|
November
2036
|
|||
|
I-13-B
|
(2)
|
$
|
2,545,260.32
|
November
2036
|
|||
|
I-14-A
|
(2)
|
$
|
2,455,064.89
|
November
2036
|
|||
|
I-14-B
|
(2)
|
$
|
2,455,064.89
|
November
2036
|
|||
|
I-15-A
|
(2)
|
$
|
17,805,984.83
|
November
2036
|
|||
|
I-15-B
|
(2)
|
$
|
17,805,984.83
|
November
2036
|
|||
|
I-16-A
|
(2)
|
$
|
2,909,240.29
|
November
2036
|
|||
|
I-16-B
|
(2)
|
$
|
2,909,240.29
|
November
2036
|
|||
|
I-17-A
|
(2)
|
$
|
1,426,451.27
|
November
2036
|
|||
|
I-17-B
|
(2)
|
$
|
1,426,451.27
|
November
2036
|
|||
|
I-18-A
|
(2)
|
$
|
1,369,301.64
|
November
2036
|
|||
|
I-18-B
|
(2)
|
$
|
1,369,301.64
|
November
2036
|
|||
|
I-19-A
|
(2)
|
$
|
1,322,715.81
|
November
2036
|
|||
|
I-19-B
|
(2)
|
$
|
1,322,715.81
|
November
2036
|
|||
|
I-20-A
|
(2)
|
$
|
1,556,295.96
|
November
2036
|
|||
|
I-20-B
|
(2)
|
$
|
1,556,295.96
|
November
2036
|
|||
|
I-21-A
|
(2)
|
$
|
11,037,242.00
|
November
2036
|
|||
|
I-21-B
|
(2)
|
$
|
11,037,242.00
|
November
2036
|
|||
|
I-22-A
|
(2)
|
$
|
1,609,253.25
|
November
2036
|
|||
|
I-22-B
|
(2)
|
$
|
1,609,253.25
|
November
2036
|
|||
|
I-23-A
|
(2)
|
$
|
644,558.62
|
November
2036
|
|||
|
I-23-B
|
(2)
|
$
|
644,558.62
|
November
2036
|
|||
|
I-24-A
|
(2)
|
$
|
621,002.05
|
November
2036
|
|||
|
I-24-B
|
(2)
|
$
|
621,002.05
|
November
2036
|
|||
|
I-25-A
|
(2)
|
$
|
606,652.51
|
November
2036
|
|||
|
I-25-B
|
(2)
|
$
|
606,652.51
|
November
2036
|
|||
|
I-26-A
|
(2)
|
$
|
865,764.57
|
November
2036
|
|||
|
I-26-B
|
(2)
|
$
|
865,764.57
|
November
2036
|
|||
|
I-27-A
|
(2)
|
$
|
1,568,957.77
|
November
2036
|
|||
|
I-27-B
|
(2)
|
$
|
1,568,957.77
|
November
2036
|
|||
|
I-28-A
|
(2)
|
$
|
601,028.99
|
November
2036
|
|||
|
I-28-B
|
(2)
|
$
|
601,028.99
|
November
2036
|
|||
|
I-29-A
|
(2)
|
$
|
454,018.97
|
November
2036
|
|||
|
I-29-B
|
(2)
|
$
|
454,018.97
|
November
2036
|
|||
|
I-30-A
|
(2)
|
$
|
437,946.76
|
November
2036
|
|||
|
I-30-B
|
(2)
|
$
|
437,946.76
|
November
2036
|
|||
|
I-31-A
|
(2)
|
$
|
427,192.20
|
November
2036
|
|||
|
I-31-B
|
(2)
|
$
|
427,192.20
|
November
2036
|
|||
|
I-32-A
|
(2)
|
$
|
572,499.33
|
November
2036
|
|||
|
I-32-B
|
(2)
|
$
|
572,499.33
|
November
2036
|
|||
|
I-33-A
|
(2)
|
$
|
971,170.61
|
November
2036
|
|||
|
I-33-B
|
(2)
|
$
|
971,170.61
|
November
2036
|
|||
|
I-34-A
|
(2)
|
$
|
416,124.46
|
November
2036
|
|||
|
I-34-B
|
(2)
|
$
|
416,124.46
|
November
2036
|
|||
|
I-35-A
|
(2)
|
$
|
330,696.25
|
November
2036
|
|||
|
I-35-B
|
(2)
|
$
|
330,696.25
|
November
2036
|
|||
|
I-36-A
|
(2)
|
$
|
319,304.67
|
November
2036
|
|||
|
I-36-B
|
(2)
|
$
|
319,304.67
|
November
2036
|
|||
|
I-37-A
|
(2)
|
$
|
308,301.32
|
November
2036
|
|||
|
I-37-B
|
(2)
|
$
|
308,301.32
|
November
2036
|
|||
|
I-38-A
|
(2)
|
$
|
297,673.10
|
November
2036
|
|||
|
I-38-B
|
(2)
|
$
|
297,673.10
|
November
2036
|
|||
|
I-39-A
|
(2)
|
$
|
287,407.38
|
November
2036
|
|||
|
I-39-B
|
(2)
|
$
|
287,407.38
|
November
2036
|
|||
|
I-40-A
|
(2)
|
$
|
277,491.99
|
November
2036
|
|||
|
I-40-B
|
(2)
|
$
|
277,491.99
|
November
2036
|
|||
|
I-41-A
|
(2)
|
$
|
267,915.05
|
November
2036
|
|||
|
I-41-B
|
(2)
|
$
|
267,915.05
|
November
2036
|
|||
|
I-42-A
|
(2)
|
$
|
258,665.22
|
November
2036
|
|||
|
I-42-B
|
(2)
|
$
|
258,665.22
|
November
2036
|
|||
|
I-43-A
|
(2)
|
$
|
251,155.05
|
November
2036
|
|||
|
I-43-B
|
(2)
|
$
|
251,155.05
|
November
2036
|
|||
|
I-44-A
|
(2)
|
$
|
254,661.57
|
November
2036
|
|||
|
I-44-B
|
(2)
|
$
|
254,661.57
|
November
2036
|
|||
|
I-45-A
|
(2)
|
$
|
250,534.88
|
November
2036
|
|||
|
I-45-B
|
(2)
|
$
|
250,534.88
|
November
2036
|
|||
|
I-46-A
|
(2)
|
$
|
225,187.83
|
November
2036
|
|||
|
I-46-B
|
(2)
|
$
|
225,187.83
|
November
2036
|
|||
|
I-47-A
|
(2)
|
$
|
215,769.27
|
November
2036
|
|||
|
I-47-B
|
(2)
|
$
|
215,769.27
|
November
2036
|
|||
|
I-48-A
|
(2)
|
$
|
208,310.44
|
November
2036
|
|||
|
I-48-B
|
(2)
|
$
|
208,310.44
|
November
2036
|
|||
|
I-49-A
|
(2)
|
$
|
202,547.05
|
November
2036
|
|||
|
I-49-B
|
(2)
|
$
|
202,547.05
|
November
2036
|
|||
|
I-50-A
|
(2)
|
$
|
207,912.09
|
November
2036
|
|||
|
I-50-B
|
(2)
|
$
|
207,912.09
|
November
2036
|
|||
|
I-51-A
|
(2)
|
$
|
205,044.70
|
November
2036
|
|||
|
I-51-B
|
(2)
|
$
|
205,044.70
|
November
2036
|
|||
|
I-52-A
|
(2)
|
$
|
181,105.55
|
November
2036
|
|||
|
I-52-B
|
(2)
|
$
|
181,105.55
|
November
2036
|
|||
|
I-53-A
|
(2)
|
$
|
173,201.03
|
November
2036
|
|||
|
I-53-B
|
(2)
|
$
|
173,201.03
|
November
2036
|
|||
|
I-54-A
|
(2)
|
$
|
167,214.18
|
November
2036
|
|||
|
I-54-B
|
(2)
|
$
|
167,214.18
|
November
2036
|
|||
|
I-55-A
|
(2)
|
$
|
162,252.22
|
November
2036
|
|||
|
I-55-B
|
(2)
|
$
|
162,252.22
|
November
2036
|
|||
|
I-56-A
|
(2)
|
$
|
163,708.60
|
November
2036
|
|||
|
I-56-B
|
(2)
|
$
|
163,708.60
|
November
2036
|
|||
|
I-57-A
|
(2)
|
$
|
160,498.10
|
November
2036
|
|||
|
I-57-B
|
(2)
|
$
|
160,498.10
|
November
2036
|
|||
|
I-58-A
|
(2)
|
$
|
145,336.06
|
November
2036
|
|||
|
I-58-B
|
(2)
|
$
|
145,336.06
|
November
2036
|
|||
|
I-59-A
|
(2)
|
$
|
139,374.38
|
November
2036
|
|||
|
I-59-B
|
(2)
|
$
|
139,374.38
|
November
2036
|
|||
|
I-60-A
|
(2)
|
$
|
134,553.08
|
November
2036
|
|||
|
I-60-B
|
(2)
|
$
|
134,553.08
|
November
2036
|
|||
|
I-61-A
|
(2)
|
$
|
3,708,492.69
|
November
2036
|
|||
|
I-61-B
|
(2)
|
$
|
3,708,492.69
|
November
2036
|
|||
|
II
|
(2)
|
$
|
320,055,893.20
|
November
2036
|
|||
|
II-1-A
|
(2)
|
$
|
10,872,337.28
|
November
2036
|
|||
|
II-1-B
|
(2)
|
$
|
10,872,337.28
|
November
2036
|
|||
|
II-2-A
|
(2)
|
$
|
10,415,331.66
|
November
2036
|
|||
|
II-2-B
|
(2)
|
$
|
10,415,331.66
|
November
2036
|
|||
|
II-3-A
|
(2)
|
$
|
9,972,974.50
|
November
2036
|
|||
|
II-3-B
|
(2)
|
$
|
9,972,974.50
|
November
2036
|
|||
|
II-4-A
|
(2)
|
$
|
9,549,548.48
|
November
2036
|
|||
|
II-4-B
|
(2)
|
$
|
9,549,548.48
|
November
2036
|
|||
|
II-5-A
|
(2)
|
$
|
9,144,238.07
|
November
2036
|
|||
|
II-5-B
|
(2)
|
$
|
9,144,238.07
|
November
2036
|
|||
|
II-6-A
|
(2)
|
$
|
8,756,263.01
|
November
2036
|
|||
|
II-6-B
|
(2)
|
$
|
8,756,263.01
|
November
2036
|
|||
|
II-7-A
|
(2)
|
$
|
8,384,876.69
|
November
2036
|
|||
|
II-7-B
|
(2)
|
$
|
8,384,876.69
|
November
2036
|
|||
|
II-8-A
|
(2)
|
$
|
8,060,891.87
|
November
2036
|
|||
|
II-8-B
|
(2)
|
$
|
8,060,891.87
|
November
2036
|
|||
|
II-9-A
|
(2)
|
$
|
38,530,500.53
|
November
2036
|
|||
|
II-9-B
|
(2)
|
$
|
38,530,500.53
|
November
2036
|
|||
|
II-10-A
|
(2)
|
$
|
8,682,932.20
|
November
2036
|
|||
|
II-10-B
|
(2)
|
$
|
8,682,932.20
|
November
2036
|
|||
|
II-11-A
|
(2)
|
$
|
5,604,102.37
|
November
2036
|
|||
|
II-11-B
|
(2)
|
$
|
5,604,102.37
|
November
2036
|
|||
|
II-12-A
|
(2)
|
$
|
5,370,499.12
|
November
2036
|
|||
|
II-12-B
|
(2)
|
$
|
5,370,499.12
|
November
2036
|
|||
|
II-13-A
|
(2)
|
$
|
5,146,727.03
|
November
2036
|
|||
|
II-13-B
|
(2)
|
$
|
5,146,727.03
|
November
2036
|
|||
|
II-14-A
|
(2)
|
$
|
4,964,344.41
|
November
2036
|
|||
|
II-14-B
|
(2)
|
$
|
4,964,344.41
|
November
2036
|
|||
|
II-15-A
|
(2)
|
$
|
36,005,175.07
|
November
2036
|
|||
|
II-15-B
|
(2)
|
$
|
36,005,175.07
|
November
2036
|
|||
|
II-16-A
|
(2)
|
$
|
5,882,724.66
|
November
2036
|
|||
|
II-16-B
|
(2)
|
$
|
5,882,724.66
|
November
2036
|
|||
|
II-17-A
|
(2)
|
$
|
2,884,402.53
|
November
2036
|
|||
|
II-17-B
|
(2)
|
$
|
2,884,402.53
|
November
2036
|
|||
|
II-18-A
|
(2)
|
$
|
2,768,841.26
|
November
2036
|
|||
|
II-18-B
|
(2)
|
$
|
2,768,841.26
|
November
2036
|
|||
|
II-19-A
|
(2)
|
$
|
2,674,640.84
|
November
2036
|
|||
|
II-19-B
|
(2)
|
$
|
2,674,640.84
|
November
2036
|
|||
|
II-20-A
|
(2)
|
$
|
3,146,959.24
|
November
2036
|
|||
|
II-20-B
|
(2)
|
$
|
3,146,959.24
|
November
2036
|
|||
|
II-21-A
|
(2)
|
$
|
22,318,216.85
|
November
2036
|
|||
|
II-21-B
|
(2)
|
$
|
22,318,216.85
|
November
2036
|
|||
|
II-22-A
|
(2)
|
$
|
3,254,043.25
|
November
2036
|
|||
|
II-22-B
|
(2)
|
$
|
3,254,043.25
|
November
2036
|
|||
|
II-23-A
|
(2)
|
$
|
1,303,350.88
|
November
2036
|
|||
|
II-23-B
|
(2)
|
$
|
1,303,350.88
|
November
2036
|
|||
|
II-24-A
|
(2)
|
$
|
1,255,717.55
|
November
2036
|
|||
|
II-24-B
|
(2)
|
$
|
1,255,717.55
|
November
2036
|
|||
|
II-25-A
|
(2)
|
$
|
1,226,701.59
|
November
2036
|
|||
|
II-25-B
|
(2)
|
$
|
1,226,701.59
|
November
2036
|
|||
|
II-26-A
|
(2)
|
$
|
1,750,647.63
|
November
2036
|
|||
|
II-26-B
|
(2)
|
$
|
1,750,647.63
|
November
2036
|
|||
|
II-27-A
|
(2)
|
$
|
3,172,562.48
|
November
2036
|
|||
|
II-27-B
|
(2)
|
$
|
3,172,562.48
|
November
2036
|
|||
|
II-28-A
|
(2)
|
$
|
1,215,330.36
|
November
2036
|
|||
|
II-28-B
|
(2)
|
$
|
1,215,330.36
|
November
2036
|
|||
|
II-29-A
|
(2)
|
$
|
918,063.93
|
November
2036
|
|||
|
II-29-B
|
(2)
|
$
|
918,063.93
|
November
2036
|
|||
|
II-30-A
|
(2)
|
$
|
885,564.59
|
November
2036
|
|||
|
II-30-B
|
(2)
|
$
|
885,564.59
|
November
2036
|
|||
|
II-31-A
|
(2)
|
$
|
863,818.00
|
November
2036
|
|||
|
II-31-B
|
(2)
|
$
|
863,818.00
|
November
2036
|
|||
|
II-32-A
|
(2)
|
$
|
1,157,641.02
|
November
2036
|
|||
|
II-32-B
|
(2)
|
$
|
1,157,641.02
|
November
2036
|
|||
|
II-33-A
|
(2)
|
$
|
1,963,787.34
|
November
2036
|
|||
|
II-33-B
|
(2)
|
$
|
1,963,787.34
|
November
2036
|
|||
|
II-34-A
|
(2)
|
$
|
841,438.09
|
November
2036
|
|||
|
II-34-B
|
(2)
|
$
|
841,438.09
|
November
2036
|
|||
|
II-35-A
|
(2)
|
$
|
668,695.20
|
November
2036
|
|||
|
II-35-B
|
(2)
|
$
|
668,695.20
|
November
2036
|
|||
|
II-36-A
|
(2)
|
$
|
645,660.48
|
November
2036
|
|||
|
II-36-B
|
(2)
|
$
|
645,660.48
|
November
2036
|
|||
|
II-37-A
|
(2)
|
$
|
623,410.78
|
November
2036
|
|||
|
II-37-B
|
(2)
|
$
|
623,410.78
|
November
2036
|
|||
|
II-38-A
|
(2)
|
$
|
601,919.65
|
November
2036
|
|||
|
II-38-B
|
(2)
|
$
|
601,919.65
|
November
2036
|
|||
|
II-39-A
|
(2)
|
$
|
581,161.52
|
November
2036
|
|||
|
II-39-B
|
(2)
|
$
|
581,161.52
|
November
2036
|
|||
|
II-40-A
|
(2)
|
$
|
561,111.76
|
November
2036
|
|||
|
II-40-B
|
(2)
|
$
|
561,111.76
|
November
2036
|
|||
|
II-41-A
|
(2)
|
$
|
541,746.40
|
November
2036
|
|||
|
II-41-B
|
(2)
|
$
|
541,746.40
|
November
2036
|
|||
|
II-42-A
|
(2)
|
$
|
523,042.48
|
November
2036
|
|||
|
II-42-B
|
(2)
|
$
|
523,042.48
|
November
2036
|
|||
|
II-43-A
|
(2)
|
$
|
507,856.30
|
November
2036
|
|||
|
II-43-B
|
(2)
|
$
|
507,856.30
|
November
2036
|
|||
|
II-44-A
|
(2)
|
$
|
514,946.78
|
November
2036
|
|||
|
II-44-B
|
(2)
|
$
|
514,946.78
|
November
2036
|
|||
|
II-45-A
|
(2)
|
$
|
506,602.27
|
November
2036
|
|||
|
II-45-B
|
(2)
|
$
|
506,602.27
|
November
2036
|
|||
|
II-46-A
|
(2)
|
$
|
455,348.42
|
November
2036
|
|||
|
II-46-B
|
(2)
|
$
|
455,348.42
|
November
2036
|
|||
|
II-47-A
|
(2)
|
$
|
436,303.33
|
November
2036
|
|||
|
II-47-B
|
(2)
|
$
|
436,303.33
|
November
2036
|
|||
|
II-48-A
|
(2)
|
$
|
421,220.96
|
November
2036
|
|||
|
II-48-B
|
(2)
|
$
|
421,220.96
|
November
2036
|
|||
|
II-49-A
|
(2)
|
$
|
409,566.90
|
November
2036
|
|||
|
II-49-B
|
(2)
|
$
|
409,566.90
|
November
2036
|
|||
|
II-50-A
|
(2)
|
$
|
420,415.46
|
November
2036
|
|||
|
II-50-B
|
(2)
|
$
|
420,415.46
|
November
2036
|
|||
|
II-51-A
|
(2)
|
$
|
414,617.35
|
November
2036
|
|||
|
II-51-B
|
(2)
|
$
|
414,617.35
|
November
2036
|
|||
|
II-52-A
|
(2)
|
$
|
366,210.40
|
November
2036
|
|||
|
II-52-B
|
(2)
|
$
|
366,210.40
|
November
2036
|
|||
|
II-53-A
|
(2)
|
$
|
350,226.82
|
November
2036
|
|||
|
II-53-B
|
(2)
|
$
|
350,226.82
|
November
2036
|
|||
|
II-54-A
|
(2)
|
$
|
338,120.92
|
November
2036
|
|||
|
II-54-B
|
(2)
|
$
|
338,120.92
|
November
2036
|
|||
|
II-55-A
|
(2)
|
$
|
328,087.43
|
November
2036
|
|||
|
II-55-B
|
(2)
|
$
|
328,087.43
|
November
2036
|
|||
|
II-56-A
|
(2)
|
$
|
331,032.35
|
November
2036
|
|||
|
II-56-B
|
(2)
|
$
|
331,032.35
|
November
2036
|
|||
|
II-57-A
|
(2)
|
$
|
324,540.45
|
November
2036
|
|||
|
II-57-B
|
(2)
|
$
|
324,540.45
|
November
2036
|
|||
|
II-58-A
|
(2)
|
$
|
293,881.54
|
November
2036
|
|||
|
II-58-B
|
(2)
|
$
|
293,881.54
|
November
2036
|
|||
|
II-59-A
|
(2)
|
$
|
281,826.52
|
November
2036
|
|||
|
II-59-B
|
(2)
|
$
|
281,826.52
|
November
2036
|
|||
|
II-60-A
|
(2)
|
$
|
272,077.47
|
November
2036
|
|||
|
II-60-B
|
(2)
|
$
|
272,077.47
|
November
2036
|
|||
|
II-61-A
|
(2)
|
$
|
7,498,879.16
|
November
2036
|
|||
|
II-61-B
|
(2)
|
$
|
7,498,879.16
|
November
2036
|
|||
|
P
|
(3)
|
$
|
100.00
|
November
2036
|
|||
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
|
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated REMIC I Pass-Through
Rate” herein.
|
|
(3)
|
The
REMIC I Regular Interest LT-P will not be entitled to distributions
of
interest.
|
REMIC
II
As
provided herein, the Trustee will make an election to treat the segregated
pool
of assets consisting of the REMIC I Regular Interests) for federal income tax
purposes, and such segregated pool of assets will be designated as “REMIC II.”
The R-II Interest will represent the sole class of “residual interests” in REMIC
II for purposes of the REMIC Provisions. The following table irrevocably sets
forth the designation, the Uncertificated REMIC II Pass-Through Rate, the
Initial Uncertificated Principal Balance, and for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for each of the REMIC II Regular Interests. None of the REMIC II
Regular Interests will be certificated.
|
Designation
|
Uncertificated
REMIC
II
Pass-Through
Rate
|
Initial
Uncertificated
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
||
|
LT-AA
|
(2)
|
$
|
612,503,852.22
|
November
2036
|
|
|
LT-A1
|
(2)
|
$
|
1,602,795.00
|
November
2036
|
|
|
LT-A2a
|
(2)
|
$
|
1,634,700.00
|
November
2036
|
|
|
LT-A2b
|
(2)
|
$
|
508,450.00
|
November
2036
|
|
|
LT-A2c
|
(2)
|
$
|
675,900.00
|
November
2036
|
|
|
LT-A2d
|
(2)
|
$
|
421,925.00
|
November
2036
|
|
|
LT-M1
|
(2)
|
$
|
250,000.00
|
November
2036
|
|
|
LT-M2
|
(2)
|
$
|
290,625.00
|
November
2036
|
|
|
LT-M3
|
(2)
|
$
|
96,875.00
|
November
2036
|
|
|
LT-M4
|
(2)
|
$
|
125,000.00
|
November
2036
|
|
|
LT-M5
|
(2)
|
$
|
118,750.00
|
November
2036
|
|
|
LT-M6
|
(2)
|
$
|
68,750.00
|
November
2036
|
|
|
LT-B1
|
(2)
|
$
|
100,000.00
|
November
2036
|
|
|
LT-B2
|
(2)
|
$
|
46,875.00
|
November
2036
|
|
|
LT-B3
|
(2)
|
$
|
78,125.00
|
November
2036
|
|
|
LT-B4
|
(2)
|
$
|
53,125.00
|
November
2036
|
|
|
LT-ZZ
|
(2)
|
$
|
6,428,183.62
|
November
2036
|
|
|
LT-IO
|
(2)
|
(3)
|
November
2036
|
||
|
LT-P
|
(4)
|
$
|
100.00
|
November
2036
|
|
|
LT-1SUB
|
(2)
|
$
|
9,306.56
|
November
2036
|
|
|
LT-1GRP
|
(2)
|
$
|
41,362.21
|
November
2036
|
|
|
LT-2SUB
|
(2)
|
$
|
18,818.83
|
November
2036
|
|
|
LT-2GRP
|
(2)
|
$
|
83,638.22
|
November
2036
|
|
|
LT-XX
|
(2)
|
$
|
624,850,805.02
|
November
2036
|
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
|
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated REMIC II Pass-Through
Rate” herein.
|
|
(3)
|
REMIC
II Regular Interest LT-IO will not have an Uncertificated Principal
Balance, but will accrue interest on its Uncertificated Notional
Amount,
as defined herein.
|
|
(4)
|
The
REMIC II Regular Interest LT-P will not be entitled to distributions
of
interest.
|
REMIC
III
As
provided herein, the Trustee will make an election to treat the segregated
pool
of assets consisting of the REMIC II Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated
as
“REMIC III”. The R-III Interest will represent the sole class of “residual
interests” in REMIC III for purposes of the REMIC Provisions. The following
table irrevocably sets forth the Class designation, Pass-Through Rate and
Initial Certificate Principal Balance for each Class of Certificates or REMIC
III Regular Interests that represents one or more of the “regular interests” in
REMIC III created hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible
Maturity
Date(1)
|
|
|
Class
A-1
|
$
|
320,559,000.00
|
(2)
|
November
2036
|
|
Class
A-2a
|
$
|
326,940,000.00
|
(2)
|
November
2036
|
|
Class
A-2b
|
$
|
101,690,000.00
|
(2)
|
November
2036
|
|
Class
A-2c
|
$
|
135,180,000.00
|
(2)
|
November
2036
|
|
Class
A-2d
|
$
|
84,385,000.00
|
(2)
|
November
2036
|
|
Class
M-1
|
$
|
50,000,000.00
|
(2)
|
November
2036
|
|
Class
M-2
|
$
|
58,125,000.00
|
(2)
|
November
2036
|
|
Class
M-3
|
$
|
19,375,000.00
|
(2)
|
November
2036
|
|
Class
M-4
|
$
|
25,000,000.00
|
(2)
|
November
2036
|
|
Class
M-5
|
$
|
23,750,000.00
|
(2)
|
November
2036
|
|
Class
M-6
|
$
|
13,750,000.00
|
(2)
|
November
2036
|
|
Class
B-1
|
$
|
20,000,000.00
|
(2)
|
November
2036
|
|
Class
B-2
|
$
|
9,375,000.00
|
(2)
|
November
2036
|
|
Class
B-3
|
$
|
15,625,000.00
|
(2)
|
November
2036
|
|
Class
B-4
|
$
|
10,625,000.00
|
(2)
|
November
2036
|
|
Class
X Interest(3)
|
$
|
35,628,861.67
|
(2)
|
November
2036
|
|
Class
P Interest
|
$
|
100.00
|
N/A(4)
|
November
2036
|
|
Class
IO Interest
|
(5)
|
(6)
|
November
2036
|
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
|
|
(2)
|
Calculated
in accordance with the definition of “Pass-Through Rate”
herein.
|
|
(3)
|
The
Class X Interest will not accrue interest on its Certificate Principal
Balance, but will accrue interest at the Class X Pass-Through Rate
on the
Notional Amount of the Class X Interest outstanding from time to
time
which shall equal the aggregate Uncertificated Principal Balance
of the
REMIC II Regular Interests (other than REMIC II Regular Interest
LT-P and
REMIC II Regular Interest LT-IO).
|
|
(4)
|
The
Class P Interest will not be entitled to distributions of
interest.
|
|
(5)
|
For
federal income tax purposes, the Class IO Interest will not have
an
Uncertificated Principal Balance, but will have a notional amount
equal to
the Uncertificated Notional Amount of REMIC II Regular Interest
LT-IO.
|
|
(6)
|
For
federal income tax purposes, the Class IO Interest will not have
a
Pass-Through Rate, but will be entitled to 100% of the amounts distributed
on REMIC II Regular Interest LT-IO.
|
REMIC
IV
As
provided herein, the Trustee will make an election to treat the segregated
pool
of assets consisting of the Class X Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC IV”.
The R-IV Interest will represent the sole class of “residual interests” in REMIC
IV for purposes of the REMIC Provisions. The following table irrevocably sets
forth the Class designation, Pass-Through Rate and Initial Certificate Principal
Balance for the Class X Certificates:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible
Maturity
Date(1)
|
|
Class
X
|
$ 35,628,861.67
|
(2)
|
November
2036
|
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
|
|
(2)
|
The
Class X Certificates will not have a Pass-Through Rate, but will
be
entitled to 100% of amounts distributed on the Class X
Interest.
|
REMIC
V
As
provided herein, the Trustee will make an election to treat the segregated
pool
of assets consisting of the Class P Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC V”.
The R-V Interest will represent the sole class of “residual interests” in REMIC
V for purposes of the REMIC Provisions. The following table irrevocably sets
forth the Class designation, Pass-Through Rate and Initial Certificate Principal
Balance for the Class P Certificates:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible
Maturity
Date(1)
|
|
Class
P
|
$100.00
|
(2)
|
November
2036
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
|
|
(2)
|
The
Class P Certificates will not have a Pass-Through Rate, but will
be
entitled to 100% of amounts distributed on the Class P
Interest.
|
REMIC
VI
As
provided herein, the Trustee will make an election to treat the segregated
pool
of assets consisting of the Class IO Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC VI”.
The R-VI Interest will represent the sole class of “residual interests” in REMIC
VI for purposes of the REMIC Provisions. The following table irrevocably sets
forth the Class designation, Pass-Through Rate and Initial Certificate Principal
Balance for REMIC VI Regular Interest Swap-IO:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible
Maturity
Date(1)
|
|
Swap-IO
|
N/A
|
(2)
|
November
2036
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
|
|
(2)
|
REMIC
VI Regular Interest Swap-IO will not have a Pass-Through Rate, but
will be
entitled to 100% of amounts distributed on the Class IO
Interest.
|
The
minimum denomination for each Class of Certificates, other than the
Class P, Class R, Class R-X and Class X Certificates, will be
$25,000 with integral multiples of $1 in excess thereof. The minimum
denomination for the Class P and the Class X Certificates will each be
a 1% Percentage Interest in such Class. The Class R and Class R-X
Certificates will represent a 100% Percentage Interest in such
Class.
It
is
expected that each Class of Certificates will receive its final distribution
of
principal and interest on or prior to the Final Scheduled Distribution
Date.
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.
|
|
Class A
Certificates
|
Class
A-1, Class A-2a, Class A-2b, Class A-2c and Class
A-2d.
|
|
Delay
Certificates
|
None.
|
ERISA-Restricted
|
Certificates
|
Residual
Certificates, Class P Certificates and Class X Certificates; any
certificate with a rating below the lowest applicable permitted rating
under the Underwriters’ Exemption.
|
|
Non-Delay
Certificates
|
Class A,
Class X and Subordinated
Certificates.
|
|
Offered
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
|
Physical
Certificates
|
Class P,
Class X and Residual
Certificates.
|
|
Private
Certificates
|
Class P,
Class X and Residual
Certificates.
|
|
Rating
Agencies
|
Moody’s
and Standard & Poor’s.
|
|
Regular
Certificates
|
All
Classes of Certificates other than the Residual
Certificates.
|
|
Residual
Certificates
|
Class R
and Class R-X Certificates.
|
|
Subordinated
Certificates
|
Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates.
|
ARTICLE
I
DEFINITIONS
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
“Accepted
Servicing Practices”:
With
respect to any Mortgage Loan, those mortgage servicing practices set forth
in
Section 3.01(a) of this Agreement.
“Account”:
Any of the related Collection Accounts, the Distribution Account, any Escrow
Account, the Excess Reserve Fund Account or the Swap Account. Each Account
shall
be an Eligible Account.
“Accrued
Certificate Interest Distribution Amount”: With respect to any Distribution Date
for each Class of Offered Certificates, the amount of interest accrued during
the related Interest Accrual Period at the applicable Pass-Through Rate on
the
related Class Certificate Balance immediately prior to such Distribution Date,
as reduced by such Class’s share of Net Prepayment Interest Shortfalls and
Relief Act Interest Shortfalls for such Distribution Date allocated to such
Class pursuant to Section 4.02.
“Adjustable
Rate Mortgage Loan”: An adjustable rate Mortgage Loan.
“Adjusted
Net Mortgage Rate”: As to each Mortgage Loan and at any time, the per annum rate
equal to the Mortgage Rate less the Expense Fee Rate.
“Adjustment
Date”: As to any Adjustable Rate Mortgage Loan, the first Due Date on which the
related Mortgage Rate adjusts as set forth in the related Mortgage Note and
each
Due Date thereafter on which the Mortgage Rate adjusts as set forth in the
related Mortgage Note.
“Advance”:
Any P&I Advance or Servicing Advance.
“Advance
Facility”: A financing or other facility as described in
Section 10.07.
“Advancing
Person”: The Person to whom any Servicer’s rights under this Agreement to be
reimbursed for any P&I Advances or Servicing Advances have been assigned
pursuant to Section 10.07.
“Affiliate”:
With respect to any Person, any other Person controlling, controlled by or
under
common control with such first Person. For the purposes of this definition,
“control” means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
“Agreement”:
This Pooling and Servicing Agreement and all amendments or supplements
hereto.
“Amount
Held for Future Distribution”: As to the Certificates on any Distribution Date,
the aggregate amount held in each Collection Account at the close of business
on
the related Determination Date on account of (i) Principal Prepayments,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds on the
Mortgage Loans received after the end of the related Prepayment Period and
(ii) all Scheduled Payments on the Mortgage Loans due after the end of the
related Due Period.
“Analytics
Company”:
Intex
Solutions, Inc., or any other bond analytics service provider identified to
the
Trustee by the Depositor.
“Applied
Realized Loss Amount”: With respect to any Distribution Date, the amount, if
any, by which the aggregate Class Certificate Balance of the Offered
Certificates after distributions of principal on such Distribution Date exceeds
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
“Appraised
Value”: The value set forth in an appraisal made in connection with the
origination of the related Mortgage Loan as the value of the Mortgaged
Property.
“Assignment
of Mortgage”: An assignment of the Mortgage, notice of transfer or equivalent
instrument in recordable form (other than the assignee’s name and recording
information not yet returned from the recording office), reflecting the sale
of
the Mortgage to the Trustee.
“Available
Funds”: With respect to any Distribution Date and the Mortgage Loans to the
extent received by the Trustee (x) the sum of (i) all scheduled installments
of
interest (net of the related Expense Fees) and principal due on the Due Date
on
such Mortgage Loans in the related Due Period and received by the related
Servicer on or prior to the related Determination Date, together with any
P&I Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds received by the related Servicer during the
related Prepayment Period (in each case, net of unreimbursed expenses incurred
in connection with a liquidation or foreclosure and unreimbursed Advances,
if
any); (iii) all partial or full prepayments on the Mortgage Loans received
by
the related Servicer during the related Prepayment Period together with all
Compensating Interest, if applicable, thereon (excluding any Prepayment
Charges); (iv) all Substitution Adjustment Amounts with respect to the
substitutions of Mortgage Loans that occur with respect to such Distribution
Date; (v) amounts received with respect to such Distribution Date as the
Repurchase Price in respect of a Mortgage Loan repurchased with respect to
such
Distribution Date; (vi) the proceeds received with respect to the termination
of
the Trust Fund pursuant to clause (a) of Section 9.01; and (vii) the Closing
Date Deposit Amount; reduced by (y) amounts in reimbursement for Advances
previously made with respect to the Mortgage Loans and other amounts as to
which
the Servicers, the Depositor or the Trustee are entitled to be paid or
reimbursed pursuant to this Agreement.
“Balloon
Loan”: Any Mortgage Loan that requires only payments of interest until the
stated maturity date of the Mortgage Loan or Scheduled Payments of principal
which (not including the payment due on its stated maturity date) are based
on
an amortization schedule that would be insufficient to fully amortize the
principal thereof by the stated maturity date of the Mortgage Loan.
“Basic
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Principal Remittance Amount for such Distribution Date
over (ii) the Excess Subordinated Amount, if any, for such Distribution
Date.
“Basis
Risk CarryForward Amount”: With respect to each Class of Offered Certificates,
as of any Distribution Date, the sum of (A) if on such Distribution Date the
Pass-Through Rate for any Class of Offered Certificates is based upon a Loan
Group Cap or the WAC Cap, the excess of (i) the Accrued Certificate Interest
Distribution Amount such Class of Certificates would otherwise be entitled
to
receive on such Distribution Date had such Pass-Through Rate not been subject
to
any Loan Group Cap or WAC Cap (that is, had such rate been calculated as the
sum
of LIBOR and the applicable Pass-Through Margin on such Class of Certificates
for such Distribution Date and the resulting amount being reduced by allocated
Net Prepayment Interest Shortfalls and Relief Act Interest Shortfalls) over
(ii)
the Accrued Certificate Interest Distribution Amount received on such
Distribution Date on such Class of Certificates at, with respect to each Class
of Group I Class A Certificates, the lesser of the Group I Loan Cap or the
WAC
Cap, with respect to each Class of Group II Class A Certificates, the lesser
of
the Group II Loan Cap or the WAC Cap, and with respect to each other Class
of
Offered Certificates, the WAC Cap, as applicable, for such Distribution Date
and
(B) the Basis Risk CarryForward Amount for such Class of Certificates for all
previous Distribution Dates not previously paid, together with interest thereon
at a rate equal to the sum of LIBOR and the applicable Pass-Through Margin
for
such Class of Certificates for such Distribution Date.
“Basis
Risk Payment”: For any Distribution Date, an amount equal to the lesser of
(i) the aggregate of the Basis Risk CarryForward Amounts for such
Distribution Date and (ii) the Class X Distributable Amount (prior to
any reduction for amounts paid from the Excess Reserve Fund Account to pay
any
Basis Risk CarryForward Amount or any Swap Termination Payment) plus any Net
Swap Payments and Interest Rate Cap Payments used to pay Basis Risk CarryForward
Amounts.
“Best’s”:
Best’s Key Rating Guide, as the same shall be amended from time to
time.
“Book-Entry
Certificates”: As specified in the Preliminary Statement.
“Business
Day”: Any day other than (i) Saturday or Sunday, or (ii) a day on which banking
and savings and loan institutions, in (a) the States of New York, California
or
Delaware, (b) a State in which any Servicer’s servicing operations are located,
or (c) the State in which the Trustee’s operations are located, are authorized
or obligated by law or executive order to be closed.
“Cap
Provider”: Xxxxxx Xxxxxxx Capital Services Inc., a Delaware corporation, and its
successors in interest.
“Certificate”:
Any one of the Certificates executed by the Trustee in substantially the forms
attached hereto as exhibits.
“Certificate
Balance”: With respect to any Class of Certificates, other than the Class X or
Residual Certificates, 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 all distributions of principal previously made
with respect thereto and in the case of any Certificates, reduced by any Applied
Realized Loss Amounts allocated to such Class of Certificates pursuant to
Section 4.05; provided, however, that immediately following the Distribution
Date on which a Subsequent Recovery is distributed, the Class Certificate
Balances of any Class or Classes of Certificates that have been previously
reduced by Applied Realized Loss Amounts will be increased, in order of
seniority, by the amount of the Subsequent Recovery distributed on such
Distribution Date (up to the amount of the Unpaid Realized Loss Amount for
such
Class or Classes for such Distribution Date). With respect to the Class X
Certificates and the Class X Interest and any Distribution Date, the excess,
if
any, of (i) the then Stated Principal Balance of the Mortgage Loans over (ii)
the then aggregate Certificate Balance of the Class A Certificates, Class M
Certificates and Class P Certificates. The Residual Certificates have no
Certificate Balance.
“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.
“Class”:
All Certificates bearing the same class designation as set forth in the
Preliminary Statement.
“Class
A
Certificate Group”: The Group I Class A Certificates or the Group II Class A
Certificates, as applicable.
“Class A
Certificates”:
As
specified in the Preliminary Statement.
“Class
A
Principal Allocation Percentage”: With respect to any Distribution Date, the
percentage equivalent of a fraction, determined as follows: (A) with respect
to
the Group I Class A Certificates, a fraction, the numerator of which is (x)
the
portion of the Principal Remittance Amount for such Distribution Date that
is
attributable to the principal received or advanced on the Group I Mortgage
Loans
and the denominator of which is (y) the Principal Remittance Amount for such
Distribution Date and (B) with respect to the Group II Class A Certificates,
a
fraction, the numerator of which is (x) the portion of the Principal Remittance
Amount for such Distribution Date that is attributable to the principal received
or advanced on the Group II Mortgage Loans and the denominator of which is
(y)
the Principal Remittance Amount for such Distribution Date.
“Class A
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the aggregate Class Certificate Balances of the Class A
Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) 55.00% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over $6,250,039.81.
“Class A-1
Certificates”: All Certificates bearing the class designation of
“Class A-1,” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii)
the right to receive the related Basis Risk CarryForward Amount and (iii) the
obligation to pay any Class IO Distribution Amount.
“Class A-2a
Certificates”: All Certificates bearing the class designation of
“Class A-2a,” and evidencing (i) a REMIC Regular Interest in REMIC III,
(ii) the right to receive the related Basis Risk CarryForward Amount and (iii)
the obligation to pay any Class IO Distribution Amount.
“Class A-2b
Certificates”: All Certificates bearing the class designation of
“Class A-2b,” and evidencing (i) a REMIC Regular Interest in REMIC III,
(ii) the right to receive the related Basis Risk CarryForward Amount and (iii)
the obligation to pay any Class IO Distribution Amount.
“Class A-2c
Certificates”: All Certificates bearing the class designation of
“Class A-2c,” and evidencing (i) a REMIC Regular Interest in REMIC III,
(ii) the right to receive the related Basis Risk CarryForward Amount and (iii)
the obligation to pay any Class IO Distribution Amount.
“Class A-2d
Certificates”: All Certificates bearing the class designation of
“Class A-2d,” and evidencing (i) a REMIC Regular Interest in REMIC III,
(ii) the right to receive the related Basis Risk CarryForward Amount and (iii)
the obligation to pay any Class IO Distribution Amount.
“Class B
Certificates”: The Class B-1, Class B-2, Class B-3 and Class B-4
Certificates.
“Class B-1
Certificates”: All Certificates bearing the class designation of
“Class B-1,” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii)
the right to receive the related Basis Risk CarryForward Amount and (iii) the
obligation to pay any Class IO Distribution Amount.
“Class B-1
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class Certificate Balances
of the Class A Certificates (after taking into account the distribution of
the Class A Principal Distribution Amount for such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution Amount for such Distribution Date), (C) the Class Certificate
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount for such Distribution Date), (E) the Class
Certificate Balance of the Class M-4 Certificates (after taking into
account the distribution of the Class M-4 Principal Distribution Amount for
such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the
Class M-5 Principal Distribution Amount for such Distribution Date),
(G) the Class Certificate Balance of the Class M-6 Certificates (after
taking into account the distribution of the Class M-6 Principal
Distribution Amount for such Distribution Date) and (H) the Class
Certificate Balance of the Class B-1 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 88.60% of the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date over $6,250,039.81.
“Class B-2
Certificates”: All Certificates bearing the class designation of
“Class B-2,” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii)
the right to receive the related Basis Risk CarryForward Amount and (iii) the
obligation to pay any Class IO Distribution Amount.
“Class B-2
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class Certificate Balances
of the Class A Certificates (after taking into account the distribution of
the Class A Principal Distribution Amount for such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution Amount for such Distribution Date), (C) the Class Certificate
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount for such Distribution Date), (E) the Class
Certificate Balance of the Class M-4 Certificates (after taking into
account the distribution of the Class M-4 Principal Distribution Amount for
such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the
Class M-5 Principal Distribution Amount for such Distribution Date),
(G) the Class Certificate Balance of the Class M-6 Certificates (after
taking into account the distribution of the Class M-6 Principal
Distribution Amount for such Distribution Date), (H) the Class Certificate
Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount for such
Distribution Date) and (I) the Class Certificate Balance of the
Class B-2 Certificates immediately prior to such Distribution Date over
(ii) the lesser of (A) 90.10% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over $6,250,039.81.
“Class B-3
Certificates”: All Certificates bearing the class designation of
“Class B-3,” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii)
the right to receive the related Basis Risk CarryForward Amount and (iii) the
obligation to pay any Class IO Distribution Amount.
“Class B-3
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class Certificate Balances
of the Class A Certificates (after taking into account the distribution of
the Class A Principal Distribution Amount for such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution Amount for such Distribution Date), (C) the Class Certificate
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount for such Distribution Date), (E) the Class
Certificate Balance of the Class M-4 Certificates (after taking into
account the distribution of the Class M-4 Principal Distribution Amount for
such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the
Class M-5 Principal Distribution Amount for such Distribution Date),
(G) the Class Certificate Balance of the Class M-6 Certificates (after
taking into account the distribution of the Class M-6 Principal
Distribution Amount for such Distribution Date), (H) the Class Certificate
Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount for such
Distribution Date), (I) the Class Certificate Balance of the Class B-2
Certificates (after taking into account the distribution of the Class B-2
Principal Distribution Amount for such Distribution Date) and (J) the Class
Certificate Balance of the Class B-3 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 92.60% of the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date over $6,250,039.81.
“Class B-4
Certificates”: All Certificates bearing the class designation of
“Class B-4,” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii)
the right to receive the related Basis Risk CarryForward Amount and (iii) the
obligation to pay any Class IO Distribution Amount.
“Class B-4
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class Certificate Balances
of the Class A Certificates (after taking into account the distribution of
the Class A Principal Distribution Amount for such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution Amount for such Distribution Date), (C) the Class Certificate
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount for such Distribution Date), (E) the Class
Certificate Balance of the Class M-4 Certificates (after taking into
account the distribution of the Class M-4 Principal Distribution Amount for
such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the
Class M-5 Principal Distribution Amount for such Distribution Date),
(G) the Class Certificate Balance of the Class M-6 Certificates (after
taking into account the distribution of the Class M-6 Principal
Distribution Amount for such Distribution Date), (H) the Class Certificate
Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount for such
Distribution Date), (I) the Class Certificate Balance of the Class B-2
Certificates (after taking into account the distribution of the Class B-2
Principal Distribution Amount for such Distribution Date), (J) the Class
Certificate Balance of the Class B-3 Certificates (after taking into
account the distribution of the Class B-3 Principal Distribution Amount for
such Distribution Date) and (K) the Class Certificate Balance of the
Class B-4 Certificates immediately prior to such Distribution Date over
(ii) the lesser of (A) 94.30% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over $6,250,039.81.
“Class
Certificate 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.
“Class
IO
Distribution Amount”: For
purposes of clarity, the Class IO Distribution Amount for any Distribution
Date
shall equal the amount payable to the Swap Account on such Distribution Date
in
excess of the amount payable on the Class IO Interest on such Distribution
Date.
“Class
IO
Interest”: An uncertificated interest in the Trust Fund held by the Trustee,
evidencing a REMIC Regular Interest in REMIC III for purposes of the REMIC
Provisions.
“Class IO
Shortfalls”: As defined in Section 8.13. For the avoidance of doubt, the
Class IO Shortfall for any Distribution Date shall equal the amount payable
to the Class X Certificates in respect of amounts due to the Swap Provider
on such Distribution Date (other than Defaulted Swap Termination Payments)
in
excess of the amount payable on the Class X Interest (prior to any
reduction for Basis Risk Payments or Swap Termination Payments) on such
Distribution Date, all as further provided in Section 8.13.
“Class M
Certificates”: The Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5 and Class M-6 Certificates.
“Class M-1
Enhancement Percentage”:
With
respect to any Distribution Date, the percentage obtained by dividing
(x) the sum of (i) the aggregate Class Certificate Balances of the
Class M and Class B Certificates (other than the Class M-1
Certificates) and (ii) the Subordinated Amount, in each case after taking
into account the distributions of the related Principal Distribution Amount
and
any principal payments on those Classes of Certificates from the Swap Account
on
that Distribution Date, by (y) the aggregate Stated Principal Balance of
the Mortgage Loans for that Distribution Date.
“Class M-1
Certificates”: All Certificates bearing the class designation of
“Class M-1,” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii)
the right to receive the related Basis Risk CarryForward Amount and (iii) the
obligation to pay any Class IO Distribution Amount.
“Class M-1
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class Certificate Balances
of the Class A Certificates (after taking into account the distribution of
the Class A Principal Distribution Amount for such Distribution Date), and
(B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of
(A) 63.00% of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date and (B) the excess, if any, of the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution
Date over
$6,250,039.81.
“Class M-2
Certificates”: All Certificates bearing the class designation of
“Class M-2,” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii)
the right to receive the related Basis Risk CarryForward Amount and (iii) the
obligation to pay any Class IO Distribution Amount.
“Class M-2
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class Certificate Balances
of the Class A Certificates (after taking into account the distribution of
the Class A Principal Distribution Amount for such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution Amount for such Distribution Date) and (C) the Class
Certificate Balance of the Class M-2 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 72.30% of the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date over
$6,250,039.81.
“Class M-3
Certificates”: All Certificates bearing the class designation of
“Class M-3,” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii)
the right to receive the related Basis Risk CarryForward Amount and (iii) the
obligation to pay any Class IO Distribution Amount.
“Class M-3
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class Certificate Balances
of the Class A Certificates (after taking into account the distribution of
the Class A Principal Distribution Amount for such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution Amount for such Distribution Date), (C) the Class Certificate
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date) and (D) the Class Certificate Balance of the
Class M-3 Certificates immediately prior to such Distribution Date over
(ii) the lesser of (A) 75.40% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over
$6,250,039.81.
“Class M-4
Certificates”:
All
Certificates bearing the class designation of “Class M-4,” and evidencing
(i) a REMIC Regular Interest in REMIC III, (ii) the right to receive the related
Basis Risk CarryForward Amount and (iii) the obligation to pay any Class IO
Distribution Amount.
“Class M-4
Principal Distribution Amount” With respect to any Distribution Date, the excess
of (i) the sum of (A) the aggregate Class Certificate Balances of the
Class A Certificates (after taking into account the distribution of the
Class A Principal Distribution Amount for such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution Amount for such Distribution Date), (C) the Class Certificate
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount for such Distribution Date) and (E) the Class
Certificate Balance of the Class M-4 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 79.40% of the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date over
$6,250,039.81.
“Class M-5
Certificates”:
All
Certificates bearing the class designation of “Class M-5,” and evidencing
(i) a REMIC Regular Interest in REMIC III, (ii) the right to receive the related
Basis Risk CarryForward Amount and (iii) the obligation to pay any Class IO
Distribution Amount.
“Class M-5
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class Certificate Balances
of the Class A Certificates (after taking into account the distribution of
the Class A Principal Distribution Amount for such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution Amount for such Distribution Date), (C) the Class Certificate
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount for such Distribution Date), (E) the Class
Certificate Balance of the Class M-4 Certificates (after taking into
account the distribution of the Class M-4 Principal Distribution Amount for
such Distribution Date) and (F) the Class Certificate Balance of the
Class M-5 Certificates immediately prior to such Distribution Date over
(ii) the lesser of (A) 83.20% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over
$6,250,039.81.
“Class M-6
Certificates”:
All
Certificates bearing the class designation of “Class M-6,” and evidencing
(i) a REMIC Regular Interest in REMIC III, (ii) the right to receive the related
Basis Risk CarryForward Amount and (iii) the obligation to pay any Class IO
Distribution Amount.
“Class M-6
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class Certificate
Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such
Distribution Date), (B) the Class Certificate Balance of the
Class M-1 Certificates (after taking into account the distribution of the
Class M-1 Principal Distribution Amount for such Distribution Date),
(C) the Class Certificate Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount for such Distribution Date), (D) the
Class Certificate Balance of the Class M-3 Certificates (after taking
into account the distribution of the Class M-3 Principal Distribution
Amount for such Distribution Date), (E) the Class Certificate Balance
of the Class M-4 Certificates (after taking into account the distribution
of the Class M-4 Principal Distribution Amount for such Distribution Date),
(F) the Class Certificate Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount for such Distribution Date) and (G) the
Class Certificate Balance of the Class M-6 Certificates immediately
prior to such Distribution Date over (ii) the lesser of (A) 85.40% of
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over
$6,250,039.81.
“Class P
Certificates”: All Certificates bearing the class designation of
“Class P”.
“Class
P
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class P Certificates, evidencing a Regular Interest
in REMIC III for purposes of the REMIC Provisions.
“Class
R
Certificates”: All Certificates bearing the class designation of “Class R,” and
evidencing ownership of the Class R-I Interest, the Class R-II Interest and
the
Class R-III Interest.
“Class
R-I Interest”: The uncertificated residual interest in REMIC I.
“Class
R-II Interest”: The uncertificated residual interest in REMIC II.
“Class
R-III Interest”: The uncertificated residual interest in REMIC III.
“Class
R-IV Interest”: The uncertificated residual interest in REMIC IV.
“Class
R-V Interest”: The uncertificated residual interest in REMIC V.
“Class
R-VI Interest”: The uncertificated residual interest in REMIC VI.
“Class
R-X Certificates”: All Certificates bearing the class designation of “Class
R-X,” and evidencing ownership of the Class R-IV Interest, the Class R-V
Interest and the Class R-VI Interest.
“Class
X
Certificates”: All Certificates bearing the class designation “Class X” and
evidencing (i) a REMIC Regular Interest in REMIC III, (ii) the obligation to
pay
Basis Risk Shortfall and (iii) the obligation to pay any Class IO Distribution
Amount.
“Class
X
Distributable Amount”: On any Distribution Date, the sum of (i) as a
distribution in respect of interest, the amount of interest that has accrued
on
the Class X Interest and not applied as an Extra Principal Distribution Amount
on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus, without duplication (ii)
as a
distribution in respect of principal, any portion of the principal balance
of
the Class X Certificates which is distributable as a Subordination Reduction
Amount, minus (iii) any amounts paid from the Excess Reserve Fund Account to
pay
any Basis Risk CarryForward Amount or any Swap Termination Payment (that is
not
a Senior Defaulted Swap Termination Payment) payable to the Swap
Provider.
“Class
X
Interest”: An uncertificated interest in the Trust Fund held by the Trustee,
evidencing a REMIC Regular Interest in REMIC III for purposes of the REMIC
Provisions.
“Closing
Date”: January 26, 2007.
“Closing
Date Deposit Amount”: $3,696.89 deposited by the Depositor into the Distribution
Account on the Closing Date. $17.17 of the Closing Date Deposit Amount shall
be
attributable to interest in respect of the Group I Mortgage Loans and $2,599.49
of the Closing Date Deposit Amount shall be attributable to principal in respect
of the Group I Mortgage Loans. $6.98 of the Closing Date Deposit amount shall
be
attributable to interest in respect of the Group II Mortgage Loans and $1,073.25
of the Closing Date Deposit Amount shall be attributable to principal in respect
of the Group II Mortgage Loans.
“Code”:
The Internal Revenue Code of 1986, including any successor or amendatory
provisions.
“Collection
Account”: As defined in Section 3.10(a).
“Combined
Loan to Value Ratio” or “CLTV”: As of any date and as to any Second Lien
Mortgage Loan, the ratio, expressed as a percentage, of the (a) sum of
(i) the outstanding principal balance of the Second Lien Mortgage Loan and
(ii) the outstanding principal balance as of such date of any mortgage loan
or mortgage loans that are senior or equal in priority to the Second Lien
Mortgage Loan and which are secured by the same Mortgaged Property to
(b) the Appraised Value as determined pursuant to the Underwriting
Guidelines of the related Mortgaged Property as of the origination of the Second
Lien Mortgage Loan.
“Commission”:
The
United States Securities and Exchange Commission.
“Compensating
Interest”: For any Distribution Date, the lesser of (a) the amount by which such
Prepayment Interest Shortfall exceeds all Prepayment Interest Excess for such
Distribution Date on the Mortgage Loans serviced by the applicable Servicer
and
(b) the amount of the aggregate Servicing Fee paid to or retained by the
applicable Servicer for such Distribution Date.
“Condemnation
Proceeds”: All awards or settlements in respect of a Mortgaged Property, whether
permanent or temporary, partial or entire, by exercise of the power of eminent
domain or condemnation.
“Convertible
Mortgage Loan”: Any individual Adjustable Rate Mortgage Loan which contains a
provision whereby the Mortgagor is permitted to convert the Adjustable Rate
Mortgage Loan to a Fixed Rate Mortgage Loan in accordance with the terms of
the
related Mortgage Note.
“Corporate
Trust Office”: The designated office of the Trustee in the State of California
at which at any particular time its corporate trust business with respect to
this Agreement is administered, which office at the date of the execution of
this Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx
00000, Attn: Trust Administration-MS07C1, facsimile no. (000) 000-0000, and
which is the address to which notices to and correspondence with the Trustee
should be directed.
“Corresponding
Certificate”: With respect to:
|
(i)
|
REMIC
II Regular Xxxxxxxx XX-X0, the Class A-1 Certificates;
|
|
|
(ii)
|
REMIC
II Regular Interest LT-A2a, the Class A-2a
Certificates;
|
|
|
(iii)
|
REMIC
II Regular Interest LT-A2b, the Class A-2b
Certificates;
|
|
|
(iv)
|
REMIC
II Regular Interest LT-A2c, the Class A-2c
Certificates;
|
|
|
(v)
|
REMIC
II Regular Interest LT-A2d, the Class A-2d
Certificates;
|
|
|
(vi)
|
REMIC
II Regular Interest LT-M1, the Class M-1 Certificates;
|
|
|
(vii)
|
REMIC
II Regular Interest LT-M2, the Class M-2 Certificates;
|
|
|
(viii)
|
REMIC
II Regular Interest LT-M3, the Class M-3 Certificates;
|
|
|
(ix)
|
REMIC
II Regular Interest LT-M4, the Class M-4 Certificates;
|
|
|
(x)
|
REMIC
II Regular Interest LT-M5, the Class M-5 Certificates;
|
|
|
(xi)
|
REMIC
II Regular Interest LT-M6, the Class M-6 Certificates;
|
|
|
(xii)
|
REMIC
II Regular Interest LT-B1, the Class B-1 Certificates;
|
|
|
(xiii)
|
REMIC
II Regular Interest LT-B2, the Class B-2 Certificates;
|
|
|
(xiv)
|
REMIC
II Regular Interest LT-B3, the Class B-3 Certificates;
|
|
|
(xv)
|
REMIC
II Regular Interest LT-B4, the Class B-4 Certificates;
|
|
|
(xvi)
|
REMIC
II Regular Interest LT-P, the Class P
Certificates.
|
“Countrywide
Amendment Regulation AB”: The Amendment Regulation AB, dated as of January 26,
2006, by and among Countrywide Servicing, Countrywide Home Loans, Inc. and
the
Sponsor.
“Countrywide
Servicing”: Countrywide Home Loans Servicing LP, a Texas limited partnership,
and its successors in interest.
“Cumulative
Loss Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount of
Realized Losses incurred from the Cut-off Date through the last day of the
related Prepayment Period and the denominator of which is the Cut-off Date
Pool
Principal Balance of the Mortgage Loans.
“Cumulative
Loss Trigger Event”: With respect to any Distribution Date, a Cumulative Loss
Trigger Event exists if the quotient (expressed as a percentage) of (x) the
aggregate amount of Realized Losses incurred since the Cut-off Date through
the
last day of the related Prepayment Period, divided by (y) the Cut-off Date
Pool
Principal Balance, exceeds the applicable cumulative loss percentages set forth
below with respect to such Distribution Date:
|
Distribution
Date Occurring In
|
Cumulative
Loss Percentage
|
|
February
2009 through January 2010
|
1.400%
for the first month, plus an additional 1/12th of 1.700% for each
month
thereafter (e.g., 2.250% in August 2009)
|
|
February
2010 through January 2011
|
3.100%
for the first month, plus an additional 1/12th of 1.700% for each
month
thereafter (e.g., 3.950% in August 2010)
|
|
February
2011 through January 2012
|
4.800%
for the first month, plus an additional 1/12th of 1.400% for each
month
thereafter (e.g., 5.500% in August 2011)
|
|
February
2012 through January 2013
|
6.200%
for the first month, plus an additional 1/12th of 0.750% for each
month
thereafter (e.g., 6.575% in August 2012)
|
|
February
2013 through January 2014
|
6.950%
for the first month, plus an additional 1/12th of 0.050% for each
month
thereafter (e.g., 6.975% in August 2013)
|
|
February
2014 and thereafter
|
7.000%
|
“Custodial
File”: With respect to each Mortgage Loan, the file retained by the Trustee
consisting of items (i)-(viii) as listed on Exhibit K
hereto.
“Cut-off
Date”: January 1, 2007.
“Cut-off
Date Pool Principal Balance”: The aggregate Stated Principal Balance of all
Mortgage Loans as of the Cut-off Date plus the portion of the Closing Date
Deposit Amount allocable to principal.
“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 (after giving effect
to
payments of principal due on that date, whether or not received).
“Data
Tape Information”: The information provided by the Responsible Party as of the
Cut-off Date to the Trustee and the Depositor or the Sponsor setting forth
the
following information with respect to each Mortgage Loan: (1) the
Mortgagor’s name; (2) as to each Mortgage Loan, the Scheduled Principal
Balance as of the Cut-off Date; (3) the Mortgage Rate Cap; (4) the
Index; (5) a code indicating whether the Mortgaged Property is
owner-occupied; (6) the type of Mortgaged Property; (7) the first date
on which the Scheduled Payment was due on the Mortgage Loan and, if such date
is
not consistent with the Due Date currently in effect, such Due Date;
(8) the “paid through date” based on payments received from the related
Mortgagor; (9) the original principal amount of the Mortgage Loan;
(10) with respect to Adjustable Rate Mortgage Loans, the Maximum Mortgage
Rate; (11) the type of Mortgage Loan (i.e., Fixed Rate or Adjustable Rate
Mortgage Loan, First Lien Mortgage Loan or Second Lien Mortgage Loan);
(12) a code indicating the purpose of the loan (i.e., purchase, rate and
term refinance, equity take-out refinance); (13) a code indicating the
documentation style (i.e., full, asset verification, income verification and
no
documentation); (14) the credit risk score (FICO score); (15) the loan
credit grade classification (as described in the underwriting guidelines);
(16) with respect to each Adjustable Rate Mortgage Loan, the Minimum
Mortgage Rate; (17) the Mortgage Rate at origination; (18) with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date
immediately following the Cut-off Date; (19) the value of the Mortgaged
Property; (20) a code indicating the type of Prepayment Charges applicable
to such Mortgage Loan (including any prepayment penalty term), if any;
(21) with respect to each Adjustable Rate Mortgage Loan, the Periodic
Mortgage Rate Cap; (22) with respect to each First Lien Mortgage Loan, the
LTV
at origination and with respect to each Second Lien Mortgage Loan, the CLTV
at
origination; (23) if such Mortgage Loan is covered by a primary mortgage
insurance policy or a lender-paid primary mortgage insurance policy, the primary
mortgage insurance rate; (24) Points and Fees (as defined in the Purchase
Agreement). With respect to the Mortgage Loans in the aggregate, the Data Tape
Information shall set forth the following information, as of the Cut-off Date:
(1) the number of Mortgage Loans; (2) the current aggregate
outstanding principal balance of the Mortgage Loans; (3) the weighted
average Mortgage Rate of the Mortgage Loans; and (4) the weighted average
maturity of the Mortgage Loans.
“Debt
Service Reduction”: With respect to any Mortgage Loan, a reduction by a court of
competent jurisdiction in a proceeding under the United States Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan which became final and
non-appealable, except such a reduction resulting from a Deficient Valuation
or
any reduction that results in a permanent forgiveness of principal.
“Defaulted
Swap Termination Payment”:
Any
Swap Termination Payment required to be paid by the Supplemental Interest Trust
to the Swap Provider pursuant to the Interest Rate Swap Agreement as a result
of
an Event of Default (as defined in the Interest Rate Swap Agreement) with
respect to which the Swap Provider is the defaulting party or a Termination
Event (as defined in the Interest Rate Swap Agreement) (other than Illegality
or
a Tax Event that is not a Tax Event Upon Merger (each as defined in the Interest
Rate Swap Agreement )) with respect to which the Swap Provider is the sole
Affected Party (as defined in the Interest Rate Swap Agreement).
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount less than
the then outstanding principal balance of the Mortgage Loan, which valuation
results from a proceeding initiated under the United States Bankruptcy
Code.
“Definitive
Certificates”: Any Certificate evidenced by a Physical Certificate and any
Certificate issued in lieu of a Book-Entry Certificate pursuant to
Section 5.02(e).
“Delay
Certificates”: As specified in the Preliminary Statement.
“Deleted
Mortgage Loan”: As defined in Section 2.03.
“Delinquency
Trigger Event”: With respect to any Distribution Date, a Delinquency Trigger
Event exists if the quotient (expressed as a percentage) of (x) the rolling
three month average of the aggregate Stated Principal Balance of 60+ Day
Delinquent Mortgage Loans (including Mortgage Loans in foreclosure and Mortgage
Loans related to REO Property) and (y) (1) until the aggregate Class
Certificate Balance of the Class A Certificates have been reduced to zero,
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date equals or exceeds 35.55% of the prior period’s Senior
Enhancement Percentage and (2) after the aggregate Class Certificate
Balance of the Class A Certificates have been reduced to zero, the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date equals or exceeds 43.24% of the prior period’s Class M-1 Enhancement
Percentage.
“Denomination”:
With respect to each Certificate, the amount set forth on the face thereof
as
the “Initial Certificate Balance of this Certificate” or the Percentage Interest
appearing on the face thereof.
“Depositor:
Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware corporation, and its
successors 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(a)(5) of the Uniform Commercial Code of the
State of New York.
“Depository
Institution”: Any depository institution or trust company, including the
Trustee, that (a) is incorporated under the laws of the United States of
America or any State thereof, (b) is subject to supervision and examination
by federal or state banking authorities and (c) has outstanding unsecured
commercial paper or other short-term unsecured debt obligations that are rated
“P-1” by Moody’s, “F1+” by Fitch and “A-1” by Standard & Poor’s (to the
extent they are Rating Agencies hereunder).
“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”: With respect to each Distribution Date, the 18th day (or if such day is
not a Business Day, the immediately preceding Business Day) in the case of
Countrywide Servicing, and the 15th day (or if such day is not a Business Day,
the immediately preceding Business Day) in the case of Saxon, in the calendar
month in which such Distribution Date occurs.
“Distribution
Account”: The separate Eligible Account created and maintained by the Trustee
pursuant to Section 3.07(d) in the name of the Trustee for the benefit of
the Certificateholders and designated “Deutsche Bank National Trust Company in
trust for registered Holders of Xxxxxx Xxxxxxx ABS Capital I Inc. Trust
2007-NC1 Mortgage Pass-Through Certificates, Series 2007-NC1”. Funds in the
Distribution Account shall be held in trust for the Certificateholders for
the
uses and purposes set forth in this Agreement.
“Distribution
Account Deposit Date”: As to any Distribution Date, 12:00 noon New York City
time on the second Business Day immediately preceding such Distribution
Date.
“Distribution
Date”: The 25th day of each calendar month, or if such day is not a Business
Day, the next succeeding Business Day, commencing in February 2007.
“Document
Certification and Exception Report”: The report attached to Exhibit F
hereto.
“Due
Date”: The day of the month on which the Scheduled Payment is due on a Mortgage
Loan, exclusive of any days of grace.
“Due
Period”: With respect to any Distribution Date, the period commencing on the
second day of the calendar month preceding the month in which such Distribution
Date occurs and ending on the first day of the calendar month in which such
Distribution Date occurs.
“Eligible
Account”: Either (i) an account maintained with a federal or state
chartered depository institution or trust company that complies with the
definition of Eligible Institution, (ii) an account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust
powers and is acting in its fiduciary capacity or (iii) any other account
acceptable to each Rating Agency. Eligible Accounts may bear interest, and
may
include, if otherwise qualified under this definition, accounts maintained
with
the Trustee. Each Eligible Account shall be a separate account.
“Eligible
Institution”: A federal or state-chartered depository institution or trust
company the commercial paper, short-term debt obligations, or other short-term
deposits of which are rated “A-1+” by Standard & Poor’s if the amounts on
deposit are to be held in the account for no more than 365 days (or at least
“A-2” by Standard & Poor’s if the amounts on deposit are to be held in the
account for no more than 30 days), or the long-term unsecured debt obligations
of which are rated at least “AA-” by Standard & Poor’s if the amounts on
deposit are to be held in the account for no more than 365 days, and the
commercial paper, short-term debt obligations or other short-term deposits
of
which are rated at least “P-1” by Moody’s and “F1+” by Fitch (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Servicers and the Trustee) (in each case, to the extent they are
designated as Rating Agencies in the Preliminary Statement).
“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
Certificate”: As specified in the Preliminary Statement.
“Escrow
Account”: The Eligible Account or Accounts established and maintained pursuant
to Section 3.09(b).
“Escrow
Payments”: As defined in Section 3.09(b).
“Event
of
Default”: As defined in Section 7.01.
“Excess
Reserve Fund Account”: The separate Eligible Account created and maintained by
the Trustee pursuant to Sections 3.07(b) and 3.07(c) in the name
of the Trustee for the benefit of the Regular Certificateholders and designated
“Deutsche Bank National Trust Company in trust for registered Holders of Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1, Mortgage Pass-Through
Certificates, Series 2007-NC1”. Funds in the Excess Reserve Fund Account
shall be held in trust for the Regular Certificateholders for the uses and
purposes set forth in this Agreement. Amounts on deposit in the Excess Reserve
Fund Account shall not be invested.
“Excess
Subordinated Amount”: With respect to any Distribution Date, the excess, if any,
of (a) the Subordinated Amount on such Distribution Date over (b) the
Specified Subordinated Amount for such Distribution Date.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended.
“Expense
Fee Rate”: As to each Mortgage Loan, a per annum rate equal to the sum of the
Servicing Fee Rate, the Trustee Fee Rate and any lender-paid primary mortgage
insurance fee rate, if applicable.
“Expense
Fees”: As to each Mortgage Loan, the sum of the Servicing Fee, the Trustee Fee
and any lender-paid primary mortgage insurance fee, if applicable.
“Extra
Principal Distribution Amount”: As of any Distribution Date, the lesser of
(x) the related Total Monthly Excess Spread for such Distribution Date and
(y) the related Subordination Deficiency for such Distribution
Date.
“Xxxxxx
Mae”: The Federal National Mortgage Association, or any successor
thereto.
“Xxxxxx
Xxx Guides”: The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Xxx Servicer’s Guide
and all amendments or additions thereto.
“FDIC”:
The Federal Deposit Insurance Corporation, or any successor
thereto.
“Final
Recovery Determination”: With respect to any defaulted Mortgage Loan or any REO
Property (other than a Mortgage Loan or REO Property purchased by the
Responsible Party or the Depositor, as applicable, as contemplated by this
Agreement), a determination made by the applicable Servicer that all Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and other payments or
recoveries which the applicable Servicer, in its reasonable good faith judgment,
expects to be finally recoverable in respect thereof have been so recovered.
Each Servicer shall maintain records, prepared by a Servicing Officer, of each
Final Recovery Determination made thereby.
“Final
Scheduled Distribution Date”:
The
Final Scheduled Distribution Date for each Class of Certificates is the
Distribution Date in November 2036.
“First
Lien Mortgage Loan”: A Mortgage Loan secured by a first lien Mortgage on the
related Mortgaged Property.
“Fixed
Rate Mortgage Loan”: A fixed rate Mortgage Loan.
“Xxxxxxx
Mac”: The Federal Home Loan Mortgage Corporation, a corporate instrumentality of
the United States created and existing under Title III of the Emergency Home
Finance Act of 1970, as amended, or any successor thereto.
“Gross
Margin”: With respect to each Adjustable Rate Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note to be added to the
applicable Index to determine the Mortgage Rate.
“Group
I
Class A Certificates”: The Class A-1 Certificates.
“Group
I
Loan Cap”: With respect to the Group I Mortgage Loans as of any
Distribution Date, the weighted average of the Adjusted Net Mortgage Rates
then
in effect on the beginning of the related Due Period on the Group I
Mortgage Loans minus the Swap Payment Rate, adjusted in each case to accrue
on
the basis of a 360-day year and the actual number of days in the related
Interest Accrual Period. With respect to any Distribution Date and the REMIC
III
Regular Interests the ownership of which is represented by the Class A-1
Certificates, a per annum rate equal to the weighted average (adjusted for
the
actual number of days elapsed in the related Accrual Period) of the
Uncertificated REMIC II Pass-Through Rate on REMIC II Regular Interest LT-1GRP,
weighted on the basis of the Uncertificated Principal Balance of such REMIC
II
Regular Interest immediately prior to such Distribution Date.
“Group
I
Mortgage Loans”: The Mortgage Loans identified on the Mortgage Loan Schedule as
Group I Mortgage Loans. The aggregate Stated Principal Balance of the Group
I
Mortgage Loans as of the Cut-off Date is equal to $413,622,062.08.
“Group
II
Class A Certificates”: The Class A-2a Certificates, the Class A-2b Certificates,
the Class A-2c Certificates and the Class A-2d Certificates,
collectively.
“Group
II
Loan Cap”: With respect to the Group II Mortgage Loans as of any
Distribution Date, the weighted average of the Adjusted Net Mortgage Rates
then
in effect on the beginning of the related Due Period on the Group II
Mortgage Loans minus the Swap Payment Rate, adjusted in each case to accrue
on
the basis of a 360-day year and the actual number of days in the related
Interest Accrual Period. With respect to any Distribution Date and the REMIC
III
Regular Interests the ownership of which is represented by the Group II Class
A
Certificates, a per annum rate equal to the weighted average (adjusted for
the
actual number of days elapsed in the related Accrual Period) of the
Uncertificated REMIC II Pass-Through Rate on REMIC II Regular Interest LT-2GRP,
weighted on the basis of the Uncertificated Principal Balance of such REMIC
II
Regular Interest immediately prior to such Distribution Date.
“Group
II
Mortgage Loans”: The Mortgage Loans identified on the Mortgage Loan Schedule as
Group II Mortgage Loans. The aggregate Stated Principal Balance of the Group
II
Mortgage Loans as of the Cut-off Date is equal to $836,382,226.85.
“Index”:
As to each Adjustable Rate Mortgage Loan, the index from time to time in effect
for the adjustment of the Mortgage Rate set forth as such on the related
Mortgage Note.
“Insurance
Policy”: With respect to any Mortgage Loan included in the Trust Fund, any
insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance
Policies.
“Insurance
Proceeds”: With respect to each Mortgage Loan, proceeds of insurance policies
insuring the Mortgage Loan or the related Mortgaged Property.
“Interest
Accrual Period”: With respect to each Class of Non-Delay Certificates and the
Corresponding Certificates and any Distribution Date, the period commencing
on
the Distribution Date occurring in the month preceding the month in which the
current Distribution Date occurs and ending on the day immediately preceding
the
current Distribution Date (or, in the case of the first Distribution Date,
the
period from and including the Closing Date to but excluding such first
Distribution Date). For purposes of computing interest accruals on each Class
of
Non-Delay Certificates, each Interest Accrual Period has the actual number
of
days in such month and each year is assumed to have 360 days.
“Interest
Rate Adjustment Date”: With respect to each Adjustable Rate Mortgage Loan, the
date, specified in the related Mortgage Note and the Mortgage Loan Schedule,
on
which the Mortgage Rate is adjusted.
“Interest
Rate Cap Agreement”: The interest rate cap agreement, dated as of the Closing
Date, between the Cap Provider and the Supplemental Interest Trust Trustee,
a
copy of which is attached hereto as Exhibit Z.
“Interest
Rate Cap Payment”: With respect to the Offered Certificates and the first 11
Distribution Dates, the amount, if any, equal to the product, determined on
an
“actual/360” basis, of (i) the excess, if any, of the One-Month LIBOR rate
(determined in accordance with the Interest Rate Cap Agreement) as of the
related reset date and over the Cap Rate (as defined in the Interest Rate Cap
Agreement), (ii) the notional amount set forth on Schedule A to the Interest
Rate Cap Agreement for such Distribution Date and (iii) the multiplier set
forth
on Schedule A to such Interest Rate Cap Agreement.
“Interest
Rate Swap Agreement”: The interest rate swap agreement, dated as of the Closing
Date, between the Swap Provider and the Supplemental Interest Trust Trustee,
a
copy of which is attached hereto as Exhibit T.
“Interest
Remittance Amount”: With respect to any Distribution Date and the Mortgage Loans
in a Loan Group, that portion of Available Funds attributable to interest
received or advanced relating to the Mortgage Loans in that Loan Group, net
of
any Net Swap Payments and any Swap Termination Payments (other than Defaulted
Swap Termination Payments) payable to the Swap Provider from Available Funds
with respect to such Distribution Date.
“Investment
Account”: As defined in Section 3.12(a).
“Investor-Based
Exemption”: Any of Prohibited Transaction Class Exemption (“PTCE”) 84-14 (for
transactions by independent “qualified professional asset managers”), XXXX 00-0
(for transactions by insurance company pooled separate accounts), PTCE 91-38
(for transactions by bank collective investment funds), PTCE 95-60 (for
transactions by insurance company general accounts) or PTCE 96-23 (for
transactions effected by “in-house asset managers”), or any comparable exemption
available under Similar Law.
“Late
Collections”: With respect to any Mortgage Loan and any Due Period, all amounts
received after the Determination Date immediately following such Due Period,
whether as late payments of Scheduled Payments or as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of principal and/or interest due (without regard to
any
acceleration of payments under the related Mortgage and Mortgage Note) but
delinquent for such Due Period and not previously recovered.
“LIBOR”:
With respect to any Interest Accrual Period for the Offered Certificates, the
rate determined by the Trustee on the related LIBOR Determination Date on the
basis of the offered rate for one-month U.S. dollar deposits as such rate
appears on Telerate Page 3750 as of 11:00 a.m. (London time) on such date;
provided, that if such rate does not appear on Telerate Page 3750, the rate
for such date will be determined on the basis of the rates at which one-month
U.S. dollar deposits are offered by the Reference Banks at approximately 11:00
a.m. (London time) on such date to prime banks in the London interbank market.
In such event, the Trustee shall request the principal London office of each
of
the Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean
of
the quotations (rounded upwards if necessary to the nearest whole multiple
of
1/16%). If fewer than two quotations are provided as requested, the rate for
that date will be the arithmetic mean of the rates quoted by major banks in
New
York City, selected by the Trustee (after consultation with the Depositor),
at
approximately 11:00 a.m. (New York City time) on such date for one-month U.S.
dollar loans to leading European banks.
“LIBOR
Determination Date”: With respect to any Interest Accrual Period for the Offered
Certificates, the second London Business Day preceding the commencement of
such
Interest Accrual Period.
“Liquidated
Mortgage Loan”: With respect to any Distribution Date, a defaulted Mortgage Loan
(including any REO Property) which either (a) was liquidated in the calendar
month preceding the month of such Distribution Date and as to which the
applicable Servicer has certified to the Trustee that it has received all
amounts it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property, or (b) is
a
Second Lien Mortgage Loan (1) that is delinquent 180 days or longer, (2) for
which the related first lien mortgage loan is not a Mortgage Loan, and (3)
as to
which the applicable Servicer has certified to the Trustee that it does not
believe there is a reasonable likelihood that any further net proceeds will
be
received or recovered with respect to such Second Lien Mortgage
Loan.
“Liquidation
Proceeds”: Cash received in connection with the liquidation of a Liquidated
Mortgage Loan, whether through a trustee’s sale, foreclosure sale or otherwise,
including any Subsequent Recoveries.
“Loan
Group”: The Group I Mortgage Loans or the Group II Mortgage Loans, as
applicable.
“Loan
Group Cap”: The Group I Loan Cap or the Group II Loan Cap, as
applicable.
“Loan-to-Value
Ratio” or “LTV”: With respect to any First Lien Mortgage Loan, the ratio
(expressed as a percentage) of the original outstanding principal amount of
the First Lien Mortgage Loan as of the Cut-off Date (unless otherwise
indicated), to the lesser of (a) the Appraised Value of the Mortgaged
Property at origination, and (b) if the First Lien Mortgage Loan was made
to finance the acquisition of the related Mortgaged Property, the purchase
price
of the Mortgaged Property.
“London
Business Day”: Any day on which dealings in deposits of United States dollars
are transacted in the London interbank market.
“Marker
Rate”: With respect to the Class X Interest and any Distribution Date, a per
annum rate equal to two (2) times the weighted average of the Uncertificated
REMIC II Pass-Through Rates for REMIC II Regular Interest LT-A1, REMIC II
Regular Interest LT-A2a, REMIC II Regular Interest LT-A2b, REMIC II Regular
Interest LT-A2c, REMIC II Regular Interest LT-A2d, REMIC II Regular Interest
LT-M1, REMIC II Regular Interest LT-M2, REMIC II Regular Interest LT-M3, REMIC
II Regular Interest LT-M4, REMIC II Regular Interest LT-M5, REMIC II Regular
Interest LT-M6, REMIC II Regular Interest LT-B1, REMIC II Regular Interest
LT-B2, REMIC II Regular Interest LT-B3, REMIC II Regular Interest LT-B4 and
REMIC II Regular Interest LT-ZZ, with the per annum rate on each such REMIC
II
Regular Interest (other than REMIC II Regular Interest LT-ZZ) subject to a
cap
equal to the Pass-Through Rate on the Corresponding Certificate for the purpose
of this calculation; and with the per annum rate on REMIC II Regular Interest
LT-ZZ subject to a cap of zero for the purpose of this calculation; provided,
however, that for this purpose, the calculation of the Uncertificated REMIC
II
Pass-Through Rate and the related cap with respect to each such REMIC II Regular
Interest (other than REMIC II Regular Interest LT-ZZ) shall be multiplied by
a
fraction, the numerator of which is the actual number of days in the Interest
Accrual Period and the denominator of which is thirty (30).
“Maximum
Mortgage Rate”: With respect to each Adjustable Rate Mortgage Loan, a rate that
(i) is set forth on the Data Tape Information and in the related Mortgage
Note and (ii) is the maximum interest rate to which the Mortgage Rate on
such Adjustable Rate Mortgage Loan may be increased during the lifetime of
such
Adjustable Rate Mortgage Loan.
“Minimum
Mortgage Rate”: With respect to each Adjustable Rate Mortgage Loan, a rate that
(i) is set forth on the Data Tape Information and in the related Mortgage
Note and (ii) is the minimum interest rate to which the Mortgage Rate on
such Adjustable Rate Mortgage Loan may be decreased during the lifetime of
such
Adjustable Rate Mortgage Loan.
“Monthly
Statement”: The statement delivered to the Certificateholders pursuant to
Section 4.03.
“Moody’s”:
Xxxxx’x Investors Service, Inc, and its successors in interest. If Xxxxx’x is
designated as a Rating Agency in the Preliminary Statement, 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 Mortgage Pass-Through Group, or such other address as Moody’s may
hereafter furnish to the Depositor, the Trustee and the Servicers.
“Xxxxxx
Xxxxxxx”: Xxxxxx Xxxxxxx, a Delaware corporation.
“Mortgage”:
The mortgage, deed of trust or other instrument identified on the Mortgage
Loan
Schedule as securing a Mortgage Note.
“Mortgage
File”: The items pertaining to a particular Mortgage Loan contained in either
the Servicing File or Custodial File.
“Mortgage
Loan”: An individual Mortgage Loan which is the subject of this Agreement, each
Mortgage Loan originally sold and subject to this Agreement being identified
on
the Mortgage Loan Schedule, which Mortgage Loan includes, without limitation,
the Mortgage File, the Scheduled Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds,
Prepayment Charges, and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan, excluding replaced or
repurchased Mortgage Loans.
“Mortgage
Loan Schedule”: A schedule of Mortgage Loans delivered to the Trustee and
referred to on Schedule I, such schedule setting forth the following
information with respect to each Mortgage Loan: (1) the Mortgage Loan
number; (2) the city, state and zip code of the Mortgaged Property;
(3) the number and type of residential units constituting the Mortgaged
Property; (4) the current Mortgage Rate; (5) the current net Mortgage
Rate; (6) the current Scheduled Payment; (7) with respect to each
Adjustable Rate Mortgage Loan, the Gross Margin; (8) the original term to
maturity; (9) the scheduled maturity date; (10) the principal balance
of the Mortgage Loan as of the Cut-off Date after deduction of payments of
principal due on or before the Cut-off Date whether or not collected;
(11) with respect to each Adjustable Rate Mortgage Loan, the next Interest
Rate Adjustment Date; (12) with respect to each Adjustable Rate Mortgage
Loan, the lifetime Mortgage Interest Rate Cap; (13) whether the Mortgage
Loan is convertible or not; (14) the Servicing Fee; (15) whether such
Mortgage Loan is a Group I Mortgage Loan or a Group II Mortgage Loan; (16)
the
date such Mortgage Loan was sold by the Responsible Party to the Sponsor;
(17) whether such Mortgage Loan provides for a Prepayment Charge as well as
the term and amount of such Prepayment Charge, if any; (18) with respect to
each First Lien Mortgage Loan, the LTV at origination and with respect to each
Second Lien Mortgage Loan, the CLTV at origination; (19) the applicable
Servicer’s name; and (20) the date on which servicing of the Mortgage Loan
was transferred to the applicable Servicer.
“Mortgage
Note”: The note or other evidence of the indebtedness of a Mortgagor under a
Mortgage Loan.
“Mortgage
Rate”: The annual rate of interest borne on a Mortgage Note, which shall be
adjusted from time to time in the case of an Adjustable Rate Mortgage
Loan.
“Mortgage
Rate Caps”: With respect to an Adjustable Rate Mortgage Loan, the Periodic
Mortgage Rate Cap, the Maximum Mortgage Rate, and the Minimum Mortgage Rate
for
such Mortgage Loan.
“Mortgaged
Property”: With respect to each Mortgage Loan, the real property (or leasehold
estate, if applicable) identified on the Mortgage Loan Schedule as securing
repayment of the debt evidenced by the related Mortgage Note
“Mortgagor”:
The obligor(s) on a Mortgage Note.
“Net
Monthly Excess Cash Flow”: For any Distribution Date, the portion of Available
Funds remaining for distribution pursuant to subsection 4.02(a)(iii) (before
giving effect to distributions pursuant to such subsection).
“Net
Prepayment Interest Shortfall”: For any Distribution Date, the amount by which
the sum of the Prepayment Interest Shortfalls for such Distribution Date exceeds
the sum of (i) all Prepayment Interest Excess for such Distribution Date
and (ii) Compensating Interest payments made with respect to such
Distribution Date.
“Net
Swap
Payment”:
With
respect to any Distribution Date, any net payment (other than a Swap Termination
Payment) payable by the Supplemental Interest Trust to the Swap Provider on
the
related Fixed Rate Payer Payment Date (as defined in the Interest Rate Swap
Agreement).
“Net
Swap
Receipt”:
With
respect to any Distribution Date, any net payment (other than a Swap Termination
Payment) made by the Swap Provider to the Supplemental Interest Trust on the
related Floating Rate Payer Payment Date (as defined in the Interest Rate Swap
Agreement).
“NIM
Issuer”:
The
entity established as the issuer of the NIM Securities.
“NIM
Securities”:
Any
debt securities secured or otherwise backed by some or all of the Class X
and Class P Certificates that are rated by one or more Rating
Agencies.
“NIM
Trustee”:
The
trustee for the NIM Securities.
“90+
Day
Delinquent Mortgage Loan”: (i) Each Mortgage Loan with respect to which any
portion of a Scheduled Payment is, as of the last day of the prior Due Period,
three months or more past due (without giving effect to any grace period),
including, without limitation, such Mortgage Loans that are subject to
bankruptcy proceedings, (ii) each Mortgage Loan in foreclosure and (iii) all
REO
Property.
“Non-Delay
Certificates”: As specified in the Preliminary Statement.
“Non-Permitted
Transferee”: A Person other than a Permitted Transferee.
“Nonrecoverable
P&I Advance”: Any P&I Advance previously made or proposed to be made in
respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the applicable Servicer, will not or, in the case of a proposed
P&I Advance, would not be ultimately recoverable from related late payments,
Insurance Proceeds, Condemnation Proceeds, or Liquidation Proceeds on such
Mortgage Loan or REO Property as provided herein.
“Nonrecoverable
Servicing Advance”: Any Servicing Advances previously made or proposed to be
made in respect of a Mortgage Loan or REO Property, which, in accordance with
Accepted Servicing Practices, will not or, in the case of a proposed Servicing
Advance, would not be ultimately recoverable from related Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise.
“Notice
of Final Distribution”: The notice to be provided pursuant to Section 9.02
to the effect that final distribution on any of the Certificates shall be made
only upon presentation and surrender thereof.
“Notional
Amount”: Immediately prior to any Distribution Date with respect to the Class X
Interest, the aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests (other than the REMIC II Regular Interest LT-P and REMIC II Regular
Interest LT-IO).
“Offered
Certificates”: As specified in the Preliminary Statement.
“Officer’s
Certificate”: A certificate signed by an officer of any Servicer or a
Subservicer with responsibility for the servicing of the Mortgage Loans required
to be serviced by such Servicer or a Subservicer and listed on a list delivered
to the Trustee pursuant to this Agreement.
“Opinion
of Counsel”: A written opinion of counsel, who may be in-house counsel for a
Servicer or a Subservicer, reasonably acceptable to the Trustee (and/or such
other Persons as may be set forth herein), provided, that any Opinion of Counsel
relating to (a) qualification of any Trust REMIC or (b) compliance with the
REMIC Provisions, must be (unless otherwise stated in such Opinion of Counsel)
an opinion of counsel who (i) is in fact independent of such Servicer of the
Mortgage Loans, (ii) does not have any material direct or indirect financial
interest in such Servicer of the Mortgage Loans or in an Affiliate of either
and
(iii) is not connected with such Servicer of the Mortgage Loans as an officer,
employee, director or person performing similar functions.
“Optional
Termination Date”: The Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans, as of the last day of the related Due Period,
is
equal to 5% or less of the Cut-off Date Pool Principal Balance.
“OTS”:
Office of Thrift Supervision, and any successor thereto.
“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 Principal Prepayment
in
Full prior to such Due Date and which did not become a Liquidated Mortgage
Loan
prior to such Due Date.
“Ownership
Interest”: As to any Residual Certificate, any ownership interest in such
Certificate including any interest in such Certificate as the Holder thereof
and
any other interest therein, whether direct or indirect, legal or
beneficial.
“P&I
Advance”: As to any Mortgage Loan or REO Property, any advance made by the
applicable Servicer in respect of any Remittance Date representing the aggregate
of all payments of principal and interest, net of the Servicing Fee, that were
due during the related Due Period on the Mortgage Loans and that were delinquent
on the related Determination Date, plus certain amounts representing assumed
payments not covered by any current net income on the Mortgaged Properties
acquired by foreclosure or deed in lieu of foreclosure as determined pursuant
to
Section 4.01.
“Pass-Through
Margin”: With respect to each Class of Regular Certificates except as set forth
in the following sentence, the following percentages: Class A-1, 0.1300%; Class
A-2a, 0.0500%; Class A-2b, 0.1000%; Class A-2c, 0.1400%; Class A-2d, 0.2200%;
Class M-1, 0.2600%; Class M-2, 0.2700%; Class M-3, 0.3000%; Class M-4, 0.3800%;
Class M-5, 0.4000%; Class M-6, 0.4500%; Class B-1, 0.9500%; Class B-2, 1.5000%;
Class B-3, 2.2500%; and Class B-4, 2.2500%. On the first Distribution Date
after
the Optional Termination Date, the Pass-Through Margins shall increase to:
Class
A-1, 0.2600%; Class A-2a, 0.1000%; Class A-2b, 0.2000%; Class A-2c, 0.2800%;
Class A-2d, 0.4400%; Class M-1, 0.3900%; Class M-2, 0.4050%; Class M-3, 0.4500%;
Class M-4, 0.5700%; Class M-5, 0.6000%; Class M-6, 0.6750%; Class B-1, 1.4250%;
Class B-2, 2.2500%; Class B-3, 3.3750%; and Class B-4, 3.3750%.
“Pass
Through-Rate”: With respect to:
(i) the
Class
A-1 Certificates, the least of (i) one-month LIBOR plus the applicable
Pass-Through Margin, (ii) the Group I Loan Cap, and (iii) the WAC
Cap;
(ii) the
Class
A-2a Certificates, the least of (i) one-month LIBOR plus the applicable
Pass-Through Margin, (ii) the Group II Loan Cap, and (iii) the WAC
Cap;
(iii) the
Class
A-2b Certificates, the least of (i) LIBOR plus the applicable Pass-Through
Margin, (ii) the Group II Loan Cap, and (iii) the WAC Cap;
(iv) the
Class
A-2c Certificates, the least of (i) LIBOR plus the applicable Pass-Through
Margin, (ii) the Group II Loan Cap, and (iii) the WAC Cap;
(v) the
Class
A-2d Certificates, the least of (i) LIBOR plus the applicable Pass-Through
Margin, (ii) the Group II Loan Cap, and (iii) the WAC Cap;
(vi) the
Class
M-1 Certificates, the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the WAC Cap;
(vii) the
Class
M-2 Certificates, the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the WAC Cap;
(viii) the
Class
M-3 Certificates, the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the WAC Cap;
(ix) the
Class
M-4 Certificates, the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the WAC Cap;
(x) the
Class
M-5 Certificates, the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the WAC Cap;
(xi) the
Class
M-6 Certificates, the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the WAC Cap;
(xii) the
Class
B-1 Certificates, the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the WAC Cap;
(xiii) the
Class
B-2 Certificates, the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the WAC Cap;
(xiv) the
Class
B-3 Certificates, the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the WAC Cap;
(xv) the
Class
B-4 Certificates, the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the WAC Cap; and
(xvi) the
Class
X Interest, 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 (R) below, and the denominator of which is the aggregate
Uncertificated Principal Balance of REMIC II Regular Interest LT-AA, REMIC
II
Regular Interest LT-A1, REMIC II Regular Interest LT-A2a, REMIC II Regular
Interest LT-A2b, REMIC II Regular Interest LT-A2c, REMIC II Regular Interest
LT-A2d, REMIC II Regular Interest LT-M1, REMIC II Regular Interest LT-M2, REMIC
II Regular Interest LT-M3, REMIC II Regular Interest LT-M4, REMIC II Regular
Interest LT-M5, REMIC II Regular Interest LT-M6, REMIC II Regular Interest
LT-B1, REMIC II Regular Interest LT-B2, REMIC II Regular Interest LT-B3, REMIC
II Regular Interest LT-B4 and REMIC II Regular Interest LT-ZZ. For purposes
of
calculating the Pass-Through Rate for the Class X Certificates, the numerator
is
equal to the sum of the following components:
(A) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-AA
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-AA;
(B) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-A1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-A1;
(C) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-A2a,
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-A2a;
(D) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-A2b,
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-A2b;
(E) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-A2c,
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-A2c;
(F) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-A2d,
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-A2d;
(G) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-M1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-M1;
(H) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-M2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-M2;
(I) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-M3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-M3;
(J) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-M4
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-M4;
(K) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-M5
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-M5;
(L) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-M6
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-M6;
(M) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-B1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-B1;
(N) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-B2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-B2;
(O) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-B3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-B3;
(P) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-B4
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-B4;
(Q) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-ZZ
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-ZZ; and
(R) 100%
of
the interest on REMIC II Regular Interest LT-P.
The
Class
X Certificates shall be entitled to 100% of amounts distributed on the Class
X
Interest.
“PCAOB”:
The
Public Company Accounting Oversight Board.
“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.
“Periodic
Mortgage Rate Cap”: With respect to an Adjustable Rate Mortgage Loan, the
periodic limit on each Mortgage Rate adjustment as set forth in the related
Mortgage Note.
“Permitted
Investments”: Any one or more of the following obligations or securities
acquired at a purchase price of not greater than par, regardless of whether
issued by any Servicer, the Trustee or any of their respective
Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) demand
and time deposits in, certificates of deposit of, or bankers’ acceptances (which
shall each have an original maturity of not more than 90 days and, in the case
of bankers’ acceptances, shall in no event have an original maturity of more
than 365 days or a remaining maturity of more than 30 days) denominated in
United States dollars and issued by, any Depository Institution and rated “P-1”
by Moody’s, “F1+” by Fitch, and “A-1+” by Standard & Poor’s (to the extent
they are Rating Agencies hereunder and are so rated by such Rating
Agency);
(iii) repurchase
obligations with respect to any security described in clause (i) above
entered into with a Depository Institution (acting as principal);
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any State thereof
and that are rated by each Rating Agency that rates such securities in its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by each Rating
Agency that rates such securities in its highest short-term unsecured debt
rating available at the time of such investment;
(vi) units
of
money market funds, including money market funds advised by the Depositor,
the
Trustee or an Affiliate thereof, that have been rated “Aaa” by Moody’s, “AAAm”
by Standard & Poor’s and at least “AA” by Fitch (to the extent they are
Rating Agencies hereunder and such funds are so rated by such Rating Agency);
and
(vii) if
previously confirmed in writing to the Trustee, any other demand, money market
or time deposit, or any other obligation, security or investment, as may be
acceptable to the Rating Agencies as a permitted investment of funds backing
“Aaa” or “AAA” rated securities;
provided,
however, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying
such instrument or (b) both principal and interest payments derived from
obligations underlying such instrument and the interest and principal payments
with respect to such instrument provide a yield to maturity at par greater
than
120% of the yield to maturity at par of the underlying obligations.
“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 U.S. Person
or
a U.S. Person with respect to whom income from a Residual Certificate is
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person, a U.S. Person that is a partnership for U.S. federal income tax
purposes, any partner in which, directly or indirectly (other than through
a
U.S. corporation) is not a U.S. Person, (vi) an “electing large partnership”
within the meaning of Section 775 of the Code and (vii) any other Person so
designated 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
Trust REMIC 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.
“Pool
Stated Principal Balance”: As to any Distribution Date, the aggregate of the
Stated Principal Balances of the Mortgage Loans for such Distribution Date
that
were Outstanding Mortgage Loans on the Due Date in the related Due
Period.
“Prepayment
Charge”: Any prepayment premium, penalty or charge collected by any Servicer
with respect to a Mortgage Loan from a Mortgagor in connection with any
voluntary Principal Prepayment pursuant to the terms of the related Mortgage
Note.
“Prepayment
Interest Excess”:
With
respect to any Distribution Date, any interest collected by a Servicer with
respect to any Mortgage Loan serviced by such Servicer as to which a Principal
Prepayment in Full occurs from the 1st day of the month through the 15th day
of
the month in which such Distribution Date occurs and that represents interest
that accrues from the 1st day of such month to the date of such Principal
Prepayment in Full.
“Prepayment
Interest Shortfall”:
With
respect to any Distribution Date, the sum of, for each Mortgage Loan that was
during the portion of the Prepayment Period from and including the 16th day
of
the month preceding the month in which such Distribution Date occurs (or from
the day following the Cut-off Date, in the case of the first Distribution Date)
through the last day of such month, the subject of a Principal Prepayment which
is not accompanied by an amount equal to one month of interest that would have
been due on such Mortgage Loan on the Due Date in the following month and which
was applied by the applicable Servicer to reduce the outstanding principal
balance of such Mortgage Loan on a date preceding such Due Date an amount equal
to the product of (a) the Mortgage Rate net of the Servicing Fee Rate for such
Mortgage Loan, (b) the amount of the Principal Prepayment for such Mortgage
Loan, (c) 1/360 and (d) the number of days commencing on the date on which
such
Principal Prepayment was applied and ending on the last day of the calendar
month in which the related Prepayment Period begins.
“Prepayment
Period”:
With
respect to any Distribution Date, the period from and including the 16th day
of
the month preceding the month in which such Distribution Date occurs (or, in
the
case of the first Distribution Date, from and including the Cut-off Date) to
and
including the 15th day of the month in which such Distribution Date
occurs.
“Principal
Distribution Amount”: For any Distribution Date, the sum of (i) the Basic
Principal Distribution Amount for such Distribution Date and (ii) the Extra
Principal Distribution Amount for such Distribution Date.
“Principal
Prepayment”: Any full or partial payment or other recovery of principal on a
Mortgage Loan (including upon liquidation of a Mortgage Loan) which is received
by any Servicer in advance of its scheduled Due Date, excluding any Prepayment
Charge thereon.
“Principal
Prepayment in Full”: Any Principal Prepayment made by a Mortgagor of the entire
principal balance of a Mortgage Loan.
“Principal
Remittance Amount”: With respect to any Distribution Date, the amount equal to
the sum of the following amounts (without duplication) with respect to the
related Due Period: (i) each scheduled payment of principal on a Mortgage Loan
due during such Due Period and received by the Servicers on or prior to the
related Determination Date or advanced by the applicable Servicer for the
related Remittance Date, and all Principal Prepayments received during the
related Prepayment Period; (ii) all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds on the Mortgage Loans allocable to principal actually
collected by the Servicers during the related Prepayment Period; (iii) the
portion of the Repurchase Price allocable to principal with respect to each
Mortgage Loan, repurchased with respect to such Distribution Date; (iv) all
Substitution Adjustment Amounts allocable to principal received in connection
with the substitutions of Mortgage Loans with respect to such Distribution
Date;
(v) with respect to the Distribution Date in February 2007 only, the portion
of
the Closing Date Deposit Amount allocable to principal; and (vi) the allocable
portion of the proceeds received with respect to the termination of the Trust
Fund pursuant to clause (a) of Section 9.01 (to the extent such proceeds relate
to principal).
“Private
Certificates”: As specified in the Preliminary Statement.
“Prospectus
Supplement”: The Prospectus Supplement, dated January 19, 2007, relating to the
Offered Certificates.
“PTCE
95-60”: As defined in Section 5.02(b).
“Purchase
Agreement”: The Sixth Amended and Restated Mortgage Loan Purchase and Warranties
Agreement, dated as of May 1, 2006, between Xxxxxx Xxxxxxx Capital Inc. and
NC
Capital Corporation.
“Rating
Agency”: Each of the Rating Agencies specified in the Preliminary Statement. If
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. References herein to a given rating
or rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers. For purposes of Section 10.05(b), the
addresses for notices to each Rating Agency shall be the address specified
therefor in the definition corresponding to the name of such Rating Agency,
or
such other address as either such Rating Agency may hereafter furnish to the
Depositor, the Trustee and the Servicers.
“Realized
Losses”: With respect to any date of determination and any Liquidated Mortgage
Loan, the amount, if any, by which (a) the unpaid principal balance of such
Liquidated Mortgage Loan together with accrued and unpaid interest thereon
exceeds (b) the Liquidation Proceeds with respect thereto net of the
expenses incurred by the applicable Servicer in connection with the liquidation
of such Liquidated Mortgage Loan and net of the amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
“Record
Date”: With respect to any Distribution Date, the close of business on the
Business Day immediately preceding such Distribution Date; provided, however,
that, for any Certificate issued in definitive form, the Record Date shall
be
the close of business on the last Business Day of the month preceding the month
in which such applicable Distribution Date occurs.
“Reference
Bank”: As defined in Section 4.04.
“Regular
Certificates”: As specified in the Preliminary Statement.
“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 (January 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
“Relief
Act Interest Shortfall”: With respect to any Distribution Date and any Mortgage
Loan, any reduction in the amount of interest collectible on such Mortgage
Loan
for the most recently ended Due Period as a result of the application of the
Servicemembers Civil Relief Act or any similar state statutes.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
“REMIC
I
Group I Regular Interests”: REMIC I Regular Interest I and REMIC I Regular
Interest I-1-A through REMIC I Regular Interest I-61-B as designated in the
Preliminary Statement hereto.
“REMIC
I
Group II Regular Interests”: REMIC I Regular Interest II and REMIC I Regular
Interest II-1-A through REMIC I Regular Interest II-61-B as designated in the
Preliminary Statement hereto.
“REMIC
I
Regular Interest”: Any of the separate non-certificated beneficial ownership
interests in REMIC I issued hereunder and designated as a “regular interest” in
REMIC I. Each REMIC I Regular Interest shall accrue interest at the related
Uncertificated REMIC I 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 I Regular Interests are set forth in the Preliminary
Statement hereto. The REMIC I Regular Interests consist of the REMIC I Group
I
Regular Interests, REMIC I Group II Regular Interests and REMIC I Regular
Interest P.
“REMIC
II”: The segregated pool of assets consisting of all of the REMIC I Regular
Interests conveyed in trust to the Trustee, for the benefit of the Holders
of
the REMIC II Regular Interests and the Holders of the Class R (as holders of
the
Class R-II Interest), pursuant to Article II hereunder, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
“REMIC
II
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 REO Properties then outstanding and (ii) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-AA
minus the Marker Rate, divided by (b) 12.
“REMIC
II
Marker Allocation Percentage”: 50% of any amount payable or loss attributable
from the Mortgage Loans, which shall be allocated to REMIC II Regular Interest
LT-AA, REMIC II Regular Interest LT-A1, REMIC II Regular Interest LT-A2a, REMIC
II Regular Interest LT-A2b, REMIC II Regular Interest LT-A2c, REMIC II Regular
Interest LT-A2d, REMIC II Regular Interest LT-M1, REMIC II Regular Interest
LT-M2, REMIC II Regular Interest LT-M3, REMIC II Regular Interest LT-M4, REMIC
II Regular Interest LT-M5, REMIC II Regular Interest LT-M6, REMIC II Regular
Interest LT-B1, REMIC II Regular Interest LT-B2, REMIC II Regular Interest
LT-B3, REMIC II Regular Interest LT-B4 and REMIC II Regular Interest
LT-ZZ.
“REMIC
II
Overcollateralization Amount”: With respect to any date of determination, (i)
0.50% of the aggregate Uncertificated Principal Balances of the REMIC II Regular
Interests minus (ii) the aggregate of the Uncertificated Principal Balances
of
REMIC II Regular Interest LT-A1, REMIC II Regular Interest LT-A2a, REMIC II
Regular Interest LT-A2b, REMIC II Regular Interest LT-A2c, REMIC II Regular
Interest LT-A2d, REMIC II Regular Interest LT-M1, REMIC II Regular Interest
LT-M2, REMIC II Regular Interest LT-M3, REMIC II Regular Interest LT-M4, REMIC
II Regular Interest LT-M5, REMIC II Regular Interest LT-M6, REMIC II Regular
Interest LT-B1, REMIC II Regular Interest LT-B2, REMIC II Regular Interest
LT-B3, REMIC II Regular Interest LT-B4 and REMIC II Regular Interest LT-P,
in
each case as of such date of determination.
“REMIC
II
Principal Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) 50% of the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties then outstanding and (ii)
1
minus a fraction, the numerator of which is two times the aggregate of the
Uncertificated Principal Balances of REMIC II Regular Interest LT-A1, REMIC
II
Regular Interest LT-A2a, REMIC II Regular Interest LT-A2b, REMIC II Regular
Interest LT-A2c, REMIC II Regular Interest LT-A2d, REMIC II Regular Interest
LT-M1, REMIC II Regular Interest LT-M2, REMIC II Regular Interest LT-M3, REMIC
II Regular Interest LT-M4, REMIC II Regular Interest LT-M5, REMIC II Regular
Interest LT-M6, REMIC II Regular Interest LT-B1, REMIC II Regular Interest
LT-B2, REMIC II Regular Interest LT-B3 and REMIC II Regular Interest LT-B4,
and
the denominator of which is the aggregate of the Uncertificated Principal
Balances of REMIC II Regular Interest LT-A1, REMIC II Regular Interest LT-A2a,
REMIC II Regular Interest LT-A2b, REMIC II Regular Interest LT-A2c, REMIC II
Regular Interest LT-A2d, REMIC II Regular Interest LT-M1, REMIC II Regular
Interest LT-M2, REMIC II Regular Interest LT-M3, REMIC II Regular Interest
LT-M4, REMIC II Regular Interest LT-M5, REMIC II Regular Interest LT-M6, REMIC
II Regular Interest LT-B1, REMIC II Regular Interest LT-B2, REMIC II Regular
Interest LT-B3, REMIC II Regular Interest LT-B4 and REMIC II Regular Interest
LT-ZZ.
“REMIC
II
Regular Interests”: Any of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a “regular interest” in
REMIC II. Each REMIC II Regular Interest shall accrue interest at the related
Uncertificated REMIC II 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 REMIC II Regular
Interests are as follows: REMIC II Regular Interest LT-AA, REMIC II Regular
Interest LT-A1, REMIC II Regular Interest LT-A2a, REMIC II Regular Interest
LT-A2b, REMIC II Regular Interest LT-A2c, REMIC II Regular Interest LT-A2d,
REMIC II Regular Interest LT-M1, REMIC II Regular Interest LT-M2, REMIC II
Regular Interest LT-M3, REMIC II Regular Interest LT-M4, REMIC II Regular
Interest LT-M5, REMIC II Regular Interest LT-M6, REMIC II Regular Interest
LT-B1, REMIC II Regular Interest LT-B2, REMIC II Regular Interest LT-B3, REMIC
II Regular Interest LT-B4, REMIC II Regular Interest LT-ZZ, REMIC II Regular
Interest LT-P, REMIC II Regular Interest LT-1SUB, REMIC II Regular Interest
LT-1GRP, REMIC II Regular Interest LT-2SUB, REMIC II Regular Interest LT-2GRP
and REMIC II Regular Interest LT-XX.
“REMIC
II
Regular Interest LT-ZZ Maximum Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (i) accrued interest at the Uncertificated
REMIC II Pass-Through Rate applicable to REMIC II Regular Interest LT-ZZ for
such Distribution Date on a balance equal to the Uncertificated Principal
Balance of REMIC II Regular Interest LT-ZZ minus the REMIC II
Overcollateralization Amount, in each case for such Distribution Date, over
(ii)
the Uncertificated Accrued Interest on REMIC II Regular Xxxxxxxx XX-X0, REMIC
II
Regular Interest LT-A2a, REMIC II Regular Interest LT-A2b, REMIC II Regular
Interest LT-A2c, REMIC II Regular Interest LT-A2d, REMIC II Regular Interest
LT-M1, REMIC II Regular Interest LT-M2, REMIC II Regular Interest LT-M3, REMIC
II Regular Interest LT-M4, REMIC II Regular Interest LT-M5, REMIC II Regular
Interest LT-M6, REMIC II Regular Interest LT-B1, REMIC II Regular Interest
LT-B2, REMIC II Regular Interest LT-B3 and REMIC II Regular Interest LT-B4
for
such Distribution Date, with the rate on each such REMIC II Regular Interest
subject to a cap equal to the related Pass-Through Rate.
“REMIC
II
Sub WAC Allocation Percentage”: 50% of any amount payable or loss attributable
from the Mortgage Loans, which shall be allocated to REMIC II Regular Interest
LT-1SUB, REMIC II Regular Interest LT-1GRP, REMIC II Regular Interest LT-2SUB,
REMIC II Regular Interest LT-2GRP and REMIC II Regular Interest
LT-XX.
“REMIC
II
Subordinated Balance Ratio”: The ratio among the Uncertificated Principal
Balances of each REMIC II Regular Interest ending with the designation “SUB”,
equal to the ratio between, with respect to each such REMIC II Regular Interest,
the excess of (x) the aggregate Stated Principal Balance of the Group I Mortgage
Loans and the Group II Mortgage Loans, as applicable, over (y) the current
Certificate Principal Balance of the related Senior Certificates.
“REMIC
II
Targeted Overcollateralization Amount”: 0.50% of the Targeted
Overcollateralization Amount.
“REMIC
III”: The
segregated pool of assets consisting of all of the REMIC II Regular Interests
conveyed in trust to the Trustee, for the benefit of the REMIC III
Certificateholders pursuant to Article II hereunder, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
“REMIC
III
Certificate”: Any Regular Certificate (other than a Class X Certificate or a
Class P Certificate) or Class R Certificate.
“REMIC
III Certificateholder”: The Holder of any REMIC III Certificate.
“REMIC
III Regular Interest”: The Class X Interest, Class P Interest and Class IO
Interest.
“REMIC
IV”: The segregated pool of assets consisting of the Class X Interest conveyed
in trust to the Trustee, for the benefit of the Class X Certificateholders
pursuant to Article II hereunder, and all amounts deposited therein, with
respect to which a separate REMIC election is to be made.
“REMIC
V”: The segregated pool of assets consisting of the Class P Interest conveyed
in
trust to the Trustee, for the benefit of the Class P Certificateholders pursuant
to Article II hereunder, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
“REMIC
VI”: The segregated pool of assets consisting of the Class IO Interest conveyed
in trust to the Trustee, for the benefit of REMIC VI Regular Interest Swap-IO
pursuant to Article II hereunder, and all amounts deposited therein, with
respect to which a separate REMIC election is to be made.
“REMIC
VI
Regular Interest Swap-IO”: A Regular Interest in REMIC VI entitled to 100% of
amounts distributed on the Class IO Interest.
“REMIC
Opinion”: Shall mean an Opinion of Counsel to the effect that the proposed
action will not have an adverse affect on any REMIC created
hereunder.
“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
as
well as provisions of applicable state laws.
“REMIC
Regular Interest”: Any REMIC I Regular Interest, REMIC II Regular Interest,
Regular Certificate, REMIC III Regular Interest or Class IO
Interest.
“Remittance
Date”: With respect to Countrywide Servicing and any Distribution Date, the
second Business Day immediately preceding such Distribution Date. With respect
to Saxon and any Distribution Date, the 21st
day (or
if such day is a Saturday, then it shall be the first Business Day immediately
preceding that day, or if such day is a Sunday, then it shall be the immediately
following Business Day) of the month of each related Distribution
Date.
“REO
Disposition”: The final sale by the applicable Servicer of any REO
Property.
“REO
Imputed Interest”: As to any REO Property, for any period, an amount equivalent
to interest (at the Mortgage Rate net of the Servicing Fee Rate that would
have
been applicable to the related Mortgage Loan had it been outstanding) on the
unpaid principal balance of the Mortgage Loan as of the date of acquisition
thereof (as such balance is reduced pursuant to Section 3.17 by any income
from the REO Property treated as a recovery of principal).
“REO
Mortgage Loan”: A Mortgage Loan where title to the related Mortgaged Property
has been obtained by the applicable Servicer in the name of the Trustee on
behalf of the Certificateholders.
“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.
“Replacement
Swap Provider Payment”:
Any
payments that have been received by the Supplemental Interest Trust as a result
of entering into a replacement interest rate swap agreement.
“Reportable
Event”:
As
defined in Section 8.12(g).
“Representations
and Warranties Agreement”: The Representations and Warranties Agreement, dated
the Closing Date, between the Depositor and the Sponsor, a copy of which is
attached hereto as Exhibit Y.
“Repurchase
Price”: With respect to any Mortgage Loan repurchased by the Depositor or the
Responsible Party, an amount equal to the sum of (i) the unpaid principal
balance of such Mortgage Loan as of the date of repurchase, (ii) interest on
such unpaid principal balance of such Mortgage Loan at the Mortgage Rate from
the last date through which interest has been paid and distributed to the
Trustee to the date of repurchase, (iii) all unreimbursed Servicing Advances,
(iv) all costs and expenses incurred by the Trustee arising out of or based
upon
such breach, including without limitation, costs and expenses relating to the
Trustee’s enforcement of the repurchase obligation of the Depositor or the
Responsible Party hereunder, and (v) any costs and damages incurred by the
Trust
in connection with any violation by such Mortgage Loan of any predatory lending
law or abusive lending law. In addition to the Repurchase Price, the Responsible
Party is obligated to make certain payments for material breaches of
representations and warranties as further set forth in Section 2.03(n) in this
Agreement.
“Request
for Release”: The Request for Release submitted by the applicable Servicer to
the Trustee, substantially in the form of Exhibit J.
“Residual
Certificates”: As specified in the Preliminary Statement.
“Responsible
Officer”: When used with respect to the Trustee, any managing director, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any associate, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers 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.
“Responsible
Party”: NC Capital Corporation, a California corporation, and its successors in
interest.
“Rule 144A
Letter”: As defined in Section 5.02(b).
“Sarbanes
Certification”:
As
defined in Section 8.12(c).
“Saxon”:
Saxon Mortgage Services, Inc., a Texas corporation, and its successors in
interest.
“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 which, unless
otherwise specified herein, shall give effect to any related Debt Service
Reduction and any Deficient Valuation that affects the amount of the monthly
payment due on such Mortgage Loan.
“Second
Lien Mortgage Loan”:
A
Mortgage Loan secured by a second lien Mortgage on the related Mortgaged
Property.
“Securities
Act”: The Securities Act of 1933, as amended.
“Senior
Enhancement Percentage”: With respect to any Distribution Date, the percentage
obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the Class
Certificate Balance of the Class X Certificates, in each case after taking
into
account the distribution of the Principal Distribution Amount and any principal
payments on those Classes of Certificates from the Swap Account on that
Distribution Date, by (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date.
“Senior
Specified Enhancement Percentage”: As of any date of determination,
45.00%.
“Servicers”:
Saxon and Countrywide Servicing, and if a successor servicer to either is
appointed hereunder, such successor. When the term “Servicer” is used in this
Agreement in connection with the administration of servicing obligations with
respect to any Mortgage Loan, Mortgaged Property, REO Property or Mortgage
File,
“Servicer” shall mean the Person identified as the Servicer of such Mortgage
Loan on the Mortgage Loan Schedule.
“Servicer
Remittance Report”: As defined in Section 4.03(d).
“Servicing
Advances”: The reasonable “out-of-pocket” costs and expenses (including legal
fees) incurred by the applicable Servicer in the performance of its servicing
obligations in connection with a default, delinquency or other unanticipated
event, including, but not limited to, the cost of (i) the preservation,
restoration, inspection and protection of a Mortgaged Property, (ii) any
enforcement, administrative or judicial proceedings, including foreclosures
and
litigation, in respect of a particular Mortgage Loan, (iii) the management
(including reasonable fees in connection therewith) and liquidation of any
REO
Property and (iv) the performance of its obligations under
Sections 3.01, 3.09, 3.13 and 3.15. The Servicing Advances shall also
include any reasonable “out-of-pocket” costs and expenses (including legal fees)
incurred by the applicable Servicer in connection with executing and recording
instruments of satisfaction, deeds of reconveyance or Assignments of Mortgage
in
connection with any foreclosure in respect of any Mortgage Loan to the extent
not recovered from the Mortgagor or otherwise payable under this Agreement.
Neither Servicer shall be required to make any Nonrecoverable Servicing
Advances.
“Servicing
Criteria”: The “servicing criteria” set forth in Item 1122(d) of Regulation AB,
which as of the Closing Date are listed on Exhibit P hereto, except with respect
to Countrywide Servicing, “servicing criteria” shall have the meaning set forth
in the Countrywide Amendment Regulation AB.
“Servicing
Fee”: With respect to each Servicer, each Mortgage Loan serviced by such
Servicer and for any calendar month, an amount equal to one month’s interest at
the Servicing Fee Rate on the applicable Stated Principal Balance of such
Mortgage Loan as of the close of business on the date immediately preceding
the
first day of the related Due Period. Such fee shall be payable monthly, solely
from the interest portion (including recoveries with respect to interest from
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds and proceeds
received with respect to REO Properties, to the extent permitted by Section
3.11) of such Scheduled Payment collected by such Servicer, or as otherwise
provided under Section 3.11.
“Servicing
Fee Rate”: With respect to each Mortgage Loan, 0.50% per annum.
“Servicing
File”: With respect to each Mortgage Loan, the file retained by the applicable
Servicer consisting of originals or copies of all documents in the Mortgage
File
which are not delivered to the Trustee in the Custodial File and copies of
the
Mortgage Loan Documents set forth in Exhibit K hereto.
“Servicing
Function Participant”:
As
defined in Section 3.23(a).
“Servicing
Officer”: Any officer of any Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name and facsimile
signature appear on a list of servicing officers furnished to the Trustee by
such Servicer on the Closing Date pursuant to this Agreement, as such list
may
from time to time be amended.
“Similar
Law”: As defined in Section 5.02(b).
“60+
Day
Delinquent Mortgage Loan”: (i) Each Mortgage Loan with respect to which any
portion of a Scheduled Payment is, as of the last day of the prior Due Period,
two months or more past due (without giving effect to any grace period),
including, without limitation, such Mortgage Loans that are subject to
bankruptcy proceedings, (ii) each Mortgage Loan in foreclosure and
(iii) all REO Property.
“Specified
Subordinated Amount”: Prior to the Stepdown Date, an amount equal to 2.85% of
the Cut-off Date Pool Principal Balance. On and after the Stepdown Date, an
amount equal to 5.70% of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date, subject, until the Class Certificate Balance
of each Class of Offered Certificates has been reduced to zero, to a minimum
amount equal to 0.50% of the Cut-off Date Pool Principal Balance; provided,
however, that if, on any Distribution Date, a Trigger Event exists, the
Specified Subordinated Amount shall not be reduced to the applicable percentage
of the then current aggregate Stated Principal Balance of the Mortgage Loans
until the Distribution Date on which a Trigger Event no longer exists. When
the
Class Certificate Balance of each Class of Offered Certificates has been reduced
to zero, the Specified Subordinated Amount will thereafter equal
zero.
“Sponsor”:
Xxxxxx
Xxxxxxx Mortgage Capital Inc., a New York corporation, and its successors
in interest, as purchaser of the Mortgage Loans under the Purchase
Agreement.
“Standard
& Poor’s”: Standard & Poor’s Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., and its successors in interest. If
Standard & Poor’s is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 10.05(b) the address for notices to
Standard & Poor’s shall be Standard & Poor’s, 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance Group - Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1, or such other address as
Standard & Poor’s may hereafter furnish to the Depositor, the Trustee and
the Servicers.
“Standard
& Poor’s Glossary”: The Standard & Poor’s LEVELS®
Glossary, as may be in effect from time to time.
“Startup
Day”: The Closing Date.
“Stated
Principal Balance”: As to each Mortgage Loan and as of any date of
determination, (i) the principal balance of the Mortgage Loan at the Cut-off
Date after giving effect to payments of principal due on or before such date
(whether or not received), minus (ii) all amounts previously remitted to the
Trustee with respect to the related Mortgage Loan representing payments or
recoveries of principal including advances in respect of scheduled payments
of
principal. For purposes of any Distribution Date, the Stated Principal Balance
of any Mortgage Loan will give effect to any scheduled payments of principal
received by the related Servicer on or prior to the related Determination Date
or advanced by the related Servicer for the related Remittance Date and any
unscheduled principal payments and other unscheduled principal collections
received during the related Prepayment Period, and the Stated Principal Balance
of any Mortgage Loan that has prepaid in full or has become a Liquidated
Mortgage Loan during the related Prepayment Period shall be zero.
“Stepdown
Date”: The later to occur of (i) the earlier to occur of (a) the
Distribution Date in February 2010 and (b) the Distribution Date following
the Distribution Date on which the aggregate Class Certificate Balances of
the
Class A Certificates have been reduced to zero and (ii) the first
Distribution Date on which the Senior Enhancement Percentage (calculated for
this purpose only after taking into account payments of principal on the
Mortgage Loans applied to reduce the Stated Principal Balances of the Mortgage
Loans for the applicable Distribution Date but prior to any allocation of the
Principal Distribution Amount and principal payments from the Swap Account
to
the Certificates on such Distribution Date) is greater than or equal to the
Senior Specified Enhancement Percentage.
“Subcontractor”:
Any third-party or Affiliated vendor, subcontractor or other Person utilized
by
a Servicer, a Subservicer or the Trustee, as applicable, that is not responsible
for the overall servicing (as “servicing” is commonly understood by participants
in the mortgage-backed securities market) of Mortgage Loans but performs one
or
more discrete functions identified in Item 1122(d) of Regulation AB with respect
to Mortgage Loans. With respect to Countrywide Servicing, “Subcontractor” shall
have the meaning set forth in the Countrywide Amendment Regulation
AB.
“Subordinated
Amount”: With respect to any Distribution Date, the excess, if any, of
(a) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over (b) the aggregate of the Class Certificate Balances
of the Offered Certificates and the Class P Certificates as of such Distribution
Date (after giving effect to the payment of the Principal Remittance Amount
on
such Certificates on such Distribution Date).
“Subordinated
Certificates”: As specified in the Preliminary Statement.
“Subordination
Deficiency”: With respect to any Distribution Date, the excess, if any, of
(a) the Specified Subordinated Amount applicable to such Distribution Date
over (b) the Subordinated Amount applicable to such Distribution
Date.
“Subordination
Reduction Amount”: With respect to any Distribution Date, an amount equal to the
lesser of (a) the Excess Subordinated Amount and (b) the Net Monthly
Excess Cash Flow.
“Subsequent
Recovery”: With respect to any Mortgage Loan or related Mortgaged Property that
became a Liquidated Mortgage Loan or was otherwise disposed of, all amounts
received in respect of such Liquidated Mortgage Loan after an Applied Realized
Loss Amount related to such Mortgage Loan or Mortgaged Property is allocated
to
reduce the Class Certificate Balance of any Class of Subordinated Certificates.
Any Subsequent Recovery that is received during a Prepayment Period will be
treated as Liquidation Proceeds and included as part of the Principal Remittance
Amount for the related Distribution Date.
“Subservicer”:
Any Person that services Mortgage Loans on behalf of a Servicer or any
Subservicer and is responsible for the performance (whether directly or through
Subservicers or Subcontractors) of a substantial portion of the material
servicing functions required to be performed by a Servicer under this Agreement,
with respect to some or all of the Mortgage Loans, that are identified in Item
1122(d) of Regulation AB. With respect to Countrywide Servicing, “Subservicer”
shall have the meaning set forth in the Countrywide Amendment Regulation
AB.
“Subservicing
Account”: As defined in Section 3.08.
“Subservicing
Agreements”: As defined in Section 3.02(a).
“Substitute
Mortgage Loan”: A Mortgage Loan (i) substituted by the Depositor or the
Responsible Party for a Deleted Mortgage Loan that satisfies the criteria set
forth in the definition of “Qualified Substitute Mortgage Loan” in the Purchase
Agreement or (ii) substituted by the Depositor for a Deleted Mortgage Loan,
which, if substituted by the Depositor, must, on the date of such substitution,
as confirmed in a Request for Release, substantially in the form of Exhibit
J,
(a) have a Stated Principal Balance, after deduction of the principal portion
of
the Scheduled Payment due in the month of substitution, not in excess of, and
not more than 10% less than, the Stated Principal Balance of the Deleted
Mortgage Loan; (b) be accruing interest at a rate no lower than and not more
than 1% per annum higher than, that of the Deleted Mortgage Loan; (c) have
a
Loan-to-Value Ratio or a Combined Loan-to-Value Ratio, as applicable, no higher
than that of the Deleted Mortgage Loan; (d) have a remaining term to maturity
no
greater than (and not more than one year less than that of) the Deleted Mortgage
Loan; and (e) comply with each applicable representation and warranty set forth
in Section 2.03 and in the Representations and Warranties
Agreement.
“Substitution
Adjustment Amount”: As defined in Section 2.03.
“Supplemental
Interest Trust”: A separate trust established hereby into which the Depositor
shall deposit the Interest Rate Swap Agreement and the Interest Rate Cap
Agreement.
“Supplemental
Interest Trust Trustee”: Deutsche Bank National Trust Company, a national
banking association, and its successors in interest and, if a successor trustee
is appointed hereunder, such successor.
“Swap
Account”: As defined in Section 4.06.
“Swap
Assets”:
Collectively, the Swap Account, the Interest Rate Swap Agreement, REMIC VI
Regular Interest Swap-IO and the right to receive Class IO Shortfalls, subject
to the obligation to pay amounts specified in Section 4.06.
“Swap
LIBOR”: With respect to any Distribution Date (and the related Interest Accrual
Period), the product of (i) USD-LIBOR-BBA (as used in the Interest Swap
Agreement), (ii) two, and (iii) the quotient of (a) the actual
number of days in the Interest Accrual Period for the Offered Certificates
divided by (b) 30.
“Swap
Payment Allocation”: For any Class of Certificates and any Distribution Date,
that Class’s pro
rata
share of
the Net Swap Receipts, if any, for that Distribution Date, based on the Class
Certificate Balances of the Classes of Certificates.
“Swap
Payment Rate”: For any Distribution Date, a fraction, the numerator of which is
any Net Swap Payment and Swap Termination Payment (other than a Defaulted Swap
Termination Payment) owed to the Swap Provider for such Distribution Date and
the denominator of which is the aggregate Stated Principal Balance of the
Mortgage Loans at the beginning of the related Due Period, multiplied by
12.
“Swap
Provider”: Xxxxxx Xxxxxxx Capital Services Inc., a Delaware corporation, and its
successors in interest.
“Swap
Termination Payment”:
Any
payment payable by the Supplemental Interest Trust or the Swap Provider upon
termination of the Interest Rate Swap Agreement as a result of an Event of
Default (as defined in the Interest Rate Swap Agreement) or a Termination Event
(as defined in the Interest Rate Swap Agreement).
“Tax
Matters Person”:
The
Holder of the Class R Certificates designated as “tax matters person” of REMIC
I, REMIC II and REMIC III in the manner provided under Treasury Regulations
Section 1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1. The
Holder of the Class R-X Certificates designated as “tax matters person” of REMIC
IV, REMIC V and REMIC VI in the manner provided under Treasury Regulations
Section 1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1.
“Tax
Service Contract”: As defined in Section 3.09(a).
“Telerate
Page 3750”: The display page currently so designated on the Bridge Telerate
Service (or such other page as may replace that page on that service for
displaying comparable rates or prices).
“Total
Monthly Excess Spread”: As to any Distribution Date, an amount equal to the
excess if any, of (i) the interest on the Mortgage Loans received by the
Servicers on or prior to the related Determination Date (other than Prepayment
Interest Excess) or advanced by the Servicers for the related Remittance Date
(net of Expense Fees) over (ii) the sum of (A) the amounts payable to
the Certificates pursuant to Section 4.02(a)(i) on such Distribution
Date, (B) any Net Swap Payments to the Swap Provider and (C) any Swap
Termination Payment (other than a Defaulted Swap Termination Payment that is
not
a Senior Defaulted Swap Termination Payment) to the Swap Provider.
“Transfer”:
Any direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
“Transfer
Affidavit”: As defined in Section 5.02(c).
“Transferor
Certificate”: As defined in Section 5.02(b).
“Trigger
Event”: Either a Cumulative Loss Trigger Event or a Delinquency Trigger
Event.
“Trust”:
The express trust created hereunder in Section 2.01(c).
“Trust
Fund”: The corpus of the trust created hereunder consisting of (i) the Mortgage
Loans and all principal outstanding as the close of business on the Cut-off
Date
(after giving effect to payments of principal due on or prior to the Cut-off
Date, whether or not received) and interest due and accrued on the Mortgage
Loan
after the Cut-off Date (or, if the Due Date for any Mortgage Loan is other
than
on the first day of the month, after the Due Date immediately preceding the
Cut-off Date); (ii) the Collection Accounts, the Excess Reserve Fund Account,
the Distribution Account, and all amounts deposited therein pursuant to the
applicable provisions of this Agreement; (iii) property that secured a Mortgage
Loan and has been acquired by foreclosure, deed-in-lieu of foreclosure or
otherwise; (iv) the Closing Date Deposit Amount; (v) the Interest Rate Swap
Agreement; (vi) the Swap Assets; (vii) the Depositor’s rights under the
Representations and Warranties Agreement; (viii) the Interest Rate Cap
Agreement; and (ix) all proceeds of the conversion, voluntary or involuntary,
of
any of the foregoing.
“Trust
REMIC”: Any of REMIC I, REMIC II, REMIC III, REMIC IV, REMIC V or REMIC
VI.
“Trustee”:
Deutsche Bank National Trust Company, a national banking association, and its
successors in interest and, if a successor trustee is appointed hereunder,
such
successor.
“Trustee
Fee”: As to any Distribution Date, an amount equal to the product of (a)
one-twelfth of the Trustee Fee Rate and (b) (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the close of business on the date
immediately preceding the related Due Period and (ii) with respect to the
Distribution Date in February 2007 only, the portion of the Closing Date Deposit
Amount allocable to principal.
“Trustee
Fee Rate”: With respect to each Mortgage Loan, 0.0036% per annum.
“Trustee
Float Period”: With respect to the Distribution Date and the related amounts in
the Distribution Account, the period commencing on the Business Day immediately
preceding such Distribution Date and ending on such Distribution
Date.
“Uncertificated
Accrued Interest”: With respect to each Uncertificated 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 Prepayment Interest Shortfalls and shortfalls resulting from
application of the Relief Act (allocated to such REMIC Regular Interests as
set
forth in Section 8.14).
“Uncertificated
Notional Amount”: With respect to REMIC II Regular Interest LT-IO and each
Distribution Date listed below, the aggregate Uncertificated Principal Balance
of the REMIC 1 Regular Interests ending with the designation “A” listed below:
|
Distribution
Date
|
REMIC
I Regular Interests
|
|
1st
through 12th
|
I-1-A
through I-61-A and II-1-A through II-61-A
|
|
13
|
I-2-A
through I-61-A and II-2-A through II-61-A
|
|
14
|
I-3-A
through I-61-A and II-3-A through II-61-A
|
|
15
|
I-4-A
through I-61-A and II-4-A through II-61-A
|
|
16
|
I-5-A
through I-61-A and II-5-A through II-61-A
|
|
17
|
I-6-A
through I-61-A and II-6-A through II-61-A
|
|
18
|
I-7-A
through I-61-A and II-7-A through II-61-A
|
|
19
|
I-8-A
through I-61-A and II-8-A through II-61-A
|
|
20
|
I-9-A
through I-61-A and II-9-A through II-61-A
|
|
21
|
I-10-A
through I-61-A and II-10-A through II-61-A
|
|
22
|
I-11-A
through I-61-A and II-11-A through II-61-A
|
|
23
|
I-12-A
through I-61-A and II-12-A through II-61-A
|
|
24
|
I-13-A
through I-61-A and II-13-A through II-61-A
|
|
25
|
I-14-A
through I-61-A and II-14-A through II-61-A
|
|
26
|
I-15-A
through I-61-A and II-15-A through II-61-A
|
|
27
|
I-16-A
through I-61-A and II-16-A through II-61-A
|
|
28
|
I-17-A
through I-61-A and II-17-A through II-61-A
|
|
29
|
I-18-A
through I-61-A and II-18-A through II-61-A
|
|
30
|
I-19-A
through I-61-A and II-19-A through II-61-A
|
|
31
|
I-20-A
through I-61-A and II-20-A through II-61-A
|
|
32
|
I-21-A
through I-61-A and II-21-A through II-61-A
|
|
33
|
I-22-A
through I-61-A and II-22-A through II-61-A
|
|
34
|
I-23-A
through I-61-A and II-23-A through II-61-A
|
|
35
|
I-24-A
through I-61-A and II-24-A through II-61-A
|
|
36
|
I-25-A
through I-61-A and II-25-A through II-61-A
|
|
37
|
I-26-A
through I-61-A and II-26-A through II-61-A
|
|
38
|
I-27-A
through I-61-A and II-27-A through II-61-A
|
|
39
|
I-28-A
through I-61-A and II-28-A through II-61-A
|
|
40
|
I-29-A
through I-61-A and II-29-A through II-61-A
|
|
41
|
I-30-A
through I-61-A and II-30-A through II-61-A
|
|
42
|
I-31-A
through I-61-A and II-31-A through II-61-A
|
|
43
|
I-32-A
through I-61-A and II-32-A through II-61-A
|
|
44
|
I-33-A
through I-61-A and II-33-A through II-61-A
|
|
45
|
I-34-A
through I-61-A and II-34-A through II-61-A
|
|
46
|
I-35-A
through I-61-A and II-35-A through II-61-A
|
|
47
|
I-36-A
through I-61-A and II-36-A through II-61-A
|
|
48
|
I-37-A
through I-61-A and II-37-A through II-61-A
|
|
49
|
I-38-A
through I-61-A and II-38-A through II-61-A
|
|
50
|
I-39-A
through I-61-A and II-39-A through II-61-A
|
|
51
|
I-40-A
through I-61-A and II-40-A through II-61-A
|
|
52
|
I-41-A
through I-61-A and II-41-A through II-61-A
|
|
53
|
I-42-A
through I-61-A and II-42-A through II-61-A
|
|
54
|
I-43-A
through I-61-A and II-43-A through II-61-A
|
|
55
|
I-44-A
through I-61-A and II-44-A through II-61-A
|
|
56
|
I-45-A
through I-61-A and II-45-A through II-61-A
|
|
57
|
I-46-A
through I-61-A and II-46-A through II-61-A
|
|
58
|
I-47-A
through I-61-A and II-47-A through II-61-A
|
|
59
|
I-48-A
through I-61-A and II-48-A through II-61-A
|
|
60
|
I-49-A
through I-61-A and II-49-A through II-61-A
|
|
61
|
I-50-A
through I-61-A and II-50-A through II-61-A
|
|
62
|
I-51-A
through I-61-A and II-51-A through II-61-A
|
|
63
|
I-52-A
through I-61-A and II-52-A through II-61-A
|
|
64
|
I-53-A
through I-61-A and II-53-A through II-61-A
|
|
65
|
I-54-A
through I-61-A and II-54-A through II-61-A
|
|
66
|
I-55-A
through I-61-A and II-55-A through II-61-A
|
|
67
|
I-56-A
through I-61-A and II-56-A through II-61-A
|
|
68
|
I-57-A
through I-61-A and II-57-A through II-61-A
|
|
69
|
I-58-A
through I-61-A and II-58-A through II-61-A
|
|
70
|
I-59-A
through I-61-A and II-59-A through II-61-A
|
|
71
|
I-60-A
and I-61-A and II-60-A and II-61-A
|
|
72
|
I-61-A
and II-61-A
|
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC II Regular Interest
LT-IO.
“Uncertificated
Principal Balance”: With respect to each REMIC Regular Interest (other than
REMIC II Regular Interest LT-IO), the principal amount of such REMIC Regular
Interest outstanding as of any date of determination. As of the Closing Date,
the Uncertificated Principal Balance of each such 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 8.14 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 8.14. The Uncertificated Principal Balance of
each
REMIC Regular Interest shall never be less than zero.
“Uncertificated
Pass-Through Rate”: The Uncertificated REMIC I Pass-Through Rate or
Uncertificated REMIC II Pass-Through Rate.
“Uncertificated
REMIC I Pass-Through Rate”: With respect to REMIC I Regular Interest I, a per
annum rate equal to the weighted average Adjusted Net Mortgage Rate of the
Group
I Mortgage Loans. With respect to each REMIC I Group I Regular Interest ending
with the designation “A”, a per annum rate equal to the weighted average
Adjusted Net Mortgage Rate of the Group I Mortgage Loans multiplied by 2,
subject to a maximum rate of 10.100%. With respect to each REMIC I Regular
Interest ending with the designation “B”, the greater of (x) a per annum rate
equal to the excess, if any, of (i) 2 multiplied by the weighted average
Adjusted Net Mortgage Rate of the Group I Mortgage Loans over (ii) 10.100%
and
(y) 0.00%. With respect to REMIC I Regular Interest II, a per annum rate equal
to the weighted average Adjusted Net Mortgage Rate of the Group II Mortgage
Loans. With respect to each REMIC I Group II Regular Interest ending with the
designation “A”, a per annum rate equal to the weighted average Adjusted Net
Mortgage Rate of the Group II Mortgage Loans multiplied by 2, subject to a
maximum rate of 10.100%. With respect to each REMIC I Group II Regular Interest
ending with the designation “B”, the greater of (x) a per annum rate equal to
the excess, if any, of (i) 2 multiplied by the weighted average Adjusted Net
Mortgage Rate of the Group II Mortgage Loans over (ii) 10.100% and (y)
0.00%.
“Uncertificated
REMIC II Pass-Through Rate”: With respect to REMIC II Regular Interest LT-AA,
REMIC II Regular Interest LT-A1, REMIC II Regular Interest LT-A2a, REMIC II
Regular Interest LT-A2b, REMIC II Regular Interest LT-A2c, REMIC II Regular
Interest LT-A2d, REMIC II Regular Interest LT-M1, REMIC II Regular Interest
LT-M2, REMIC II Regular Interest LT-M3, REMIC II Regular Interest LT-M4, REMIC
II Regular Interest LT-M5, REMIC II Regular Interest LT-M6, REMIC II Regular
Interest LT-B1, REMIC II Regular Interest LT-B2, REMIC II Regular Interest
LT-B3, REMIC II Regular Interest LT-B4, REMIC II Regular Interest LT-ZZ, REMIC
II Regular Interest LT-1SUB, REMIC II Regular Interest LT-2SUB, and REMIC II
Regular Interest LT-XX, a
per
annum rate (but not less than zero) equal to the weighted average of (w) with
respect to REMIC I Regular Interest I, REMIC I Regular Interest II, the
Uncertificated REMIC I Pass-Through Rate for such REMIC I Regular Interest
for
each such Distribution Date, (x) with respect to REMIC I Regular Interests
ending with the designation “B”, the weighted average of the Uncertificated
REMIC I Pass-Through Rates for such REMIC I Regular Interests, weighted on
the
basis of the Uncertificated Principal Balance of such REMIC I Regular Interests
for each such Distribution Date and (y) with respect to REMIC I Regular
Interests ending with the designation “A”, for each Distribution Date listed
below, the weighted average of the rates listed below for each such REMIC I
Regular Interest listed below, weighted on the basis of the Uncertificated
Principal Balance of each such REMIC I Regular Interest for each such
Distribution Date:
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
1st
through 11th
|
I-1-A
through I-61-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-61-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
12
|
I-1-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
13
|
I-2-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-2-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate Uncertificated
REMIC I
Pass-Through Rate
|
|
|
I-1-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
14
|
I-3-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-3-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
and II-2-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
15
|
I-4-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-4-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-3-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
16
|
I-5-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-5-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-4-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
17
|
I-6-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-6-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-5-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
18
|
I-7-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-7-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-6-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
19
|
I-8-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-8-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-7-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
20
|
I-9-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-9-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-8-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
21
|
I-10-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-10-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-9-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
22
|
I-11-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-11-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-10-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
23
|
I-12-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-12-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-11-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
24
|
I-13-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-13-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-12-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
25
|
I-14-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-14-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-13-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
26
|
I-15-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-15-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-14-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
27
|
I-16-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-16-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-15-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
28
|
I-17-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-17-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-16-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
29
|
I-18-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-18-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-17-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
30
|
I-19-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-19-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-18-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
31
|
I-20-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-20-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-19-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
32
|
I-21-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-21-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-20-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
33
|
I-22-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-22-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-21-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
34
|
I-23-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-23-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-22-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
35
|
I-24-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-24-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-23-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
36
|
I-25-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-25-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-24-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
37
|
I-26-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-26-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-25-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
38
|
I-27-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-27-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-26-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
39
|
I-28-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-28-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-27-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
40
|
I-29-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-29-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-28-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
41
|
I-30-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-30-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-29-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
42
|
I-31-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-31-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-30-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
43
|
I-32-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-32-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-31-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
44
|
I-33-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-33-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-32-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
45
|
I-34-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-34-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-33-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
46
|
I-35-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-35-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-34-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
47
|
I-36-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-36-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-35-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
48
|
I-37-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-37-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-36-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
49
|
I-38-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-38-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-37-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
50
|
I-39-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-39-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-38-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
51
|
I-40-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-40-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-39-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-39-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
52
|
I-41-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-41-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-40-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-40-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
53
|
I-42-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-42-A
through II-41-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-41-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-21-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
54
|
I-43-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-43-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-42-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-42-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
55
|
I-44-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-44-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-43-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-43-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
56
|
I-45-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-45-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-44-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-44-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
57
|
I-46-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-46-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-45-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-45-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
58
|
I-47-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-47-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-46-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-46-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
59
|
I-48-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-48-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-47-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-47-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
60
|
I-49-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-49-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-48-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-48-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
61
|
I-50-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-50-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-49-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-49-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
62
|
I-51-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-51-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-50-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-50-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
63
|
I-52-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-52-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-51-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-51-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
64
|
I-53-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-53-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-52-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-52-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
65
|
I-54-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-54-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-53-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-53-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
66
|
I-55-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-55-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-54-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-54-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
67
|
I-56-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-56-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-55-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-55-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
68
|
I-57-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-57-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-56-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-56-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
69
|
I-58-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-58-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-57-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-57-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
70
|
I-59-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-59-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-58-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-58-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
71
|
I-60-A
and I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-60-A
and II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-59-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-59-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
72
|
I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-60-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-60-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-61-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-61-A
|
Uncertificated
REMIC I Pass-Through Rate
|
With
respect to REMIC II Regular Interest LT-1GRP, a per annum rate (but not less
than zero) equal to the weighted average of (w) with respect to REMIC I Regular
Interest I, the Uncertificated REMIC I Pass-Through Rate for such REMIC I
Regular Interest for each such Distribution Date, (x) with respect to REMIC
I
Group I Regular Interests ending with the designation “B”, the weighted average
of the Uncertificated REMIC I Pass-Through Rates for such REMIC I Regular
Interests, weighted on the basis of the Uncertificated Principal Balance of
each
such REMIC I Regular Interest for each such Distribution Date and (y) with
respect to REMIC I Group I Regular Interests ending with the designation “A”,
for each Distribution Date listed below, the weighted average of the rates
listed below for such REMIC I Regular Interests listed below, weighted on the
basis of the Uncertificated Principal Balance of each such REMIC I Regular
Interest for each such Distribution Date:
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
1st
through 11th
|
I-1-A
through I-61-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
12
|
I-1-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
13
|
I-2-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
14
|
I-3-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
15
|
I-4-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
16
|
I-5-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
17
|
I-6-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
18
|
I-7-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
19
|
I-8-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
20
|
I-9-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
21
|
I-10-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
22
|
I-11-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
23
|
I-12-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
24
|
I-13-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
25
|
I-14-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
26
|
I-15-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
27
|
I-16-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
28
|
I-17-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
29
|
I-18-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
30
|
I-19-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
31
|
I-20-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
32
|
I-21-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
33
|
I-22-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
34
|
I-23-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
35
|
I-24-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
36
|
I-25-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
37
|
I-26-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
38
|
I-27-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
39
|
I-28-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
40
|
I-29-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
41
|
I-30-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
42
|
I-31-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
43
|
I-32-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
44
|
I-33-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
45
|
I-34-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
46
|
I-35-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
47
|
I-36-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
48
|
I-37-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
49
|
I-38-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
50
|
I-39-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
51
|
I-40-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-39-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
52
|
I-41-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-40-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
53
|
I-42-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-41-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
54
|
I-43-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-42-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
55
|
I-44-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-43-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
56
|
I-45-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-44-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
57
|
I-46-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-45-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
58
|
I-47-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-46-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
59
|
I-48-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-47-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
60
|
I-49-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-48-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
61
|
I-50-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-49-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
62
|
I-51-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-50-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
63
|
I-52-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-51-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
64
|
I-53-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-52-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
65
|
I-54-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-53-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
66
|
I-55-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-54-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
67
|
I-56-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-55-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
68
|
I-57-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-56-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
69
|
I-58-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-57-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
70
|
I-59-A
through I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-58-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
71
|
I-60-A
and I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-59-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
72
|
I-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-60-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-61-A
|
Uncertificated
REMIC I Pass-Through Rate
|
With
respect to REMIC II Regular Interest LT-2GRP, a per annum rate (but not less
than zero) equal to the weighted average of (w) with respect to REMIC I Regular
Interest II, the Uncertificated REMIC I Pass-Through Rate for such REMIC I
Regular Interest for each such Distribution Date, (x) with respect to REMIC
I
Group II Regular Interests ending with the designation “B”, the weighted average
of the Uncertificated REMIC I Pass-Through Rates for such REMIC I Regular
Interests, weighted on the basis of the Uncertificated Principal Balance of
each
such REMIC I Regular Interest for each such Distribution Date and (y) with
respect to REMIC I Group II Regular Interests ending with the designation “A”,
for each Distribution Date listed below, the weighted average of the rates
listed below for such REMIC I Regular Interests listed below, weighted on the
basis of the Uncertificated Principal Balance of each such REMIC I Regular
Interest for each such Distribution Date:
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
1st
through 11th
|
II-1-A
through II-61-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
12
|
II-1-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
13
|
II-2-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
14
|
II-3-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
and II-2-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
15
|
II-4-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-3-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
16
|
II-5-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-4-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
17
|
II-6-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-5-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
18
|
II-7-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-6-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
19
|
II-8-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-7-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
20
|
II-9-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-8-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
21
|
II-10-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-9-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
22
|
II-11-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-10-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
23
|
II-12-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-11-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
24
|
II-13-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-12-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
25
|
II-14-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-13-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
26
|
II-15-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-14-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
27
|
II-16-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-15-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
28
|
II-17-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-16-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
29
|
II-18-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-17-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
30
|
II-19-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-18-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
31
|
II-20-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-19-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
32
|
II-21-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-20-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
33
|
II-22-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-21-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
34
|
II-23-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-22-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
35
|
II-24-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-23-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
36
|
II-25-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-24-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
37
|
II-26-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-25-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
38
|
II-27-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-26-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
39
|
II-28-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-27-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
40
|
II-29-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-28-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
41
|
II-30-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-29-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
42
|
II-31-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-30-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
43
|
II-32-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-31-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
44
|
II-33-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-32-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
45
|
II-34-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-33-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
46
|
II-35-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-34-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
47
|
II-36-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-35-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
48
|
II-37-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-36-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
59
|
II-38-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-37-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
50
|
II-39-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-38-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
51
|
II-40-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-39-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
52
|
II-41-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-40-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
53
|
II-42-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-41-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
54
|
II-43-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-42-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
55
|
II-44-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-43-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
56
|
II-45-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-44-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
57
|
II-46-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-45-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
58
|
II-47-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-46-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
59
|
II-48-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-47-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
60
|
II-49-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-48-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
61
|
II-50-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-49-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
62
|
II-51-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-50-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
63
|
II-52-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-51-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
64
|
II-53-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-52-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
65
|
II-54-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-53-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
66
|
II-55-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-54-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
67
|
II-56-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-55-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
68
|
II-57-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-56-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
69
|
II-58-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-57-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
70
|
II-59-A
through II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-58-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
71
|
II-60-A
and II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-59-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
72
|
II-61-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-1-A
through II-60-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
thereafter
|
II-1-A
through II-61-A
|
Uncertificated
REMIC I Pass-Through Rate
|
With
respect to REMIC II Regular Interest LT-IO, and (i) the 1st Distribution Date
through the 11th Distribution Date, the excess of (x) the weighted average
of
the Uncertificated REMIC I Pass-Through Rates for REMIC I Regular Interests
including the designation “A”, over (y) the weighted average of the
Uncertificated REMIC I Pass-Through Rates for REMIC I Regular Interests
including the designation “A”, (ii) the 12th Distribution Date through the 72nd
Distribution Date, the excess of (x) the weighted average of the Uncertificated
REMIC I Pass-Through Rates for REMIC I Regular Interests including the
designation “A”, over (y) 2 multiplied by Swap LIBOR and (iii) thereafter,
0.00%.
“Uncertificated
REMIC Regular Interest”: The REMIC I Regular Interests, the REMIC II Regular
Interests, the Class IO Interest, the Class X Interest, the Class P Interest
and
the REMIC VI Regular Interest Swap-IO.
“Underwriters’
Exemption”: Any exemption listed under footnote 1 of, and amended by, Prohibited
Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), or any successor
exemption.
“Underwriting
Guidelines”: The underwriting guidelines attached to the Purchase
Agreement.
“Unpaid
Interest Amount”: As of any Distribution Date and any Class of Certificates, the
sum of (a) the portion of the Accrued Certificate Interest Distribution
Amount from Distribution Dates prior to the current Distribution Date remaining
unpaid immediately prior to the current Distribution Date and (b) interest
on the amount in clause (a) above at the applicable Pass-Through Rate
(to the extent permitted by applicable law).
“Unpaid
Realized Loss Amount”: With respect to any Class of Subordinated Certificates
and as to any Distribution Date, is the excess of (i) the Applied Realized
Loss Amount with respect to such Class over (ii) the sum of (a) all
distributions in reduction of such Applied Realized Loss Amounts on all previous
Distribution Dates, and (b) the amount by which the Class Certificate
Balance of such Class has been increased due to the distribution of any
Subsequent Recoveries on all previous Distribution Dates. Any amounts
distributed to a Class of Subordinated Certificates in respect of any Unpaid
Realized Loss Amount will not be applied to reduce the Class Certificate Balance
of such Class.
“U.S.
Person”: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of
any
State thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or of
any
State thereof, including, for this purpose, the District of Columbia (unless
provided otherwise by future Treasury regulations); (iv) an estate whose
income is includible in gross income for United States income tax purposes
regardless of its source; or (v) 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 U.S. Persons have authority to control substantial
decisions of the trust. Notwithstanding the last clause of the preceding
sentence, to the extent provided in Treasury regulations, certain trusts in
existence on August 20, 1996, and treated as U.S. Persons prior to such
date, may elect to continue to be U.S. Persons.
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. As of any date of determination, (a) 1% of
all Voting Rights shall be allocated to the Class X Certificates, if any
(such Voting Rights to be allocated among the Holders of Certificates of each
such Class in accordance with their respective Percentage Interests),
(b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be
allocated among Holders of the remaining Classes of Certificates in proportion
to the Certificate Balances of their respective Certificates on such
date.
“WAC
Cap”: With respect to the Mortgage Loans as of any Distribution Date, the
weighted average of the Adjusted Net Mortgage Rates then in effect on the
beginning of the related Due Period on the Mortgage Loans minus the Swap Payment
Rate, adjusted in each case to accrue on the basis of a 360-day year and the
actual number of days in the related Interest Accrual Period. For federal income
tax purposes, the equivalent of the foregoing shall be expressed as a per annum
rate equal to the weighted average (adjusted for the actual number of days
elapsed in the related Accrual Period) of the Uncertificated REMIC II
Pass-Through Rate on REMIC II Regular Interest LT-1SUB and REMIC II Regular
Interest LT-2SUB, in each case as determined for such Distribution Date,
weighted on the basis of the Uncertificated Principal Balance of each such
REMIC
II Regular Interest immediately prior to such Distribution Date.
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 for the
benefit of the Certificateholders, without recourse, all the right, title and
interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf
of the Trust, hereby accepts the Trust Fund.
On the
Closing Date, the Depositor shall pay, without any right of reimbursement from
the Trust, to the Cap Provider the “Fixed Amount” (as defined in the Interest
Rate Cap Agreement) due and payable to the Cap Provider pursuant to the terms
of
the Interest Rate Cap Agreement.
(b) In
connection with the transfer and assignment of each Mortgage Loan, the Depositor
has delivered or caused to be delivered to the Trustee for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the
original Mortgage Note bearing all intervening endorsements showing a complete
chain of endorsement from the originator to the last endorsee, endorsed “Pay to
the order of _____________, without recourse” and signed (which may be by
facsimile signature) in the name of the last endorsee by an authorized officer.
To the extent that there is no room on the face of a Mortgage Note for
endorsements, the endorsement may be contained on an allonge, unless the Trustee
is advised in writing by the Responsible Party, that state law does not so
allow;
(ii) the
original of any guaranty executed in connection with the Mortgage
Note;
(iii) the
original Mortgage with evidence of recording thereon or a certified true copy
of
such Mortgage submitted for recording. If, in connection with any Mortgage
Loan,
the original Mortgage cannot be delivered with evidence of recording thereon
on
or prior to the Closing Date because of a delay caused by the public recording
office where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains the
original recorded Mortgage, the Responsible Party, shall deliver or cause to
be
delivered to the Trustee a photocopy of such Mortgage, together with (A) in
the case of a delay caused by the public recording office, an officer’s
certificate of the Responsible Party or evidence of certification on the face
of
such photocopy of such Mortgage or a certificate from an escrow company, a
title
company or closing attorney stating that such Mortgage has been dispatched
to
the appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage will
be
promptly delivered to the Trustee upon receipt thereof by the Responsible Party;
or (B) in the case of a Mortgage where a public recording office retains
the original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage certified
by
such public recording office to be a true and complete copy of the original
recorded Mortgage;
(iv) the
originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon or a certified true copy of
such
agreement submitted for recording;
(v) the
original Assignment of Mortgage for each Mortgage Loan endorsed in
blank;
(vi) the
originals of all intervening assignments of Mortgage (if any) evidencing a
complete chain of assignment from the applicable originator to the last endorsee
with evidence of recording thereon or a certified true copy of such intervening
assignments of Mortgage submitted for recording, or if any such intervening
assignment has not been returned from the applicable recording office or has
been lost or if such public recording office retains the original recorded
assignments of Mortgage, the Responsible Party, shall deliver or cause to be
delivered a photocopy of such intervening assignment, together with (A) in
the case of a delay caused by the public recording office, an officer’s
certificate of the Responsible Party or evidence of certification on the face
of
such photocopy of such intervening assignment or a certificate from an escrow
company, a title company or a closing attorney stating that such intervening
assignment of Mortgage has been dispatched to the appropriate public recording
office for recordation and that such original recorded intervening assignment
of
Mortgage or a copy of such intervening assignment of Mortgage certified by
the
appropriate public recording office to be a true and complete copy of the
original recorded intervening assignment of Mortgage will be promptly delivered
to the Trustee upon receipt thereof by the Responsible Party; or (B) in the
case of an intervening assignment where a public recording office retains the
original recorded intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording office, a copy of
such intervening assignment certified by such public recording office to be
a
true and complete copy of the original recorded intervening
assignment;
(vii) the
original or a photocopy of mortgagee title insurance policy or a copy of the
related policy binder or commitment for title issued by the title insurance
company; and
(viii) the
original of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage (if provided).
The
Responsible Party shall cause to be delivered to the Trustee the applicable
recorded document promptly upon receipt from the respective recording office
but
in no event later than 120 days from the Closing Date.
From
time
to time, the Depositor or the applicable Servicer, as applicable, shall forward
to the Trustee, additional original documents, additional documents evidencing
an assumption, modification, consolidation or extension of a Mortgage Loan,
in
accordance with the terms of this Agreement upon receipt of such documents.
All
such mortgage documents held by the Trustee as to each Mortgage Loan shall
constitute the “Custodial
File”.
On
or
prior to the Closing Date, the Responsible Party shall deliver to the Trustee,
Assignments of Mortgage, in blank, for each Mortgage Loan. The Responsible
Party
shall cause the Assignments of Mortgage and complete recording information
to be
provided to the applicable Servicer in a reasonably acceptable manner. No later
than thirty (30) Business Days following the later of the Closing Date and
the
date of receipt by the applicable Servicer of the complete recording information
for a Mortgage, the applicable Servicer shall promptly submit or cause to be
submitted for recording, at the expense of the Responsible Party and at no
expense to the Trust Fund, the Trustee, the applicable Servicer, or the
Depositor, in the appropriate public office for real property records, each
Assignment of Mortgage referred to in Section 2.01(b)(v). Notwithstanding the
foregoing, however, for administrative convenience and facilitation of servicing
and to reduce closing costs, the Assignments of Mortgage shall not be required
to be completed and submitted for recording with respect to any Mortgage Loan
(i) if the Trustee and each Rating Agency have received an Opinion of Counsel,
satisfactory in form and substance to the Trustee and each Rating Agency to
the
effect that the recordation of such Assignments of Mortgage in any specific
jurisdiction is not necessary to protect the Trustee’s interest in the related
Mortgage Note or (ii) the Rating Agencies have each notified the Depositor
in
writing that not recording any such Assignments of Mortgage would not cause
the
initial ratings on any Offered Certificates to be downgraded or withdrawn;
provided, however, that no Servicer shall be held responsible or liable for
any
loss that occurs because an Assignment of Mortgage was not recorded, except
to
the extent the applicable Servicer has prior knowledge of the act or omission
that causes such loss. Unless the Depositor gives the applicable Servicer notice
to the contrary, the Depositor is deemed to have given such Servicer notice
that
the condition set forth in clause (ii) above is applicable. However, with
respect to the Assignments of Mortgage referred to in clauses (i) and (ii)
above, if foreclosure proceedings occur against a Mortgaged Property, the
applicable Servicer shall record such Assignment of Mortgage at the expense
of
the Responsible Party (and at no expense to such Servicer) as required pursuant
to the Purchase Agreement. If the Assignment of Mortgage is to be recorded,
the
Mortgage shall be assigned to “Deutsche Bank National Trust Company, as trustee
under the Pooling and Servicing Agreement dated as of January 1, 2007, Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1”. In the event that any such
Assignment of Mortgage is lost or returned unrecorded because of a defect
therein, the Responsible Party shall promptly cause to be delivered a substitute
Assignment of Mortgage to cure such defect and thereafter cause each such
assignment to be duly recorded.
In
the
event that such original or copy of any document submitted for recordation
to
the appropriate public recording office is not so delivered to the Trustee
within 90 days following the Closing Date, and in the event that the Responsible
Party does not cure such failure within 30 days of discovery or receipt of
written notification of such failure from the Depositor, the related Mortgage
Loan shall, upon the request of the Depositor, be repurchased by the Responsible
Party at the price and in the manner specified in Section 2.03. The
foregoing repurchase obligation shall not apply in the event that the
Responsible Party cannot deliver such original or copy of any document submitted
for recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided,
that
the Responsible Party shall instead deliver a recording receipt of such
recording office or, if such recording receipt is not available, an officer’s
certificate of an officer of the Responsible Party, confirming that such
document has been accepted for recording.
Notwithstanding
anything to the contrary contained in this Section 2.01, in those instances
where the public recording office retains or loses the original Mortgage or
assignment after it has been recorded, the obligations of the Responsible Party
shall be deemed to have been satisfied upon delivery by the Responsible Party
to
the Trustee, prior to the Closing Date of a copy of such Mortgage or assignment,
as the case may be, certified (such certification to be an original thereof)
by
the public recording office to be a true and complete copy of the recorded
original thereof.
(c) The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust (the
“Trust”)
to be
known, for convenience, as “XXXXXX XXXXXXX ABS CAPITAL I INC. TRUST 2007-NC1”
and Deutsche Bank National Trust Company is hereby appointed as Trustee in
accordance with the provisions of this Agreement. The parties hereto acknowledge
and agree that it is the policy and intention of the Trust to acquire only
Mortgage Loans meeting the requirements set forth in this Agreement, including
without limitation, the representation and warranty set forth in
paragraph (aaa) of Schedule III. The Trust’s fiscal year is the
calendar year.
(d) The
Trust
shall have the capacity, power and authority, and the Trustee on behalf of
the
Trust is hereby authorized, to accept the sale, transfer, assignment, set over
and conveyance by the Depositor to the Trust of all the right, title and
interest of the Depositor in and to the Trust Fund (including, without
limitation, the Mortgage Loans and the Representations and Warranties Agreement)
pursuant to Section 2.01(a). The Supplemental Interest Trust Trustee on behalf
of the Supplemental Interest Trust is hereby directed to enter into the Interest
Rate Swap Agreement and the Interest Rate Cap Agreement.
(e) The
Depositor shall use reasonable efforts to assist the Trustee in enforcing the
obligations of the Sponsor under the Representations and Warranties
Agreement.
Section
2.02 Acceptance
by the Trustee of the Mortgage Loans.
The
Trustee shall acknowledge, on the Closing Date, receipt by the Trustee of the
documents identified in the Initial Certification in the form annexed hereto
as
Exhibit E, and declares that it holds and will hold such documents and the
other documents delivered to it pursuant to Section 2.01, and that it 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 shall maintain possession of the related Mortgage Notes in the State
of
California unless otherwise permitted by the Rating Agencies. Furthermore,
the
Trustee (solely in its capacity as Trustee hereunder), on behalf of the Trust,
hereby assumes the obligations of the Depositor under the Representations and
Warranties Agreement from and after the Closing Date and solely insofar as
they
relate to the Mortgage Loans.
In
connection with the Closing Date, the Trustee shall be required to deliver
via
facsimile (with original to follow the next Business Day) to the Depositor
and
the Servicers an Initial Certification prior to the Closing Date, or, with
the
Depositor’s consent, on the Closing Date, certifying receipt of a Mortgage Note
and Assignment of Mortgage for each applicable Mortgage Loan. The Trustee shall
not be responsible to verify the validity, sufficiency or genuineness of any
document in any Custodial File.
Within
90
days after the Closing Date, the Trustee shall, for the benefit of the Holders
of the Certificates, ascertain that all documents identified in the Document
Certification and Exception Report in the form attached hereto as Exhibit F
are in its possession, and shall deliver to the Depositor and the Servicers
a
Document Certification and Exception Report, in the form annexed hereto as
Exhibit F, to the effect that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in such certification as an exception
and
not covered by such certification): (i) all documents identified in the
Document Certification and Exception Report and required to be reviewed by
it
are in its possession; (ii) such documents have been reviewed by it and
appear regular on their face and relate to such Mortgage Loan; (iii) based
on its examination and only as to the foregoing documents, the information
set
forth in items (1), (2), (7) and (9) of the Mortgage Loan Schedule and
items (1), (9) and (17) of the Data Tape Information respecting such
Mortgage Loan accurately reflects the information set forth in the Custodial
File; and (iv) each Mortgage Note has been endorsed as provided in
Section 2.01 of this Agreement. The Trustee shall not be responsible to
verify the validity, sufficiency or genuineness of any document in any Custodial
File.
The
Trustee shall retain possession and custody of the Custodial File in accordance
with and subject to the terms and conditions set forth herein. The applicable
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of such other documents or instruments constituting
the
Custodial File as come into the possession of such Servicer from time to
time.
The
Responsible Party shall deliver to the applicable Servicer copies of all
trailing documents required to be included in the Custodial File at the same
time the original or certified copies thereof are delivered to the Trustee,
including but not limited to such documents as the title insurance policy and
any other Mortgage Loan Documents upon return from the public recording office.
Such documents shall be delivered by the Responsible Party at the Responsible
Party’s expense to such Servicer.
Section
2.03 Representations
and Warranties; Remedies for Breaches of Representations and Warranties with
Respect to the Mortgage Loans.
(a)
Countrywide Servicing hereby makes the representations and warranties set forth
in Schedule II
hereto
to the Depositor and the Trustee, as of the dates set forth in such Schedule
and
Saxon hereby makes the representations and warranties set forth in Schedule
VI
hereto
to the Depositor and the Trustee as of the dates set forth in such Schedule.
Upon discovery by any of the parties hereto of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other.
(b) The
Responsible Party hereby makes the representations and warranties, set forth
in
Schedule III
and
Schedule IV
hereto,
to the Depositor, the Servicers and the Trustee as of the dates set forth in
such Schedules.
(c) The
Depositor hereby makes the representations and warranties set forth in
Schedule
V
hereto
to the Trustee as of the dates set forth in such Schedule.
(d) It
is
understood and agreed by the parties hereto that the representations and
warranties set forth in this Section 2.03 shall survive the transfer of the
Mortgage Loans by the Depositor to the Trustee, and shall inure to the benefit
of the parties to whom the representations and warranties were made
notwithstanding any restrictive or qualified endorsement on any Mortgage Note
or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. Upon discovery by any of the parties to this Agreement of a breach of
any
of the foregoing representations and warranties that materially and adversely
affect the value of any Mortgage Loan or the interest of the Trustee or the
Certificateholders therein, the party discovering such breach shall give prompt
written notice to the other parties.
(e) Within
30 days of the earlier of either discovery by or notice to the Responsible
Party that any Mortgage Loan does not conform to the requirements as determined
in the Trustee’s review of the related Custodial File or within 60 days of the
earlier of either discovery by or notice to the Responsible Party of any breach
of a representation or warranty, set forth in Section 2.03(b), that
materially and adversely affects the value of any Mortgage Loan or the interest
of the Trustee or the Certificateholders therein, the Responsible Party shall
use its best efforts to cause to be remedied a material defect in a document
constituting part of a Mortgage File or promptly to cure such breach in all
material respects and, if such defect or breach cannot be remedied, the
Responsible Party shall, at the Depositor’s option as specified in writing and
provided to the Responsible Party and the Trustee, (i) if such 30 or 60 day
period, as applicable, 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 Substitute Mortgage Loan, in the
manner and subject to the conditions set forth in this Section 2.03; or
(ii) repurchase such Mortgage Loan at the Repurchase Price; provided,
however,
that
any such substitution pursuant to clause (i) above shall not be
effected prior to the delivery to the Trustee of a Request for Release
substantially in the form of Exhibit J, and the delivery of the Mortgage
File to the Trustee for any such Substitute Mortgage Loan. Notwithstanding
the
foregoing, a breach (i) which causes a Mortgage Loan not to constitute a
“qualified mortgage” within the meaning of Section 860G(a)(3) of the Code
or (ii) by the Responsible Party of any of the representations and
warranties set forth in paragraphs (g), (i), (uu), (zz), (aaa), (eee), (fff),
(ggg), (hhh), (iii), (jjj), (lll), (mmm), (nnn), (ooo) and (ppp) of Schedule III,
in each
case, will be deemed automatically to materially and adversely affect the value
of such Mortgage Loan and the interests of the Trustee and Certificateholders
in
such Mortgage Loan. In the event that the Trustee receives notice of a breach
by
the Responsible Party of any of the representations and warranties set forth
in
paragraphs (g), (i), (uu), (zz), (aaa), (eee), (fff), (ggg), (hhh), (iii),
(jjj), (lll), (mmm), (nnn), (ooo) and (ppp) of Schedule III,
the
Trustee shall give notice of such breach to the Responsible Party and request
the Responsible Party to repurchase the Mortgage Loan at the Repurchase Price
within sixty (60) days of the Responsible Party receipt of such notice. The
Responsible Party shall repurchase each such Mortgage Loan within 60 days of
the
earlier of discovery or receipt of notice with respect to each such Mortgage
Loan, and in any case such repurchase shall occur or shall be deemed to occur
on
the last day of the applicable Prepayment Period preceding the Distribution
Date
on which the Repurchase Price is to be distributed.
Notwithstanding
the foregoing, a breach by the Depositor of any of the representations and
warranties set forth in paragraphs (b), (c), (d) and (e) of Schedule V,
in each
case, will be deemed automatically to materially and adversely affect the value
of such Mortgage Loan and the interests of the Trustee and Certificateholders
in
such Mortgage Loan. In the event that the Trustee receives notice of a breach
by
the Depositor of any representations and warranties set forth in paragraphs
(b),
(c), (d) and (e) of Schedule
V,
the
Trustee shall notify the Depositor to repurchase the Mortgage Loan at the
Repurchase Price within sixty (60) days of the Depositor’s receipt of such
notice. If, by the end of such sixty (60) day period, the Depositor fails to
repurchase such Mortgage Loan, the Trustee shall pursue all legal remedies
available to the Trustee against the Depositor under this
Agreement.
(f) Within
90
days of the earlier of either discovery by or notice to the Depositor of any
breach of a representation or warranty set forth on Schedule III hereto that
materially and adversely affects the value of any Mortgage Loan or the interest
of the Trustee or the Certificateholders therein, the Depositor shall use its
best efforts to promptly cure such breach in all material respects and, if
such
defect or breach cannot be remedied, the Depositor shall purchase such Mortgage
Loan at the Repurchase Price or, if permitted hereunder, substitute a Substitute
Mortgage Loan for such Mortgage Loan.
(g) In
the
event any Mortgage Loan does not conform to the requirements as determined
in
the Trustee’s review of the related Custodial File, the Trustee shall notify the
Responsible Party, the Servicers, the Trustee (if applicable) and the Depositor
by delivery of the certification of Trustee required by Section 2.02 to such
parties, which shall be a request that the Responsible Party correct or cure
such defect as required under this Agreement, and if the Responsible Party
fails
or is unable to correct or cure the defect within the period set forth in this
Agreement, the Trustee shall notify the Depositor and the Trustee of such
failure to correct or cure. Unless otherwise directed by the Depositor within
five (5) Business Days after such notice to the Depositor and the Trustee of
such failure by the Responsible Party to correct or cure, the Trustee shall
notify the Responsible Party to repurchase the Mortgage Loan at the Repurchase
Price or, if permitted hereunder, substitute a Substitute Mortgage Loan for
such
Mortgage Loan, in each case, pursuant to the terms of this Agreement, as
applicable. If, within ten (10) Business Days of receipt of such notice by
the
Responsible Party, the Responsible Party fails to repurchase such Mortgage
Loan,
the Trustee shall notify the Depositor of such failure. The Trustee shall pursue
all legal remedies available to the Trustee against the Responsible Party under
this Agreement, if the Trustee has received written notice from the Depositor
directing the Trustee to pursue such remedies.
(h) Any
substitution of a Substitute Mortgage Loan by the Responsible Party shall be
made in accordance with the substitution procedures set forth in the Purchase
Agreement, which provisions shall be as set forth in such agreements as if
they
were set forth herein. With respect to any Substitute Mortgage Loan or Loans
substituted by the Depositor or the Responsible Party, the Sponsor, the
Depositor or the Responsible Party, as applicable, shall deliver to the Trustee
for the benefit of the Certificateholders the Mortgage Note, the Mortgage,
the
related Assignment of Mortgage, and such other documents and agreements as
are
required by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. Notwithstanding anything to the contrary
set forth in this Agreement, no substitution under this Agreement is permitted
to be made (a) in any calendar month after the Determination Date for such
month
or (b) if the substitution were to be made on or after the second anniversary
of
the Closing Date. Scheduled Payments due with respect to Substitute Mortgage
Loans in the Due Period of substitution shall not be part of the Trust Fund
and
will be retained by the Depositor or the Responsible Party, as applicable,
on
the next succeeding Distribution Date. For the Due Period of substitution,
distributions to Certificateholders will include the Scheduled Payment due
on
any Deleted Mortgage Loan for such Due Period and thereafter the Sponsor, the
Depositor or the Responsible Party, as applicable, shall be entitled to retain
all amounts received in respect of such Deleted Mortgage Loan.
(i) Based
upon information provided by the Depositor or the Responsible Party, as
applicable, the applicable Servicer, shall include information regarding the
removal of the Deleted Mortgage Loan and the substitution of the Substitute
Mortgage Loan or Loans in its Servicer Remittance Report delivered to the
Trustee pursuant to Section 4.03(d) for the Determination Date immediately
following the receipt of such information the extent such information is
required to be included in such Servicer Remittance Report. Upon such
substitution, the Substitute Mortgage Loan or Loans shall be subject to the
terms of this Agreement in all respects, and, if the substitution is made by
the
Sponsor or the Depositor, as applicable, the Sponsor or the Depositor, as
applicable, shall be deemed to have made with respect to such Substitute
Mortgage Loan or Loans, as of the date of substitution, the representations
and
warranties made pursuant to Section 2.03(b) with respect to such Substitute
Mortgage Loan. Upon receipt of a Request for Release in connection with any
such
substitution and certification by the applicable Servicer to the Trustee that
the deposit into the related Collection 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
Responsible Party and the Trustee shall execute and deliver at the direction
of
the Depositor or the Responsible Party, as applicable, such instruments of
transfer or assignment prepared by the Sponsor, the Depositor or the Responsible
Party, as applicable, in each case without recourse, representation or warranty,
as shall be necessary to vest title in the Sponsor, the Depositor or the
Responsible Party, as applicable, of the Trustee’s interest in any Deleted
Mortgage Loan substituted for pursuant to this Section 2.03.
(j) For
any
month in which the Sponsor, the Depositor or the Responsible Party substitutes
one or more Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the applicable Servicer will determine the amount (if any) by which the
aggregate unpaid principal balance of all such Substitute Mortgage Loans as
of
the date of substitution is less than the aggregate unpaid principal balance
of
all such Deleted Mortgage Loans. The amount of such shortage, plus an amount
equal to the sum of (i) any accrued and unpaid interest on the Deleted Mortgage
Loans and (ii) all unreimbursed Servicing Advances with respect to such Deleted
Mortgage Loans, or the amount of any similar shortage with respect to a
Substitute Mortgage Loan substituted by the Responsible Party under this
Agreement (collectively, the “Substitution
Adjustment Amount”),
shall
be deposited into the related Collection Account by the Sponsor, the Depositor
or the Responsible Party, as applicable, on or before the Distribution Account
Deposit Date for the Distribution Date following the Prepayment Period during
which the related Mortgage Loan became required to be purchased or replaced
hereunder.
(k) In
addition to such repurchase or substitution obligation, the Responsible Party
shall indemnify the Depositor and its Affiliates, the Servicers, the Sponsor,
the Trustee and the Trust and hold such parties harmless against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from,
a
breach by the Responsible Party of any of its representations and warranties
or
obligations contained in this Agreement.
(l) In
the
event that any Mortgage Loan shall have been repurchased pursuant to this
Agreement or the Representations and Warranties Agreement, the Repurchase Price
therefor shall be deposited by the applicable Servicer in the related Collection
Account pursuant to Section 3.10 on or before the Distribution Account Deposit
Date for the Distribution Date following the Prepayment Period during which
such
Mortgage Loan was repurchased and upon such deposit of the Repurchase Price
and
receipt of a Request for Release in the form of Exhibit J hereto, indicating
such deposit, the Trustee shall release the related Custodial File held for
the
benefit of the Certificateholders to such Person as directed by the applicable
Servicer, 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, representation or warranty, as shall be necessary to transfer
title from the Trustee.
(m) Any
Mortgage Loan repurchased pursuant to this Section 2.03 will be removed from
the
Trust Fund. The applicable Servicer shall include information regarding such
repurchase in its Servicer Remittance Report delivered to the Trustee pursuant
to Section 4.03(d) for the Determination Date immediately following receipt
of
information regarding such repurchase, to the extent such information is
required to be included in such Servicer Remittance Report. For purposes of
determining the applicable Repurchase Price, any such repurchase shall occur
or
shall be deemed to occur as of the last day of the applicable Prepayment
Period.
It
is
understood and agreed by the parties hereto that the obligation of the Depositor
or the Responsible Party under this Agreement to cure, repurchase or substitute
any Mortgage Loan as to which a breach of a representation and warranty has
occurred and is continuing, together with any related indemnification
obligations set forth herein, shall constitute the sole remedies against such
Persons respecting such breach available to Certificateholders, the Depositor
(if applicable), or the Trustee on their behalf.
The
provisions of this Section 2.03 shall survive delivery of the respective
Custodial Files to the Trustee for the benefit of the
Certificateholders.
Section
2.04 Execution
and Delivery of Certificates.
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, 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.
Section
2.05 REMIC
Matters.
The
Preliminary Statement sets forth the designations 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 “latest
possible maturity date”
is
the
Distribution Date occurring in November 2036, which is the Distribution Date
in
the month following the month in which the latest maturity date of any Mortgage
Loan occurs. For federal income tax purposes, any amount distributed on the
Offered Certificates on any Distribution Date in respect of any Basis Risk
CarryForward Amounts shall be treated as having been paid from the Excess
Reserve Fund Account or the Swap Account, as applicable.
Section
2.06 Representations
and Warranties of the Depositor.
The
Depositor hereby represents, warrants and covenants to the Trustee and the
Servicers that as of the date of this Agreement or as of such date specifically
provided herein:
(a) The
Depositor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) The
Depositor has the corporate power and authority to convey the Mortgage Loans
and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement;
(c) This
Agreement has been duly and validly authorized, executed and delivered by the
Depositor, all requisite corporate action having been taken, and, assuming
the
due authorization, execution and delivery hereof by the other parties hereto,
constitutes or will constitute the legal, valid and binding agreement of the
Depositor, enforceable against the Depositor in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless
of
whether such enforcement is considered in a proceeding in equity or at
law);
(d) No
consent, approval, authorization or order of or registration or filing with,
or
notice to, any governmental authority or court is required for the execution,
delivery and performance of or compliance by the Depositor with this Agreement
or the consummation by the Depositor of any of the transactions contemplated
hereby, except as have been made on or prior to the Closing Date;
(e) None
of
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby or thereby, or the fulfillment of or compliance
with the terms and conditions of this Agreement, (i) conflicts or will
conflict with or results or will result in a breach of, or constitutes or will
constitute a default or results or will result in an acceleration under
(A) the charter or bylaws of the Depositor, or (B) of any term,
condition or provision of any material indenture, deed of trust, contract or
other agreement or instrument to which the Depositor or any of its subsidiaries
is a party or by which it or any of its subsidiaries is bound; (ii) results
or will result in a violation of any law, rule, regulation, order, judgment
or
decree applicable to the Depositor of any court or governmental authority having
jurisdiction over the Depositor or its subsidiaries; or (iii) results in
the creation or imposition of any lien, charge or encumbrance which would have
a
material adverse effect upon the Mortgage Loans or any documents or instruments
evidencing or securing the Mortgage Loans;
(f) There
are
no actions, suits or proceedings before or against or investigations of, the
Depositor pending, or to the knowledge of the Depositor, threatened, before
any
court, administrative agency or other tribunal, and no notice of any such
action, which, in the Depositor’s reasonable judgment, might materially and
adversely affect the performance by the Depositor of its obligations under
this
Agreement, or the validity or enforceability of this Agreement;
(g) The
Depositor is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any federal, state, municipal or governmental
agency that may materially and adversely affect its performance hereunder;
and
(h) Immediately
prior to the transfer and assignment by the Depositor to the Trustee on the
Closing Date, the Depositor had good title to, and was the sole owner of each
Mortgage Loan, free of any interest of any other Person, and the Depositor
has
transferred all right, title and interest in each Mortgage Loan to the Trustee.
The transfer of the Mortgage Note and the Mortgage as and in the manner
contemplated by this Agreement is sufficient either (i) fully to transfer
to the Trustee, for the benefit of the Certificateholders, all right, title,
and
interest of the Depositor thereto as note holder and mortgagee or (ii) to
grant to the Trustee, for the benefit of the Certificateholders, the security
interest referred to in Section 10.04.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.06 shall survive delivery of the respective
Custodial Files to the Trustee and shall inure to the benefit of the
Trustee.
Section
2.07 Enforcement
of Obligations for Breach of Mortgage Loan Representations.
Upon
discovery by any of the parties hereto of a breach of a representation or
warranty made by the Sponsor pursuant to the Representations and Warranties
Agreement, the party discovering such breach shall give prompt written notice
thereof to the other parties to this Agreement and the Sponsor. The Trustee
shall pursue all legal remedies available to the Trustee with respect to such
breach under the Representations and Warranties Agreement, as may be necessary
or appropriate to enforce the rights of the Trust with respect thereto, if
the
Trustee has received written notice from the Depositor directing the Trustee
to
pursue such remedies.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
Section
3.01 Servicers
to Service Mortgage Loans.
(a) For
and
on behalf of the Certificateholders, each Servicer shall service and administer
the Mortgage Loans for which it is acting as Servicer in accordance with the
terms of this Agreement and the respective Mortgage Loans and, to the extent
consistent with such terms, in the same manner in which it services and
administers similar mortgage loans for its own portfolio, giving due
consideration to customary and usual standards of practice of mortgage lenders
and loan servicers administering similar mortgage loans but without regard
to:
(i) any
relationship that such Servicer, any Subservicer or any Affiliate of such
Servicer or any Subservicer may have with the related Mortgagor;
(ii) the
ownership or non ownership of any Certificate by such Servicer or any Affiliate
of such Servicer;
(iii) such
Servicer’s obligation to make P&I Advances or Servicing Advances;
or
(iv) such
Servicer’s or any Subservicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
To
the
extent consistent with the foregoing, each Servicer shall seek to maximize
the
timely and complete recovery of principal and interest on the Mortgage Notes.
Subject only to the above described servicing standards and the terms of this
Agreement and of the respective Mortgage Loans, each Servicer shall have full
power and authority, acting alone or through Subservicers as provided in
Section 3.02, to do or cause to be done any and all things in connection
with such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each Servicer in its own
name
or in the name of a Subservicer is hereby authorized and empowered by the
Trustee when the applicable Servicer believes it appropriate in its best
judgment in accordance with Accepted Servicing Practices, to execute and deliver
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 the Mortgaged Properties and to institute foreclosure
proceedings or obtain a deed in lieu of foreclosure so as to convert the
ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee. Each Servicer shall service and administer
the Mortgage Loans in accordance with applicable state and federal law and
shall
provide to the Mortgagors any reports required to be provided to them thereby.
Each Servicer covenants that its computer and other systems used in servicing
the Mortgage Loans operate in a manner such that the applicable Servicer can
service the Mortgage Loans in accordance with the terms of this Pooling and
Servicing Agreement. Each Servicer shall also comply in the performance of
this
Agreement with all reasonable rules and requirements of each insurer under
any
standard hazard insurance policy. Subject to Section 3.16, the Trustee shall
execute, at the written request of a Servicer, and furnish to such Servicer
and
any Subservicer such documents provided to the Trustee as are necessary or
appropriate to enable such Servicer or any Subservicer to carry out its
servicing and administrative duties hereunder, and the Trustee hereby grants
to
each Servicer, and this Agreement shall constitute, a power of attorney to
carry
out such duties, including a power of attorney in the form of Exhibit O hereto
to take title to Mortgaged Properties after foreclosure in the name of and
on
behalf of the Trustee. The Trustee shall execute a separate power of attorney
in
favor of each Servicer for the purposes described herein to the extent necessary
or desirable to enable each Servicer to perform its duties hereunder. The
Trustee shall not be liable for the actions of any Servicer or any Subservicers
under such powers of attorney. Notwithstanding anything contained herein to
the
contrary, no Servicer or Subservicer shall without the Trustee’s consent: (i)
initiate any action, suit or proceeding solely under the Trustee’s name without
indicating such Servicer’s or Subservicer’s, as applicable, representative
capacity, or (ii) take any action with the intent to, or which actually does
cause, the Trustee to be registered to do business in any state.
(b) Subject
to Section 3.09(b), 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 timely payment of taxes and assessments on the
Mortgaged Properties, which advances shall be Servicing Advances reimbursable
in
the first instance from related collections from the Mortgagors pursuant to
Section 3.09(b), and further as provided in Section 3.11. Any cost incurred
by a
Servicer or by Subservicers in effecting the timely payment of taxes and
assessments on a Mortgaged Property shall not be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit.
(c) Notwithstanding
anything in this Agreement to the contrary, a Servicer may not make any future
advances with respect to a Mortgage Loan (except as provided in Section 4.01)
and neither Servicer shall (i) permit any modification with respect to any
Mortgage Loan that would change the Mortgage Rate, reduce or increase the
principal balance (except for reductions resulting from actual payments of
principal) or change the final maturity date on such Mortgage Loan (except
for a
reduction of interest payments resulting from the application of the
Servicemembers Civil Relief Act or any similar state statutes) or (ii) permit
any modification, waiver or amendment of any term of any Mortgage Loan that
would both (A) effect an exchange or reissuance of such Mortgage Loan under
Section 1001 of the Code (or final, temporary or proposed Treasury regulations
promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as
a
REMIC under the Code or the imposition of any tax on “prohibited transactions”
or “contributions after the startup date” under the REMIC Provisions, or (iii)
except as provided in Section 3.07(a), waive any Prepayment Charges.
Notwithstanding the foregoing, in the event that any Mortgage Loan is in default
or, in the judgment of the applicable Servicer, a default is reasonably
foreseeable, such Servicer may accept payment from the related Mortgagor of
an
amount less than the Stated Principal Balance of such Mortgage Loan in final
satisfaction thereof, if in that Servicer’s determination such action is not
materially adverse to the interests of the Certificateholders (taking into
account any estimated Realized Loss that might result absent such
action).
(d) Each
Servicer may delegate its responsibilities under this Agreement; provided,
however,
that no
such delegation shall release such Servicer from the responsibilities or
liabilities arising under this Agreement.
(e) In
the
event that the Mortgage Loan Documents relating to any Mortgage Loan contain
provisions requiring the related Mortgagor to submit to binding arbitration
with
respect to any disputes arising in connection with such Mortgage Loan, the
applicable Servicer shall be entitled to waive any such provisions on behalf
of
the Trust and to send written notice of such waiver to the related Mortgagor,
although the Mortgagor may still require arbitration of such disputes at its
option.
Notwithstanding
anything to the contrary contained in Sections 3.02(a), 3.02(d), 3.02(e), 3.03,
3.22, 3.23, 4.03(d), 6.02, 8.12 and 10.14, the obligations of Countrywide
Servicing with respect to the Mortgage Loans and Regulation AB shall be solely
as set forth in the Countrywide Amendment Regulation AB with respect to the
servicing of the Mortgage Loans.
Section
3.02 Subservicing
Agreements between a Servicer and Subservicers.
(a)
Each
Servicer may enter into subservicing agreements with Subservicers for the
servicing and administration of the Mortgage Loans (“Subservicing Agreements”).
Each Servicer represents and warrants to the other parties hereto that, except
as otherwise set forth herein, no Subservicing Agreement is in effect as of
the
Closing Date with respect to any Mortgage Loans required to be serviced by
it
hereunder. The applicable Servicer shall give notice to the Depositor and the
Trustee of any such Subservicer and Subservicing Agreement, which notice shall
contain all information (including without limitation a copy of such
Subservicing Agreement) reasonably necessary to enable the Trustee, pursuant
to
Section 8.12(g), to accurately and timely report the event under
Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports
under the Exchange Act are required to be filed under the Exchange Act). No
Subservicing Agreement shall be effective until 30 days after such written
notice is received by both the Depositor and the Trustee. The Trustee shall
not
be required to review or consent to such Subservicing Agreements and shall
have
no liability in connection therewith.
(b) Each
Subservicer shall be (i) authorized to transact business in the state or states
in which the related Mortgaged Properties it is to service are situated, if
and
to the extent required by applicable law to enable the Subservicer to perform
its obligations hereunder and under the Subservicing Agreement, (ii) an
institution approved as a mortgage loan originator by the Federal Housing
Administration or an institution that has deposit accounts insured by the FDIC
and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer. Each
Subservicing Agreement must impose on the Subservicer requirements conforming
to
the provisions set forth in Section 3.08 and provide for servicing of the
Mortgage Loans consistent with the terms of this Agreement. Each Servicer will
examine each Subservicing Agreement to which it is a party and will be familiar
with the terms thereof. The terms of any Subservicing Agreement will not be
inconsistent with any of the provisions of this Agreement. Each Servicer and
the
respective Subservicers may enter into and make amendments to the Subservicing
Agreements or enter into different forms of Subservicing Agreements;
provided,
however,
that
any such amendments or different forms shall be consistent with and not violate
the provisions of this Agreement, and that no such amendment or different form
shall be made or entered into which could be reasonably expected to be
materially adverse to the interests of the Trustee, without the consent of
the
Trustee. Any variation without the consent of the Trustee from the provisions
set forth in Section 3.08 relating to insurance or priority requirements of
Subservicing Accounts, or credits and charges to the Subservicing Accounts
or
the timing and amount of remittances by the Subservicers to such Servicer,
are
conclusively deemed to be inconsistent with this Agreement and therefore
prohibited. Each Servicer shall deliver to the Trustee and the Depositor copies
of all Subservicing Agreements, and any amendments or modifications thereof,
promptly upon such Servicer’s execution and delivery of such
instruments.
(c) As
part
of its servicing activities hereunder, each Servicer (except as otherwise
provided in the last sentence of this paragraph), for the benefit of the
Trustee, shall enforce the obligations of each Subservicer under the related
Subservicing Agreement to which such Servicer is a party, including, without
limitation, any obligation to make advances in respect of delinquent payments
as
required by a Subservicing Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Subservicing
Agreements, and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as such Servicer, in its
good
faith business judgment, would require were it the owner of the related Mortgage
Loans. Each Servicer shall pay the costs of such enforcement at its own expense,
and shall be reimbursed therefor only (i) from a general recovery resulting
from
such enforcement, to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loans or (ii) from a specific recovery
of
costs, expenses or attorneys’ fees against the party against whom such
enforcement is directed.
(d) Each
Servicer shall cause any Subservicer engaged by such Servicer (or by any
Subservicer) for the benefit of the Depositor and the Trustee to comply with
the
provisions of this Section 3.02 and with Sections 3.22, 3.23, 6.02 and 6.05
of
this Agreement to the same extent as if such Subservicer were such Servicer,
and
to provide the information required with respect to such Subservicer under
Section 8.12 of this Agreement. Such Servicer shall be responsible for obtaining
from each such Subservicer and delivering to applicable Persons any servicer
compliance statement required to be delivered by such Subservicer under Section
3.22 and any assessment of compliance report and related accountant’s
attestation required to be delivered by such Subservicer under Section 3.23,
in
each case as and when required to be delivered.
(e) Subject
to the conditions set forth in this Section 3.02(e), each Servicer and any
Subservicer engaged by such Servicer is permitted to utilize one or more
Subcontractors to perform certain of its obligations hereunder. Such Servicer
shall promptly upon request provide to the Depositor a written description
(in
form and substance satisfactory to the Depositor) of the role and function
of
each Subcontractor utilized by such Servicer or any such Subservicer,
specifying, not later than the date specified for delivery of the annual report
on assessment of compliance set forth in Section 3.23(d), (i) the identity
of
each such Subcontractor, if any, that is “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, and (ii) which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (i)
of
this paragraph. As a condition to the utilization by such Servicer or any such
Subservicer of any Subcontractor determined to be “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, such
Servicer shall cause any such Subcontractor used by such Servicer (or by any
such Subservicer) for the benefit of the Depositor and the Trustee to comply
with the provisions of Section 3.23 of this Agreement to the same extent as
if
such Subcontractor were such Servicer. Such Servicer shall be responsible for
obtaining from each such Subcontractor and delivering to the applicable Persons
any assessment of compliance report and related accountant’s attestation
required to be delivered by such Subcontractor under Section 3.23, in each
case
as and when required to be delivered.
Notwithstanding
the foregoing, if a Servicer engages a Subcontractor in connection with the
performance of any of its duties under this Agreement, such Servicer shall
be
responsible for determining whether such Subcontractor is a “servicer” within
the meaning of Item 1101 of Regulation AB and whether any such affiliate or
third-party vendor meets the criteria in Item 1108(a)(2)(i) through (iii) of
Regulation AB. If a Servicer determines, pursuant to the preceding sentence,
that such Subcontractor is a “servicer” within the meaning of Item 1101 of
Regulation AB and meets the criteria in Item 1108(a)(2)(i) through (iii) of
Regulation AB, then such Subcontractor shall be deemed to be a Subservicer
for
purposes of this Agreement, the engagement of such Subservicer shall not be
effective unless and until notice is given pursuant to Section 3.02(a) and
such
Servicer shall comply with Section 3.02(d) with respect thereto.
Section
3.03 Successor
Subservicers.
Each
Servicer shall be entitled to terminate any Subservicing Agreement to which
such
Servicer is a party and the rights and obligations of any Subservicer pursuant
to any such Subservicing Agreement in accordance with the terms and conditions
of such Subservicing Agreement; provided,
however,
that
the termination, resignation or removal of a Subservicer shall be not be
effective until 30 days after written notice is received by both the Depositor
and the Trustee that contains all information reasonably necessary to enable
the
Trustee, pursuant to Section 8.12(g), to accurately and timely report the event
under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under
the Exchange Act are required to be filed under the Exchange Act). In the event
of termination of any Subservicer, all servicing obligations of such Subservicer
shall be assumed simultaneously by the applicable Servicer without any act
or
deed on the part of such Subservicer or such Servicer, and such Servicer either
shall service directly the related Mortgage Loans or shall enter into a
Subservicing Agreement with a successor Subservicer which qualifies under
Section 3.02.
Any
Subservicing Agreement shall include the provision that such agreement may
be
immediately terminated by the Depositor or the Trustee without fee, in
accordance with the terms of this Agreement, in the event that the applicable
Servicer shall, for any reason, no longer be a Servicer (including termination
due to an Event of Default).
Section
3.04 Liability
of the Servicers.
Notwithstanding any Subservicing Agreement, any of the provisions of this
Agreement relating to agreements or arrangements between a Servicer and a
Subservicer or reference to actions taken through a Subservicer or otherwise,
such Servicer shall remain obligated and primarily liable to the Trustee for
the
servicing and administering of the Mortgage Loans in accordance with the
provisions of Section 3.01 without diminution of such obligation or liability
by
virtue of such Subservicing Agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the same
terms and conditions as if such Servicer alone were servicing and administering
such Mortgage Loans. Each Servicer shall be entitled to enter into any agreement
with a Subservicer for indemnification of such Servicer by such Subservicer
and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
Section
3.05 No
Contractual Relationship between Subservicers and the Trustee.
Any
Subservicing Agreement that may be entered into and any transactions or services
relating to the Mortgage Loans involving a Subservicer in its capacity as such
shall be deemed to be between the Subservicer and the related Servicer alone,
and the Trustee (or any successor to such Servicer) shall not be deemed a party
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to the Subservicer except as set forth in Section 3.06. Each
Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether such Servicer’s compensation pursuant to this Agreement
is sufficient to pay such fees.
Section
3.06 Assumption
or Termination of Subservicing Agreements by Trustee.
In the
event a Servicer at any time shall for any reason no longer be a Servicer
(including by reason of the occurrence of an Event of Default), the Trustee,
as
successor servicer, or its designee, or another successor servicer if the
successor is not the Trustee, shall thereupon assume all of the rights and
obligations of such Servicer under each Subservicing Agreement that such
Servicer may have entered into, with copies thereof provided to the Trustee,
or
another successor servicer if the successor is not the Trustee, prior to the
Trustee, or such other successor servicer if the successor is not the Trustee,
assuming such rights and obligations, unless the Trustee elects to terminate
any
Subservicing Agreement in accordance with its terms as provided in
Section 3.03.
Upon
such
assumption, the Trustee, as successor servicer, its designee or the successor
servicer shall be deemed, subject to Section 3.03, to have assumed all of such
Servicer’s interest therein and to have replaced such Servicer as a party to
each Subservicing Agreement to which the predecessor servicer was a party to
the
same extent as if each Subservicing Agreement had been assigned to the assuming
party, except that (i) such Servicer shall not thereby be relieved of any
liability or obligations under any such Subservicing Agreement that arose before
it ceased to be a Servicer and (ii) none of the Depositor, the Trustee, their
designees or any successor to such Servicer shall be deemed to have assumed
any
liability or obligation of such Servicer that arose before it ceased to be
a
Servicer.
Such
Servicer at its expense shall, upon request of the Trustee, its designee or
the
successor servicer deliver to the assuming party all documents and records
relating to each Subservicing Agreement to which it is a party and the Mortgage
Loans then being serviced by it and an accounting of amounts collected and
held
by or on behalf of it, and otherwise use its best efforts to effect the orderly
and efficient transfer of the Subservicing Agreements to the assuming
party.
Section
3.07 Collection
of Certain Mortgage Loan Payments.
(a) Each
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans, and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable Insurance Policies, follow such collection procedures as
it
would follow with respect to mortgage loans comparable to the Mortgage Loans
and
held for its own account. Consistent with the foregoing and Accepted Servicing
Practices, each Servicer may (i) waive any late payment charge or, if
applicable, any penalty interest, or (ii) extend the Due Dates for the Scheduled
Payments due on a Mortgage Note for a period of not greater than 180 days;
provided that any extension pursuant to clause (ii) above shall not affect
the
amortization schedule of any Mortgage Loan for purposes of any computation
hereunder, except as provided below. In the event of any such arrangement
pursuant to clause (ii) above, the applicable Servicer shall make timely
advances on such Mortgage Loan during such extension pursuant to Section 4.01
and in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements, subject to Section 4.01(d)
pursuant to which such Servicer shall not be required to make any such advances
that are Nonrecoverable P&I Advances.
Notwithstanding
the foregoing, a Servicer may waive, or permit a Subservicer to waive, in whole
or in part, a Prepayment Charge only under the following circumstances: (i)
such
waiver relates to a default or a reasonably foreseeable default and would,
in
the reasonable judgment of such Servicer, maximize recovery of total proceeds
taking into account the value of such Prepayment Charge and the related Mortgage
Loan; provided, however, that the applicable Servicer or Subservicer may waive
such Prepayment Charge if the Mortgage Loan is accelerated or paid-off in
connection with the workout of a delinquent Mortgage Loan or due to the related
Mortgagor’s default, notwithstanding that the terms of the Mortgage Loan or
federal or state law might permit the imposition of such Prepayment Charge,
(ii)
such Prepayment Charge is not permitted to be collected by applicable federal,
state or local law or regulation or (iii) the collection of such Prepayment
Charge would be considered “predatory” pursuant to written guidance published or
issued by any applicable federal, state or local regulatory authority acting
in
its official capacity and having jurisdiction over such matters. If a Prepayment
Charge is waived other than as permitted by the prior sentence, then the
applicable Servicer is required to pay the amount of such waived Prepayment
Charge, for the benefit of the Holders of the Class P Certificates, by
depositing such amount into the related Collection Account together with and
at
the time that the amount prepaid on the related Mortgage Loan is required to
be
deposited into the Collection Account; provided, however, that the applicable
Servicer shall not have an 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 in effect
at
such time.
(b) (i)The
Trustee shall establish and maintain the Excess Reserve Fund Account, on behalf
of the Class X Certificateholders, to receive any Basis Risk Payment and any
Interest Rate Cap Payment and to secure their limited recourse obligation to
pay
to the Offered Certificateholders Basis Risk CarryForward Amounts (prior to
using any Net Swap Receipts). For the avoidance of doubt, any Basis Risk
CarryForward Amounts shall be paid to the Offered Certificates first from the
Excess Reserve Fund Account and then from the Swap Account.
(ii) On
each
Distribution Date, the Trustee shall deposit the amount of any Basis Risk
Payment made for the benefit of the Certificateholders and any Interest Rate
Cap
Payment made for the benefit of the Offered Certificates for such date into
the
Excess Reserve Fund Account.
(c) (i)On
each
Distribution Date on which there exists a Basis Risk CarryForward Amount on
any
Class of Certificates, the Trustee shall (1) withdraw from the Distribution
Account and deposit in the Excess Reserve Fund Account, as set forth in
Section 4.02(a)(iii)(S), the lesser of (x) the Class X
Distributable Amount (without regard to the reduction in clause (iii) in
the definition thereof) (to the extent remaining after the distributions
specified in Sections 4.02(a)(iii)(A)-(R)) and (y) the aggregate Basis
Risk CarryForward Amounts for such Distribution Date and (2) withdraw from
the Excess Reserve Fund Account amounts necessary to pay to such Class or
Classes of Certificates the Basis Risk CarryForward Amount. Such payments,
along
with payments from the Swap Account, shall be allocated to those Classes on
a
pro
rata
basis
based upon the amount of Basis Risk CarryForward Amount owed to each such Class
and shall be paid in the priority set forth in
Section 4.02(a)(iii)(T).
(ii) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Excess Reserve Fund Account be disregarded
as
an entity separate from the Holder of the Class X Certificates unless and until
the date when either (a) there is more than one Class X Certificateholder or
(b)
any Class of Certificates in addition to the Class X Certificates is
recharacterized as an equity interest in the Excess Reserve Fund 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 Excess Reserve Fund Account be treated as a partnership. The
Excess Reserve Fund Account will be an “outside reserve fund” within the meaning
of Treasury Regulation Section 1.860G-2(h). For all federal tax purposes,
amounts transferred by REMIC VI to the Excess Reserve Fund Account shall be
treated as distributions by the Trustee to the Class X
Certificateholders.
(iii) Any
Basis
Risk CarryForward Amounts paid by the Trustee to the Offered Certificateholders
shall be accounted for by the Trustee as amounts paid first to the Holders
of
the Class X Certificates and then to the respective Class or Classes of
Offered Certificates. In addition, the Trustee shall account for the Offered
Certificateholders’ rights to receive payments of Basis Risk CarryForward
Amounts (along with payments of Basis Risk CarryForward Amounts from the Swap
Account) as rights in a limited recourse interest rate cap contract written
by
the Class X Certificateholders in favor of the Offered
Certificateholders.
(iv) Notwithstanding
any provision contained in this Agreement, the Trustee shall not be required
to
make any payments from the Excess Reserve Fund Account except as expressly
set
forth in this Section 3.07(c) and Sections 4.02(a)(iii)(T) and
(V).
(d) The
Trustee shall establish and maintain the Distribution Account on behalf of
the
Certificateholders. The Depositor shall cause to be deposited into the
Distribution Account on the Closing Date the Closing Date Deposit Amount. The
Trustee shall, promptly upon receipt, deposit in the Distribution Account and
retain therein the following:
(i) the
aggregate amount remitted by the Servicers to the Trustee pursuant to
Section 3.11;
(ii) any
amount deposited by the Servicers pursuant to Section 3.12(b) in
connection with any losses on Permitted Investments; and
(iii) any
other
amounts deposited hereunder which are required to be deposited in the
Distribution Account.
In
the
event that any Servicer shall remit any amount not required to be remitted,
it
may at any time direct the Trustee in writing to withdraw such amount from
the
Distribution Account, any provision herein to the contrary notwithstanding.
Such
direction may be accomplished by delivering notice to the Trustee which
describes the amounts deposited in error in the Distribution Account. All funds
deposited in the Distribution 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 4.02.
(e) The
Trustee may invest the funds in the Distribution Account, in one or more
Permitted Investments, in accordance with Section 3.12. Each Servicer shall
direct the Trustee to withdraw from the Distribution Account and to remit to
such Servicer no less than monthly, all income and gain realized from the
investment of the portion of funds deposited in the Distribution Account by
such
Servicer (except during the Trustee Float Period). The Trustee may withdraw
from
the Distribution Account any income or gain earned from the investment of funds
deposited therein during the Trustee Float Period for its own
benefit.
(f) Each
Servicer shall give notice to the Trustee, and the Trustee shall give notice
to
each Rating Agency and the Depositor of any proposed change of the location
of
the related Collection Account within a reasonable period of time prior to
any
change thereof.
(g) In
order
to comply with laws, rules and regulations applicable to banking institutions,
including those relating to the funding of terrorist activities and money
laundering, the Trustee is required to obtain, verify and record certain
information relating to individuals and entities which maintain a business
relationship with the Trustee. Accordingly, each of the parties agrees to
provide to the Trustee upon its request from time to time such party’s complete
name, address, tax identification number and such other identifying information
together with copies of such party’s constituting documentation, securities
disclosure documentation and such other identifying documentation as may be
available for such party.
Section
3.08 Subservicing
Accounts.
In
those cases where a Subservicer is servicing a Mortgage Loan pursuant to a
Subservicing Agreement, the Subservicer will be required to establish and
maintain one or more segregated accounts (collectively, the “Subservicing
Account”).
The
Subservicing Account shall be an Eligible Account and shall otherwise be
acceptable to the related Servicer. The Subservicer shall deposit in the
clearing account (which account must be an Eligible Account) in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Subservicer’s receipt thereof, all proceeds
of Mortgage Loans received by the Subservicer less its servicing compensation
to
the extent permitted by the Subservicing Agreement, and shall thereafter deposit
such amounts in the Subservicing Account, in no event more than two Business
Days after the deposit of such funds into the clearing account. The Subservicer
shall thereafter deposit such proceeds in the Collection Account of the related
Servicer or remit such proceeds to the related Servicer for deposit in the
Collection Account of the related Servicer not later than two Business Days
after the deposit of such amounts in the Subservicing Account. For purposes
of
this Agreement, such Servicer shall be deemed to have received payments on
the
Mortgage Loans when the Subservicer receives such payments.
Section
3.09 Collection
of Taxes, Assessments and Similar Items; Escrow Accounts.
(a)
Each
Servicer shall enforce the obligations under each paid-in-full, life-of-the-loan
tax service contract in effect with respect to each First Lien Mortgage Loan
(each, a “Tax
Service Contract”)
serviced by such Servicer. Each Tax Service Contract shall be assigned to the
Trustee, or a successor servicer at the applicable Servicer’s expense in the
event that a Servicer is terminated as Servicer of the related Mortgage
Loan.
(b) To
the
extent that the services described in this paragraph (b) are not otherwise
provided pursuant to the Tax Service Contracts described in paragraph (a) above,
each Servicer undertakes to perform such functions with respect to the Mortgage
Loans serviced by such Servicer. To the extent the related Mortgage provides
for
Escrow Payments, the related Servicer shall establish and maintain, or cause
to
be established and maintained, one or more segregated accounts (the
“Escrow
Accounts”),
which
shall be Eligible Accounts. Each Servicer shall deposit in the clearing account
(which account must be an Eligible Account) in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage
loan
servicing activities on a daily basis, and in no event more than one Business
Day after such Servicer’s receipt thereof, all collections from the Mortgagors
(or related advances from Subservicers) for the payment of taxes, assessments,
hazard insurance premiums and comparable items for the account of the Mortgagors
(“Escrow
Payments”)
collected on account of the Mortgage Loans and shall thereafter deposit such
Escrow Payments in the Escrow Accounts, in no event more than two Business
Days
after the deposit of such funds in the clearing account, for the purpose of
effecting the payment of any such items as required under the terms of this
Agreement. Withdrawals of amounts from an Escrow Account may be made only to
(i)
effect payment of taxes, assessments, hazard insurance premiums, and comparable
items; (ii) reimburse such Servicer (or a Subservicer to the extent provided
in
the related Subservicing Agreement) out of related collections for any advances
made pursuant to Section 3.01 (with respect to taxes and assessments) and
Section 3.13 (with respect to hazard insurance); (iii) refund to Mortgagors
any
sums as may be determined to be overages; (iv) pay interest, if required and
as
described below, to Mortgagors on balances in the Escrow Account; (v) clear
and
terminate the Escrow Account at the termination of such Servicer’s obligations
and responsibilities in respect of the Mortgage Loans under this Agreement;
(vi)
to transfer such funds to a replacement Escrow Account that meets the
requirements hereof; or (vii) recover amounts deposited in error. As part of
its
servicing duties, each Servicer or Subservicers shall pay to the Mortgagors
interest on funds in Escrow Accounts, to the extent required by law and, to
the
extent that interest earned on funds in the Escrow Accounts is insufficient,
to
pay such interest from its or their own funds, without any reimbursement
therefor. To the extent that a Mortgage does not provide for Escrow Payments,
the applicable Servicer shall determine whether any such payments are made
by
the Mortgagor in a manner and at a time that avoids the loss of the Mortgaged
Property due to a tax sale or the foreclosure of a tax lien. The applicable
Servicer assumes full responsibility for the payment of all such bills within
such time and shall effect payments of all such bills irrespective of the
Mortgagor’s faithful performance in the payment of same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments; provided,
however,
that
such advances are deemed to be Servicing Advances.
Section
3.10 Collection
Accounts.
(a) On
behalf
of the Trustee, each Servicer shall establish and maintain, or cause to be
established and maintained, one or more separate Eligible Accounts (each such
account or accounts, a “Collection
Account”),
held
in trust for the benefit of the Trustee. On behalf of the Trustee, each Servicer
shall deposit or cause to be deposited in the clearing account (which account
must be an Eligible Account) in which it customarily deposits payments and
collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day (or
two
Business Days in the case of Saxon) after such Servicer’s receipt thereof, and
shall thereafter deposit in the related Collection Account, in no event more
than two Business Days (or one Business Day in the case of Saxon) after the
deposit of such funds into the clearing account, as and when received or as
otherwise required hereunder, the following payments and collections received
or
made by it subsequent to the Cut-off Date (other than in respect of principal
or
interest on the related Mortgage Loans due on or before the Cut-off Date),
or
payments (other than Principal Prepayments) received by it on or prior to the
Cut-off Date but allocable to a Due Period subsequent thereto:
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii) all
payments on account of interest (net of the related Servicing Fee) on each
Mortgage Loan;
(iii) all
Insurance Proceeds and Condemnation Proceeds to the extent such Insurance
Proceeds and Condemnation Proceeds are not to be applied to the restoration
of
the related Mortgaged Property or released to the related Mortgagor in
accordance with the express requirements of law or in accordance with Accepted
Servicing Practices and Liquidation Proceeds;
(iv) any
amounts required to be deposited pursuant to Section 3.12 in connection
with any losses realized on Permitted Investments with respect to funds held
in
the related Collection Account;
(v) any
amounts required to be deposited by such Servicer pursuant to the second
paragraph of Section 3.13(a) in respect of any blanket policy
deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in accordance with this
Agreement; and
(vii) all
Prepayment Charges collected or paid (pursuant to Section 3.07(a)) by such
Servicer.
The
foregoing requirements for deposit in the Collection Accounts shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges, NSF fees,
reconveyance fees, assumption fees and other similar fees and charges need
not
be deposited by each Servicer in the related Collection Account and shall,
upon
collection, belong to the applicable Servicer as additional compensation for
its
servicing activities. In the event a Servicer shall deposit in the related
Collection Account any amount not required to be deposited therein, it may
at
any time withdraw such amount from its Collection Account, any provision herein
to the contrary notwithstanding.
(b) Funds
in
the Collection Accounts may be invested in Permitted Investments in accordance
with the provisions set forth in Section 3.12. Each Servicer shall give notice
to the Trustee of the location of the related Collection Account maintained
by
it when established and prior to any change thereof in accordance with Section
3.07(f).
Section
3.11 Withdrawals
from the Collection Accounts.
(a) Each
Servicer shall, from time to time, make withdrawals from the related Collection
Account for any of the following purposes or as described in
Section 4.01:
(i) on
or
prior to each Remittance Date, to remit to the Trustee (A) the Trustee Fee
with
respect to such Distribution Date and (B) all Available Funds (without reduction
for amounts owed to the Depositor or the Trustee as provided for in the
definition of “Available
Funds”)
in
respect of the related Distribution Date together with all amounts representing
Prepayment Charges from the Mortgage Loans received by the applicable Servicer
during the related Prepayment Period;
(ii) to
reimburse such Servicer for P&I Advances, but only to the extent of amounts
received which represent Late Collections (net of the related Servicing Fees)
of
Scheduled Payments on Mortgage Loans with respect to which such P&I Advances
were made in accordance with the provisions of Section 4.01 (such
Servicer’s right for recovery or reimbursement has priority over the Trust as
stated in the definition of “Available
Funds”);
(iii) to
pay
such Servicer or any Subservicer (a) any unpaid Servicing Fees or (b) any
unreimbursed Servicing Advances with respect to each Mortgage Loan serviced
by
such Servicer or Subservicer, but only to the extent of any Late Collections,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or other amounts
as may be collected by such Servicer from a Mortgagor, or otherwise received
with respect to such Mortgage Loan (or the related REO Property) (such
Servicer’s right for recovery or reimbursement has priority over the Trust as
stated in the definition of “Available
Funds”);
(iv) to
pay to
such Servicer as servicing compensation (in addition to the Servicing Fee)
on
each Remittance Date any interest or investment income earned on funds deposited
in its Collection Account;
(v) to
pay to
the Sponsor, the Depositor or the Responsible Party, as applicable, with respect
to each Mortgage Loan that has previously been repurchased or replaced pursuant
to this Agreement, all amounts received thereon subsequent to the date of
purchase or substitution, as further described herein;
(vi) to
reimburse such Servicer for (A) any P&I Advance or Servicing Advance
previously made which such Servicer has determined to be a Nonrecoverable
P&I Advance or Nonrecoverable Servicing Advance in accordance with the
provisions of Section 4.01 and (B) any unpaid Servicing Fees related
to any Second Lien Mortgage Loan to the extent not recoverable from Liquidation
Proceeds, Insurance Proceeds or other amounts received with respect to the
related Second Lien Mortgage Loan under Section 3.11(a)(iii) (such
Servicer’s right for recovery or reimbursement has priority over the Trust as
stated in the definition of “Available
Funds”);
(vii) to
pay,
or to reimburse such Servicer for advances in respect of, expenses incurred
in
connection with any Mortgage Loan serviced by such Servicer pursuant to
Section 3.15 (such Servicer’s right for recovery or reimbursement has
priority over the Trust);
(viii) to
reimburse such Servicer or the Depositor for expenses incurred by or
reimbursable to such Servicer or the Depositor, as the case may be, pursuant
to
Section 6.03 (such Servicer’s right for recovery or reimbursement has
priority over the Trust as stated in the definition of “Available
Funds”);
(ix) to
reimburse such Servicer or the Trustee, as the case may be, for expenses
reasonably incurred in respect of the breach or defect giving rise to the
repurchase obligation of the Responsible Party or the Depositor, as applicable,
that were included in the Repurchase Price of the Mortgage Loan, including
any
expenses arising out of the enforcement of the repurchase obligation, to the
extent not otherwise paid pursuant to the terms hereof (such Servicer’s right
for recovery or reimbursement has priority over the Trust as stated in the
definition of “Available
Funds”);
(x) to
withdraw any amounts deposited in the related Collection Account in
error;
(xi) to
withdraw any amounts held in the related Collection Account and not required
to
be remitted to the Trustee on the Remittance Date occurring in the month in
which such amounts are deposited into such Collection Account, to reimburse
such
Servicer for xxxxxxxxxxxx X&X Advances;
(xii) to
invest
funds in Permitted Investments in accordance with Section 3.12;
(xiii) to
clear
and terminate the related Collection Account upon termination of this Agreement;
and
(xiv) to
withdraw any net Prepayment Interest Excess in accordance with Section
3.21(b).
(b) Each
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
related Collection Account, to the extent held by or on behalf of it, pursuant
to subclauses (a)(ii), (iii), (v), (vi), (vii), (viii), (ix) and (xiv)
above. Each Servicer shall provide written notification (as set forth in
Section 4.01(d)) to the Trustee, on or prior to the next succeeding
Remittance Date, upon making any withdrawals from the related Collection Account
pursuant to subclause (a)(vi) above.
(c) Each
Servicer shall be responsible for reviewing and reconciling the related
Collection Account in accordance with Accepted Servicing Practices. Each
Servicer shall act promptly to resolve any discrepancies.
Section
3.12 Investment
of Funds in the Collection Accounts and the Distribution Account.
(a)
Each
Servicer may invest the funds in the related Collection Account and the related
Escrow Account (to the extent permitted by law and the related Mortgage Loan
documents) and the Trustee may (but is not obligated to) invest funds in the
Distribution Account during the Trustee Float Period, and, with respect to
the
portion of funds in the Distribution Account deposited by a Servicer, shall
(except during the Trustee Float Period) invest such funds in the Distribution
Account at the direction of such Servicer (for purposes of this Section 3.12,
such Accounts are referred to as an “Investment
Account”),
in
one or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement; provided,
however,
that
the Trustee shall have no obligation to invest funds deposited into the
Distribution Account by a Servicer on the Remittance Date later than 10:00
a.m.
(Pacific Standard Time). If no investment instruction is given in a timely
manner, the Trustee shall hold the funds in the Distribution Account uninvested.
All such Permitted Investments shall be held to maturity, unless payable on
demand. Any investment of funds in an Investment Account (other than investments
made during the Trustee Float Period) shall be made in the name of the Trustee
in Permitted Investments selected by the applicable Servicer. The applicable
Servicer shall be entitled to sole possession (except with respect to investment
direction of funds and any income and gain realized on any investment in the
Distribution Account during the Trustee Float Period, which shall be for the
sole benefit of the Trustee) over each such related investment, and any
certificate or other instrument evidencing any such investment shall be
delivered directly to the applicable Servicer, or with respect to investments
during the Trustee Float Period, the Trustee or its agent (with a copy to the
Trustee or its agent if related to investment of funds in the Distribution
Account not during the Trustee Float Period), together with any document of
transfer necessary to transfer title to such investment to the applicable
Servicer, or with respect to investments during the Trustee Float Period, the
Trustee or its agent. In the event amounts on deposit in an Investment Account
are at any time invested in a Permitted Investment payable on demand, the
applicable Servicer, or with respect to investments during the Trustee Float
Period, the Trustee may:
|
(x)
|
consistent
with any notice required to be given thereunder, demand that payment
thereon be made on the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of (1) all amounts
then payable thereunder and (2) the amount required to be withdrawn
on such date; and
|
|
(y)
|
demand
payment of all amounts due thereunder that such Permitted Investment
would
not constitute a Permitted Investment in respect of funds thereafter
on
deposit in an Investment Account.
|
(b) All
income and gain realized from the investment of funds deposited in the related
Collection Account or Escrow Account held by or on behalf of the related
Servicer, shall be for the benefit of such Servicer and shall be subject to
its
withdrawal in the manner set forth in Section 3.11. Such Servicer shall deposit
in its Collection Account or Escrow Account, as applicable, the amount of any
loss of principal incurred in respect of any such Permitted Investment made
with
funds in such accounts immediately upon realization of such loss.
(c) All
income and gain realized from the investment of the portion of funds deposited
in the Distribution Account by a Servicer and held by the Trustee, shall be
for
the benefit of such Servicer (except for any income or gain realized from the
investment of funds on deposit in the Distribution Account during the Trustee
Float Period, which shall be for the benefit of the Trustee) and shall be
subject to the Trustee’s withdrawal in the manner set forth in Section 3.07(e).
Each Servicer shall deposit in the Distribution Account (except with respect
to
losses incurred during the Trustee Float Period) the amount of any loss of
principal incurred in respect of any such Permitted Investment made with funds
in such accounts immediately upon realization of such loss.
(d) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Trustee
shall take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
(e) The
Trustee shall not be liable for the amount of any loss incurred with respect
of
any investment or lack of investment of funds held in any Investment Account
or
the Distribution Account (except that if any losses are incurred from the
investment of funds deposited in the Distribution Account during the Trustee
Float Period, the Trustee shall be responsible for reimbursing the Trust for
such loss immediately upon realization of such loss) if made in accordance
with
this Section 3.12.
(f) The
Trustee or its Affiliates shall be permitted to receive additional compensation
that could be deemed to be in the Trustee’s economic self-interest for
(i) serving as investment adviser, administrator, shareholder, servicing
agent, custodian or sub-custodian with respect to certain of the Permitted
Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments. Such compensation shall not be considered an amount that is
reimbursable or payable pursuant to this Agreement.
Section
3.13 Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
(a)
Each
Servicer shall cause to be maintained for each Mortgage Loan serviced by such
Servicer fire insurance with extended coverage on the related Mortgaged Property
in an amount which is at least equal to the least of (i) the outstanding
principal balance of such Mortgage Loan, (ii) the amount necessary to fully
compensate for any damage or loss to the improvements that are a part of such
property on a replacement cost basis and (iii) the maximum insurable value
of
the improvements which are a part of such Mortgaged Property, in each case
in an
amount not less than such amount as is necessary to avoid the application of
any
coinsurance clause contained in the related hazard insurance policy. Each
Servicer shall also cause to be maintained fire insurance with extended coverage
on each REO Property serviced by such Servicer in an amount which is at least
equal to the lesser of (i) the maximum insurable value of the improvements
which
are a part of such property and (ii) the outstanding principal balance of the
related Mortgage Loan at the time it became an REO Property. Each Servicer
will
comply in the performance of this Agreement with all reasonable rules and
requirements of each insurer under any such hazard policies. Any amounts to
be
collected by any Servicer under any such policies (other than amounts to be
applied to the restoration or repair of the property subject to the related
Mortgage or amounts to be released to the Mortgagor in accordance with the
procedures that such Servicer would follow in servicing loans held for its
own
account, subject to the terms and conditions of the related Mortgage and
Mortgage Note) shall be deposited in the related Collection Account, subject
to
withdrawal pursuant to Section 3.11. Any cost incurred by any Servicer in
maintaining any such insurance shall not, for the purpose of calculating
distributions to the Trustee, be added to the unpaid principal balance of the
related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
so
permit. It is understood and agreed that no earthquake or other additional
insurance is to be required of any Mortgagor other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property or REO Property
is
at any time in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards and flood insurance
has been made available, the applicable Servicer will cause to be maintained
a
flood insurance policy in respect thereof. Such flood insurance shall be in
an
amount equal to the lesser of (i) the amount necessary to fully compensate
for
any damage or loss to the improvements that are a part of such property on
a
replacement cost basis and (ii) the maximum amount of such insurance available
for the related Mortgaged Property under the national flood insurance program
(assuming that the area in which such Mortgaged Property is located is
participating in such program).
In
the
event that any Servicer shall obtain and maintain a blanket policy with an
insurer either (i) acceptable to Xxxxxx Xxx or Xxxxxxx Mac or
(ii) having a General Policy Rating of B:III or better from Best’s (or such
other rating that is comparable to such rating) insuring against hazard losses
on all of the Mortgage Loans, it shall conclusively be deemed to have satisfied
its obligations as set forth in the first two sentences of this
Section 3.13, it being understood and agreed that such policy may contain a
deductible clause, in which case such Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property or REO Property
a policy complying with the first two sentences of this Section 3.13, and
there shall have been one or more losses which would have been covered by such
policy, deposit to the related Collection Account from its own funds the amount
not otherwise payable under the blanket policy because of such deductible
clause. In connection with its activities as administrator and servicer of
the
Mortgage Loans, each Servicer agrees to prepare and present, on behalf of itself
and the Trustee claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy.
(b) Each
Servicer shall keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions for failure in the
performance of such Servicer’s obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements
of
Xxxxxx Mae or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans, unless
such Servicer has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. Each Servicer shall also maintain a fidelity bond in the form
and
amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, unless
such Servicer has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. Each Servicer shall provide the Trustee upon request with copies
of
any such insurance policies and fidelity bond. Each Servicer shall be deemed
to
have complied with this provision if an Affiliate of the applicable Servicer
has
such errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends
to
such Servicer. Any such errors and omissions policy and fidelity bond shall
by
its terms not be cancelable without thirty days’ prior written notice to the
Trustee. Each Servicer shall also cause each Subservicer to maintain a policy
of
insurance covering errors and omissions and a fidelity bond which would meet
such requirements.
Section
3.14 Enforcement
of “Due-on-Sale” Clauses; Assumption Agreements.
Each
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto; provided, however, that no Servicer shall
be
required to take such action if, in its sole business judgment, such Servicer
believes it is not in the best interests of the Trust Fund and shall not
exercise any such rights if prohibited by law from doing so. 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 proviso
to the preceding sentence apply, such Servicer will enter into an assumption
and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. Each Servicer is also authorized
to
enter into a substitution of liability agreement with such person, pursuant
to
which the original Mortgagor is released from liability and such person is
substituted as the Mortgagor and becomes liable under the Mortgage Note;
provided, that no such substitution shall be effective unless such person
satisfies the underwriting criteria of such Servicer and such substitution
is in
the best interest of the Certificateholders as determined by such Servicer.
In
connection with any assumption, modification or substitution, such Servicer
shall apply such underwriting standards and follow such practices and procedures
as shall be normal and usual in its general mortgage servicing activities and
as
it applies to other mortgage loans owned solely by it. No Servicer shall take
or
enter into any assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received confirmation,
in
writing, of the continued effectiveness of any applicable hazard insurance
policy, or a new policy meeting the requirements of this Section is obtained.
Any fee collected by a Servicer in respect of an assumption or substitution
of
liability agreement will be retained by such Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Rate and the
amount of the Scheduled Payment) may be amended or modified, except as otherwise
required pursuant to the terms thereof. Each Servicer shall notify the Trustee
that any such substitution, modification or assumption agreement has been
completed and shall forward to the Trustee the executed original of such
substitution or assumption agreement, which document 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.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, a Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
such Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 3.14, the term “assumption” is deemed
to also include a sale (of the Mortgaged Property) subject to the Mortgage
that
is not accompanied by an assumption or substitution of liability
agreement.
Section
3.15 Realization
upon Defaulted Mortgage Loans.
Each
Servicer shall use its best efforts, consistent with Accepted Servicing
Practices, to foreclose upon or otherwise comparably convert (which may include
an acquisition of REO Property) the ownership of properties securing such of
the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07, and which are not released from this Agreement
pursuant to any other provision hereof. Each Servicer shall use reasonable
efforts to realize upon such defaulted Mortgage Loans in such manner as will
maximize the receipt of principal and interest by the Trustee, taking into
account, among other things, the timing of foreclosure proceedings; provided,
however, with respect to any Second Lien Mortgage Loan for which the related
first lien mortgage loan is not included in the Trust Fund, if, after such
Mortgage Loan becomes 180 days or more delinquent, the applicable Servicer
determines that a significant net recovery is not possible through foreclosure,
such Mortgage Loan may be charged off and the Mortgage Loan will be treated
as a
Liquidated Mortgage Loan giving rise to a Realized Loss. The foregoing is
subject to the provisions that, in any case in which Mortgaged Property shall
have suffered damage from an uninsured cause, a Servicer shall not be required
to expend its own funds toward the restoration of such property unless it shall
determine in its sole discretion (i) that such restoration will increase the
net
proceeds of liquidation of the related Mortgage Loan to the Trustee, after
reimbursement to itself for such expenses, and (ii) that such expenses will
be
recoverable by such Servicer through Insurance Proceeds, Condemnation Proceeds
or Liquidation Proceeds from the related Mortgaged Property, as contemplated
in
Section 3.11. Each 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 related property, as
contemplated in Section 3.11.
The
proceeds of any liquidation or REO Disposition, as well as any recovery
resulting from a partial collection of Insurance Proceeds, Condemnation Proceeds
or Liquidation Proceeds or any income from an REO Property, will be applied
in
the following order of priority: first, to reimburse the applicable Servicer
or
any Subservicer for any related unreimbursed Servicing Advances, pursuant to
Section 3.11 or 3.17; second, to reimburse the applicable Servicer for any
related xxxxxxxxxxxx X&X Advances, pursuant to Section 3.11; third, to
accrued and unpaid interest on the Mortgage Loan or REO Imputed Interest, at
the
Mortgage Rate, to the date of the liquidation or REO Disposition, or to the
Due
Date prior to the Remittance Date on which such amounts are to be distributed
if
not in connection with a liquidation or REO Disposition; and fourth, as a
recovery of principal of the Mortgage Loan. If the amount of the recovery so
allocated to interest is less than a full recovery thereof, that amount will
be
allocated as follows: first, to unpaid Servicing Fees; and second, as interest
at the Mortgage Rate (net of the Servicing Fee Rate). The portion of the
recovery so allocated to unpaid Servicing Fees shall be reimbursed to the
applicable Servicer or any Subservicer pursuant to Section 3.11 or 3.17. The
portions of the recovery so allocated to interest at the Mortgage Rate (net
of
the Servicing Fee Rate) and to principal of the Mortgage Loan shall be applied
as follows: first, to reimburse the applicable Servicer or any Subservicer
for
any related unreimbursed Servicing Advances in accordance with Section 3.11
or
3.17, and second, to the Trustee in accordance with the provisions of Section
4.02, subject to Section 3.17(f) with respect to certain excess recoveries
from
an REO Disposition.
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event a Servicer has
received actual notice of, or has actual knowledge of the presence of, hazardous
or toxic substances or wastes on the related Mortgaged Property, or if the
Trustee otherwise requests, such Servicer shall cause an environmental
inspection or review of such Mortgaged Property to be conducted by a qualified
inspector. Upon completion of the inspection, such Servicer shall promptly
provide the Trustee and the Depositor with a written report of the environmental
inspection.
After
reviewing the environmental inspection report, the applicable Servicer shall
determine consistent with Accepted Servicing Practices how such Servicer shall
proceed with respect to the Mortgaged Property. In the event (a) the
environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes and (b) the applicable
Servicer determines, consistent with Accepted Servicing Practices, to proceed
with foreclosure or acceptance of a deed in lieu of foreclosure, 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 3.11. In the event the applicable
Servicer determines not to proceed with foreclosure or acceptance of a deed
in
lieu of foreclosure, such Servicer shall be reimbursed from general collections
for all Servicing Advances made with respect to the related Mortgaged Property
from the related Collection Account pursuant to Section 3.11. The Trustee shall
not be responsible for any determination made by the applicable Servicer
pursuant to this paragraph or otherwise.
In
the
event either Servicer elects to charge-off a Second Lien Mortgage Loan 180
days
or more delinquent pursuant to this Section 3.15, no Second Lien Mortgage Loan
shall be characterized as a Liquidated Mortgage Loan, unless the Depositor
consents in writing to such characterization after such Servicer has provided
the Depositor with a combined equity analysis of such Second Lien Mortgage
Loan
and the related first lien mortgage loan; provided, that if the Depositor has
failed to notify the applicable Servicer within 3 Business Days of receipt
of
such combined equity analysis, then the Depositor shall be deemed to have
consented to such characterization. In the event either Servicer elects to
charge off a Second Lien Mortgage Loan 180 days or more delinquent pursuant
to
this Section 3.15, such Servicer shall notify the Trustee of such election,
which notice may be provided in a Servicer Remittance Report delivered pursuant
to Section 4.03(d).
Section
3.16 Release
of Mortgage Files.
(a) Upon
the payment in full of any Mortgage Loan, or the receipt by a Servicer of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, such Servicer will, on or before the last day of the month in
which such payment in full occurs, notify the Trustee by a certification (which
certification shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the related Collection Account pursuant to Section 3.10 have been
or will be so deposited) of a Servicing Officer and shall request delivery
to it
of the Custodial File by submitting a Request for Release (in writing or an
electronic format acceptable to the Trustee) to the Trustee. Upon receipt of
such certification and Request for Release, the Trustee shall promptly release
the related Custodial File to such Servicer within three (3) Business Days.
No
expenses incurred in connection with any instrument of satisfaction or deed
of
reconveyance shall be chargeable to the related Collection Account or to the
Trustee.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any Insurance Policy
relating to the Mortgage Loans, the Trustee shall, upon request of such Servicer
and delivery to the Trustee of a Request for Release in written or electronic
form, release the related Custodial File to such Servicer, and the Trustee
shall, at the direction of such Servicer, execute such documents as shall be
necessary to the prosecution of any such proceedings and such Servicer shall
retain the Mortgage File in trust for the benefit of the Trustee. Such Request
for Release shall obligate the applicable Servicer to return each and every
document previously requested from the Custodial File to the Trustee when the
need therefor by such Servicer no longer exists, unless the Mortgage Loan has
been charged-off or liquidated and the Liquidation Proceeds relating to the
Mortgage Loan have been deposited in the related Collection Account or the
Mortgage File or such document has been delivered to an attorney, or to a public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non- judicially, and such Servicer
has
delivered to the Trustee a certificate of a Servicing Officer certifying as
to
the name and address of the Person to which such Mortgage File or such document
was delivered and the purpose or purposes of such delivery. Upon receipt of
a
certificate of a Servicing Officer stating that such Mortgage Loan was charged
-off or liquidated and that all amounts received or to be received in connection
with such liquidation that are required to be deposited into the related
Collection Account have been so deposited, or that such Mortgage Loan has become
an REO Property, a copy of the Request for Release shall be released by the
Trustee to the applicable Servicer or its designee upon request therefor. Upon
receipt of a Request for Release under this Section 3.16, the Trustee shall
deliver the related Custodial File to the requesting Servicer (at such
Servicer’s expense); provided, however, that in the event a Servicer has not
previously received copies of the relevant Mortgage Loan Documents necessary
to
service the related Mortgage Loan in accordance with Accepted Servicing
Practices, the Responsible Party shall reimburse the Trustee for any overnight
courier charges incurred for the requested Custodial Files.
Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the applicable Servicer copies of any court pleadings, requests
for
trustee’s sale or other documents reasonably necessary to the foreclosure or
trustee’s sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or
to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or
in
equity, or shall exercise and deliver to such Servicer a power of attorney
sufficient to authorize such Servicer to execute such documents on its behalf.
Each such certification shall include a request that such pleadings or documents
be executed by the Trustee and a statement as to the reason such documents
or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee’s sale.
Section
3.17 Title,
Conservation and Disposition of REO Property.
(a) This
Section shall apply only to REO Properties acquired for the account of the
Trustee and shall not apply to any REO Property relating to a Mortgage Loan
which was purchased or repurchased from the Trustee pursuant to any provision
hereof. In the event that title to any such REO Property is acquired, the
applicable Servicer shall cause the deed or certificate of sale to be issued
in
the name of the Trustee, on behalf of the Certificateholders. Upon written
request by the applicable Servicer, the Trustee shall provide such Servicer
with
a power of attorney prepared by such Servicer with respect to such REO Property
in the form of Exhibit O.
(b) Each
Servicer shall manage, conserve, protect and operate each related REO Property
for the Trustee solely for the purpose of its prompt disposition and sale.
Each
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. Each Servicer shall attempt to sell the same
(and may temporarily rent the same for a period not greater than one year,
except as otherwise provided below) on such terms and conditions as such
Servicer deems to be in the best interest of the Trustee. The Trustee shall
have
no obligations with respect to any REO Dispositions.
(c) Each
Servicer shall segregate and hold all funds collected and received in connection
with the operation of any REO Property separate and apart from its own funds
and
general assets and shall deposit such funds in the related Collection
Account.
(d) Each
Servicer shall deposit net of reimbursement to such Servicer for any related
outstanding Servicing Advances and unpaid Servicing Fees provided in Section
3.11, or cause to be deposited, in no event more than two (2) Business Days
following such Servicer’s receipt thereof in the related Collection Account all
revenues received with respect to the related REO Property and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of the REO Property.
(e) Each
Servicer, upon an REO Disposition, shall be entitled to reimbursement for any
related unreimbursed Servicing Advances as well as any unpaid Servicing Fees
from proceeds received in connection with the REO Disposition, as further
provided in Section 3.11.
(f) Any
net
proceeds from an REO Disposition which are in excess of the unpaid principal
balance of the related Mortgage Loan plus all unpaid REO Imputed Interest
thereon through the date of the REO Disposition shall be retained by the
applicable Servicer as additional servicing compensation.
(g) Each
Servicer shall use its reasonable best efforts to sell, or cause its Subservicer
to sell, in accordance with Accepted Servicing Practices, any REO Property
serviced by such Servicer as soon as possible, but in no event later than the
conclusion of the third calendar year beginning after the year of its
acquisition by REMIC I unless (i) such Servicer applies for and receives an
extension of such period from the Internal Revenue Service pursuant to the
REMIC
Provisions and Code Section 856(e)(3), in which event such REO Property shall
be
sold within the applicable extension period, or (ii) such Servicer obtains
for
the Trustee an Opinion of Counsel, addressed to the Depositor, the Trustee
and
such Servicer, to the effect that the holding by REMIC I of such REO Property
subsequent to such period will not result in the imposition of taxes on
“prohibited transactions” as defined in Section 860F of the Code or cause any
Trust REMIC to fail to qualify as a REMIC under the REMIC Provisions or
comparable provisions of relevant state laws at any time. Each Servicer shall
manage, conserve, protect and operate each REO Property serviced by such
Servicer for the Trustee solely for the purpose of its prompt disposition and
sale in a manner which does not cause such REO Property to fail to qualify
as
“foreclosure property” within the meaning of Section 860G(a)(8) or result in the
receipt by REMIC I of any “income from non-permitted assets” within the meaning
of Section 860F(a)(2)(B) of the Code or any “net income from foreclosure
property” which is subject to taxation under Section 860G(a)(1) of the Code.
Pursuant to its efforts to sell such REO Property, the applicable Servicer
shall
either itself or through an agent selected by such Servicer protect and conserve
such REO Property in the same manner and to such extent as is customary in
the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Trustee on behalf of the
Certificateholders, rent the same, or any part thereof, as such Servicer deems
to be in the best interest of the Trustee on behalf of the Certificateholders
for the period prior to the sale of such REO Property; provided, however, that
any rent received or accrued with respect to such REO Property qualifies as
“rents from real property” as defined in Section 856(d) of the
Code.
Section
3.18 Notification
of Adjustments.
With
respect to each Adjustable Rate Mortgage Loan, the applicable Servicer shall
adjust the Mortgage Rate on the Adjustment Date and shall adjust the Scheduled
Payment on the related mortgage payment adjustment date, if applicable, in
compliance with the requirements of applicable law and the related Mortgage
and
Mortgage Note. In the event that an Index becomes unavailable or otherwise
unpublished, the related Servicer shall select a comparable alternative index
over which it has no direct control and which is readily verifiable. Each
Servicer shall execute and deliver any and all necessary notices required under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Rate and Scheduled Payment adjustments. Each Servicer shall
promptly, upon written request therefor, deliver to the Trustee such
notifications and any additional applicable data regarding such adjustments
and
the methods used to calculate and implement such adjustments. Upon the discovery
by a Servicer or the receipt of notice from the Trustee that a Servicer has
failed to adjust a Mortgage Rate or Scheduled Payment in accordance with the
terms of the related Mortgage Note, such Servicer shall deposit in the related
Collection Account from its own funds the amount of any interest loss caused
as
such interest loss occurs.
Section
3.19 Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
The
applicable Servicer shall provide, or cause any Subservicer to provide, to
the
Depositor and the Trustee, and at the request of the OTS or the FDIC and the
examiners and supervisory agents thereof, access to the documentation regarding
the Mortgage Loans in its possession required by applicable regulations of
the
OTS. Such access shall be afforded without charge, but only upon five (5)
Business Days’ prior written request and during normal business hours at the
offices of the applicable Servicer or any Subservicer. Nothing in this Section
shall derogate from the obligation of any such party to observe any applicable
law prohibiting disclosure of information regarding the Mortgagors and the
failure of any such party to provide access as provided in this Section as
a
result of such obligation shall not constitute a breach of this
Section.
Section
3.20 Documents,
Records and Funds in Possession of the Servicers to Be Held for the
Trustee.
Each
Servicer shall account fully to the Trustee for any funds received by such
Servicer or which otherwise are collected by such Servicer as Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds in respect of any Mortgage
Loan serviced by such Servicer. 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
its
Collection Account, shall be held by such 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 any Collection Account, the Distribution Account or any
Escrow Account, or any funds that otherwise are or may become due or payable
to
the Trustee for the benefit of the Certificateholders, to any claim, lien,
security interest, judgment, levy, writ of attachment or other encumbrance,
or
assert by legal action or otherwise any claim or right of 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
3.21 Servicing
Compensation.
(a) As
compensation for its activities hereunder, each Servicer shall, with respect
to
each Mortgage Loan serviced by it, be entitled to retain from deposits to its
Collection Account and from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and REO Proceeds related to such Mortgage Loan, the Servicing
Fee with respect to each Mortgage Loan (less any portion of such amounts
retained by any Subservicer). In addition, each Servicer shall be entitled
to
recover unpaid Servicing Fees out of related late collections to the extent
permitted in Section 3.11. The right to receive the Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all
of
a Servicer’s responsibilities and obligations under this Agreement; provided,
however, that each Servicer may pay from the Servicing Fee any amounts due
to a
Subservicer pursuant to a Subservicing Agreement entered into under Section
3.02.
(b) Additional
servicing compensation in the form of assumption or modification fees, late
payment charges, NSF fees, reconveyance fees and other similar fees and charges
(other than Prepayment Charges) shall be retained by a Servicer only to the
extent such fees or charges are received by such Servicer. Each Servicer shall
also be entitled pursuant to Section 3.11(a)(iv) to withdraw from the related
Collection Account, and pursuant to Section 3.07(e), to direct the Trustee
to
withdraw from the Distribution Account and remit to the applicable Servicer
(except for monies invested during the Trustee Float Period), as additional
servicing compensation, interest or other income earned on the related portions
of deposits therein. Each Servicer shall also be entitled as additional
servicing compensation, to interest or other income earned on deposits in the
related Escrow Account (to the extent permitted by law and the related Mortgage
Loan documents) in accordance with Section 3.12. Each Servicer shall also be
entitled to retain net Prepayment Interest Excess (to the extent not required
to
offset Prepayment Interest Shortfalls), but only to the extent such amounts
are
received by such Servicer.
(c) Each
Servicer shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder (including payment of premiums for any
blanket policy insuring against hazard losses pursuant to Section 3.13,
servicing compensation of the Subservicer to the extent not retained by it
and
the fees and expenses of independent accountants and any agents appointed by
such Servicer), and shall not be entitled to reimbursement therefor from the
Trust Fund except as specifically provided in Section 3.11.
Section
3.22 Annual
Statement as to Compliance.
Each
Servicer shall deliver or cause to be delivered, and shall cause each
Subservicer engaged by such Servicer to deliver or cause to be delivered to
the
Trustee (and the Trustee shall deliver or otherwise make available to the
Depositor and the Rating Agencies) on or before March 5th of each calendar
year
(or March 15th in the case of Saxon) commencing in 2008, an Officer’s
Certificate stating, as to each signatory thereof, that (i) a review of the
activities of such Servicer or Subservicer, as applicable, during the preceding
calendar year and of its performance under this Agreement or the applicable
Subservicing Agreement, as the case may be, has been made under such officers’
supervision, and (ii) to the best of such officers’ knowledge, based on such
review, such Servicer or Subservicer, as applicable, has fulfilled all of its
obligations under this Agreement or the applicable Subservicing Agreement,
as
the case may be, in all material respects, throughout such year, or, if there
has been a default in the fulfillment of any such obligation in any material
respect, specifying each such default known to such officers and the nature
and
status thereof. Promptly after receipt of each such Officer’s Certificate, the
Depositor shall review each such Officer’s Certificate and, if applicable,
consult with such Servicer or Subservicer as to the nature of any defaults
by
that Servicer or any related Subservicer in the fulfillment of any of such
Servicer’s or any related Subservicer’s obligations. The obligations of any
Servicer and each Subservicer under this Section apply to each Servicer and
each
Subservicer that serviced a Mortgage Loan during the applicable period, whether
or not such Servicer or such Subservicer is acting as a Servicer or a
Subservicer at the time such Officer’s Certificate is required to be delivered.
None of the Servicers or Subservicer or any Servicing Function Participant
shall
be required to cause the delivery of any Officer’s Certificate required by this
Section until March 10th in any given year so long as it has received written
confirmation from the Depositor that a Form 10-K is not required to be filed
in
respect of the Trust for the preceding calendar year.
Section
3.23 Annual
Reports on Assessment of Compliance with Servicing Criteria; Annual Independent
Public Accountants’ Attestation Report.
(a)
Not
later than March 5th of each calendar year (or March 15th in the case of Saxon)
commencing in 2008, each Servicer shall deliver, and shall cause each
Subservicer engaged by such Servicer to deliver, and the Trustee shall deliver
or otherwise make available, and each Servicer and the Trustee shall cause
each
Subcontractor utilized by such Servicer (or by any such Subservicer) or the
Trustee and determined by such Servicer or the Trustee pursuant to Section
3.02(e) to be “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB (in each case, a “Servicing Function Participant”),
to deliver, each at its own expense, to the Trustee (and the Trustee shall
make
available to the Depositor as part of the filing package forwarded to the
Depositor for review and verification) a report on an assessment of compliance
with the Servicing Criteria applicable to it that contains (A) a statement
by
such party of its responsibility for assessing compliance with the Servicing
Criteria applicable to it, (B) a statement that such party used the Servicing
Criteria to assess compliance with the Servicing Criteria, (C) such party’s
assessment of compliance with the Servicing Criteria as of and for the period
ending the end of the fiscal year covered by the Form 10-K required to be filed
pursuant to Section 8.12, including, if there has been any material instance
of
noncompliance with the Servicing Criteria, a discussion of each such failure
and
the nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such Person’s assessment of
compliance with the Servicing Criteria as of and for such period. Each such
assessment of compliance report shall be addressed to the Depositor and signed
by an authorized officer of the applicable company, and shall address each
of
the Servicing Criteria set forth on Exhibit P hereto, or as set forth in the
notification furnished to the Depositor and the Trustee pursuant to Section
3.23(c). Each Servicer and the Trustee hereby acknowledge and agree that their
respective assessments of compliance will cover the items identified on Exhibit
P hereto as being covered by such party. The parties to this Agreement
acknowledge that where a particular Servicing Criteria has multiple components,
each party’s assessment of compliance (and related attestation of compliance)
will relate only to those components that are applicable to such party. Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Servicers
or
the Trustee as to the nature of any material instance of noncompliance with
the
Servicing Criteria applicable to it (and each Subservicer or Servicing Function
Participant engaged or utilized by the applicable Servicer, such Subservicer
or
the Trustee), as the case may be. None of the Servicers, the Trustee or any
Subservicer or any Servicing Function Participant shall be required to cause
the
delivery of any such assessments until March 10th in any given
year.
(b) Not
later
than March 5th of each calendar year (or March 15th in the case of Saxon)
commencing in 2008, each Servicer and the Trustee shall cause, and each Servicer
shall cause each Subservicer engaged by such Servicer and each Servicer and
the
Trustee shall cause each Servicing Function Participant utilized by the Trustee
or any Servicer, as applicable (or by any Subservicer engaged by the Servicer)
to cause, each at its own expense, a registered public accounting firm (which
may also render other services to such party) and that is a member of the
American Institute of Certified Public Accountants to furnish a report to the
Trustee (and the Trustee shall make available to the Depositor as part of the
filing package forwarded to the Depositor for review and verification, with
a
copy to the Rating Agencies), to the effect that (i) it has obtained a
representation regarding certain matters from the management of such Person,
which includes an assertion that such Person has complied with the Servicing
Criteria applicable to it pursuant to Section 3.23(a) and (ii) on the basis
of
an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the PCAOB, that attests to and
reports on such Person’s assessment of compliance with the Servicing Criteria
applicable to it. In the event that an overall opinion cannot be expressed,
such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Each such related accountant’s attestation report
shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation
S-X
under the Securities Act and the Exchange Act. Such report must be available
for
general use and not contain restricted use language. Promptly after receipt
of
each such accountants’ attestation report, the Depositor shall review the report
and, if applicable, consult with the applicable Servicer or the Trustee as
to
the nature of any defaults by such Servicer or the Trustee (and each Subservicer
or Servicing Function Participant engaged or utilized by such Servicer, the
Trustee or by any Subservicer engaged by such Servicer), as the case may be,
in
the fulfillment of any of the Servicers’, the Trustee’s, any of the applicable
Subservicer’s or Servicing Function Participant’s obligations hereunder or under
any applicable sub-servicing agreement. None of the Servicers, the Trustee
or
any Servicing Function Participant shall be required to cause the delivery
of
any such attestation required by this paragraph until March 10th in any given
year.
(c) Promptly
upon written request from the Depositor, each Servicer shall notify the Trustee
and the Depositor as to the name of each Subservicer engaged by such Servicer
and each Servicing Function Participant utilized by such Servicer and by each
Subservicer engaged by such Servicer, but only to the extent there has been
a
change in the information in such notification from notices previously delivered
and the Trustee shall notify the Depositor as to the name of each Servicing
Function Participant utilized by it, and each such notice will specify what
specific Servicing Criteria will be addressed in the report on assessment of
compliance prepared by such Subservicer and Servicing Function Participant
in
each case, to the extent of any change from the prior year’s notice, if any.
When a Servicer or the Trustee submits its assessment pursuant to Section
3.23(a), such Servicer and the Trustee, as applicable, will also at such time
include the assessment (and related attestation pursuant to Section 3.23(b))
of
each Servicing Function Participant utilized by it and by each Subservicer
engaged by it.
(d) The
obligations of the Trustee, the Servicers or Subservicer under this Section
apply to the Trustee, and the Servicers and Subservicer that serviced a Mortgage
Loan during the applicable period, whether or not such Trustee, Servicer or
Subservicer is acting as Trustee, Servicer or Subservicer, as applicable, at
the
time such assessment of compliance with Servicing Criteria and related
accountant’s attestation is required to be delivered.
Section
3.24 Trustee
to Act as Servicer.
(a) Subject
to Section 7.02, 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 predecessor servicer pursuant
to Section 3.10 or any acts or omissions of such predecessor servicer
hereunder), (ii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder, including but not limited to repurchases or
substitutions pursuant to Section 2.03, (iii) responsible for expenses of such
predecessor servicer pursuant to Section 2.03 or (iv) deemed to have made any
representations and warranties of such Servicer hereunder. Any such assumption
shall be subject to Section 7.02.
(b) Every
Subservicing Agreement entered into by a Servicer shall contain a provision
giving the successor servicer the option to terminate such agreement in the
event a successor servicer is appointed.
(c) If
any
Servicer shall for any reason no longer be a Servicer (including by reason
of
any Event of Default), the Trustee (or any other successor servicer) may, at
its
option, succeed to any rights and obligations of such Servicer under any
Subservicing Agreement in accordance with the terms thereof; provided that
the
Trustee (or any other successor servicer) shall not incur any liability or
have
any obligations in its capacity as successor servicer under a Subservicing
Agreement arising prior to the date of such succession unless it expressly
elects to succeed to the rights and obligations of such Servicer thereunder;
and
such Servicer shall not thereby be relieved of any liability or obligations
under the Subservicing Agreement arising prior to the date of such
succession.
(d) The
applicable 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 (if any) to which it is party and the Mortgage
Loans then being serviced thereunder and an accounting of amounts collected
and
held by it and otherwise use its best efforts to effect the orderly and
efficient transfer of such Subservicing Agreement to the assuming
party.
Section
3.25 Compensating
Interest.
Each
Servicer shall remit to the Trustee on each Remittance Date for deposit in
the
Distribution Account an amount from its own funds equal to the Compensating
Interest payable by such Servicer for the related Distribution
Date.
Section
3.26 Credit
Reporting; Xxxxx-Xxxxx-Xxxxxx Act.
(a) With
respect to each Mortgage Loan, each Servicer agrees to fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on its
borrower credit files to Equifax, Experian and TransUnion Credit Information
Company (three of the credit repositories), on a monthly basis.
(b) Each
Servicer shall comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 and
all
applicable regulations promulgated thereunder, relating to the Mortgage Loans
required to be serviced by it and the related borrowers and shall provide all
required notices thereunder.
Section
3.27 Optional
Purchase of Delinquent Mortgage Loans.
Each
Servicer (or its assignee), in its sole discretion, shall have the option,
but
shall not be obligated, to purchase any 90+ Day Delinquent Mortgage Loans from
the Trust Fund. Such Servicer shall not use any procedure in selecting Mortgage
Loans to be repurchased which is materially adverse to the interests of the
Certificateholders. The purchase price for any such Mortgage Loan shall be
100%
of the unpaid principal balance of such Mortgage Loan plus accrued and unpaid
interest on the related Mortgage Loan at the applicable Mortgage Interest Rate,
plus the amount of any unreimbursed Servicing Advances made by the applicable
Servicer. Upon receipt of such purchase price, the applicable Servicer shall
provide to the Trustee a Request for Release and the Trustee shall promptly
release to such Servicer the Mortgage File relating to the Mortgage Loan being
purchased. In
addition, the applicable Servicer agrees to exercise the option set forth in
this Section 3.27 at the request of the Holder of the Class X-IO Certificates
(so long as such Holder is not the Depositor or an Affiliate of the
Depositor) or, if the Class X-IO Certificates have been pledged to secure debt
issued under an indenture, the majority equity holder in such transaction (so
long as such equity holder is not the Depositor or an Affiliate of the
Depositor).
ARTICLE
IV
DISTRIBUTIONS
AND
ADVANCES
BY THE SERVICERS
Section
4.01 Advances.
(a) The
amount of P&I Advances to be made by each Servicer for any Remittance Date
shall equal, subject to Section 4.01(c), the sum of (i) the aggregate amount
of
Scheduled Payments (with each interest portion thereof net of the related
Servicing Fee), due during the Due Period immediately preceding such Remittance
Date in respect of the Mortgage Loans serviced by such Servicer, which Scheduled
Payments were not received as of the close of business on the related
Determination Date (provided, however, that with respect to any Balloon Loan
that is delinquent on its maturity date, the applicable Servicer will not be
required to advance the principal portion of the related balloon payment but
will be required to continue to make P&I Advances in accordance with this
Section 4.01(a) with respect to such Balloon Loan in an amount equal to the
assumed scheduled interest that would otherwise be due based on the original
amortization schedule for such Balloon Loan (with interest at the Adjusted
Net
Mortgage Rate)), plus (ii) with respect to each REO Property serviced by such
Servicer, which REO Property was acquired during or prior to the related
Prepayment Period and as to which such REO Property an REO Disposition did
not
occur during the related Prepayment Period, an amount equal to the excess,
if
any, of the Scheduled Payments (with each interest portion thereof net of the
related Servicing Fee) that would have been due on the related Due Date in
respect of the related Mortgage Loans, over the net income from such REO
Property transferred to the related Collection Account for distribution on
such
Remittance Date.
(b) On
each
Remittance Date, each Servicer shall remit in immediately available funds to
the
Trustee an amount equal to the aggregate amount of P&I Advances, if any, to
be made in respect of the Mortgage Loans and REO Properties serviced by such
Servicer for the related Remittance Date either (i) from its own funds or (ii)
from the related Collection Account, to the extent of funds held therein for
future distribution (in which case, it will cause to be made an appropriate
entry in the records of the related Collection Account that Amounts Held for
Future Distribution have been, as permitted by this Section 4.01, used by such
Servicer in discharge of any such P&I Advance) or (iii) in the form of any
combination of (i) and (ii) aggregating the total amount of P&I Advances to
be made by such Servicer with respect to such Mortgage Loans and REO Properties.
Any Amounts Held for Future Distribution and so used shall be appropriately
reflected in such Servicer’s records and replaced by such Servicer by deposit in
the related Collection Account on or before any future Remittance Date to the
extent required.
(c) The
obligation of each Servicer to make such P&I Advances is mandatory,
notwithstanding any other provision of this Agreement but subject to paragraph
(d) below, and, with respect to any Mortgage Loan or REO Property, shall
continue until a Final Recovery Determination in connection therewith or the
removal thereof from coverage under this Agreement, except as otherwise provided
in this Section.
(d) Notwithstanding
anything herein to the contrary, no P&I Advance or Servicing Advance shall
be required to be made hereunder by any Servicer if such P&I Advance or
Servicing Advance would, if made, constitute a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. The determination by any Servicer that it
has
made a Nonrecoverable P&I Advance or a Nonrecoverable Servicing Advance or
that any proposed P&I Advance or Servicing Advance, if made, would
constitute a Nonrecoverable P&I Advance or a Nonrecoverable Servicing
Advance, respectively, shall be evidenced by an Officer’s Certificate of such
Servicer delivered to the Trustee.
(e) Except
as
otherwise provided herein, the applicable Servicer shall be entitled to
reimbursement pursuant to Section 3.11 for Servicing Advances from
recoveries from the related Mortgagor or from all Liquidation Proceeds and
other
payments or recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the related Mortgage Loan.
Section
4.02 Priorities
of Distribution.
(a) On
each Distribution Date, the Trustee shall allocate from amounts then on deposit
in the Distribution Account in the following order of priority and to the extent
of the Available Funds (including for this purpose any Senior Defaulted Swap
Termination Payment to the extent received from a replacement swap provider)
remaining and, on such Distribution Date, shall make distributions on the
Certificates in accordance with such allocation:
(i) to
the
holders of each Class of Offered Certificates and to the Swap Account in the
following order of priority:
(A) to
the
Swap Account, the sum of (x) all Net Swap Payments and (y) any Swap Termination
Payment owed to the Swap Provider (to the extent a Replacement Swap Provider
Payment has not been previously paid to the Swap Provider by the Trust), other
than any Defaulted Swap Termination Payments;
(B) [from
the
Interest Remittance Amounts for both Loan Groups, to the Class A-1, Class A-2a,
Class A-2b, Class A-2c and Class A-2d Certificates, the related Accrued
Certificate Interest Distribution Amounts and any related Unpaid Interest
Amounts for such Distribution Date pursuant to the allocation set forth in
clauses (iv) and (v) of this Section 4.02(a);]
(C) from
any
remaining Interest Remittance Amounts, to the Class M-1 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class on such
Distribution Date;
(D) from
any
remaining Interest Remittance Amounts, to the Class M-2 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class on such
Distribution Date;
(E) from
any
remaining Interest Remittance Amounts, to the Class M-3 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class on such
Distribution Date;
(F) from
any
remaining Interest Remittance Amounts, to the Class M-4 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class on such
Distribution Date;
(G) from
any
remaining Interest Remittance Amounts, to the Class M-5 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class on such
Distribution Date;
(H) from
any
remaining Interest Remittance Amounts, to the Class M-6 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class on such
Distribution Date;
(I) from
any
remaining Interest Remittance Amounts, to the Class B-1 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class on such
Distribution Date;
(J) from
any
remaining Interest Remittance Amounts, to the Class B-2 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class on such
Distribution Date;
(K) from
any
remaining Interest Remittance Amounts, to the Class B-3 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class on such
Distribution Date; and
(L) from
any
remaining Interest Remittance Amounts, to the Class B-4 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class on such
Distribution Date;
(ii) (A)on
each
Distribution Date (1) before the Stepdown Date or (2) with respect to
which a Trigger Event is in effect, to the holders of the related Class or
Classes of Offered Certificates then entitled to distributions of principal
as
set forth below, from amounts remaining on deposit in the Distribution Account
after making distributions pursuant to clause (i) above, an amount
equal to the Principal Distribution Amount in the following order of
priority:
(1) to
the
Class A Certificates, allocated as described in Sections 4.02(c) and (d), until
the respective Class Certificate Balances thereof are reduced to zero;
and
(2) sequentially
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, in that order, until the respective Class Certificate Balances
are
reduced to zero;
(B) on
each
Distribution Date (1) on and after the Stepdown Date and (2) as long
as a Trigger Event is not in effect, to the holders of the related Class or
Classes of Offered Certificates then entitled to distribution of principal,
from
amounts remaining on deposit in the Distribution Account after making
distributions pursuant to clause (i) above, an amount equal to, in the
aggregate, the Principal Distribution Amount in the following amounts and order
of priority:
(1) to
the
Class A Certificates, the lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount, allocated as described in
Sections 4.02(c) and (d), until the respective Class Certificate Balances
thereof are reduced to zero;
(2) to
the
Class M-1 Certificates, the lesser of (x) the excess of (i) the
Principal Distribution Amount over (ii) the amount distributed to the
Class A Certificateholders in clause (ii)(B)(a) above and
(y) the Class M-1 Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(3) to
the
Class M-2 Certificates, the lesser of (x) the excess of (i) the
Principal Distribution Amount over (ii) the amount distributed to the
Class A Certificateholders in clause (ii)(B)(a) above and to the
Class M-1 Certificates in clause (ii)(B)(b) above and
(y) the Class M-2 Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(4) to
the
Class M-3 Certificates, the lesser of (x) the excess of (i) the
Principal Distribution Amount over (ii) the amount distributed to the
Class A Certificateholders in clause (ii)(B)(a) above, to the
Class M-1 Certificates in clause (ii)(B)(b) above and to the
Class M-2 Certificates in clause (ii)(B)(c) above and
(y) the Class M-3 Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(5) to
the
Class M-4 Certificates, the lesser of (x) the excess of (i) the
Principal Distribution Amount over (ii) the amount distributed to the
Class A Certificateholders in clause (ii)(B)(a) above, to the
Class M-1 Certificates in clause (ii)(B)(b) above, to the
Class M-2 Certificates in clause (ii)(B)(c) above and to the
Class M-3 Certificates in clause (ii)(B)(d) above and (y) the
Class M-4 Principal Distribution Amount, until the Class Certificate
Balance thereof has been reduced to zero;
(6) to
the
Class M-5 Certificates, the lesser of (x) the excess of (i) the
Principal Distribution Amount over (ii) the amount distributed to the
Class A Certificateholders in clause (ii)(B)(a) above, to the
Class M-1 Certificates in clause (ii)(B)(b) above, to the
Class M-2 Certificates in clause (ii)(B)(c) above, to the
Class M-3 Certificates in clause (ii)(B)(d) above and to the
Class M-4 Certificates in clause (ii)(B)(e) above and (y) the
Class M-5 Principal Distribution Amount, until the Class Certificate
Balance thereof has been reduced to zero;
(7) to
the
Class M-6 Certificates, the lesser of (x) the excess of (i) the
Principal Distribution Amount over (ii) the amount distributed to the
Class A Certificateholders in clause (ii)(B)(a) above, to the
Class M-1 Certificates in clause (ii)(B)(b) above, to the
Class M-2 Certificates in clause (ii)(B)(c) above, to the
Class M-3 Certificates in clause (ii)(B)(d) above, to the
Class M-4 Certificates in clause (ii)(B)(e) above and to the
Class M-5 Certificates in clause (ii)(B)(f) above and (y) the
Class M-6 Principal Distribution Amount, until the Class Certificate
Balance thereof has been reduced to zero;
(8) to
the
Class B-1 Certificates, the lesser of (x) the excess of (i) the
Principal Distribution Amount over (ii) the amount distributed to the
Class A Certificateholders in clause (ii)(B)(a) above, to the
Class M-1 Certificates in clause (ii)(B)(b) above, to the
Class M-2 Certificates in clause (ii)(B)(c) above, to the
Class M-3 Certificates in clause (ii)(B)(d) above, to the
Class M-4 Certificates in clause (ii)(B)(e) above, to the
Class M-5 Certificates in clause (ii)(B)(f) above and to the
Class M-6 Certificates in clause (ii)(B)(g) above and (y) the
Class B-1 Principal Distribution Amount, until the Class Certificate
Balance thereof has been reduced to zero;
(9) to
the
Class B-2 Certificates, the lesser of (x) the excess of (i) the
Principal Distribution Amount over (ii) the amount distributed to the
Class A Certificateholders in clause (ii)(B)(a) above, to the
Class M-1 Certificates in clause (ii)(B)(b) above, to the
Class M-2 Certificates in clause (ii)(B)(c) above, to the
Class M-3 Certificates in clause (ii)(B)(d) above, to the
Class M-4 Certificates in clause (ii)(B)(e) above, to the
Class M-5 Certificates in clause (ii)(B)(f) above, to the
Class M-6 Certificates in clause (ii)(B)(g) above and to the
Class B-1 Certificates in clause (ii)(B)(h) above and (y) the
Class B-2 Principal Distribution Amount, until the Class Certificate
Balance thereof has been reduced to zero;
(10) to
the
Class B-3 Certificates, the lesser of (x) the excess of (i) the
Principal Distribution Amount over (ii) the amount distributed to the
Class A Certificateholders in clause (ii)(B)(a) above, to the
Class M-1 Certificates in clause (ii)(B)(b) above, to the
Class M-2 Certificates in clause (ii)(B)(c) above, to the
Class M-3 Certificates in clause (ii)(B)(d) above, to the
Class M-4 Certificates in clause (ii)(B)(e) above, to the
Class M-5 Certificates in clause (ii)(B)(f) above, to the
Class M-6 Certificates in clause (ii)(B)(g) above, to the
Class B-1 Certificates in clause (ii)(B)(h) above and to the
Class B-2 Certificates in clause (ii)(B)(i) above and
(y) the Class B-3 Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero; and
(11) to
the
Class B-4 Certificates, the lesser of (x) the excess of (i) the
Principal Distribution Amount over (ii) the amount distributed to the
Class A Certificateholders in clause (ii)(B)(a) above, to the
Class M-1 Certificates in clause (ii)(B)(b) above, to the
Class M-2 Certificates in clause (ii)(B)(c) above, to the
Class M-3 Certificates in clause (ii)(B)(d) above, to the
Class M-4 Certificates in clause (ii)(B)(e) above, to the
Class M-5 Certificates in clause (ii)(B)(f) above, to the
Class M-6 Certificates in clause (ii)(B)(g) above, to the
Class B-1 Certificates in clause (ii)(B)(h) above, to the
Class B-2 Certificates in clause (ii)(B)(i) above and to the
Class B-3 Certificates in clause (ii)(B)(j) above and
(y) the Class B-4 Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(iii) any
amount remaining after the distributions in clauses (i) and
(ii) above, plus as specifically indicated below, from amounts on deposit
in the Excess Reserve Fund Account, shall be distributed in the following order
of priority:
(A) to
the
Class M-1 Certificates, any Unpaid Interest Amount for such
Class;
(B) to
the
Class M-1 Certificates, any Unpaid Realized Loss Amount for such
Class;
(C) to
the
Class M-2 Certificates, any Unpaid Interest Amount for such
Class;
(D) to
the
Class M-2 Certificates, any Unpaid Realized Loss Amount for such
Class;
(E) to
the
Class M-3 Certificates, any Unpaid Interest Amount for such
Class;
(F) to
the
Class M-3 Certificates, any Unpaid Realized Loss Amount for such
Class;
(G) to
the
Class M-4 Certificates, any Unpaid Interest Amount for such
Class;
(H) to
the
Class M-4 Certificates, any Unpaid Realized Loss Amount for such
Class;
(I) to
the
Class M-5 Certificates, any Unpaid Interest Amount for such
Class;
(J) to
the
Class M-5 Certificates, any Unpaid Realized Loss Amount for such
Class;
(K) to
the
Class M-6 Certificates, any Unpaid Interest Amount for such
Class;
(L) to
the
Class M-6 Certificates, any Unpaid Realized Loss Amount for such
Class;
(M) to
the
Class B-1 Certificates, any Unpaid Interest Amount for such
Class;
(N) to
the
Class B-1 Certificates, any Unpaid Realized Loss Amount for such
Class;
(O) to
the
Class B-2 Certificates, any Unpaid Interest Amount for such
Class;
(P) to
the
Class B-2 Certificates, any Unpaid Realized Loss Amount for such
Class;
(Q) to
the
Class B-3 Certificates, any Unpaid Interest Amount for such
Class;
(R) to
the
Class B-3 Certificates, any Unpaid Realized Loss Amount for such
Class;
(S) to
the
Class B-4 Certificates, any Unpaid Interest Amount for such
Class;
(T) to
the
Class B-4 Certificates, any Unpaid Realized Loss Amount for such
Class;
(U) to
the
Excess Reserve Fund Account, the amount of any Basis Risk Payment (without
regard to Net Swap Receipts) for such Distribution Date;
(V) from
any
Interest Rate Cap Payment on deposit in the Excess Reserve Fund Account with
respect to such Distribution Date, an amount equal to any unpaid Basis Risk
CarryForward Amount with respect to the Offered Certificates for that
Distribution Date, allocated (a) first, among those classes of certificates,
pro
rata,
based
upon their respective Class Certificate Balances and (b) second, any remaining
amounts allocated among those classes of certificates, pro
rata,
based
on any Basis Risk CarryForward Amounts remaining unpaid, in order to reimburse
such amounts;
(W) from
funds on deposit in the Excess Reserve Fund Account (not including any Interest
Rate Cap Payment included in that account) with respect to such Distribution
Date, an amount equal to any remaining Basis Risk CarryForward Amount with
respect to the Offered Certificates for such Distribution Date, allocated to
the
Offered Certificates in the same order and priority in which the Accrued
Certificate Interest Distribution Amount is allocated among such Classes of
Certificates, with the allocation to the Class A Certificates being
(a) first, among the Class A Certificates, pro
rata,
based
on their respective Class Certificate Balances and (b) second, any
remaining amounts to the Class A Certificates, pro
rata,
based
on any Basis Risk CarryForward Amounts remaining unpaid, in order to reimburse
such unpaid amounts;
(X) to
the
Swap Account, the amount of any remaining Defaulted Swap Termination Payment
owed to the Swap Provider;
(Y) to
the
Class X Certificates, the remainder of the Class X Distributable
Amount not distributed pursuant to Sections 4.02(a)(iii)(A)-(U);
and
(Z) if
such
Distribution Date follows the Prepayment Period during which occurs the latest
date on which a Prepayment Charge may be required to be paid in respect of
any
Mortgage Loan, to the Class P Certificates, in reduction of the Class
Certificate Balance thereof; and
(AA) to
the
Residual Certificates, any remaining amount in the Trust REMICs.
(iv) Solely
for purposes of interest allocation calculations, the Interest Remittance Amount
attributable to Group I Mortgage Loans will be allocated:
(1) first,
to
the Class A-1 Certificates, the Accrued Certificate Interest Distribution Amount
and any Unpaid Interest Amount for the Class A-1 Certificates; and
(2) second,
concurrently, to the Class A-2a, Class A-2b, Class A-2c, and Class A-2d
Certificates, pro
rata
(based
on the amounts distributable or payable under Section 4.02(a)(i)(B) to such
Classes of Certificates), the Accrued Certificate Interest Distribution Amount
and any Unpaid Interest Amount for the Class A-2a, Class A-2b, Class A-2c and
Class A-2d Certificates, respectively, to the extent not otherwise previously
paid from the Interest Remittance Amount attributable to Group II Mortgage
Loans.
(v) Solely
for purposes of interest allocation calculations, the Interest Remittance Amount
attributable to Group II Mortgage Loans will be allocated:
(1) first,
concurrently, to the Class A-2a, Class A-2b, Class A-2c and Class A-2d
Certificates, pro
rata
(based
on the amounts distributable or payable under Section 4.02(a)(i)(B) to such
Classes of Certificates), the Accrued Certificate Interest Distribution Amount
and any Unpaid Interest Amount for the Class A-2a, Class A-2b, Class A-2c and
Class A-2d Certificates, respectively; and
(2) second,
to the Class A-1 Certificates, the Accrued Certificate Interest Distribution
Amount and any Unpaid Interest Amount for the Class A-1 Certificates, to the
extent not otherwise previously paid from the Interest Remittance Amount
attributable to Group I Mortgage Loans
If
on any
Distribution Date, as a result of the foregoing allocation rules, any Class
of
Class A Certificates does not receive in full the related Accrued
Certificate Interest Distribution Amount or the related Unpaid Interest Amount,
if any, then such shortfall will be allocated to the Holders of such Class,
with
interest thereon, on future Distribution Dates, as an Unpaid Interest Amount,
subject to the priorities described above.
(b) On
each
Distribution Date, prior to any distributions on any other Class of
Certificates, all amounts representing Prepayment Charges from the Mortgage
Loans received during the related Prepayment Period shall be distributed by
the
Trustee to the holders of the Class P Certificates.
(c) All
principal distributions to the Holders of the Class A Certificates on any
Distribution Date shall be allocated concurrently between the Group I Class
A
Certificates, on the one hand, and the Group II Class A Certificates, on the
other hand, on a pro
rata
basis,
based on the Class A Principal Allocation Percentage for the Group I Class
A
Certificates and the Group II Class A Certificates, as applicable, for such
Distribution Date; provided, however, that if the Class Certificate Balances
of
the Class A Certificates in either Class A Certificate Group are reduced to
zero, then the remaining amount of principal distributions distributable to
the
Class A Certificates on such Distribution Date, and the amount of such principal
distributions distributable on all subsequent Distribution Dates, shall be
distributed to the holders of the Class A Certificates in the other Class A
Certificate Group remaining Outstanding, in accordance with the principal
distribution allocations described in this Section 4.02(c), until their
respective Class Certificate Balances have been reduced to zero. Any
distributions of principal to the Group I Class A Certificates shall be made
first from Available Funds relating to the Group I Mortgage Loans, and any
distributions of principal to the Group II Class A Certificates shall be made
first from Available Funds relating to the Group II Mortgage Loans.
(d) Any
principal distributions allocated to the Group II Class A Certificates shall
be
allocated sequentially to the Class A-2a, Class A-2b, Class A-2c and Class
A-2d
Certificates, in that order`, until their respective Class Certificate Balance
has been reduced to zero. Notwithstanding the foregoing, on and after the
Distribution Date on which the aggregate Class Certificate Balances of the
Subordinated Certificates and the principal balance of the Class X Certificates
have been reduced to zero, any principal distributions allocated to the Group
II
Class A Certificates shall be allocated pro
rata
among
the Classes of Group II Class A Certificates, based on their respective Class
Certificate Balances, until their respective Class Certificate Balances have
been reduced to zero.
(e) On
any
Distribution Date, any Relief Act Shortfalls and Net Prepayment Interest
Shortfalls for such Distribution Date shall be allocated by the Trustee as
a
reduction in the following order:
|
(1)
|
first,
to the portion of the Class X Distributable Amount allocable to interest;
and
|
|
(2)
|
second,
pro
rata,
as a reduction of the Accrued Certificate Interest Distribution Amount
for
the Class A, Class M and Class B Certificates, based on the
amount of interest to which such Classes would otherwise be
entitled.
|
Notwithstanding
any other provision of this Agreement, the Trustee shall comply with all federal
withholding requirements respecting payments made or received under the Interest
Rate Swap Agreement and the Interest Rate Cap Agreement and payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments
or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
For
purposes of this Agreement, any Net Swap Payments or Swap Termination Payments
(other than Defaulted Swap Termination Payments) shall be allocated by the
Trustee between Loan Groups based on the respective aggregate Stated Principal
Balance of the Mortgage Loans in each Loan Group.
Section
4.03 Monthly
Statements to Certificateholders.
(a) Not
later than each Distribution Date, the Trustee shall make available to each
Certificateholder, the Servicers, the Depositor and each Rating Agency a
statement setting forth with respect to the related distribution:
(i) the
actual Distribution Date, the related Record Date, the Interest Accrual
Period(s) for each Class for such Distribution Date and the LIBOR Determination
Date for such Interest Accrual Period;
(ii) the
amount of Available Funds;
(iii) the
amount of Available Funds allocable to principal, the Principal Remittance
Amount (separately identifying the components thereof) and the Principal
Distribution Amount (separately identifying the components
thereof);
(iv) the
amount of Available Funds allocable to interest and each Interest Remittance
Amount;
(v) the
amount of any Unpaid Interest Amount for each Class included in such
distribution and any remaining Unpaid Interest Amounts after giving effect
to
such distribution, any Basis Risk CarryForward Amount for each Class and the
amount of such Basis Risk CarryForward Amount covered by withdrawals from the
Excess Reserve Fund Account on such Distribution Date;
(vi) if
the
distribution to the Holders of such Class of Certificates is less than the
full
amount that would be distributable to such Holders if there were sufficient
funds available therefor, the amount of the shortfall and the allocation of
the
shortfall as between principal and interest, including any Basis Risk
CarryForward Amount not covered by amounts in the Excess Reserve Fund
Account;
(vii) the
Class
Certificate Balance of each Class of Certificates before and after giving effect
to the distribution of principal on such Distribution Date;
(viii) the
Pool
Stated Principal Balance for the related Distribution Date;
(ix) the
amount of the Expense Fees paid to or retained by the Servicers and the Trustee
(stated separately and in the aggregate) with respect to such Distribution
Date;
(x) the
Pass-Through Rate for each such Class of Certificates with respect to such
Distribution Date;
(xi) the
amount of P&I Advances included in the distribution on such Distribution
Date reported by the Servicers (and the Trustee as successor servicer and any
other successor servicer, if applicable) as of the close of business on the
Determination Date immediately preceding such Distribution Date;
(xii) the
number and aggregate outstanding principal balances of Mortgage Loans (1) as
to
which the Scheduled Payment is delinquent 31 to 60 days, 61 to 90 days and
91 or
more days, (2) that have become REO Property, (3) that are in foreclosure and
(4) that are in bankruptcy, in each case as of the close of business on the
last
Business Day of the immediately preceding month;
(xiii) with
respect to any Mortgage Loans that became REO Properties during the preceding
calendar month, the aggregate number of such Mortgage Loans and the aggregate
Stated Principal Balance of such Mortgage Loans as of the close of business
on
the last Business Day of the immediately preceding month;
(xiv) the
total
number and outstanding principal balance of any REO Properties (and market
value, if available) as of the close of business on the last Business Day of
the
immediately preceding month;
(xv) whether
a
Trigger Event has occurred and is continuing (separately identifying the
components of the calculation resulting in the existence of the Trigger Event
and the aggregate outstanding balance of all 60+ Day Delinquent Mortgage
Loans);
(xvi) the
amount on deposit in the Excess Reserve Fund Account (after giving effect to
distributions on such Distribution Date);
(xvii) in
the
aggregate and for each Class of Certificates, the aggregate amount of Applied
Realized Loss Amounts incurred during the preceding calendar month and aggregate
Applied Realized Loss Amounts through such Distribution Date;
(xviii) the
amount of any Net Monthly Excess Cash Flow on such Distribution Date and the
allocation of it to the Certificateholders with respect to Unpaid Interest
Amounts, Unpaid Realized Loss Amounts, and Basis Risk CarryForward
Amounts;
(xix) the
amount of any Net Swap Payments, Net Swap Receipts, Swap Termination Payments
or
Defaulted Swap Termination Payments;
(xx) the
rates
of LIBOR and Swap LIBOR, as calculated by or provided to the Trustee, as
applicable;
(xxi) the
Subordinated Amount and Specified Subordinated Amount;
(xxii) Prepayment
Charges collected or paid (pursuant to Section 3.07(a)) by the
Servicers;
(xxiii) the
Cumulative Loss Percentage and the aggregate amount of Realized Losses used
to
calculate the Cumulative Loss Percentage;
(xxiv) the
amount distributed on the Class X Certificates;
(xxv) the
amount of any Subsequent Recoveries for such Distribution Date;
(xxvi) the
number of Mortgage Loans at the beginning and end of the applicable reporting
period, the pool factor (being the Stated Principal Balance of the Mortgage
Loans for the related Distribution Date divided by the Cut-off Date Principal
Balance), and the weighted average interest rate, and weighted average remaining
term; and
(xxvii) the
Interest Rate Cap Payment, if any, for such Distribution Date.
In
addition, each Form 10-D prepared and filed by the Trustee pursuant to
Section 8.12 shall include the following information with respect to the
related distribution:
(i) material
breaches of Mortgage Loan representations and warranties under this Agreement
of
which the Trustee has actual knowledge or has received written notice;
and
(ii) material
breaches of any covenants under this Agreement of which the Trustee has actual
knowledge or has received written notice;
provided
that,
if the
Trustee receives written notice of the events described in (i) and/or (ii)
above
from any Servicer, such Servicer shall be responsible for providing information
to the Trustee for inclusion in the applicable Form 10-D.
(b) The
Trustee’s responsibility for providing the above statement to the
Certificateholders, each Rating Agency, and the Depositor is limited, if
applicable, to the availability, timeliness and accuracy of the information
derived from the Swap Provider, the Servicers and the Responsible Party. The
Trustee shall make available the above statement via the Trustee’s internet
website. The Trustee’s website will initially be located at
xxxxx://xxx.xxx.xx.xxx/xxxx and assistance in using the website can be obtained
by calling the Trustee’s investor relations desk at 0-000-000-0000. Parties that
are unable to use the website are entitled to have a paper copy mailed to them
via first class mail by calling the investor relations desk and indicating
such.
The Trustee may change the way the monthly statements to Certificateholders
are
distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Trustee shall provide timely and
adequate notification to all above parties regarding any such changes. As a
condition to access the Trustee’s internet website, the Trustee may require
registration and the acceptance of a disclaimer. The Trustee will not be liable
for the dissemination of information in accordance with this
Agreement.
The
Trustee shall make available to each Analytics Company, either electronically
or
via the Trustee’s internet website, each statement to Certificateholders
prepared pursuant to Section 4.03(b). The Trustee (and the applicable Servicer,
if such discrepancy results from or arises out of any information provided
by
the applicable Servicer pursuant to this Agreement) shall cooperate in good
faith with the Depositor to reconcile any discrepancies in such statements,
and
the Trustee shall provide any corrections to such statements to each Analytics
Company as soon as reasonably practicable after the related Distribution
Date.
The
Trustee will also be entitled to rely on but shall not be responsible for the
content or accuracy of any information provided by third parties for purposes
of
preparing the monthly statement to Certificateholders and may affix thereto
any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(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
clauses (a)(i) and (a)(ii) of this Section 4.03 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.
(d) On
the
18th
day of
each month, or if such date is not a Business Day, the next succeeding Business
Day (but in no event later than the 20th
day of
each month), each Servicer shall furnish to the Trustee, a monthly remittance
advice statement (the “Servicer
Remittance Report”)
containing the data fields set forth on Exhibit W-1 attached hereto, in the
case
of Saxon, or Exhibit W-2 attached hereto, in the case of Countrywide Servicing,
in a format mutually agreed upon by such Servicer and the Trustee and such
information as shall be reasonably requested (i) by the Depositor to enable
the
Depositor to disclose “static pool information”, as required by Item 1105 of
Regulation AB, with respect to the Mortgage Loans, and (ii) by the Trustee
to
enable the Trustee to provide the reports required by Section 4.03(a) as to
the
accompanying remittance and applicable Due Period and Prepayment Period to
which
such remittance relates.
The
Servicer Remittance Report shall, at a minimum, document, on such Determination
Date, Mortgage Loan payment activity on an individual Mortgage Loan basis,
as
follows:
(i) with
respect to each Scheduled Payment, the amount of such remittance allocable
to
principal (including a separate breakdown of any Principal Prepayment, including
the date of such prepayment, and any Prepayment Charges, received during the
related Prepayment Period along with a detailed report of interest on principal
prepayment amounts remitted in accordance with Section 3.25);
(ii) with
respect to each Scheduled Payment, the amount of such remittance allocable
to
interest;
(iii) the
amount of servicing compensation received by such Servicer during the current
distribution period;
(iv) the
individual and aggregate Stated Principal Balance of the Mortgage
Loans;
(v) the
aggregate expenses reimbursed to such Servicer during the prior distribution
period pursuant to Section 3.11; and
(vi) the
number and aggregate outstanding principal balances of Mortgage Loans (a)
delinquent 31 to 60 days, 61 to 90 days and 91 or more days; (b) as to which
foreclosure or bankruptcy proceedings of the related mortgagor have commenced;
and (c) as to which REO Property has been acquired.
The
Trustee shall promptly forward the Servicer Remittance Report and the related
supplemental statement to the Depositor.
(e) Notwithstanding
anything in Section 4.03(d) to the contrary, each Servicer shall be deemed
to
have satisfied the requirement to timely deliver the Servicer Remittance Report
if such report is received by the Trustee on or prior to the 18th calendar
day
of such month in which the related Determination Date occurs; provided, however,
that if such 18th calendar day is a Sunday or a Monday which is not a Business
Day, each Servicer shall be deemed to have satisfied the requirement to timely
deliver the Servicer Remittance Report if the Trustee and the Depositor receive
such report (i) on the next Business Day succeeding such 18th calendar day,
or
(ii) on the Business Day immediately preceding such 18th calendar day, if such
succeeding Business Day is later than the 20th calendar day of such calendar
month.
(f) For
all
purposes of this Agreement, with respect to any Mortgage Loan, delinquencies
shall be determined by the Trustee from information provided by each Servicer
and reported by the Trustee based on the OTS methodology for determining
delinquencies on mortgage loans similar to the Mortgage Loans. By way of
example, a Mortgage Loan would be delinquent with respect to a Scheduled Payment
due on a Due Date if such Scheduled Payment is not made by the close of business
on the Mortgage Loan's next succeeding Due Date, and a Mortgage Loan would
be
more than 30-days Delinquent with respect to such Scheduled Payment if such
Scheduled Payment were not made by the close of business on the Mortgage Loan’s
second succeeding Due Date. Each Servicer hereby represents and warrants to
the
Depositor that such Servicer is not subject to any delinquency recognition
policy established by the primary safety and soundness regulator, if any, of
such Servicer, that is more restrictive than the foregoing delinquency
recognition policy.
Section
4.04 Certain
Matters Relating to the Determination of LIBOR.
LIBOR
shall be calculated by the Trustee in accordance with the definition of “LIBOR”.
Until all of the Offered Certificates are paid in full, the Trustee shall at
all
times retain at least four Reference Banks for the purpose of determining LIBOR
with respect to each LIBOR Determination Date. The Trustee initially shall
designate the Reference Banks (after consultation with the Depositor). Each
“Reference
Bank”
shall
be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by, or
be
under common control with, the Trustee and shall have an established place
of
business in London. If any such Reference Bank should be unwilling or unable
to
act as such or if the Trustee should terminate its appointment as Reference
Bank, the Trustee shall promptly appoint or cause to be appointed another
Reference Bank (after consultation with the Depositor). The Trustee shall have
no liability or responsibility to any Person for (i) the selection of any
Reference Bank for purposes of determining LIBOR or (ii) any inability to
retain at least four Reference Banks which is caused by circumstances beyond
its
reasonable control.
The
Pass-Through Rate for each Class of Offered Certificates for each Interest
Accrual Period shall be determined by the Trustee on each LIBOR Determination
Date so long as the Offered Certificates are Outstanding on the basis of LIBOR
and the respective formulae appearing in footnotes corresponding to the Offered
Certificates in the table relating to the Certificates in the Preliminary
Statement. The Trustee shall not have any liability or responsibility to any
Person for its inability, following a good-faith reasonable effort, to obtain
quotations from the Reference Banks or to determine the arithmetic mean referred
to in the definition of LIBOR, all as provided for in this Section 4.04 and
the definition of LIBOR. The establishment of LIBOR and each Pass-Through Rate
for the Offered Certificates by the Trustee shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Certificate and
the Trustee.
Section
4.05 Allocation
of Applied Realized Loss Amounts.
Any
Applied Realized Loss Amounts shall be allocated by the Trustee to the most
junior Class of Subordinated Certificates then Outstanding in reduction of
the
Class Certificate Balance thereof.
Section
4.06 Swap
Account.
On the
Closing Date, there is hereby established the Supplemental Interest Trust,
into
which the Depositor shall deposit the Interest Rate Swap Agreement and the
Interest Rate Cap Agreement. The Supplemental Interest Trust shall be maintained
by the Supplemental Interest Trust Trustee. On the Closing Date, the
Supplemental Interest Trust Trustee shall establish and maintain in its name,
a
separate non-interest bearing trust account for the benefit of the holders
of
the Certificates (the “Swap
Account”)
as a
part of the Trust Fund. 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
of the Trustee held pursuant to this Agreement.
On
any
Distribution Date, Swap Termination Payments, Net Swap Payments owed to the
Swap
Provider and Net Swap Receipts for that Distribution Date will be deposited
into
the Swap Account. Funds in the Swap Account will be distributed in the following
order of priority:
(i) to
the
Swap Provider, all Net Swap Payments, if any, owed to the Swap Provider for
that
Distribution Date;
(ii) to
the
Swap Provider, any Swap Termination Payment, other than a Defaulted Swap
Termination Payment, owed to the Swap Provider for that Distribution
Date;
(iii) to
the
Class A Certificates, to pay Accrued Certificate Interest Distribution
Amounts and, if applicable, any Unpaid Interest Amounts as described in
Section 4.02(a)(i), to the extent unpaid from Available Funds;
(iv) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, in that order, to pay Accrued Certificate Interest Distribution
Amounts and, if applicable, any Unpaid Interest Amounts as described in
Section 4.02(a)(i) and Section 4.02(a)(iii), to the extent unpaid from
Available Funds;
(v) to
the
Offered Certificates, to pay principal as described and, in the same manner
and
order of priority as set forth, in Section 4.02(a)(ii)(A) or
Section 4.02(a)(ii)(B), as applicable, but only to the extent necessary to
restore the Subordinated Amount to the Specified Subordinated Amount for prior
or current Realized Losses not previously reimbursed, after giving effect to
payments and distributions from Available Funds;
(vi) to
the
Class A Certificates, to pay Basis Risk CarryForward Amounts, pro
rata,
based
on their Class Certificate Balances for such Distribution Date, up to the Swap
Payment Allocation for each Class of Class A Certificates and to the extent
unpaid from Available Funds (including Basis Risk Payments on deposit in the
Excess Reserve Fund Account);
(vii) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, to pay Basis Risk CarryForward Amounts, up to the Swap Payment
Allocation for each Class of Class M and Class B Certificates and to
the extent unpaid from Available Funds (including Basis Risk Payments on deposit
in the Excess Reserve Fund Account);
(viii) to
the
Offered Certificates, any remaining unpaid Basis Risk CarryForward Amount,
pro
rata,
based
on their respective remaining unpaid Basis Risk CarryForward Amount after the
allocation of payments as set forth in clauses (vi) and (vii)
above;
(ix) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, to pay any Unpaid Realized Loss Amount, to the extent unpaid
from
Available Funds;
(x) to
the
Swap Provider, any remaining Defaulted Swap Termination Payment owed to the
Swap
Provider for that Distribution Date; and
(xi) to
the
holders of the Class X Certificates, any remaining amounts.
Notwithstanding
the foregoing, in the event that the Supplemental Interest Trust receives a
Swap
Termination Payment, the Supplemental Interest Trust Trustee shall use the
Swap
Termination Payment to enter into a replacement interest rate swap agreement
as
directed by the Depositor with a successor Swap Provider (or its guarantor)
meeting the ratings requirements set forth in the Interest Rate Swap Agreement
being terminated on the same remaining terms as those in the Interest Rate
Swap
Agreement being terminated, so long as the Swap Termination Payment is
sufficient to obtain such replacement interest rate swap agreement. In the
event
that the Supplemental Interest Trust receives a Swap Termination Payment and
a
successor Swap Provider cannot be obtained, then the Supplemental Interest
Trust
Trustee shall deposit the Swap Termination Payment into the reserve account
that
is a sub-account of the Swap Account. On each subsequent Distribution Date
(so
long as funds are available in the reserve account), the Supplemental Interest
Trust Trustee shall withdraw from the reserve account and deposit into the
Swap
Account an amount equal to the amount of any Net Swap Receipt due the
Supplemental Interest Trust (calculated in accordance with the terms of the
original Interest Rate Swap Agreement) and treat such amount as a Net Swap
Receipt for purposes of determining the distributions from the Swap Account.
In
no event shall the Supplemental Interest Trust Trustee be responsible for the
selection of any successor or replacement swap provider or any shortfalls caused
by a failure to enter into a replacement interest rate swap
agreement.
Upon
termination of the Trust, any amounts remaining in the Swap Account shall be
distributed pursuant to the priorities set forth in this
Section 4.06.
In
the
event that, upon the Supplemental Interest Trust entering into a replacement
interest rate swap agreement and the Supplemental Interest Trust is entitled
to
receive a Replacement Swap Provider Payment, the Supplemental Interest Trust
Trustee shall direct the replacement swap provider to make such payment to
the
Swap Account. Notwithstanding the foregoing, any Replacement Swap Provider
Payment shall be made from the Swap Account to the Swap Provider immediately
upon receipt of such payment, regardless of whether the date of receipt thereof
is a Distribution Date. To the extent that any Replacement Swap Provider Payment
is made to an account other than the Swap Account, then any Replacement Swap
Provider Payment shall be paid to the Swap Provider immediately upon receipt
of
such Replacement Swap Provider Payment by the Trust, regardless of whether
the
date of receipt thereof is a Distribution Date and without regard to anything
to
the contrary contained in this Agreement. For the avoidance of doubt, the
parties agree that the Swap Provider shall have first priority to any
Replacement Swap Provider Payment over the payment by the Trust to
Certificateholders, the Servicers, the Responsible Party, the Trustee or any
other Person. However, to the extent any Replacement Swap Provider Payment
received from a replacement swap provider and paid to the Swap Provider being
replaced is less than the full amount of a Swap Termination Payment owed to
the
Swap Provider, any remaining amount of the Swap Termination Payment shall be
paid to the Swap Provider on the subsequent Distribution Dates in accordance
with this Section 4.06 and Section 4.02 (unless the Replacement Swap Provider
Payment is paid to the Swap Provider on a Distribution Date, in which case
such
remaining amounts will be paid on such Distribution Date).
The
beneficial owners of the Swap Account are the Class X Certificateholders. For
federal income tax purposes, Net Swap Payments and Swap Termination Payments
payable to the Swap Provider shall be deemed to be paid to the Swap Account
from
REMIC VI, first, by the REMIC VI Regular Interest Swap-IO and second, other
than
any Defaulted Swap Termination Payment, from REMIC III by the Holders of the
applicable Class or Classes of Offered Certificates (in respect of Class IO
Shortfalls) as and to the extent provided in Section 8.13.
Any
Basis
Risk CarryForward Amounts distributed by the Trustee to the Offered
Certificateholders shall be accounted for by the Trustee, for federal income
tax
purposes, as amounts paid first to the Holders of the Class X Certificates,
and then to the respective Class or Classes of Offered Certificates. In
addition, the Trustee shall account for the rights of Holders of each Class
of
Offered Certificates to receive payments of Basis Risk CarryForward Amounts
from
the Swap Account (along with Basis Risk CarryForward Amounts payable from the
Excess Reserve Fund Account) as rights in a separate limited recourse interest
rate cap contract written by the Class X Certificateholders in favor of
Holders of each such Class.
It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the Holder of the Class X Certificates unless and until
the date when either (a) there is more than one Class X Certificateholder or
(b)
any Class of Certificates in addition to the Class X Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust for
federal income tax purposes, 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 Supplemental Interest Trust be treated as a partnership. The
Supplemental Interest Trust will be an “outside reserve fund” within the meaning
of Treasury Regulation Section 1.860G-2(h) and not an asset of any Trust
REMIC.
With
respect to the failure of the Swap Provider to perform any of its obligations
under the Interest Rate Swap Agreement, the breach by the Swap Provider of
any
of its representations and warranties made pursuant to the Interest Rate Swap
Agreement, or the termination of the Interest Rate Swap Agreement, the
Supplemental Interest Trust Trustee shall send any notices and make any demands,
on behalf of the Supplemental Interest Trust as are required under the Interest
Rate Swap Agreement. To the extent that the Swap Provider fails to make any
payment required under the terms of the Interest Rate Swap Agreement, the
Supplemental Interest Trust Trustee shall immediately demand that Xxxxxx
Xxxxxxx, the guarantor of the Swap Provider’s obligations under the guarantee of
Xxxxxx Xxxxxxx relating to the Interest Rate Swap Agreement, make any and all
payments then required to be made by Xxxxxx Xxxxxxx pursuant to such guarantee.
In addition, in the event a “Delivery Amount” (as defined in the Interest Rate
Swap Agreement) was due but was not delivered by the Swap Provider as required
by the Interest Rate Swap Agreement, the Supplemental Interest Trust Trustee
shall deliver a notice of failure to transfer collateral on the next Business
Day following such failure, in accordance with the terms of the Interest Rate
Swap Agreement. The Supplemental Interest Trust Trustee shall cause any
replacement swap provider to provide a copy of the related replacement interest
rate swap agreement to the Supplemental Interest Trust Trustee and the
Depositor.
If
a
Responsible Officer of the Trustee receives written notice that the Swap
Provider or its guarantor has been downgraded below the levels set forth in
Part
5(f) of the Interest Rate Swap Agreement and the posting of collateral is
required in accordance with the terms of Part 5(f) of the Interest Rate Swap
Agreement, the Trustee shall demand that the Swap Provider or its guarantor
post
collateral in accordance with the terms of Part 5(f) of the Interest Rate Swap
Agreement.
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) and aggregate denominations
per Class set forth in the Preliminary Statement.
The
Depositor hereby directs the Trustee to register the Class X and Class P
Certificates in the name of the Depositor or its designee. On a date as to
which
the Depositor notifies the Trustee, the Trustee shall transfer the Class X
and Class P Certificates in the name of the NIM Trustee, or such other name
or names as the Depositor shall request, and to deliver the Class X and
Class P Certificates to the NIM Trustee or to such other Person or Persons
as the Depositor shall request.
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 such Holder has
so
notified the Trustee at least five Business Days prior to the related Record
Date 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. 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 authentication 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 authenticated by the Trustee by manual signature, and such authentication
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 authentication. On the Closing
Date, the Trustee shall authenticate the Certificates to be issued at the
direction of the Depositor, or any Affiliate thereof.
Section
5.02 Certificate
Register; Registration of Transfer and Exchange of Certificates.
(a)
The
Trustee shall maintain, or cause to be maintained in accordance with the
provisions of Section 5.06, 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
cancelled and subsequently destroyed 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 the Securities Act and such state securities laws. In determining whether
a transfer is being made pursuant to an effective registration statement, the
Trustee shall be entitled to rely solely upon a written notice to such effect
from the Depositor. Except with respect to (i) the transfer of the
Class X, Class P or Residual Certificates to the Depositor or an
Affiliate of the Depositor or, in the case of the Class R-X Certificates, the
initial transfer by an Affiliate of the Depositor or the first transfer by
the
initial transferee of an Affiliate of the Depositor, (ii) the transfer of
the Class X or Class P Certificates to the NIM Issuer or the NIM
Trustee, or (iii) the transfer of the Class X or Class P
Certificates from the NIM Issuer or the NIM Trustee to the Depositor or an
Affiliate of the Depositor, in the event that a transfer of a Private
Certificate which is a Physical Certificate 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 shall certify to the Trustee in writing the facts surrounding
the
transfer in substantially the form set forth in Exhibit H (the
“Transferor
Certificate”)
and
either (i) there shall be delivered to the Trustee a letter in
substantially the form of Exhibit I (the “Rule 144A
Letter”)
or
(ii) there shall be delivered to the Trustee at the expense of the
transferor an Opinion of Counsel that such transfer may be made without
registration under the Securities Act. In the event that a transfer of a Private
Certificate which is a Book-Entry Certificate 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 will be deemed to have made as of the transfer date each of the
certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in
respect of such Certificate, in each case as if such Certificate were evidenced
by a Physical Certificate. 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 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 and each Servicer 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.
Except
with respect to (A) the transfer of the Class X, Class P or Residual
Certificates to the Depositor or an Affiliate of the Depositor or, in the case
of the Class R-X Certificates, the initial transfer by an Affiliate of the
Depositor or the first transfer by the initial transferee of an Affiliate of
the
Depositor, (B) the transfer of the Class X or Class P
Certificates to the NIM Issuer or the NIM Trustee, or (C) the transfer of
the Class X or Class P Certificates from the NIM Issuer or the NIM
Trustee to the Depositor or an Affiliate of the Depositor, no transfer of an
ERISA-Restricted Certificate shall be made unless the Trustee 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 Class P 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 I), to the effect that such transferee is not an employee benefit
plan or arrangement subject to Section 406 of ERISA, a plan subject to
Section 4975 of the Code or a plan subject to any Federal, state or local
law (“Similar
Law”)
materially similar to the foregoing provisions of ERISA or the Code, nor a
Person acting on behalf of any such plan or arrangement nor using the assets
of
any such plan or arrangement to effect such transfer, or (ii) in the case
of an ERISA-Restricted Certificate other than a Residual Certificate or a
Class P Certificate that has been the subject of an ERISA-Qualifying
Underwriting, and the purchaser is an insurance company, a representation that
the purchaser is an insurance company that is purchasing such Certificates
with
funds contained in an “insurance company general account” (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
(“PTCE
95-60”))
and
that it is eligible for exemptive relief under PTCE 95-60 prior to termination
of the Supplemental Interest Trust and the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 after
termination of the Supplemental Interest Trust or (iii) in the case of any
such ERISA-Restricted Certificate other than a Residual Certificate or
Class P Certificate presented for registration in the name of an employee
benefit plan subject to Title I of ERISA, a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a plan subject to Similar Law, 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 the Servicers,
the
Depositor, the Trustee or the Trust Fund, addressed to the Trustee, to the
effect that the purchase or holding of such ERISA-Restricted Certificate will
not constitute or result in a non-exempt prohibited transaction within the
meaning of ERISA, Section 4975 of the Code or any Similar Law and will not
subject the Depositor, the Trustee or the Servicers to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Class P Certificate or a Residual Certificate, in
the
event the representation letter referred to in the preceding sentence is not
furnished, such representation shall be deemed to have been made to the Trustee
by the transferee’s (including an initial acquirer’s) acceptance of the
ERISA-Restricted Certificates. Notwithstanding anything else to the contrary
herein, (a) any purported transfer of an ERISA Restricted Certificate, other
than a Class P Certificate or Residual Certificate, to or on behalf of an
employee benefit plan subject to ERISA, the Code or Similar Law without the
delivery to the Trustee of an Opinion of Counsel satisfactory to the Trustee
as
described above shall be void and of no effect and (b) any purported transfer
of
a Class P Certificate or Residual Certificate to a transferee that does not
make
the representation in clause (i) above shall be void and of no
effect.
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.
Each
beneficial owner of a Certificate (other than an ERISA-Restricted Certificate)
or any interest therein shall be deemed to have represented, by virtue of its
acquisition or holding of the Certificate, or interest therein, that either
(i)
it is not a Plan or a trustee or other Person acting on behalf of a Plan or
using “plan assets” of a Plan to effect such acquisition (including any
insurance company using funds in its general or separate accounts that may
constitute “plan assets”) or (ii)(A) the beneficial owner is an accredited
investor within the meaning of Prohibited Transaction Exemption 2002-41, as
amended from time to time (the “Exemption”) and (B) for so long as the
Supplemental Interest Trust is in existence, the acquisition and holding of
such
Certificate and the separate right to receive payments from the Supplemental
Interest Trust are eligible for the exemptive relief available under Prohibited
Transaction Class Exemption (“PTCE”) 84-14 (for transactions by independent
“qualified professional asset managers”), 91-38 (for transactions by bank
collective investment funds), 90-1 (for transactions by insurance company pooled
separate accounts), 95-60 (for transactions by insurance company general
accounts) or 96-23 (for transactions effected by “in-house asset
managers”).
(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
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 G;
(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 a Non-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 not have any
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, Transferor Certificate and the
Rule 144A Letter. The Trustee shall be entitled but not obligated to
recover from any Holder of a Residual Certificate that was in fact a
Non-Permitted Transferee at the time it became a Holder or, at such subsequent
time as it became a Non-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; and
(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 a Non-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 or the Trustee, to the
effect that the elimination of such restrictions will not cause any Trust REMIC
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 a Non-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 a Non-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, or (y) the Depositor notifies the
Depository (and the Trustee consents) of its intent to terminate the book-entry
system through the Depository and, upon receipt of notice of such intent from
the Depository, the Depository Participants holding beneficial interests in
the
Book-Entry Certificates agree to initiate such termination, 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. None of the Servicers, the Depositor or the Trustee shall be
liable for any delay in delivery of such instruction 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.
(f) No
transfer of any Private Certificate presented or surrendered for registration
of
transfer or exchange shall be made unless the transfer or exchange is
accompanied by a written instrument of transfer and accompanied by IRS Form
W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments) or W-9 in form
satisfactory to the Trustee, duly executed by the Certificateholder or his
attorney duly authorized in writing. Each Certificate presented or surrendered
for registration of transfer or exchange shall be canceled and subsequently
disposed of by the Trustee in accordance with its customary practice. No service
charge shall be made for any registration of transfer or exchange of Private
Certificates, but the Trustee may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Private Certificates.
No
transfer of the Class X Certificates shall be made unless the proposed
transferee of such Certificates provides to the Trustee 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 Certificate, the Trustee shall forward a copy of such tax
certification form provided to it to the Supplemental Interest Trust Trustee.
The Supplemental Interest Trust Trustee shall provide to the Swap Provider
and
the Cap Provider a copy of any such tax certification form received from the
Trustee.
Each
Holder of a Class X Certificate and each transferee thereof shall be deemed
to
have consented to the Supplemental Interest Trust Trustee forwarding to the
Swap
Provider and the Cap Provider any such tax certification form such Holder or
transferee has provided and updated in accordance with these transfer
restrictions. Any purported sales or transfers of any Class X Certificate to
a
transferee which does not comply with these requirements shall be deemed null
and void. The Supplemental Interest Trust Trustee and the Trustee, respectively,
shall not be liable for the completeness, accuracy, content or truthfulness
of
any such tax certification provided to it. The Supplemental Interest Trust
Trustee and the Trustee shall be required to forward any tax certification
received by it, and upon request by the Swap Provider or the Cap Provider,
the
name and address and Percentage Interest held in the Class X Certificates for
each Holder of a Class X Certificate to the Swap Provider or the Cap Provider
at
the last known address provided to it and shall not be liable for the receipt
of
such tax certification by the Swap Provider or the Cap Provider, nor any failure
of the Swap Provider or the Cap Provider to process such certification or to
take any action as required under the Interest Rate Swap Agreement or the
Interest Rate Cap Agreement or under applicable law. The Supplemental Interest
Trust Trustee and the Trustee shall have no duty to take action to correct
any
misstatement or omission in any tax certification provided to it and forwarded
to the Swap Provider or the Cap Provider; provided however, if the Supplemental
Interest Trust Trustee or Trustee has actual knowledge that a tax certificate
or
name and address information provided to it by a Holder of a Private Certificate
contains a misstatement or omission (including by reason of the Swap Provider
or
the Cap Provider informing it of the misstatement or omission), it shall notify
the Swap Provider and the Cap Provider of the misstatement or omission, and
when
it receives a corrected form or name and address information from the Holder
of
the Class X Certificate it shall forward the corrected form and/or name and
address information to the Swap Provider and the Cap Provider.
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 Depositor, the Servicers and
the Trustee such security or indemnity as may be required by them to hold each
of them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any
new
Certificate under this Section 5.03, the Trustee may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate issued
pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership, 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 Trustee, the Depositor and any agent of a Servicer, the Depositor
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 Trustee, the Depositor, or any agent of a Servicer, the
Depositor 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, such Servicer or the 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 the United States where Certificates may be
surrendered for registration of transfer or exchange. The Trustee initially
designates the offices of its agent located at DB Services Tennessee, 000
Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Transfer Unit
for such purposes. The Trustee shall give prompt written notice to the
Certificateholders of any change in such location of any such office or
agency.
ARTICLE
VI
THE
DEPOSITOR AND THE SERVICERS
Section
6.01 Respective
Liabilities of the Depositor and the Servicer.
The
Depositor and each of the Servicers shall each be liable in accordance herewith
only to the extent of the obligations specifically and respectively imposed
upon
and undertaken by them herein.
Section
6.02 Merger
or Consolidation of the Depositor or the Servicers.
(a)
The
Depositor and each of the Servicers will each keep in full effect its existence,
rights and franchises as a corporation or federally chartered savings bank,
as
the case may be, under the laws of the United States or under the laws of one
of
the states thereof 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.
(b) Any
Person into which the Depositor or a Servicer may be merged or consolidated,
or
any Person resulting from any merger or consolidation to which the Depositor
or
a Servicer shall be a party, or any person succeeding to the business of the
Depositor or a Servicer (including through the acquisition of substantially
all
of the assets of a Servicer), shall be the successor of the Depositor or such
Servicer, as the case may be, hereunder, without the execution or filing of
any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding (except that any person succeeding to
the
business of a Servicer shall be required to assume and satisfy all of the
requirements of this Agreement to be a successor servicer); provided, however,
that the successor or surviving Person to such Servicer shall be qualified
to
service mortgage loans on behalf of, Xxxxxx Xxx or Xxxxxxx Mac. As a condition
to any succession to a Servicer under this Agreement by any Person (i) into
which a Servicer may be merged or consolidated or to whom succeeds to the
business of a Servicer, or (ii) which may be appointed as a successor to a
Servicer, such Servicer shall provide to the Depositor, at least 15 calendar
days prior to the effective date of such succession or appointment, (x) written
notice to the Depositor of such succession or appointment and (y) in writing
and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably necessary to enable the Trustee, pursuant to Section 8.12(g), to
accurately and timely report the event under Item 6.02 of Form 8-K pursuant
to
the Exchange Act (if such reports under the Exchange Act are then required
to be
filed under the Exchange Act).
Section
6.03 Limitation
on Liability of the Depositor, the Servicers and Others.
Neither
the Depositor, the Servicers nor any of their respective directors, officers,
employees or agents 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 Servicers or any such Person
against any breach of representations or warranties made by it herein or protect
the Depositor, the Servicers or any such Person from any liability which would
otherwise be imposed by reasons of willful misfeasance, bad faith or negligence
(or gross negligence in the case of the Depositor) in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder. The
Depositor, each Servicer and any director, officer, employee or agent of the
Depositor and each 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 and its Affiliates, the Sponsor, each Servicer
and any director, officer, employee or agent of the Depositor, the Sponsor
or
each Servicer shall be indemnified by the Trust Fund and held harmless against
any loss, liability or expense incurred in connection with any audit,
controversy or judicial proceeding relating to a governmental taxing authority
or any legal action relating to this Agreement or the Certificates other than
any loss, liability or expense related to any specific Mortgage Loan or Mortgage
Loans (except as any such loss, liability or expense relates to the origination
of a Mortgage Loan or Mortgage Loans or shall be otherwise reimbursable pursuant
to this Agreement) and any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence (or gross negligence in the case
of
the Depositor) in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. Neither the Depositor nor any
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 each of the Depositor and each Servicer may in its discretion undertake
any
such action (or direct the Trustee to undertake such actions pursuant to Section
2.03 for the benefit of the Certificateholders) 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 and the applicable Servicer shall be entitled to be reimbursed
therefor out of the applicable Collection Account.
Section
6.04 Limitation
on Resignation of a Servicer.
Subject
to Sections 7.01 and 10.07, no Servicer shall assign this Agreement or resign
from the obligations and duties hereby imposed on it except by mutual consent
of
the Servicers, the Depositor and the Trustee or upon the determination that
its
duties hereunder are no longer permissible under applicable law and such
incapacity cannot be cured by such Servicer. Any such determination permitting
the resignation of a Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Depositor and the Trustee which Opinion of Counsel
shall be in form and substance acceptable to the Depositor and the Trustee.
No
such resignation shall become effective until a successor shall have assumed
such Servicer’s responsibilities and obligations hereunder.
Notwithstanding
the provisions of Section 6.04 herein to the contrary, in the event that a
Servicer determines that it will no longer engage in the business of servicing
mortgage loans, such Servicer may assign its rights under this Agreement,
provided that, (i) the Depositor in its sole discretion has consented, which
consent shall not be unreasonably withheld, (ii) the Rating Agencies’ ratings of
the Certificates in effect immediately prior to such action will not be
qualified, reduced or withdrawn as a result thereof (as evidenced by a letter
to
such effect from the Rating Agencies) and (iii) such Servicer shall be liable
for all costs and expenses associated with the transfer of servicing, provided,
further, that such Servicer shall indemnify and hold each of the Trust Fund,
the
Trustee, the Depositor, the other Servicers hereunder, any sub-servicer, the
successor servicer and each Certificateholder harmless against any and all
claims, losses, penalties, fines, forfeitures, reasonable legal fees and related
costs, judgments, and any other costs, fees and expenses that such party may
sustain in any way related to such assignment except with respect to a successor
servicer’s failure to comply with the terms of this Agreement. No assignment by
such Servicer shall become effective until a successor servicer acceptable
to
the Depositor and the Trustee shall have assumed in writing such Servicer’s
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement. Any such assignment shall not relieve the applicable Servicer of
responsibility for any of the obligations specified herein except to the extent
that such responsibilities have been expressly assumed by the successor
servicer.
Section
6.05 Additional
Indemnification by the Servicers; Third Party Claims.
(a) Each
Servicer, severally and not jointly, shall indemnify the Responsible Party,
the
Depositor, the Sponsor and the Trustee and any director, officer, employee
or
agent of the Depositor, the Sponsor or the Trustee and hold them harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any other
costs, fees and expenses that any of them may sustain in any way related to
(i)
any breach by such Servicer of any of its representations and warranties
referred to in Section 2.03(a), (ii) any error in any tax or information return
prepared by such Servicer or (iii) the failure of such Servicer to perform
its
duties and service the Mortgage Loans in compliance with the terms of this
Agreement (including, without limitation, the failure to deliver accurate and
complete information on a timely basis pursuant to Section 4.03(d)). The
applicable Servicer immediately shall notify the Depositor and the Trustee
if
such claim is made by a third party with respect to this Agreement or the
Mortgage Loans, assume (with the prior written consent of the Depositor and
the
Trustee) the defense of any such claim and pay all expenses in connection
therewith, including reasonable counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or the Depositor,
the Sponsor, the Responsible Party or the Trustee in respect of such
claim.
(b) Notwithstanding
anything to the contrary contained in this Agreement, each Servicer shall
indemnify the Depositor, the Sponsor, the Trustee and any director, officer,
employee or agent of the Depositor, the Sponsor or the Trustee and hold them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain in any
way
related to any failure by such Servicer or any Subservicer engaged by such
Servicer or any Subcontractor utilized by such Servicer to deliver any
information, report, certification or accountants’ letter when and as required
under Sections 3.22, 3.23, 6.02 or 8.12, including without limitation any
failure by such Servicer to identify pursuant to Section 3.02(e) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB.
(c) If
the
indemnification provided for in this Section 6.05 is unavailable or
insufficient to hold harmless any Person entitled to indemnification thereunder,
then such Servicer shall contribute to the amount paid or payable to the Person
entitled to indemnification as a result of the losses, claims, damages or
liabilities of such Person in such proportion as is appropriate to reflect
the
relative fault of such Person on the one hand and such Servicer, on the other,
in connection with that Servicer’s obligations pursuant to this
Section 6.05. This Section 6.05 shall
survive the termination of this Agreement or the earlier resignation or removal
of each Servicer.
(d) [Reserved].
ARTICLE
VII
DEFAULT
Section
7.01 Events
of Default.
“Event
of Default”
wherever used herein, means, with respect to each Servicer individually, any
one
of the following events:
(a) any
failure by a Servicer to remit to the Trustee any payment required to be made
under the terms of this Agreement which continues unremedied for a period of
one
Business Day 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 Depositor
or by the Trustee, or to such Servicer, the Depositor and the Trustee by
Certificateholders entitled to at least 25% of the Voting Rights in the
Certificates; or
(b) any
failure on the part of 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 continues unremedied for a period of sixty
(60) days (except that (x) such number of days shall be fifteen in the case
of a
failure to pay any premium for any insurance policy required to be maintained
under this Agreement and (y) such number of days shall be ten in the case of
a
failure of Countrywide Servicing to observe or perform any of its obligations
under the provisions of the Countrywide Amendment Regulation AB incorporated
by
reference into this Agreement pursuant to Section 3.01(f) which are equivalent
to a Servicer’s obligations under Sections 3.02 (as it relates to Sections 3.22
and 3.23), 3.22 and 3.23 of this Agreement or zero in the case of a failure
of
Saxon to observe or perform any of the obligations set forth in Sections 3.02
(as it relates to Sections 3.22 and 3.23), 3.22, 3.23, 6.02 or 8.12 and such
number of days shall be after the earlier of (i) the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given
to such Servicer by the Depositor or the Trustee, or to such Servicer, the
Depositor and the Trustee by Certificateholders entitled to at least 25% of
the
Voting Rights in the Certificates and (ii) actual knowledge of such failure
by a
Servicing Officer of such Servicer; or
(c) 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,
bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against a Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days;
or
(d) a
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to a Servicer
or of
or relating to all or substantially all of its property; or
(e) a
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(f) a
breach
of any representation and warranty of a Servicer referred to in
Section 2.03(a), which materially and adversely affects the interests of
the Certificateholders and which continues unremedied for a period of thirty
days after the date upon which written notice of such breach is given to such
Servicer by the Trustee or by the Depositor, or to such Servicer, the Trustee
and the Depositor by Certificateholders entitled to at least 25% of the Voting
Rights in the Certificates; or
(g) with
respect to Saxon, any withdrawal or downgrade of two or more levels of Saxon’s
servicer rating by any Rating Agency that results in a downgrade, qualification
or withdrawal of the rating assigned to any Class of the Certificates by any
Rating Agency.
If
an
Event of Default described in clauses (a) through (g) of this Section 7.01
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, and at the written direction
of a
majority of the Voting Rights, the Trustee shall, by notice in writing to the
applicable 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
Mortgage Loans serviced by such Servicer and the proceeds thereof, other than
its rights as a Certificateholder hereunder; provided, however, that the Trustee
shall not be required to give written notice to such Servicer of the occurrence
of an Event of Default described in clauses (b) through (g) of this Section
7.01
unless and until a Responsible Officer of the Trustee has actual knowledge
of
the occurrence of such an event. In the event that a Responsible Officer of
the
Trustee has actual knowledge of the occurrence of an Event of Default described
in clause (a) of this Section 7.01, the Trustee shall give written notice to
the
applicable Servicer of the occurrence of such an event within one Business
Day
of the first day on which such Responsible Officer obtains actual knowledge
of
such occurrence; provided, that if such failure is the failure to make a P&I
Advance, the Trustee shall send such notice prior to 12:00 noon, New York time,
on the Distribution Date and, if the Event of Default of such Servicer was
the
failure to make a P&I Advance, the Trustee, as successor servicer, shall
make such P&I Advance on the Distribution Date that such notice was
delivered. On and after the receipt by such Servicer of such written notice,
all
authority and power of such Servicer hereunder, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee. Subject
to Section 7.02, the Trustee is hereby authorized and empowered to execute
and
deliver, on behalf of such Servicer, as attorney-in-fact or otherwise, any
and
all documents and other instruments, and to do or accomplish all other acts
or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise. Unless expressly
provided in such written notice, no such termination shall affect any obligation
of such Servicer to pay amounts owed pursuant to Article VIII. Such Servicer
agrees to cooperate with the Trustee in effecting the termination of such
Servicer’s responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee of all cash amounts which shall at the time be
credited to the related Collection Account of such predecessor servicer, or
thereafter be received with respect to the Mortgage Loans.
Notwithstanding
any termination of the activities of a Servicer hereunder, such Servicer shall
be entitled to receive from the Trust Fund, prior to transfer of its servicing
obligations hereunder, payment of all accrued and unpaid Servicing Fees and
reimbursement for all outstanding P&I Advances and Servicing
Advances.
Section
7.02 Trustee
to Act; Appointment of Successor.
On and
after the time a Servicer receives a notice of termination pursuant to Section
3.24 or Section 7.01, the Trustee shall, subject to and to the extent provided
in Section 3.05, be the successor to such servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for herein
and
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on such Servicer by the terms and provisions hereof and
applicable law including the obligation to make P&I Advances or Servicing
Advances pursuant to Section 3.24 or Section 7.01. As compensation therefor,
the
Trustee shall be entitled to all funds relating to the Mortgage Loans that
such
Servicer would have been entitled to charge to its Collection Account if such
Servicer had continued to act hereunder including, if such Servicer was
receiving the Servicing Fee, the Servicing Fee and the income on investments
or
gain related to its Collection Account and the Distribution Account which such
Servicer would be entitled to receive (in addition to income on investments
or
gain related to the Distribution Account for the benefit of the Trustee during
the Trustee Float Period). Notwithstanding the foregoing, if the Trustee has
become the successor to such servicer in accordance with Section 7.01, (a)
the
Trustee, as successor servicer, shall have a period not to exceed 90 days to
complete the transfer of servicing and all data and to correct or manipulate
such servicing data as may be required by the Trustee to correct any errors
or
insufficiencies in the servicing data or otherwise enable the Trustee or other
successor servicer to service the Mortgage Loans in accordance with Accepted
Servicing Practices and (b) the Trustee may, if it shall be unwilling to so
act,
or shall, if it is prohibited by applicable law from making P&I Advances and
Servicing Advances pursuant to Section 4.01, if it is otherwise unable to so
act
or at the written request of Certificateholders entitled to at least a majority
of the Voting Rights, 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 such servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities
of
such servicer hereunder. Any successor to such servicer shall be an institution
which is a Xxxxxx Xxx and Xxxxxxx Mac approved servicer in good standing, which
has a net worth of at least $30,000,000, which is willing to service the
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 such terminated servicer (other than liabilities of such
terminated servicer under Section 6.03 incurred prior to termination of such
Servicer under Section 7.01), 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 or reduced, 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 Section 3.05, act in such capacity as hereinabove provided. In connection
with such appointment and assumption, the Trustee may make such arrangements
for
the compensation of such successor out of payments on Mortgage Loans as it
and
such successor shall agree; provided, however, that no such compensation shall
be in excess of the Servicing Fee Rate and amounts paid to the predecessor
servicer from investments. 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 hereunder by reason of any failure to make, or any
delay
in making, any distribution hereunder or any portion thereof or any failure
to
perform, or any delay in performing, any duties or responsibilities hereunder,
in either case caused by the failure of the predecessor servicer to deliver
or
provide, or any delay in delivering or providing, any cash, information,
documents or records to it.
In
the
event that a Servicer is terminated pursuant to Section 7.01, such
terminated Servicer shall be responsible for the servicing transfer, provide
notices to the Mortgagors, arrange for and transfer the Servicing Files to
a
successor servicer, pay all of its own out-of-pocket costs and expenses at
its
own expense and pay all costs and expenses of all other parties hereto relating
to the transfer of the related Servicing Files to a successor servicer
(excluding set-up costs and other administrative expenses of the successor
servicer), and in all other cases the successor servicer shall pay for such
costs and expenses but shall not be entitled to reimbursement therefor from
the
Trust Fund. Such amounts payable by the terminated Servicer shall be paid by
the
terminated Servicer promptly upon presentation of reasonable documentation
of
such costs. If the Trustee is the predecessor servicer (except in the case
where
the Trustee in its role as successor servicer is being terminated pursuant
to
Section 7.01 by reason of an Event of Default caused solely by the Trustee
as the successor servicer and not by the predecessor servicer’s actions or
omissions), such costs shall be paid by the prior terminated Servicer promptly
upon presentation of reasonable documentation of such costs.
Any
successor to a Servicer as servicer shall give notice to the Mortgagors of
such
change of servicer and shall, during the term of its service as servicer,
maintain in force the policy or policies that each Servicer is required to
maintain pursuant to Section 3.13.
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 and each Rating Agency notice of each such Event
of Default hereunder known to the Trustee, unless such event shall have been
cured or waived.
ARTICLE
VIII
CONCERNING
THE TRUSTEE
Section
8.01 Duties
of the Trustee.
The
Trustee, before 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. The Trustee shall not be responsible for the accuracy or
content of any 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.
Unless
an
Event of Default known to the Trustee has occurred and is
continuing:
(a) 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 the duties and obligations 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 on their face
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;
(b) 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 is finally
proven that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) 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
the
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.
(d) The
Trustee shall be permitted to utilize one or more Subcontractors for the
performance of certain of its obligations under this Agreement, provided that
the Trustee complies with Section 3.02(e) as if the Trustee were a
“Servicer” pursuant to that Section. The Trustee shall indemnify the Depositor,
the Sponsor and any director, officer, employee or agent of the Depositor or
the
Sponsor and hold them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that any of them may
sustain in any way related to the failure of the Trustee to perform any of
its
obligations under Section 3.22 or Section 3.23, including without
limitation any failure by the Trustee to identify pursuant to
Section 3.02(e) any Subcontractor that is a Servicing Function Participant.
This indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the Trustee.
Section
8.02 Certain
Matters Affecting the Trustee.
Except
as otherwise provided in Section 8.01:
(a) the
Trustee may request and rely upon and shall be protected in acting or refraining
from acting upon any resolution, Officer’s Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document believed
by
it to be genuine and to have been signed or presented by the proper party or
parties and the Trustee shall have no responsibility to ascertain or confirm
the
genuineness of any signature of any such party or parties;
(b) 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 Opinion of Counsel;
(c) 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;
(d) 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 to do so by the Holders of Certificates evidencing
not less than 25% of the Voting Rights allocated to each Class of
Certificates;
(e) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, accountants or attorneys
and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agents, accountants or attorneys appointed with due care by it
hereunder;
(f) 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;
(g) 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 and with respect
to the investment of funds in the Distribution Account during the Trustee Float
Period);
(h) unless
a
Responsible Officer of the Trustee has actual knowledge of the occurrence of
an
Event of Default, 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
(i) 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 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.
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 and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement, the Interest Rate Swap Agreement or of the
Certificates or of any Mortgage Loan or related document other than with respect
to the Trustee’s execution and authentication of the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or a
Servicer of any funds paid to the Depositor or a Servicer in respect of the
Mortgage Loans or deposited in or withdrawn from any Collection Account or
the
Distribution Account by the Depositor or a Servicer.
The
Trustee shall have no responsibility for filing or recording any financing
or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder (unless the Trustee shall have become the successor
servicer).
The
Trustee executes the Certificates not in its individual capacity but solely
as
Trustee of the Trust Fund created by this Agreement, in the exercise of the
powers and authority conferred and vested in it by this Agreement. The
Supplemental Interest Trust Trustee executes the Interest Rate Swap Agreement
and the Interest Rate Cap Agreement not in its individual capacity but solely
as
Supplemental Interest Trust Trustee of the Supplemental Interest Trust created
by this Agreement, in the exercise of the powers and authority conferred and
vested in it by this Agreement. Each of the undertakings and agreements made
on
the part of the Trustee or the Supplemental
Interest Trust Trustee on
behalf
of the Trust Fund or the Supplemental Interest Trust in the Certificates, the
Interest Rate Swap Agreement and the Interest Rate Cap Agreement, respectively,
is made and intended not as a personal undertaking or agreement by the Trustee
or the Supplemental Interest Trust Trustee but is made and intended for the
purpose of binding only the Trust Fund or the Supplemental Interest Trust,
as
applicable.
Section
8.04 Trustee
May Own Certificates.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not the
Trustee.
Section
8.05 Trustee’s
Fees and Expenses.
As
compensation for its activities under this Agreement, the Trustee may withdraw
from the Distribution Account on each Distribution Date the Trustee Fee for
the
Distribution Date and any interest or investment income earned on funds
deposited in the Distribution Account during the Trustee Float Period. The
Trustee and any director, officer, employee, or agent of the Trustee shall
be
indemnified by the Trust Fund against any loss, liability, or expense (including
reasonable attorney’s fees) resulting from any error in any tax or information
return prepared by any Servicer or incurred in connection with any claim or
legal action relating to (a) this Agreement, (b) the Certificates or the
Interest Rate Swap Agreement, or (c) the performance of any of the Trustee’s
duties under this Agreement, the Certificates or the Interest Rate Swap
Agreement, other than any loss, liability, or expense (i) resulting from any
breach of any Servicer’s obligations in connection with this Agreement for which
the related Servicer has performed its obligation to indemnify the Trustee
pursuant to Section 6.05, (ii) resulting from any breach of any Responsible
Party’s obligations in connection with this Agreement for which the related
Responsible Party has performed its obligations to indemnify the Trustee
pursuant to Section 2.03(n) or (iii) incurred because of willful misconduct,
bad
faith, or negligence in the performance of any of the Trustee’s duties under
this Agreement. This indemnity shall survive the termination of this Agreement
or the resignation or removal of the Trustee under this Agreement. Without
limiting the foregoing, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any expense, disbursement, or advance
arising from the Trustee’s negligence, bad faith, or willful misconduct, the
Trust Fund shall pay or reimburse the Trustee, for all reasonable expenses,
disbursements, and advances incurred or made by the Trustee in accordance with
this Agreement with respect to:
(A) the
reasonable compensation, expenses, and disbursements of its counsel not
associated with the closing of the issuance of the Certificates,
and
(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 them to perform services under this
Agreement.
Except
as
otherwise provided in this Agreement or a separate letter agreement between
the
Trustee and the Depositor, 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 under this Agreement or for any other
expenses incurred by the Trustee; provided,
however,
that no
expense shall be reimbursed by the Trust Fund under this Agreement if it would
not constitute an “unanticipated expense incurred by the REMIC” within the
meaning of the REMIC Provisions.
Section
8.06 Eligibility
Requirements for the Trustee.
The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause any 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 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 or the Servicers and their respective
Affiliates; provided,
however,
that
such entity cannot be an Affiliate of 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 Servicers 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 or resignation,
the
resigning 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 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 one copy to the successor trustee.
The
Holders of Certificates entitled to at least a majority 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, one complete set to the Trustee
so
removed and one complete set to the successor so appointed. The successor
trustee shall notify each Rating Agency of any removal of the
Trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to 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
the
Servicers 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, the Servicers 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 its acceptance, the successor trustee is eligible under
Section 8.06 and its appointment does 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 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. In connection with the
succession to the Trustee under this Agreement by any Person (i) into which
the Trustee may be merged or consolidated, or (ii) which may be appointed
as a successor to the Trustee, the Trustee shall notify the Depositor of such
succession or appointment and shall furnish to the Depositor in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably necessary for the Trustee to accurately and timely report, pursuant
to Section 8.12(g), the event under Item 6.02 of Form 8-K
pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act).
Section
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, the applicable 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 the
applicable Servicer and the Trustee may consider appropriate. If any Servicer
shall not have joined in such appointment within 15 days after the receipt
by
such Servicer 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:
(a) 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,
except for the obligation of the Trustee as successor Servicer under this
Agreement to advance funds, 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;
(b) No
trustee hereunder shall be held personally liable because 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;
(c) The
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee; and
(d) The
Trust
Fund, 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 any REMIC election pertaining
to
the Trust Fund is to be made, as set forth in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a “real estate mortgage investment conduit”
as defined in and in accordance with the REMIC 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) on behalf of each Trust REMIC
and that in such capacity it shall:
(a) prepare
and file in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
(REMIC) Income Tax Return (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file 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 Trust REMIC 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 to
Certificateholders the schedules, statements or information at such times and
in
such manner as may be required thereby;
(b) apply
for
an employer identification number from the Internal Revenue Service via Form
SS-4 or any other acceptable method for all tax entities (i.e., the Trust REMICs
and the grantor trust), furnish to the Depositor not later than the Closing
Date
in the case of the Supplemental Interest Trust (the corpus of which includes
the
Interest Rate Swap Agreement) and within thirty days of the Closing Date in
the
case of the Trust REMICs, copies of such Form SS-4 requesting the employer
identification numbers, use its best efforts to obtain, as promptly as
practicable, employer identification numbers for any other Trust REMICs or
grantor trusts created pursuant to this Agreement (and provide such employer
identification numbers to the Depositor promptly upon receipt thereof), furnish
to the Internal Revenue Service, on Form 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) deliver
or cause to be delivered the federal taxpayer identification number of the
Supplemental Interest Trust on a correct, complete and duly executed IRS Form
W-9 of the Supplemental Interest Trust to the Swap Provider and the Cap Provider
promptly upon receipt of such number after applying for it pursuant to 8.11(b)
above and, in any event, no later than the first Payment Date under the Interest
Rate Swap Agreement or the Interest Rate Cap Agreement, as applicable, and,
if
requested by the Swap Provider or the Cap Provider, an applicable IRS Form
W-8MY;
(d) make
an
election that each Trust REMIC be treated as a REMIC on the federal tax return
for its first taxable year (and, if necessary, under applicable state
law);
(e) prepare
and forward 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 the calculation of any original issue discount using the prepayment
assumption (as described in the Prospectus Supplement);
(f) provide
information necessary for the computation of tax imposed on the Transfer of
a
Residual Certificate to a Person that is a Non-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);
(g) 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 each Trust REMIC as a REMIC under the REMIC Provisions;
(h) not
knowingly or intentionally take any action or omit to take any action that
would
cause the termination of the REMIC status of any Trust REMIC created
hereunder;
(i) pay,
from
the sources specified in the last paragraph of this Section 8.11, the
amount of any federal or state tax, including prohibited transaction taxes
as
described below, imposed on any Trust REMIC created hereunder before 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);
(j) cause
federal, state or local income tax or information returns to 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; and
(k) maintain
records relating to each Trust REMIC created hereunder, including the income,
expenses, assets, and liabilities thereof on a calendar year basis and on the
accrual method of accounting 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.
The
Holder of the largest Percentage Interest of the Class R Certificates shall
act as Tax Matters Person for REMIC I, REMIC II and REMIC III, within the
meaning of Treasury Regulations Section 1.860F-4(d). The Holder of the
largest Percentage Interest of the Class R-X Certificates shall act as Tax
Matters Person for REMIC IV, REMIC V and REMIC VI, within the meaning of
Treasury Regulations Section 1.860F-4(d). The Trustee is hereby designated
as
agent of such Certificateholder for such purpose (or if the Trustee is not
so
permitted, such Holder shall be the Tax Matters Person in accordance with the
REMIC Provisions). In such capacity, the Trustee shall, as and when necessary
and appropriate, represent each Trust REMIC created hereunder 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 each Trust REMIC created hereunder, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of each Trust REMIC created hereunder,
and
otherwise act on behalf of each Trust REMIC in relation to any tax matter or
controversy involving it.
To
enable
the Trustee to perform its duties under this Agreement, the Depositor shall
provide to the Trustee within ten 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
the price, yield, prepayment assumption, and projected cash flows of the
Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Trustee concerning the value, if any, to each Class of
Certificates of the right to receive Basis Risk CarryForward Amounts from the
Excess Reserve Fund Account and Basis Risk CarryForward Amounts from the Swap
Account. Thereafter, the Depositor shall provide to the Trustee promptly upon
written request therefor any additional information or data that the Trustee
may, from time to time, reasonably request to enable the Trustee to perform
its
duties under this Agreement; provided,
however,
that
the Depositor shall not be required to provide any information regarding the
Mortgage Loans that a Servicer is required to provide to the Trustee pursuant
to
this Agreement. 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 pursuant to this paragraph accurate information or data to the
Trustee on a timely basis.
Neither
the Servicers nor the Trustee shall (i) permit the creation of any interests
in
any Trust REMIC other than the regular and residual interests set forth in
the
Preliminary Statement, (ii) receive any amount representing a fee or other
compensation for services (except as otherwise permitted by this Agreement
or
the related Mortgage Loan documents) or (iii) otherwise knowingly or
intentionally take any action, cause the Trust Fund to take any action or fail
to take (or fail to cause to be taken) any action reasonably within its control
and the scope of duties more specifically set forth herein, that, under the
REMIC Provisions, if taken or not taken, as the case may be, could
(i) endanger the status of any Trust REMIC as a REMIC or (ii) result
in the imposition of a tax upon any Trust REMIC or the Trust Fund (including
but
not limited to the tax on “prohibited transactions” as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code, or the tax on “net income from
foreclosure property”) unless the Trustee receives an Opinion of Counsel (at the
expense of the party seeking to take such action or, if such party fails to
pay
such expense, at the expense of the Trust Fund, but in no event at the expense
of the Trustee) to the effect that the contemplated action will not, with
respect to the Trust Fund, any Trust REMIC created hereunder, endanger such
status or result in the imposition of such a tax).
If
any
tax is imposed on “prohibited transactions” of any Trust REMIC as defined in
Section 860F(a)(2) of the Code, on the “net income from foreclosure
property” of REMIC I as defined in Section 860G(c) of the Code, on any
contribution to any Trust REMIC after the Start-up Day pursuant to
Section 860G(d) of the Code, or any other tax is imposed, including, if
applicable, any minimum tax imposed on any Trust REMIC pursuant to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if
not paid as otherwise provided for herein, the tax shall be paid by (i) the
Trustee if such tax arises out of or results from negligence of the Trustee
in
the performance of any of its obligations under this Agreement, (ii) the
applicable Servicer and the Responsible Party, jointly, in the case of any
such
minimum tax, and a Servicer if such tax arises out of or results from a breach
by such Servicer of any of its obligations under this Agreement, (iii) the
Responsible Party if such tax arises out of or results from the Responsible
Party’s obligation to repurchase a Mortgage Loan pursuant to Section 2.03,
(iv) the Sponsor if such tax arises out of or results from the Sponsor’s
obligation to repurchase a Mortgage Loan pursuant to the Representations and
Warranties Agreement, or (v) in all other cases, or if the Trustee, the
applicable Servicer or the Responsible Party fails to honor its obligations
under the preceding clause (i), (ii), (iii) or (iv), any such tax will be
paid with amounts otherwise to be distributed to the Certificateholders, as
provided in Section 4.02(a).
Section
8.12 Periodic
Filings. (a) The
Trustee and each Servicer shall reasonably cooperate with the Depositor in
connection with the reporting requirements of the Trust under the Exchange
Act.
The Trustee shall prepare for execution by the Depositor any Forms 8-K
(other than the initial Form 8-K relating to this Agreement, which shall be
the
responsibility of the Depositor to prepare and file), 10-D and 10-K required
by
the Exchange Act and the rules and regulations of the Commission thereunder,
in
order to permit the timely filing thereof, pursuant to the terms of this
Section 8.12, and the Trustee shall file (via the Commission’s Electronic
Data Gathering and Retrieval System (“XXXXX”) such Forms executed by the
Depositor. The Trustee shall have no duty to verify information received by
it
from other Persons (other than Subcontractors utilized by the Trustee) in
connection with its duties under this Section 8.12.
(b) No
later
than 1:00 p.m. (Eastern Standard Time) (so long as the Trustee has received
from
the Depositor the executed Form 10-D no later than noon (Eastern Standard Time)
on the preceding Business Day (or otherwise, the Trustee will utilize reasonable
best efforts to file such Form 10 D no later than the filing deadline for such
Form 10-D)) on any date within 15 calendar days after each Distribution
Date (subject to permitted extensions under the Exchange Act), the Trustee
shall
prepare and file on behalf of the Trust any Form 10-D required by the
Exchange Act, in form and substance as required by the Exchange Act. The Trustee
shall file each Form 10-D with a copy of the related Monthly Statement
attached thereto. Any disclosure in addition to the Monthly Statement that
is
required to be included on Form 10-D (“Additional
Form 10-D Disclosure”)
shall
be prepared by the party responsible for preparing such disclosure as set forth
on Exhibit Q hereto and provided to the Trustee in XXXXX-compatible form at
the
email address for the Trustee set forth in Section 10.05, using Exhibit V,
and
the Trustee shall compile such disclosure pursuant to the following paragraph.
As used in this Agreement, XXXXX-compatible form means an electronic information
storage format acceptable to the Trustee and the party providing such
information. The Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure,
except as set forth in the next paragraph.
As
set
forth on Exhibit Q hereto, within 5 calendar days after the related
Distribution Date, certain parties to this Agreement shall be required to
provide to the Trustee and the Depositor, to the extent known by such applicable
parties, any Additional Form 10-D Disclosure, if applicable. The Trustee
shall compile all such information provided to it in a Form 10-D prepared
by it.
The
Trustee shall prepare and forward electronically a draft copy of the
Form 10-D to the Depositor sufficiently far in advance of, but in no event
less than two (2) Business Days prior to, when the Depositor is required to
execute such Form 10-D to permit the Depositor to review, verify and execute
such Form 10-D. No later than 2 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. If a Form 10-D cannot be filed on time or if a previously
filed Form 10-D needs to be amended, the Trustee will follow the procedures
set forth in Section 8.12(f)(ii). The signing party at the Depositor can be
contacted at the Depositor’s address for notices set forth in
Section 10.5(b)(ii)(a), or such other address as to which the Depositor has
provided prior written notice to the Trustee. The Depositor acknowledges that
the performance by the Trustee of its duties under this Section 8.12(b)
related to the timely preparation and filing of Form 10-D is contingent, in
part, upon each Servicer and the Depositor and any other Person obligated to
provide Additional Form 10-D Disclosure as set forth on Exhibit Q hereto
observing all applicable deadlines in the performance of their duties under
this
Section 8.12(b). The Trustee shall have no liability for any loss, expense,
damage, or claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 10-D, where such failure results from
the Trustee’s inability or failure to obtain or receive, on a timely basis, any
information or signature from any party hereto (other than the Trustee or any
Subcontractor utilized by the Trustee) needed to prepare, arrange for execution
or file such Form 10-D, not resulting from its own negligence, bad faith or
willful misconduct.
(c) No
later
than 1:00 p.m. (Eastern Standard Time) (so long as the Trustee has received
from
the Depositor the executed Form 10 K no later than noon (Eastern Standard Time)
on the preceding Business Day (or otherwise, the Trustee shall utilize
reasonable best efforts to file such Form 10 K no later than the filing deadline
for such Form 10 K)) on any date within 90 days after the end of each
fiscal year of the Trust or such earlier date as may be required by the Exchange
Act (the “10-K
Filing Deadline”),
commencing in March 2008, the Trustee shall prepare and file on behalf of
the Trust a Form 10-K, in form and substance as required by the Exchange
Act. Each such Form 10-K shall include the following items, in each case to
the extent they have been delivered to the Trustee within the applicable time
frames set forth in this Agreement, (i) an annual compliance statement for
each Servicer and each Subservicer engaged by any Servicer and the Trustee,
as
described under Section 3.22, (ii)(A) the annual reports on assessment of
compliance with servicing criteria for the Trustee, the Servicers, each
Subservicer engaged by any Servicer and each Servicing Function Participant
utilized by the Servicer or the Trustee, as described under Section 3.23, and
(B) if any such report on assessment of compliance with servicing criteria
described under Section 3.23 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or such report on
assessment of compliance with servicing criteria described under Section 3.23
is
not included as an exhibit to such Form 10-K, disclosure that such report is
not
included and an explanation why such report is not included, (iii)(A) the
registered public accounting firm attestation report for the Trustee, each
Servicer, each Subservicer engaged by a Servicer and each Servicing Function
Participant utilized by a Servicer or the Trustee, as described under Section
3.23, and (B) if any registered public accounting firm attestation report
described under Section 3.23 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any such registered
public accounting firm attestation report is not included as an exhibit to
such
Form 10-K, disclosure that such report is not included and an explanation why
such report is not included, and (iv) a certification in the form attached
hereto as Exhibit L, with such changes as may be necessary or appropriate as
a
result of changes promulgated by the Commission (the “Sarbanes
Certification”),
which
shall be signed by the senior officer of the Depositor in charge of
securitization. Any disclosure or information in addition to (i) through
(iv) above that is required to be included on Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be prepared by the party responsible for preparing such disclosure as set forth
on Exhibit V hereto, and provided to the Trustee in XXXXX-compatible form at
the
email address for the Trustee set forth in Section 10.05, using Exhibit V,
and
the Trustee shall compile such disclosure pursuant to the following paragraph.
The Trustee will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, except as set
forth in the next paragraph.
As
set
forth on Exhibit R hereto, no later than March 1st of each year (or, in the
case of the Servicers, March 5th of each year) that the Trust is subject to
the
Exchange Act reporting requirements commencing in 2008, certain parties to
this
Agreement shall be required to provide to the Trustee and the Depositor, to
the
extent known by such applicable parties, any Additional Form 10-K
Disclosure, if applicable. The Trustee shall compile all such information
provided to it in a Form 10-K prepared by it.
The
Trustee shall prepare and forward electronically a draft copy of the
Form 10-K to the Depositor sufficiently far in advance of, but in no event
less than five (5) Business Days prior to, when the Depositor is required to
execute such Form 10-K to permit the Depositor to review, verify and execute
such Form 10-K. No later than 5:00 p.m. (Eastern Standard Time) on the 3rd
Business Day prior to the 10-K Filing Deadline, 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. If a Form 10-K cannot be filed on time or
if a previously filed Form 10-K needs to be amended, the Trustee will
follow the procedures set forth in Section 8.12(f)(ii). The signing party
at the Depositor can be contacted at the Depositor’s address for notices set
forth in Section 10.5(b)(ii)(a), or such other address as to which the Depositor
has provided prior written notice to the Trustee. The Depositor and each
Servicer acknowledge that the performance by the Trustee of its duties under
this Section 8.12(c) related to the timely preparation and filing of Form 10-K
is contingent, in part, upon each Servicer (and any Subservicer or Servicing
Function Participant engaged by a Servicer) and the Depositor and any other
Person obligated to provide Additional Form 10-K Disclosure as set forth on
Exhibit R hereto, observing all applicable deadlines in the performance of
their
duties under this Section 8.12(c), Section 8.12(d), Section 3.22 and Section
3.23. The Trustee shall have no liability for any loss, expense, damage or
claim
arising out of or with respect to any failure to properly prepare and/or timely
file such Form 10-K, where such failure results from the Trustee’s inability or
failure to obtain or receive, on a timely basis, any information or signature
from any party hereto (other than the Trustee or any Subcontractor utilized
by
the Trustee) needed to prepare, arrange for execution or file such Form 10-K,
not resulting from its own negligence, bad faith or willful
misconduct.
(d) In
connection with the execution of a Sarbanes Certification, the Trustee shall
sign a certification (in the form attached hereto as Exhibit M, with such
changes as may be necessary or appropriate as a result of changes promulgated
by
the Commission) for the benefit of the Depositor and its officers, directors
and
Affiliates, and each Servicer shall sign a certification solely with respect
to
such Servicer (in the form attached hereto as Exhibit N, with such changes
as
may be necessary or appropriate as a result of changes promulgated by the
Commission) for the benefit of the Depositor, the Trustee and their respective
officers, directors and Affiliates. Each such certification shall be delivered
to the Depositor no later than March 10th of each year (or if such day is not
a
Business Day, the immediately preceding Business Day) and the Depositor shall
deliver the Sarbanes Certification no later than the time set forth for the
delivery to the Trustee of the signed Form 10-K pursuant to Section 8.12(d)
for
such year. In the event that prior to the filing date of the Form 10-K in March
of each year, the Trustee or any Servicer has actual knowledge of information
material to the Sarbanes Certification, that party shall promptly notify the
Depositor and each of the other parties signing the certifications. In addition,
(i) the Trustee shall indemnify and hold harmless the Depositor and the Sponsor
and their officers, directors, employees, agents 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 any breach of the Trustee’s obligations under this Section
8.12(d) or any material misstatement or material omission contained in any
information, report, certification, accountants’ letter or other material
provided in written or electronic form pursuant to Sections 3.23 and 8.12 of
this Agreement and Exhibits Q, R and S to this Agreement provided by or on
behalf of the Trustee or any Subcontractor utilized by the Trustee (excluding
any information, report, certification, accountants’ letter or other materials
provided in written or electronic form by or on behalf of any Person other
than
the Trustee or any Subcontractor utilized by the Trustee), negligence, bad
faith
or willful misconduct in connection therewith, and (ii) each Servicer, severally
and not jointly, shall indemnify and hold harmless the Depositor, the Sponsor,
the Trustee and their respective officers, directors, employees, agents 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 any breach of the applicable
Servicer’s obligations under this Section 8.12(d) or any material misstatement
or material omission, negligence, bad faith or willful misconduct of such
Servicer in connection therewith. If the indemnification provided for herein
is
unavailable or insufficient to hold harmless any indemnified party, then (i)
the
Trustee agrees in connection with a breach of the Trustee’s obligations under
this Section 8.12(d) or any material misstatement or material omission contained
in any information, report, certification, accountants’ letter or other material
provided in written or electronic form pursuant to Sections 3.23 and 8.12 of
this Agreement and Exhibits T, U and V to this Agreement provided by or on
behalf of the Trustee or any Subcontractor utilized by the Trustee (excluding
any information, report, certification, accountants’ letter or other materials
provided in written or electronic form by or on behalf of any Person other
than
the Trustee or any Subcontractor utilized by the Trustee), negligence, bad
faith
or willful misconduct in connection therewith that it shall contribute to the
amount paid or payable by the Depositor and the Sponsor as a result of the
losses, claims, damages or liabilities of the Depositor and the Sponsor in
such
proportion as is appropriate to reflect the relative fault of the Depositor
and
the Sponsor on the one hand and the Trustee on the other and (ii) each Servicer
agrees that it shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
of
such indemnified party in such proportion as is appropriate to reflect the
relative fault of such indemnified party, on the one hand, and such Servicer,
on
the other hand, in connection with a breach of the Servicers’ obligations under
this Section 8.12(d) or any material misstatement or material omission,
negligence, bad faith or willful misconduct of such Servicer in connection
therewith. The obligations of the Trustee and each Servicer under this Section
8.12(d) shall apply to the Trustee and each Servicer, whether or not such
Trustee or Servicer is acting as Trustee or Servicer, as applicable, at the
time
such certification is required to be delivered. The indemnification and
contribution obligations set forth in this Section 8.12(d) shall survive the
termination of this Agreement or the earlier resignation or removal of the
Trustee or a Servicer, as applicable.
(e) Upon
any
filing with the Commission, the Trustee shall promptly deliver to the Depositor
a copy of each such executed report, statement or information.
(f) (i) The
obligations set forth in paragraphs (a) through (d) of this Section shall
only apply with respect to periods for which reports are required to be filed
with respect to the Trust under the Exchange Act. 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 Notification with respect to the
Trust, with a copy to the Depositor. At any time after the filing of a
Form 15 Suspension Notification, if the number of Holders of the Offered
Certificates of record exceeds the number set forth in Section 15(d) of the
Exchange Act or the regulations promulgated pursuant thereto which would cause
the Trust to again become subject to the reporting requirements of the Exchange
Act, the Trustee shall recommence preparing and filing reports on
Form 10-K, 10-D and 8-K as required pursuant to this Section 8.12 and
the parties hereto shall again have the obligations set forth in this
Section.
(ii) In
the
event that the Trustee is unable to timely file with the Commission all or
any
required portion of any Form 8-K, 10-D or 10-K required to be filed pursuant
to
this Agreement because required disclosure information was either not delivered
to it or delivered to it after the delivery deadlines set forth in this
Agreement, the Trustee will immediately notify the Depositor and the Servicers.
In the case of Form 10-D and 10-K, the Depositor, Servicers and Trustee will
thereupon cooperate to prepare and file a Form 12b-25 and a 10-D/A and 10-K/A
as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form
8-K, the Trustee will, upon receipt of all disclosure information required
to be
included on Form 8-K, include such disclosure information on the next Form
10-D.
In the event that any previously filed Form 8-K, 10-D or 10-K needs to be
amended, the party to this Agreement deciding that an amendment to such Form
8-K, 10-D or 10-K is required will notify the Depositor, the Trustee and the
Servicers and such parties will cooperate to prepare any necessary Form 8-K/A,
10-D/A or 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D
or
10-K shall be signed by an officer of the Depositor. The Depositor and Servicers
acknowledge that the performance by the Trustee of its duties under this Section
8.12(f) related to the timely preparation and filing of Form 15, a Form 12b-25
or any amendment to Form 8-K, 10-D or 10-K is contingent upon the Servicers
and
the Depositor observing all applicable deadlines (and the related grace periods
thereto) in the performance of their duties under this Section 8.12 and Sections
3.22 and 3.23. The Trustee shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare
and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms
8-K,
10-D or 10-K, where such failure results from the Trustee’s inability or failure
to obtain or receive, on a timely basis, any information from any party hereto
(other than the Trustee or any Subcontractor utilized by the Trustee) needed
to
prepare, arrange for execution or file such Form 15, Form 12b-25 or any
amendments to Forms 8-K, 10-D or 10-K, not resulting from its own negligence,
bad faith or willful misconduct.
(g) No
later
than 3:00 p.m. (Eastern Standard Time) (so long as the Trustee has received
from
the Depositor the executed Form 8-K no later than 5:00 p.m. (Eastern Standard
Time) on the 3rd Business Day after the Reportable Event (as defined below)
(or
otherwise, the Trustee shall utilize reasonable best efforts to file such Form
8-K no later than the filing deadline for such Form 8-K)) on any date within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable
Event”),
and
also if requested by the Depositor, the Trustee shall prepare and file on behalf
of the Trust any Form 8-K, as required by the Exchange Act, provided that
the Depositor shall file the initial Form 8-K in connection with the
issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K
(“Form 8-K
Disclosure Information”)
shall
be prepared by the party responsible for preparing such disclosure as set forth
on Exhibit S hereto and compiled by the Trustee pursuant to the following
paragraph. The Trustee will have no duty or liability for any failure hereunder
to determine or prepare any Form 8-K Disclosure Information or any
Form 8-K, except as set forth in the next paragraph.
As
set
forth on Exhibit S hereto, for so long as the Trust is subject to the Exchange
Act reporting requirements, no later than noon (Eastern Standard Time) on the
2nd Business Day after the occurrence of a Reportable Event certain parties
to
this Agreement shall be required to provide to the Depositor and the Trustee,
to
the extent known by such applicable parties, any Form 8-K Disclosure
Information, if applicable. The Trustee shall compile all such information
provided to it in a Form 8-K prepared by it.
The
Trustee shall prepare and forward electronically a draft copy of the
Form 8-K to the Depositor sufficiently far in advance of, but in no event
later than noon (Eastern Standard Time) on the 3rd Business Day after a
Reportable Event, when the Depositor is required to execute such Form 8-K to
permit the Depositor to review, verify and execute such Form 8-K. No later
than
the end of the 3rd Business Day 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. If a Form 8-K cannot be filed on time or if
a
previously filed Form 8-K needs to be amended, the Trustee will follow the
procedures set forth in Section 8.12(f)(ii). The signing party at the
Depositor can be contacted at the Depositor’s address for notices set forth in
Section 10.5(b)(ii)(a), or such other address as to which the Depositor has
provided prior written notice to the Trustee. The Depositor acknowledges that
the performance by the Trustee of its duties under this Section 8.12(g)
related to the timely preparation and filing of Form 8-K is contingent, in
part, upon each Servicer and the Depositor and any other Person obligated to
provide Form 8-K Disclosure Information as set forth on Exhibit S hereto,
providing such information to the Trustee in XXXXX-compatible form at the email
address for the Trustee set forth in Section 10.05, using Exhibit V, observing
all applicable deadlines in the performance of their duties under this
Section 8.12(g). The Trustee shall have no liability for any loss, expense,
damage or claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 8-K, where such failure results from
the Trustee’s inability or failure to obtain or receive, on a timely basis, any
information or signature from any party hereto (other than the Trustee or any
Subcontractor utilized by the Trustee) needed to prepare, arrange for execution
or file such Form 8-K, not resulting from its own negligence, bad faith or
willful misconduct.
(h) The
Trustee shall have no liability for any loss, expense, damage or claim arising
out of or resulting from (i) the accuracy or inaccuracy of any Additional
Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K
Disclosure Information (excluding any information therein provided by the
Trustee or any Subcontractor utilized by the Trustee) provided to the Trustee
in
connection with the preparation of Forms 10-D, 10-K and 8-K pursuant to
this Section 8.12, or (ii) the failure of the Depositor to timely
execute and return for filing any Forms 10-D, 10-K and 8-K required to be
filed by the Trustee pursuant to this Section 8.12, in either case, not
resulting from the Trustee’s own negligence, bad faith or
misconduct.
Section
8.13 Tax
Treatment of Swap Payments and Swap Termination Payments.
For
federal income tax purposes, each holder of a Class A Certificate, Class M
Certificate and Class B Certificate is deemed to own an undivided beneficial
ownership interest in a REMIC regular interest and the right to receive payments
from either the Excess Reserve Fund or the Swap Account in respect of any Basis
Risk CarryForward Amounts or the obligation to make payments to the Swap
Account. For federal income tax purposes, the Trustee will account for payments
to each Class A Certificate, Class M Certificate and Class B Certificate as
follows: each Class A Certificate, Class M Certificate and Class B Certificate
will be treated as receiving their entire payment from REMIC III (regardless
of
any Swap Termination Payment or obligation under the Interest Rate Swap
Agreement) and subsequently paying their portion of any Swap Termination Payment
in respect of each such Class’ obligation under the Interest Rate Swap
Agreement. In the event that any such Class is resecuritized in a REMIC, the
obligation under the Interest Rate Swap Agreement to pay any such Swap
Termination Payment (or any shortfall in Net Swap Payment), will be made by
one
or more of the REMIC Regular Interests issued by the resecuritization REMIC
subsequent to such REMIC Regular Interest receiving its full payment from any
such Class A Certificate, Class M Certificate or Class B
Certificate.
The
REMIC
Regular Interest corresponding to a Class A Certificate, Class M Certificate
or
Class B Certificate will be entitled to receive interest and principal payments
at the times and in the amounts equal to those made on the certificate to which
it corresponds, except that (i) the maximum interest rate of that REMIC regular
interest will equal the Group I Loan Cap, Group II Loan Cap or WAC Cap, as
applicable, computed for this purpose by limiting the notional amount of the
Interest Rate Swap Agreement to the Pool Stated Principal Balance and (ii)
any
Swap Termination Payment will be treated as being payable solely from amounts
otherwise payable to the Class X Certificates. As a result of the foregoing,
the
amount of distributions and taxable income on the REMIC Regular Interest
corresponding to a Class A Certificate, Class M Certificate and Class B
Certificate may exceed the actual amount of distributions on the Class A
Certificates, Class M Certificates and Class B Certificates.
Section
8.14 Distributions
on the REMIC Regular Interests.
The
Trustee shall elect that each of REMIC I, REMIC II, REMIC III, REMIC IV, REMIC
V
and REMIC VI shall be treated as a REMIC under Section 860D of the Code. Any
inconsistencies or ambiguities in this Agreement or in the administration of
this Agreement shall be resolved in a manner that preserves the validity of
such
REMIC elections. The REMIC I Regular Interests shall constitute the assets
of
REMIC II. The REMIC II Regular Interests shall constitute the assets of REMIC
III. The Class X Interest shall constitute the assets of REMIC IV. The Class
P
Interest shall constitute the assets of REMIC V. The Class IO Interest shall
constitute the assets of REMIC VI.
(a) On
each
Distribution Date, the following amounts, in the following order of priority
and
in accordance with the Servicer Remittance Report, shall be distributed by
REMIC
I to REMIC II on account of the REMIC I Group I Regular Interests or withdrawn
from the Distribution Account and distributed to the Holders of the Class R-I
Interest, as the case may be:
(i) to
Holders of each of REMIC I Regular Interest I and REMIC I Regular Interest
I-1-A
through I-61-B, on a pro
rata basis,
in
an amount equal to (A) Uncertificated Accrued Interest for such REMIC I Regular
Interests for such Distribution Date, plus (B) any amounts payable 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: to REMIC I Regular
Interest I, then to REMIC I Regular Interests I-1-A through I-61-B starting
with
the lowest numerical denomination until the Uncertificated Principal Balance
of
each such REMIC I Regular Interest is reduced to zero, provided that, for REMIC
I Regular Interests with the same numerical denomination, such payments of
principal shall be allocated pro
rata
between
such REMIC I Regular Interests; and
(iii) to
the
Holders of REMIC I Regular Interest P, (A) on each Distribution Date, 100%
of
the amount paid in respect of Prepayment Charges and (B) if such Distribution
Date follows the Prepayment Period during which occurs the latest date on which
a Prepayment Charge may be required to be paid in respect of any Mortgage Loan,
until $100 has been distributed pursuant to this clause.
(b) On
each
Distribution Date, the following amounts, in the following order of priority
and
in accordance with the Servicer Remittance Report, shall be distributed by
REMIC
I to REMIC II on account of the REMIC I Group II Regular Interests or withdrawn
from the Distribution Account and distributed to the Holders of the Class R-I
Interest, as the case may be:
(i) to
Holders of each of REMIC I Regular Interest II and REMIC I Regular Interest
II-1-A through II-61-B, pro
rata,
in an
amount equal to (A) Uncertificated Accrued Interest for such REMIC I Regular
Interests for such Distribution Date, plus (B) any amounts payable 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: to REMIC I Regular
Interest II, then to REMIC I Regular interests II-1-A through II-61-B starting
with the lowest numerical denomination until the Uncertificated Principal
Balance of each such REMIC I Regular Interest is reduced to zero, provided
that,
for REMIC I Regular Interests with the same numerical denomination, such
payments of principal shall be allocated on a pro
rata
basis
between such REMIC I Regular Interests.
(c) On
each
Distribution Date, the following amounts, in the following order of priority
and
in accordance with the Servicer Remittance Report, shall be distributed by
REMIC
II to REMIC III on account of the REMIC II Regular Interests or withdrawn from
the Distribution Account and distributed to the Holders of the Class R-II
Interest, as the case may be:
(i) first,
to
the Holders of REMIC II Regular Interest LT-AA, REMIC II Regular Interest LT-A1,
REMIC II Regular Interest LT-A2a, REMIC II Regular Interest LT-A2b, REMIC II
Regular Interest LT-A2c, REMIC II Regular Interest LT-A2d, REMIC II Regular
Interest LT-M1, REMIC II Regular Interest LT-M2, REMIC II Regular Interest
LT-M3, REMIC II Regular Interest LT-M4, REMIC II Regular Interest LT-M5, REMIC
II Regular Interest LT-M6, REMIC II Regular Interest LT-B1, REMIC II Regular
Interest LT-B2, REMIC II Regular Interest LT-B3, REMIC II Regular Interest
LT-B4
and REMIC II Regular Interest LT-ZZ, on a pro
rata
basis,
in an amount equal to (A) the Uncertificated Accrued Interest for each such
REMIC II Regular 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 II Regular
Interest LT-ZZ shall be reduced and deferred when the REMIC II
Overcollateralization Amount is less than the REMIC II Targeted
Overcollateralization Amount, by the lesser of (x) the amount of such difference
and (y) the REMIC II Regular Interest LT-ZZ Maximum Interest Deferral Amount
and
such amount will be payable to the REMIC II Regular Interest LT-A1, REMIC II
Regular Interest LT-A2a, REMIC II Regular Interest LT-A2b, REMIC II Regular
Interest LT-A2c, REMIC II Regular Interest LT-A2d, REMIC II Regular Interest
LT-M1, REMIC II Regular Interest LT-M2, REMIC II Regular Interest LT-M3, REMIC
II Regular Interest LT-M4, REMIC II Regular Interest LT-M5, REMIC II Regular
Interest LT-M6, REMIC II Regular Interest LT-B1, REMIC II Regular Interest
LT-B2, REMIC II Regular Interest LT-B3 and REMIC II Regular Interest LT-B4
in
the same proportion as the Subordination Deficiency is allocated to the
Corresponding Certificates and the Uncertificated Principal Balance of REMIC
II
Regular Interest LT-ZZ shall be increased by such amount;
(ii) second,
to the Holders of REMIC II Regular Interests, in an amount equal to the
remainder of the REMIC II Marker Allocation Percentage of the Interest
Remittance Amount and the Principal Distribution Amount for such Distribution
Date after the distributions made pursuant to clause (i) above, allocated as
follows:
(A) 98.00%
of
such remainder (other than amounts payable under clause (C) below) to the
Holders of REMIC II Regular Interest LT-AA and REMIC II Regular Interest LT-P,
until the Uncertificated Principal Balance of such REMIC II Regular Interest
is
reduced to zero, provided, however, that the Uncertificated Principal Balance
of
REMIC II Regular Interest LT-P shall not be reduced until the Distribution
Date
following the month after the expiration of the last Prepayment Charge or any
Distribution Date thereafter, at which point such amount shall be distributed
to
REMIC II Regular Interest LT-P, until $100 has been distributed pursuant to
this
clause;
(B) 2.00%
of
such remainder, first, to the Holders REMIC II Regular Interest LT-A1, REMIC
II
Regular Interest LT-A2a, REMIC II Regular Interest LT-A2b, REMIC II Regular
Interest LT-A2c, REMIC II Regular Interest LT-A2d, REMIC II Regular Interest
LT-M1, REMIC II Regular Interest LT-M2, REMIC II Regular Interest LT-M3, REMIC
II Regular Interest LT-M4, REMIC II Regular Interest LT-M5, REMIC II Regular
Interest LT-M6, REMIC II Regular Interest LT-B1, REMIC II Regular Interest
LT-B2, REMIC II Regular Interest LT-B3 and REMIC II Regular Interest LT-B4,
1%
in the same proportion as principal payments are allocated to the Corresponding
Certificates, until the Uncertificated Principal Balances of such REMIC II
Regular Interests are reduced to zero and second, to the Holders of REMIC II
Regular Interest LT-ZZ (other than amounts payable under the proviso below),
until the Uncertificated Principal Balance of such REMIC II Regular Interest
is
reduced to zero; and
(C) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-II Interest).
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to an Overcollateralization Release Amount shall be allocated
to
Holders of (i) REMIC II Regular Interest LT-AA and REMIC II Regular Interest
LT-P, in that order and (ii) REMIC II Regular Interest LT-ZZ, respectively;
provided that REMIC II Regular Interest LT-P shall not be reduced until
Distribution Date that follows the Prepayment Period during which occurs the
latest date on which a Prepayment Charge may be required to be paid in respect
of any Mortgage Loan, at which point such amount shall be distributed to REMIC
II Regular Interest LT-P, until $100 has been distributed pursuant to this
clause.
(iii) third,
to
the Holders of REMIC II Regular Interest LT-1SUB, REMIC II Regular Interest
LT-1GRP, REMIC II Regular Interest LT-2SUB, REMIC II Regular Interest LT-2GRP
and REMIC II Regular Interest LT-XX, on a pro
rata
basis,
in an amount equal to (A) the Uncertificated Accrued Interest for each such
REMIC II Regular Interest for such Distribution Date, plus (B) any amounts
in
respect thereof remaining unpaid from previous Distribution Dates;
and
(iv) fourth,
to the Holders of REMIC II Regular Interests, in an amount equal to the
remainder of the REMIC II Sub WAC Allocation Percentage of the Interest
Remittance Amount and the Principal Distribution Amount for such Distribution
Date after the distributions made pursuant to clause (iii) above, such that
distributions of principal shall be deemed to be made to the REMIC II Regular
Interests first, so as to keep the Uncertificated Principal Balance of each
REMIC II Regular Interest ending with the designation “GRP” equal to 0.01% of
the aggregate Stated Principal Balance of the Mortgage Loans in the related
loan
group; second, to each REMIC II Regular Interest ending with the designation
“SUB,” so that the Uncertificated Principal Balance of each such REMIC II
Regular Interest is equal to 0.01% of the excess of (x) the aggregate Stated
Principal Balance of the Mortgage Loans in the related loan group over (y)
the
current Certificate Principal Balance of the Class A Certificates in the related
loan group (except that if any such excess is a larger number than in the
preceding distribution period, the least amount of principal shall be
distributed to such REMIC II Regular Interests such that the REMIC II
Subordinated Balance Ratio is maintained); and third, any remaining principal
to
REMIC II Regular Interest LT-XX.
Section
8.15 Certain
Interest Shortfalls on the REMIC Regular Interests.
(a) For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC I Group I Regular Interests for any Distribution Date, the aggregate
amount of any Net Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls incurred in respect of the Group I Mortgage Loans for any
Distribution Date shall be allocated first,
to
REMIC I Regular Interest I and to the REMIC I Group I Regular Interests ending
with the designation “B”, on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Uncertificated REMIC I Pass-Through Rates on the respective
Uncertificated Principal Balances of each such REMIC I Regular Interest, and
then, to REMIC I Group I Regular Interests ending with the designation “A”, on a
pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Uncertificated REMIC I Pass-Through Rates on the respective
Uncertificated Principal Balances of each such REMIC I Regular Interest. For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC I Group II Regular Interests for any Distribution Date, the aggregate
amount of any Net Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls incurred in respect of the Group II Mortgage Loans for any
Distribution Date shall be allocated first,
REMIC I Regular Interest II and to the REMIC I Group II Regular Interests ending
with the designation “B”, on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Uncertificated REMIC I Pass-Through Rates on the respective
Uncertificated Principal Balances of each such REMIC I Regular Interest, and
then, to REMIC I Group II Regular Interests ending with the designation “A”, on
a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Uncertificated REMIC I Pass-Through Rates on the respective
Uncertificated Principal Balances of each such REMIC I Regular
Interest.
(b) For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC II Regular Interests for any Distribution Date:
(i) The
REMIC
II Marker Allocation Percentage of the aggregate amount of any Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls incurred in respect
of
the Mortgage Loans for any Distribution Date shall be allocated among
REMIC II Regular Interest LT-AA, REMIC II Regular Interest LT-A1, REMIC II
Regular Interest LT-A2a, REMIC II Regular Interest LT-A2b, REMIC II Regular
Interest LT-A2c, REMIC II Regular Interest LT-A2d, REMIC II Regular Interest
LT-M1, REMIC II Regular Interest LT-M2, REMIC II Regular Interest LT-M3, REMIC
II Regular Interest LT-M4, REMIC II Regular Interest LT-M5, REMIC II Regular
Interest LT-M6, REMIC II Regular Interest LT-B1, REMIC II Regular Interest
LT-B2, REMIC II Regular Interest LT-B3, REMIC II Regular Interest LT-B4 and
REMIC I Regular Interest LT-ZZ, on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Uncertificated REMIC I Pass-Through Rate on the respective
Uncertificated Principal Balance of each such REMIC I Regular Interest;
and
(ii) The
REMIC
II Sub WAC Allocation Percentage of the aggregate amount of any Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls incurred in respect
of
the Mortgage Loans for any Distribution Date shall be allocated to
Uncertificated Accrued Interest payable to REMIC II Regular Interest LT-1SUB,
REMIC II Regular Interest LT-1GRP, REMIC II Regular Interest LT-2SUB, REMIC
II
Regular Interest LT-2GRP and REMIC II Regular Interest LT-XX, on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Uncertificated REMIC II Pass-Through Rate on the respective
Uncertificated Principal Balance of each such REMIC II Regular
Interest.
Section
8.16 Allocation
of Realized Losses to the REMIC Regular Interests.
(a) With
respect to the REMIC I Regular Interests, all Realized Losses on the Group
I
Mortgage Loans shall be allocated shall be allocated on each Distribution Date
first, to REMIC I Regular Interest I until the Uncertificated Principal Balance
has been reduced to zero, and second, to REMIC I Regular Interest I-1-A through
REMIC I Regular Interest I-61-B, starting with the lowest numerical denomination
until such REMIC I Regular Interest has been reduced to zero, provided that,
for
REMIC I Regular Interests with the same numerical denomination, such Realized
Losses shall be allocated on a pro
rata
basis
between such REMIC I Regular Interests. All Realized Losses on the Group II
Mortgage Loans shall be allocated on each Distribution Date first, to REMIC
I
Regular Interest II until the Uncertificated Principal Balance has been reduced
to zero, and second, to REMIC I Regular Interest II-1-A through REMIC I Regular
Interest II-61-B, starting with the lowest numerical denomination until such
REMIC I Regular Interest has been reduced to zero, provided that, for REMIC
I
Regular Interests with the same numerical denomination, such Realized Losses
shall be allocated on a pro
rata
basis
between such REMIC I Regular Interests.
(b) The
REMIC
II Marker Allocation Percentage of all Realized Losses on the Mortgage Loans
shall be allocated on each Distribution Date to the following REMIC II Regular
Interests in the specified percentages, as follows: first, to Uncertificated
Accrued Interest payable to the REMIC II Regular Interest LT-AA and REMIC II
Regular Interest LT-ZZ up to an aggregate amount equal to the REMIC II Interest
Loss Allocation Amount, 98% and 2%, respectively; second, to the Uncertificated
Principal Balances of REMIC II Regular Interest LT-AA and REMIC II Regular
Interest LT-ZZ up to an aggregate amount equal to the REMIC II Principal Loss
Allocation Amount, 98% and 2%, respectively; third, to the Uncertificated
Principal Balances of REMIC II Regular Interest LT-AA, REMIC II Regular Interest
LT-B4 and REMIC II Regular Interest LT-ZZ, 98%, 1% and 1%, respectively, until
the Uncertificated Principal Balance of REMIC II Regular Interest LT-B4 has
been
reduced to zero; fourth, to the Uncertificated Principal Balances of REMIC
II
Regular Interest LT-AA, REMIC II Regular Interest LT-B3 and REMIC II Regular
Interest LT-ZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC II Regular Interest LT-B3 has been reduced to zero; fifth,
to
the Uncertificated Principal Balances of REMIC II Regular Interest LT-AA, REMIC
II Regular Interest LT-B2 and REMIC II Regular Interest LT-ZZ, 98%, 1% and
1%,
respectively, until the Uncertificated Principal Balance of REMIC II Regular
Interest LT-B2 has been reduced to zero; sixth, to the Uncertificated Principal
Balances of REMIC II Regular Interest LT-AA, REMIC II Regular Interest LT-B1
and
REMIC II Regular Interest LT-ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC II Regular Interest LT-B1 has been
reduced to zero; seventh, to the Uncertificated Principal Balances of REMIC
II
Regular Interest LT-AA, REMIC II Regular Interest LT-M6 and REMIC II Regular
Interest LT-ZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC II Regular Interest LT-M6 has been reduced to zero; eighth,
to
the Uncertificated Principal Balances of REMIC II Regular Interest LT-AA, REMIC
II Regular Interest LT-M5 and REMIC II Regular Interest LT-ZZ, 98%, 1% and
1%,
respectively, until the Uncertificated Principal Balance of REMIC II Regular
Interest LT-M5 has been reduced to zero; ninth, to the Uncertificated Principal
Balances of REMIC II Regular Interest LT-AA, REMIC II Regular Interest LT-M4
and
REMIC II Regular Interest LT-ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC II Regular Interest LT-M4 has been
reduced to zero; tenth, to the Uncertificated Principal Balances of REMIC II
Regular Interest LT-AA, REMIC II Regular Interest LT-M3 and REMIC II Regular
Interest LT-ZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC II Regular Interest LT-M3 has been reduced to zero; eleventh,
to the Uncertificated Principal Balances of REMIC II Regular Interest LT-AA,
REMIC II Regular Interest LT-M2 and REMIC II Regular Interest LT-ZZ, 98%, 1%
and
1%, respectively, until the Uncertificated Principal Balance of REMIC II Regular
Interest LT-M2 has been reduced to zero; and twelfth, to the Uncertificated
Principal Balances of REMIC II Regular Interest LT-AA, REMIC II Regular Interest
LT-M1 and REMIC II Regular Interest LT-ZZ, 98%, 1% and 1%, respectively, until
the Uncertificated Principal Balance of REMIC II Regular Interest LT-M1 has
been
reduced to zero.
(c) The
REMIC
II Sub WAC Allocation Percentage of all Realized Losses on the Mortgage Loans
shall be applied after all distributions have been made on each Distribution
Date first, so as to keep the Uncertificated Principal Balance of each REMIC
II
Regular Interest ending with the designation “GRP” equal to 0.01% of the
aggregate Stated Principal Balance of the Mortgage Loans in the related loan
group; second, to each REMIC II Regular Interest ending with the designation
“SUB,” so that the Uncertificated Balance of each such REMIC II Regular Interest
is equal to 0.01% of the excess of (x) the aggregate Stated Principal Balance
of
the Mortgage Loans in the related loan group over (y) the current Certificate
Principal Balance of the Class A Certificate in the related loan group (except
that if any such excess is a larger number than in the preceding distribution
period, the least amount of Realized Losses shall be applied to such REMIC
II
Regular Interests such that the REMIC II Subordinated Balance Ratio is
maintained); and third, any remaining Realized Losses shall be allocated to
REMIC II Regular Interest LT-XX.
ARTICLE
IX
TERMINATION
Section
9.01 Termination
upon Liquidation or Purchase of the Mortgage Loans.
Subject
to Sections 9.02 and 9.03, the obligations and responsibilities of the
Depositor, the Servicers, the Responsible Party and the Trustee created hereby
with respect to the Trust Fund shall terminate upon the earlier of (a) the
purchase, on or after the Optional Termination Date by the Servicers,
individually or together, of all Mortgage Loans (and REO Properties) at the
price equal to the sum of (i) 100% of the unpaid principal balance of each
Mortgage Loan (other than in respect of REO Property) plus accrued and unpaid
interest thereon at the applicable Mortgage Rate, (ii) the lesser of
(x) the appraised value of any REO Property as determined by the higher of
two appraisals completed by two independent appraisers selected by the
Servicers, individually or together, at the expense of the Servicers,
individually or together, plus accrued and unpaid interest on each Mortgage
Loan
at the applicable Mortgage Rate and (y) the unpaid 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 (iii) any Swap
Termination Payment owed to the Swap Provider pursuant to the Interest Rate
Swap
Agreement, 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 Latest Possible Maturity Date and (ii)
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.
Notwithstanding
anything to the contrary contained herein, no such purchase shall be permitted
unless (i) after distribution of the proceeds thereof to the
Certificateholders (other than the Holders of the Class X, Class P and
Residual Certificates) pursuant to Section 9.02, the distribution of the
remaining proceeds to the Class X and Class P Certificates is
sufficient to pay the outstanding principal amount of and accrued and unpaid
interest on the NIM Securities, to the extent the NIM Securities are then
outstanding, or (ii) prior to such purchase, the Servicers, individually or
together, shall have deposited in the related Collection Account an amount
to be
remitted to the NIM Trustee that, together with such remaining proceeds, will
be
sufficient to pay the outstanding principal amount of and accrued and unpaid
interest on the NIM Securities, to the extent the NIM Securities are then
outstanding.
Section
9.02 Final
Distribution on the Certificates.
If on
any Remittance Date, the Servicers determine that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the related Collection Account, the Servicers shall direct the Trustee
promptly to send a Notice of Final Distribution to each Certificateholder and
the Swap Provider. If the Servicers elect to terminate the Trust Fund pursuant
to clause (a) of Section 9.01, the Servicers shall notify, by the
25th
day of
the month preceding the month of the final distribution, the Depositor and
the
Trustee of the date the Servicers intend to terminate the Trust Fund and of
the
applicable repurchase price of the Mortgage Loans and REO
Properties.
A
Notice
of Final Distribution, specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Trustee by letter
to Certificateholders mailed not earlier than the 10th day and not later than
the 15th day of the month of such final distribution. Any such Notice of Final
Distribution 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 will give such Notice of Final
Distribution to each Rating Agency at the time such Notice of Final Distribution
is given to Certificateholders.
In
the
event such Notice of Final Distribution is given, the Servicers shall cause
all
funds in the related Collection Account to be remitted to the Trustee for
deposit in the Distribution Account on the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect of
the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Servicers, the Custodial Files for the Mortgage
Loans.
Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Certificateholders of each Class (after reimbursement of
all
amounts due to the Servicers, the Depositor and the Trustee hereunder), in
each
case on the final Distribution Date and in the order set forth in
Section 4.02, in proportion to their respective Percentage Interests, with
respect to Certificateholders of the same Class, up to an amount equal to
(i) as to each Class of Regular Certificates (except the Class X
Certificates), the Certificate Balance thereof plus for each such Class and
the
Class X Certificates accrued interest thereon in the case of an
interest-bearing Certificate and all other amounts to which such Classes are
entitled pursuant to Section 4.02 and (ii) as to the Residual
Certificates, the amount, if any, which remains on deposit in the Distribution
Account (other than the amounts retained to meet claims) after application
pursuant to clause (i) above.
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 Residual Certificateholders shall be entitled
to all unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
Section
9.03 Additional
Termination Requirements. In
the event the Servicers exercise their purchase option with respect to the
Mortgage Loans as provided in Section 9.01, the Trust Fund shall be
terminated in accordance with the following additional requirements, unless
the
Trustee has been supplied with an Opinion of Counsel, at the expense the
Servicers, 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 Trust REMIC as defined in Section 860F of
the Code, or (ii) cause any Trust REMIC to fail to qualify as a REMIC at
any time that any Certificates are Outstanding:
(a) The
Trustee shall sell all of the assets of the Trust Fund to the Servicers, and,
by
no later than the next Distribution Date after such sale, shall distribute
to
the Certificateholders the proceeds of such sale in complete liquidation of
each
Trust REMIC; and
(b) The
Trustee shall attach a statement to the final federal income tax return for
each
Trust REMIC stating that pursuant to Treasury Regulations Section 1.860F-1,
the first day of the 90-day liquidation period for each such Trust REMIC was
the
date on which the Trustee sold the assets of the Trust Fund to the
Servicers.
ARTICLE
X
MISCELLANEOUS
PROVISIONS
Section
10.01 Amendment.
This
Agreement may be amended from time to time by the Depositor, the Servicers,
the
Responsible Party 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 or the Servicers, (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
amendment 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), adversely affect in any material
respect the interests of any Certificateholder; and provided,
further,
that
any such amendment pursuant to clause (iv) or (v) above shall not
be deemed to adversely affect in any material respect the interests of the
Certificateholders 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 Responsible Party
and
the Servicers also may at any time and from time to time amend this Agreement,
but 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 each Trust REMIC under the Code,
(ii) avoid or minimize the risk of the imposition of any tax on any Trust
REMIC 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 Responsible Party and the Trustee with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than
662/3%
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 not less than 662/3%
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 (i) it shall have first received an Opinion
of Counsel, which opinion shall not be an expense of the Trustee or the Trust
Fund, to the effect that such amendment will not cause the imposition of any
tax
on any Trust REMIC or the Certificateholders or cause any such Trust REMIC
to
fail to qualify as a REMIC at any time that any Certificates are Outstanding
and
(ii) the party seeking such amendment shall have provided written notice to
the
Rating Agencies (with a copy of such notice to the Trustee) of such amendment,
stating the provisions of the Agreement to be amended.
Notwithstanding
the foregoing provisions of this Section 10.01, with respect to any
amendment that significantly modifies the permitted activities of the Trustee
or
the Servicers, any Certificate beneficially owned by the Depositor shall be
deemed not to be Outstanding (and shall not be considered when determining
the
percentage of Certificateholders consenting or when calculating the total number
of Certificates entitled to consent) for purposes of determining if the
requisite consents of Certificateholders under this Section 10.01 have been
obtained.
Promptly
after the execution of any amendment to this Agreement requiring the consent
of
Certificateholders, the Trustee shall furnish written notification of the
substance or a copy of such amendment to each Certificateholder 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 (including
the
obtaining of any required consents); 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.
Notwithstanding
the foregoing, any amendment to this Agreement shall require the prior written
consent of the Swap Provider if such amendment materially and adversely affects
the rights or interests of the Swap Provider.
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 Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicers at the direction and expense of the Depositor, but
only upon receipt of 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 Intention
of Parties.
It is
the express intent of the parties hereto that the conveyance (i) of the
Mortgage Loans by the Depositor and (ii) of the Trust Fund by the Depositor
to the Trustee each be, and be construed as, an absolute sale thereof. It is,
further, not the intention of the parties that such conveyances be deemed a
pledge thereof. However, in the event that, notwithstanding the intent of the
parties, such assets are held to be the property of the Depositor, as the case
may be, or if for any other reason this Agreement is held or deemed to create
a
security interest in either such assets, then (i) this Agreement shall be
deemed to be a security agreement within the meaning of the Uniform Commercial
Code of the State of New York and (ii) the conveyances provided for in this
Agreement shall be deemed to be an assignment and a grant by the Depositor
to
the Trustee, for the benefit of the Certificateholders, of a security interest
in all of the assets transferred, whether now owned or hereafter
acquired.
The
Depositor, for the benefit of the Certificateholders, shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the Trust
Fund, such security interest would be deemed to be a perfected security interest
of first priority under applicable law and will be maintained as such throughout
the term of the Agreement. The Depositor shall arrange for filing any Uniform
Commercial Code continuation statements in connection with any security interest
granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section
10.05 Notices.
(a) The
Trustee shall promptly provide notice to each Rating Agency with respect to
each
of the following of which it 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 a Servicer or the Trustee and the appointment
of
any successor;
(iv) The
repurchase or substitution of Mortgage Loans pursuant to Section 2.03;
and
(v) The
final
payment to Certificateholders.
(b) In
addition, the Trustee shall promptly furnish to each Rating Agency copies (which
may be provided electronically via the Trustee’s website) of the
following:
(i) Each
report to Certificateholders described in Section 4.03; and
(ii) Any
notice of a purchase of a Mortgage Loan pursuant to Section 2.02, 2.03 or
3.11.
All
directions, demands, consents and notices hereunder shall be in writing (unless
otherwise indicated in this paragraph) and shall be deemed to have been duly
given when delivered to: (a) in the case of the Depositor or Xxxxxx Xxxxxxx
& Co. Incorporated (1) Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx - SPG Finance, 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; (2) Xxxx Xxxxxxxx, Xxxxxx
Xxxxxxx - Servicing Oversight, 0000 X-Xxx Xxx., Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000; (3) Xxxxx Xxxxxxxxxx, Xxxxxx Xxxxxxx - Whole Loan Operations, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000; (4) Xxxxx Xxxxxx, Xxxxxx Xxxxxxx - RFPG, 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; and (5) in the case of a
direction or demand, notification to the following email addresses:
Xxxx.Xxxxxxxx@ xxxxxxxxxxxxx.xxx, XX.Xxxxxx@xxxxxxxxxxxxx.xxx,
Xxxxx.Xxxxxx@xxxxxxxxxxxxx.xxx and Xxxx.Xxxxxxxx@xxxxxxxxxxxxx.xxx; or such
other address as may be hereafter furnished to the other parties hereto by
the
Depositor in writing; (b) in the case of Countrywide Servicing, 000
Xxxxxxxxxxx Xxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxxxxxx and
Xxxx Xx, Fax: (000) 000-0000; with a copy to General Counsel: Countrywide Home
Loans Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, or such other
address as may be hereafter furnished to the other parties hereto and the Swap
Provider by Countrywide Servicing in writing; (c) in the case of Saxon, 0000
Xxxxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxx 00000,xx such other address as may be
hereafter furnished to the other parties hereto and the Swap Provider by Saxon
in writing; (d) in the case of the Trustee, to Deutsche Bank National Trust
Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000,
Attention: Trust Administration MS07C1 or such other address as the Trustee
may
hereafter furnish to the other parties hereto and the Swap Provider in writing;
provided,
however,
all
reports, statements, certifications and information required to be provided
to
the Trustee pursuant to Section 8.12 for filing shall be electronically
forwarded to XXXxx.Xxxxxxxxxxxxx@xx.xxx; (e) in the case of the Responsible
Party, 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxx Xxxxxxxx, President, or such other address as may be
hereafter furnished to the other parties hereto and the Swap Provider by the
Responsible Party in writing; (f) in the case of the Swap Provider to Xxxxxx
Xxxxxxx Capital Services Inc., Transaction Management Group, 0000 Xxxxxxxx,
Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention: Chief Legal Officer, Facsimile
No. (000) 000-0000, or such other address as the Swap Provider may
hereafter furnish to the Depositor, the Trustee and the Servicers; in the case
of each of the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency. 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;
Sales; Advance Facilities.
Notwithstanding anything to the contrary contained herein, except as provided
in
Section 6.04, this Agreement may not be assigned by any Servicer without the
prior written consent of the Trustee and the Depositor; provided, however,
each
Servicer is hereby authorized to enter into an Advance Facility under which
(l)
such Servicer sells, assigns or pledges to an Advancing Person the Servicer’s
rights under this Agreement to be reimbursed for any P&I Advances or
Servicing Advances and/or (2) an Advancing Person agrees to fund some or all
P&I Advances or Servicing Advances required to be made by such Servicer
pursuant to this Agreement. No consent of the Trustee, Certificateholders or
any
other party is required before a Servicer may enter into an Advance Facility.
Notwithstanding the existence of any Advance Facility under which an Advancing
Person agrees to fund P&I Advances and/or Servicing Advances on a Servicer’s
behalf, such Servicer shall remain obligated pursuant to this Agreement to
make
P&I 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.
Reimbursement
amounts shall consist solely of amounts in respect of P&I Advances and/or
Servicing Advances made with respect to the Mortgage Loans for which a Servicer
would be permitted to reimburse itself in accordance with this Agreement,
assuming such Servicer had made the related P&I Advance(s) and/or Servicing
Advance(s).
The
applicable Servicer 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 the predecessor
servicer, and the successor servicer shall not be liable for any errors in
such
information.
An
Advancing Person who purchases or receives an assignment or pledge of the rights
to be reimbursed for P&I Advances and/or Servicing Advances, and/or whose
obligations hereunder are limited to the funding of P&I Advances and/or
Servicing Advances shall not be required to meet the criteria for qualification
of a Subservicer set forth in this Agreement.
The
documentation establishing any Advance Facility shall require that reimbursement
amounts distributed with respect to each Mortgage Loan be allocated to
outstanding xxxxxxxxxxxx X&X 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 the applicable Servicer to provide
to the related Advancing Person or its designee loan-by-loan information with
respect to each such reimbursement amount distributed 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 such
reimbursement amount with respect to each applicable Mortgage Loan. The
applicable Servicer shall remain entitled to be reimbursed by the Advancing
Person or Advance Facility trustee for all P&I Advances and Servicing
Advances funded by such Servicer to the extent the related rights to be
reimbursed therefor have not been sold, assigned or pledged to an Advancing
Person.
Any
amendment to this Section 10.07 or to any other provision of this Agreement
that
may be necessary or appropriate to effect the terms of an Advance Facility
as
described generally in this Section 10.07, including amendments to add
provisions relating to a successor servicer, may be entered into by the Trustee,
the Depositor, the Responsible Parties and the Servicers without the consent
of
any Certificateholder, notwithstanding anything to the contrary in this
Agreement, upon receipt by the Trustee of an Opinion of Counsel that such
amendment has no material adverse effect on the Certificateholders or written
confirmation from the Rating Agencies that such amendment will not adversely
affect the ratings on the Certificates. Prior to entering into an Advance
Facility, the applicable Servicer shall notify the lender under such facility
in
writing that: (a) the Advances financed by and/or pledged to the lender are
obligations owed to such Servicer on a non-recourse basis payable only from
the
cash flows and proceeds received under this Agreement for reimbursement of
Advances only to the extent provided herein, and the Trustee and the Trust
are
not otherwise obligated or liable to repay any Advances financed by the lender;
(b) such Servicer will be responsible for remitting to the lender the applicable
amounts collected by it as reimbursement for Advances funded by the lender,
subject to the restrictions and priorities created in this Agreement; and (c)
the Trustee shall not have any responsibility to track or monitor the
administration of the financing arrangement between such applicable Servicer
and
the lender.
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 Inspection
and Audit Rights.
Each
Servicer agrees that, on 5 Business Days prior notice, it will permit any
representative of the Depositor or the Trustee during such Person’s normal
business hours, to examine all the books of account, records, reports and other
papers of such Person relating to the Mortgage Loans, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants selected by the Depositor or the Trustee and to discuss
its
affairs, finances and accounts relating to the Mortgage Loans with its officers,
employees and independent public accountants (and by this provision each
Servicer hereby authorizes said accountants to discuss with such representative
such affairs, finances and accounts), all at such reasonable times and as often
as may be reasonably requested. Any out-of-pocket expense of a Servicer incident
to the exercise by the Depositor or the Trustee of any right under this Section
10.09 shall be borne by such Servicer.
Section
10.10 Certificates
Nonassessable and Fully Paid.
It is
the intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the 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
10.11 Rule
of Construction.
Article
and section headings are for the convenience of the reader and shall not be
considered in interpreting this Agreement or the intent of the parties
hereto.
Section
10.12 Waiver
of Jury Trial.
EACH
PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
Section
10.13 Rights
of the Swap Provider and the Cap Provider.
Each of
the Swap Provider and the Cap Provider shall be deemed a third-party beneficiary
of this Agreement to the same extent as if it were a party hereto and shall
have
the right to enforce its rights under this Agreement.
Section
10.14 Regulation
AB Compliance; Intent of the Parties; Reasonableness.
The
parties hereto acknowledge that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agree
to
comply with all reasonable requests made by the Depositor in good faith for
delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with the Trust, each Servicer
and the Trustee shall cooperate fully with the Depositor to deliver to the
Depositor (including its assignees or designees), any and all statements,
reports, certifications, records and any other information available to such
party and reasonably necessary in the good faith determination of the Depositor
to permit the Depositor to comply with the provisions of Regulation AB, together
with such disclosures relating to each Servicer and the Trustee, as applicable,
reasonably believed by the Depositor to be necessary in order to effect such
compliance.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers thereunto duly authorized as of the day and year
first above written.
|
XXXXXX
XXXXXXX ABS CAPITAL I INC., as Depositor
|
||
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxxx
|
|
|
Title:
|
Managing
Director
|
|
|
COUNTRYWIDE
HOME LOANS SERVICING LP,
as
Servicer
|
||
|
By:
|
/s/
Xxxxxx Xxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxx
|
|
|
Title:
|
Vice
President
|
|
|
SAXON
MORTGAGE SERVICES, INC.,
as
Servicer
|
||
|
By:
|
/s/
Xxxxxx X. Xxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxx
|
|
|
Title:
|
Executive
Vice President
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, solely as Trustee and not in its individual
capacity
|
||
|
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxxxxx
|
|
|
Title:
|
Vice
President
|
|
|
By:
|
/s/
Xxxxxxxx Xxxxxxxxxxx
|
|
|
Name:
|
Xxxxxxxx
Xxxxxxxxxxx
|
|
|
Title:
|
Associate
|
|
|
NC
CAPITAL CORPORATION,
as
Responsible Party
|
||
|
By:
|
/s/
Xxxxx Xxxxx
|
|
|
Name:
|
Xxxxx
Xxxxx
|
|
|
Title:
|
President
|
|
SCHEDULE I
Mortgage
Loan Schedule
(Available
Upon Request to Trustee)
SCHEDULE II
Xxxxxx
Xxxxxxx ABS Capital Inc.
Mortgage
Pass-Through Certificates,
Series 2007-NC1
Representations
and Warranties of Countrywide Servicing, as Servicer
Countrywide
Servicing hereby makes the representations and warranties set forth in this
Schedule II to the Depositor and the Trustee as of the Closing
Date.
(a) Due
Organization and Authority. The Servicer is validly existing, and in good
standing under the laws of its jurisdiction of incorporation or formation and
has all licenses necessary to carry on its business as now being conducted
and
is licensed, qualified and in good standing in the states where the Mortgaged
Property is located if the laws of such state require licensing or qualification
in order to conduct business of the type conducted by the Servicer. The Seller
has the power and authority to execute and deliver this Pooling and Servicing
Agreement and to perform its obligations hereunder; the execution, delivery
and
performance of this Pooling and Servicing Agreement (including all instruments
of transfer to be delivered pursuant to this Pooling and Servicing Agreement)
by
the Servicer and the consummation of the transactions contemplated hereby have
been duly and validly authorized; this Pooling and Servicing Agreement has
been
duly executed and delivered and constitutes the valid, legal, binding and
enforceable obligation of the Servicer, except as enforceability may be limited
by (i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights
of
creditors and (ii) general principles of equity, whether enforcement is sought
in a proceeding in equity or at law. All requisite action has been taken by
the
Servicer to make this Pooling and Servicing Agreement valid and binding upon
the
Servicer in accordance with its terms;
(b) No
Consent Required. No consent, approval, authorization or order is required
for
the transactions contemplated by this Pooling and Servicing Agreement from
any
court, governmental agency or body, or federal or state regulatory authority
having jurisdiction over the Servicer is required or, if required, such consent,
approval, authorization or order has been or will, prior to the related Closing
Date, be obtained;
(c) Ordinary
Course of Business. The consummation of the transactions contemplated by this
Pooling and Servicing Agreement are in the ordinary course of business of the
Servicer;
(d) No
Conflicts. Neither the execution and delivery of this Pooling and Servicing
Agreement by the Servicer, the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions
of
this Pooling and Servicing Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Servicer’s partnership
agreement or any legal restriction or any agreement or instrument to which
the
Servicer is now a party or by which it is bound, or constitute a default or
result in an acceleration under any of the foregoing, or result in the violation
of any law, rule, regulation, order, judgment or decree to which the Servicer
or
its property is subject, or result in the creation or imposition of any lien,
charge or encumbrance that would have an adverse effect upon any of its
properties pursuant to the terms of any mortgage, contract, deed of trust or
other instrument, or impair the ability of the Trustee to realize on the
Mortgage Loans, impair the value of the Mortgage Loans, or impair the ability
of
the Trustee to realize the full amount of any insurance benefits accruing
pursuant to this Pooling and Servicing Agreement;
(e) No
Litigation Pending. There is no action, suit, proceeding or investigation
pending or, to best of knowledge of the Servicer, threatened against the
Servicer, before any court, administrative agency or other tribunal asserting
the invalidity of this Pooling and Servicing Agreement, seeking to prevent
the
consummation of any of the transactions contemplated by this Pooling and
Servicing Agreement or which, either in any one instance or in the aggregate,
may reasonably result in any material adverse change in the business,
operations, financial condition, properties or assets of the Servicer, or in
any
material impairment of the right or ability of the Servicer to carry on its
business substantially as now conducted, or in any material liability on the
part of the Servicer, or which would draw into question the validity of this
Pooling and Servicing Agreement or the Mortgage Loans or of any action taken
or
to be taken in connection with the obligations of the Servicer contemplated
herein, or which would be likely to impair materially the ability of the
Servicer to perform under the terms of this Pooling and Servicing
Agreement;
(f) Ability
to Perform; Solvency. The Servicer does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant contained
in
this Pooling and Servicing Agreement. The Servicer is solvent;
(g) Servicer’s
Ability to Service. The Servicer is an approved seller/servicer for Xxxxxx
Mae
and Xxxxxxx Mac in good standing and is a mortgagee approved by the Secretary
of
HUD. No event has occurred, including a change in insurance coverage, which
would make the Servicer unable to comply with Xxxxxx Mae, Xxxxxxx Mac or HUD
eligibility requirements;
(h) Reasonable
Servicing Fee. The Servicer acknowledges and agrees that the Servicing Fee
represents reasonable compensation for performing such services and that the
entire Servicing Fee shall be treated by the Servicer, for accounting and tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Pooling and Servicing Agreement; and
(i) No
Untrue
Information. Neither this Pooling and Servicing Agreement nor any information,
statement, tape, diskette, report, form, or other document furnished or to
be
furnished pursuant to this Pooling and Servicing Agreement or any Reconstitution
Agreement or in connection with the transactions contemplated hereby (including
any Pass-Through Transfer or Whole Loan Transfer) contains or will contain
any
untrue statement of fact or omits or will omit to state a fact necessary to
make
the statements contained herein or therein not misleading.
SCHEDULE
III
Xxxxxx
Xxxxxxx ABS Capital Inc.
Mortgage
Pass-Through Certificates,
Series 2007-NC1
Representations
and Warranties of the Responsible Party as to the Mortgage
Loans
NC
Capital Corporation hereby makes the representations and warranties set forth
in
this Schedule III as to the Mortgage Loans only to the Depositor, the
Servicer and the Trustee, as of January 26, 2007 (the “Securitization
Closing Date”)
(unless otherwise expressly indicated). Capitalized terms used but not otherwise
defined in this Schedule III shall have the meanings ascribed thereto in the
Purchase Agreement.
(a) Mortgage
Loans as Described. NC Capital Corporation has delivered to the Sponsor, as
of
January 1, 2007, the Data Tape Information and that Data Tape Information and
the information set forth on the Mortgage Loan Schedule (other than item (21)
thereof, as to which NC Capital Corporation makes no representation or warranty)
are true and correct, including, without limitation, the terms of the Prepayment
Charges, if any, as of the Securitization Closing Date;
(b) Payments
Current. All payments required to be made up to January 1, 2007 for the Mortgage
Loan under the terms of the Mortgage Note, other than payments not yet 30 days
delinquent, have been made and credited. No payment required under the Mortgage
Loan is 30 days or more delinquent nor, except as otherwise disclosed to the
Purchaser and set forth on an exhibit to the related Assignment and Conveyance
Agreement, has any payment under the Mortgage Loan been 30 days or more
delinquent at any time since the origination of the Mortgage Loan. The first
Monthly Payment was or shall be made with respect to the Mortgage Loan on its
Due Date or within the grace period, all in accordance with the terms of the
related Mortgage Note;
(c) No
Outstanding Charges. There are no defaults in complying with the terms of the
Mortgage, and 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 an escrow of funds has been established
in an amount sufficient to pay for every such item which remains unpaid and
which has been assessed but is not yet due and payable. The Seller has not
advanced funds, or induced, solicited or knowingly received any advance of
funds
by a party other than the Mortgagor, directly or indirectly, for the payment
of
any amount required under the Mortgage Loan, except for interest accruing from
the date of the Mortgage Note or date of disbursement of the Mortgage Loan
proceeds, whichever is earlier, to the day which precedes by one month the
related Due Date of the first installment of principal and
interest;
(d) Original
Terms Unmodified. The terms of the Mortgage Note and Mortgage have not been
impaired, waived, altered or modified in any respect, from the date of
origination except by a written instrument which has been recorded, if necessary
to protect the interests of the Purchaser, and which has been delivered to
the
Custodian or to such other Person as the Purchaser shall designate in writing,
and the terms of which are reflected in the related Mortgage Loan Schedule.
The
substance of any such waiver, alteration or modification has been approved
by
the title insurer, if any, to the extent required by the policy, and its terms
are reflected on the related Mortgage Loan Schedule, if applicable. No Mortgagor
has been released, in whole or in part, except in connection with an assumption
agreement, approved by the issuer of the title insurer, to the extent required
by the policy, and which assumption agreement is part of the Mortgage Loan
File
delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing and the terms of which are reflected in the related
Mortgage Loan Schedule;
(e) No
Defenses. The Mortgage Loan is 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 either the Mortgage Note or the
Mortgage unenforceable, in whole or in part and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto, and
no
Mortgagor was a debtor in any state or Federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated;
(f) Hazard
Insurance. Pursuant to the terms of the Mortgage, all buildings or other
improvements upon the Mortgaged Property are insured by a generally acceptable
insurer against loss by fire, hazards of extended coverage and such other
hazards as are customarily insured against in the jurisdiction where the related
Mortgaged Property is located and acceptable to the Rating Agencies, as well
as
all additional requirements set forth in Section 2.10 of the Servicing
Agreement. If required by the National Flood Insurance Act of 1968, as amended,
each Mortgage Loan is covered by a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
as in effect, as well as all additional requirements set forth in Section 2.10
of the Servicing Agreement. All individual insurance policies contain a standard
mortgagee clause naming the Seller and its successors and assigns as mortgagee,
and all premiums thereon have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and
expense, and on the Mortgagor’s failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and
expense, and to seek reimbursement therefor from the Mortgagor. Where required
by state law or regulation, the Mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance, provided the policy is
not
a “master” or “blanket” hazard insurance policy covering a condominium, or any
hazard insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding obligation
of
the insurer, is in full force and effect, and will be in full force and effect
and inure to the benefit of the Purchaser upon the consummation of the
transactions contemplated by this Agreement. The Seller has not engaged in,
and
has no knowledge of the Mortgagor’s having engaged in, any act or omission which
would impair the coverage of any such policy, the benefits of the endorsement
provided for herein, or the validity and binding effect of either including,
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(g) Compliance
with Applicable Laws. 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,
disclosure and all predatory, abusive and fair lending laws applicable to the
Mortgage Loan, including, without limitation, any provisions relating to the
Illinois Interest Act and prepayment penalties, have been complied with, the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations, and the Seller shall maintain in
its
possession, available for the Purchaser’s inspection, and shall deliver to the
Purchaser upon demand, evidence of compliance with all such requirements. This
representation and warranty is a Deemed Material and Adverse
Representation;
(h) No
Satisfaction of Mortgage. The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part, and the Mortgaged Property
has
not been released from the lien of the Mortgage, in whole or in part, nor has
any instrument been executed that would effect any such release, cancellation,
subordination or rescission. The Seller has not waived the performance by the
Mortgagor of any action, if the Mortgagor’s failure to perform such action would
cause the Mortgage Loan to be in default, nor has the Seller waived any default
resulting from any action or inaction by the Mortgagor;
(i) Location
and Type of Mortgaged Property. The Mortgaged Property is located in the state
identified in the Mortgage Loan Schedule and consists of real property with
a
detached single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a low-rise condominium project,
or an individual unit in a planned unit development or a de minimis planned
unit
development which is in each case four stories or less, provided, however,
that
any mobile home (double wide only) shall conform with the applicable Xxxxxx
Xxx
and Xxxxxxx Mac requirements regarding such dwellings and that no Mortgage
Loan
is secured by a single parcel of real property with a cooperative housing
corporation, a log home, a Manufactured Home or, except as described in Exhibit
B to the related Assignment and Conveyance Agreement, a mobile home erected
thereon or by a mixed-use property, a property in excess of 10 acres, or other
unique property types. As of the date of origination, no portion of the
Mortgaged Property was used for commercial purposes, and since the date of
origination, no portion of the Mortgaged Property has been used for commercial
purposes; provided, that Mortgaged Properties which contain a home office shall
not be considered as being used for commercial purposes as long as the Mortgaged
Property has not been altered for commercial purposes and is not storing any
chemicals or raw materials other than those commonly used for homeowner repair,
maintenance and/or household purposes. This representation and warranty is
a
Deemed Material and Adverse Representation;
(j) Valid
First or Second Lien. The Mortgage is a valid, subsisting, enforceable and
perfected, first lien (with respect to a First Lien Loan) or a second lien
(with
respect to a Second Lien Loan) on the Mortgaged Property, including all
buildings and improvements on the Mortgaged Property and all installations
and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and replacements
made at any time with respect to the foregoing. The lien of the Mortgage is
subject only to:
(i) with
respect to a Second Lien Loan only, the lien of the first mortgage on the
Mortgaged Property;
(ii) the
lien
of current real property taxes and assessments not yet due and
payable;
(iii) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording acceptable to prudent mortgage lending
institutions generally and specifically referred to in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan and (A)
specifically 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 set forth in such appraisal;
and
(iv) 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 a valid,
subsisting, enforceable and perfected first lien (with respect to a First Lien
Loan) or second lien (with respect to a Second Lien Loan) and first priority
(with respect to a First Lien Loan) or second priority (with respect to a Second
Lien Loan) security interest on the property described therein and the Seller
has full right to sell and assign the same to the Purchaser;
(k) Validity
of Mortgage Documents. The Mortgage Note and the Mortgage and any other
agreement executed and delivered by a Mortgagor in connection with a Mortgage
Loan are genuine, and each is the legal, valid and binding obligation of the
maker thereof enforceable in accordance with its terms (including, without
limitation, any provisions therein relating to prepayment penalties). All
parties to the Mortgage Note, the Mortgage and any other such related agreement
had legal capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage Note, the Mortgage and any such agreement, and the Mortgage Note,
the Mortgage and any other such related agreement have been duly and properly
executed by other such related parties. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of any Person, including without limitation,
the Mortgagor, any appraiser, any builder or developer, or any other party
involved in the origination of the Mortgage Loan. The Seller has reviewed all
of
the documents constituting the Servicing File and has made such inquiries as
it
deems necessary to make and confirm the accuracy of the representations set
forth herein;
(l) Full
Disbursement of Proceeds. The Mortgage Loan has been closed and the proceeds
of
the Mortgage Loan have been fully disbursed and there is no requirement for
future advances thereunder, and any and all requirements as to completion of
any
on-site or off site improvement and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses incurred in
making or closing the Mortgage Loan and the recording of the Mortgage were paid,
and the Mortgagor is not entitled to any refund of any amounts paid or due
under
the Mortgage Note or Mortgage;
(m) Ownership.
The Seller is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by each Mortgage Note and upon the sale of the Mortgage
Loans to the Purchaser, the Seller will retain the Mortgage Files or any part
thereof with respect thereto not delivered to the Custodian, the Purchaser
or
the Purchaser’s designee, in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan. The Mortgage Loan is not
assigned or pledged, and the Seller has good, indefeasible and marketable title
thereto, and has full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, and has full right and
authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign each Mortgage Loan pursuant to this Agreement
and following the sale of each Mortgage Loan, the Purchaser will own such
Mortgage Loan free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest. The Seller intends to
relinquish all rights to possess, control and monitor the Mortgage Loan. After
the related Closing Date, the Seller will have no right to modify or alter
the
terms of the sale of the Mortgage Loan and the Seller will have no obligation
or
right to repurchase the Mortgage Loan or substitute another Mortgage Loan,
except as provided in this Agreement;
(n) Doing
Business. All parties which have had any interest in the Mortgage Loan, whether
as mortgagee, assignee, pledgee or otherwise, are (or, during the period in
which they held and disposed of such interest, were) (1) in compliance with
any
and all applicable licensing requirements of the laws of the state wherein
the
Mortgaged Property is located, and (2) either (i) organized under the laws
of
such state, or (ii) qualified to do business in such state, or (iii) a federal
savings and loan association, a savings bank or a national bank having a
principal office in such state, or (3) not doing business in such
state;
(o) LTV.
No
Mortgage Loan has an LTV greater than 100%;
(p) Title
Insurance. The Mortgage Loan is covered by an ALTA lender’s title insurance
policy, or with respect to any Mortgage Loan for which the related Mortgaged
Property is located in California a CLTA lender’s title insurance policy, or
other generally acceptable form of policy or insurance acceptable to Xxxxxx
Xxx
or Xxxxxxx Mac and each such title insurance policy is issued by a title insurer
acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring the Seller,
its
successors and assigns, as to the first (with respect to a First Lien Loan)
or
second (with respect to a Second Lien Loan) priority lien of the Mortgage in
the
original principal amount of the Mortgage Loan (or to the extent a Mortgage
Note
provides for negative amortization, the maximum amount of negative amortization
in accordance with the Mortgage), subject only to the exceptions contained
in
clauses (i), (ii) and (iii) of Paragraph (j) of this Schedule VII, and in the
case of Adjustable Rate Mortgage Loans, against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions of
the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been
given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender’s title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or
any
interest therein. The Seller, its successor and assigns, are the sole insureds
of such lender’s title insurance policy, and such lender’s title insurance
policy is valid and remains in full force and effect and will be in force and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender’s title insurance policy, and no
prior holder of the related Mortgage, including the Seller, has done, by act
or
omission, anything which would impair the coverage of such lender’s title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will
be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(q) No
Defaults. Other than payments due but not yet 30 days or more delinquent, there
is no default, breach, violation or event which would permit acceleration
existing under the Mortgage or the Mortgage Note and no event which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event which would permit
acceleration, and neither the Seller nor any of its affiliates nor any of their
respective predecessors, have waived any default, breach, violation or event
which would permit acceleration;
(r) No
Mechanics’ Liens. 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
the law could give rise to such liens) affecting the related Mortgaged Property
which are or may be liens prior to, or equal or coordinate with, the lien of
the
related Mortgage;
(s) Location
of Improvements; No Encroachments. All improvements which were considered in
determining the Appraised Value of the Mortgaged Property lay wholly within
the
boundaries and building restriction lines of the Mortgaged Property, and no
improvements on adjoining properties encroach upon the Mortgaged Property.
No
improvement located on or being part of the Mortgaged Property is in violation
of any applicable zoning law or regulation;
(t) Origination;
Payment Terms. Either (a) the Mortgage Loan was originated by a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act, a savings and loan association, a
savings bank, a commercial bank, credit union, insurance company or other
similar institution which is supervised and examined by a federal or state
authority, or (b) the following requirements have been met with respect to
the
Mortgage Loan: the Seller meets the requirements set forth in clause (a), and
(i) such Mortgage Loan was underwritten in accordance with standards established
by the Seller, using application forms and related credit documents approved
by
the Seller, (ii) the Seller approved each application and the related credit
documents before a commitment by the correspondent was issued, and no such
commitment was issued until the Seller agreed to fund such Mortgage Loan, (iii)
the closing documents for such Mortgage Loan were prepared on forms approved
by
the Seller, and (iv) such Mortgage Loan was actually funded by the Seller and
was purchased by the Seller at closing or soon thereafter. The documents,
instruments and agreements submitted for loan underwriting were not falsified
and contain no untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the information and
statements therein not misleading. Principal payments on the Mortgage Loan
commenced no more than sixty days after funds were disbursed in connection
with
the Mortgage Loan. The Mortgage Interest Rate as well as, with respect to
Adjustable Rate Mortgage loans, the Lifetime Rate Cap and the Periodic Cap,
are
as set forth on the related Mortgage Loan Schedule. The Mortgage Note is payable
in equal monthly installments of principal and interest, which installments
of
interest, with respect to Adjustable Rate Mortgage Loans, are subject to change
due to the adjustments to the Mortgage Interest Rate on each Interest Rate
Adjustment Date, with interest calculated and payable in arrears, sufficient
to
amortize the Mortgage Loan fully by the stated maturity date, over an original
term of not more than thirty years from commencement of amortization. Unless
otherwise specified on the related Mortgage Loan Schedule, the Mortgage Loan
is
payable on the first day of each month. There are no Convertible Mortgage Loans
which contain a provision allowing the Mortgagor to convert the Mortgage Note
from an adjustable interest rate Mortgage Note to a fixed interest rate Mortgage
Note;
(u) Customary
Provisions. The Mortgage contains customary and enforceable provisions such
as
to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (i) in the case of a Mortgage designated as a
deed
of trust, by trustee’s sale, and (ii) otherwise by judicial foreclosure. Upon
default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale
of, the Mortgaged Property pursuant to the proper procedures, the holder of
the
Mortgage Loan will be able to deliver good and merchantable title to the
Mortgaged Property. There is no homestead or other exemption available to a
Mortgagor which would interfere with the right to sell the Mortgaged Property
at
a trustee’s sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law;
(v) Conformance
with Agency and Underwriting Guidelines. The Mortgage Loan was underwritten
in
accordance with the Underwriting Guidelines. The Mortgage Note and Mortgage
are
on forms acceptable to Xxxxxxx Mac or Xxxxxx Mae and neither the Seller nor
the
Originator has made any representations to a Mortgagor that are inconsistent
with the mortgage instruments used;
(w) Occupancy
of the Mortgaged Property. As of the related Closing Date the Mortgaged Property
is lawfully occupied under applicable law. All inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities;
(x) No
Additional Collateral. The Mortgage Note is not and has not been secured by
any
collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred
to in
Paragraph (j) above;
(y) Deeds
of
Trust. In the event the Mortgage constitutes a deed of trust, a trustee,
authorized and duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the Mortgage, and
no
fees or expenses are or will become payable by the Purchaser to the trustee
under the deed of trust, except in connection with a trustee’s sale after
default by the Mortgagor;
(z) Acceptable
Investment. There are no circumstances or conditions with respect to the
Mortgage, the Mortgaged Property, the Mortgagor, the Mortgage File or the
Mortgagor’s credit standing that can reasonably be expected to cause private
institutional investors who invest in mortgage loans similar to the Mortgage
Loan to regard the Mortgage Loan as an unacceptable investment, cause the
Mortgage Loan to become delinquent, or adversely affect the value or
marketability of the Mortgage Loan, or cause the Mortgage Loans to prepay during
any period materially faster or slower than the mortgage loans originated by
the
Seller generally;
(aa) Delivery
of Mortgage Documents. The Mortgage Note, the Mortgage, the Assignment of
Mortgage and any other documents required to be delivered under the Custodial
Agreement for each Mortgage Loan have been delivered to the Custodian. The
Seller is in possession of a complete, true and accurate Mortgage File in
compliance with Exhibit A hereto, except for such documents the originals of
which have been delivered to the Custodian;
(bb) Condominiums/Planned
Unit Developments. If the Mortgaged Property is a condominium unit or a planned
unit development (other than a de minimis planned unit development) such
condominium or planned unit development project such Mortgage Loan was
originated in accordance with, and the Mortgaged Property meets the guidelines
set forth in the Originator’s Underwriting Guidelines;
(cc) Transfer
of Mortgage Loans. The Assignment of Mortgage with respect to each Mortgage
Loan
is in recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located. The transfer,
assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller
are not subject to the bulk transfer or similar statutory provisions in effect
in any applicable jurisdiction;
(dd) Due-On-Sale.
With respect to each Fixed Rate Mortgage Loan, the Mortgage contains an
enforceable provision for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan in the event that the Mortgaged Property
is sold or transferred without the prior written consent of the mortgagee
thereunder, and such provision is enforceable;
(ee) Assumability.
With respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
(ff) No
Buydown Provisions; No Graduated Payments or Contingent Interests. The Mortgage
Loan does not contain provisions pursuant to which Monthly Payments are paid
or
partially paid with funds deposited in any separate account established by
the
Seller, the Mortgagor, or anyone on behalf of the Mortgagor, or paid by any
source other than the Mortgagor nor does it contain any other similar provisions
which may constitute a “buydown” provision. The Mortgage Loan is not a graduated
payment mortgage loan and the Mortgage Loan does not have a shared appreciation
or other contingent interest feature;
(gg) Consolidation
of Future Advances. Any future advances made to the Mortgagor prior to the
Cut-off Date have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as having first
(with respect to a First Lien Loan) or a second (with respect to a Second Lien
Loan) lien priority by a title insurance policy, an endorsement to the policy
insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount
does
not exceed the original principal amount of the Mortgage Loan;
(hh) Mortgaged
Property Undamaged; No Condemnation Proceedings. There is no proceeding pending
or threatened for the total or partial condemnation of the Mortgaged Property.
The Mortgaged Property is undamaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty so as to affect adversely
the value of the Mortgaged Property as security for the Mortgage Loan or the
use
for which the premises were intended and each Mortgaged Property is in good
repair. There have not been any condemnation proceedings with respect to the
Mortgaged Property and the Seller has no knowledge of any such proceedings
in
the future;
(ii) Collection
Practices; Escrow Deposits; Interest Rate Adjustments. The origination,
servicing and collection practices used by the Seller and the Originator with
respect to the Mortgage Loan have been in all respects in compliance with
Accepted Servicing Practices, applicable laws and regulations, and have been
in
all respects legal and proper. With respect to escrow deposits and Escrow
Payments, all such payments are in the possession of, or under the control
of,
the Seller or the Originator and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. All Escrow Payments have been collected in full compliance with state
and
federal law and the provisions of the related Mortgage Note and Mortgage. An
escrow of funds is not prohibited by applicable law and has been established
in
an amount sufficient to pay for every item that remains unpaid and has been
assessed but is not yet due and payable. No escrow deposits or Escrow Payments
or other charges or payments due the Seller have been capitalized under the
Mortgage or the Mortgage Note. All Mortgage Interest Rate adjustments have
been
made in strict compliance with state and federal law and the terms of the
related Mortgage and Mortgage Note on the related Interest Rate Adjustment
Date.
If, pursuant to the terms of the Mortgage Note, another index was selected
for
determining the Mortgage Interest Rate, the same index was used with respect
to
each Mortgage Note which required a new index to be selected, and such selection
did not conflict with the terms of the related Mortgage Note. The Seller or
the
Originator executed and delivered any and all notices required under applicable
law and the terms of the related Mortgage Note and Mortgage regarding the
Mortgage Interest Rate and the Monthly Payment adjustments. Any interest
required to be paid pursuant to state, federal and local law has been properly
paid and credited;
(jj) Conversion
to Fixed Interest Rate. With respect to Adjustable Rate Mortgage Loans, the
Mortgage Loan is not a Convertible Mortgage Loan;
(kk) Other
Insurance Policies. No action, inaction or event has occurred and no state
of
facts exists or has existed that has resulted or will result in the exclusion
from, denial of, or defense to coverage under any applicable, special hazard
insurance policy, or bankruptcy bond, irrespective of the cause of such failure
of coverage. In connection with the placement of any such insurance, no
commission, fee, or other compensation has been or will be received by the
Seller or by any officer, director, or employee of the Seller or any designee
of
the Seller or any corporation in which the Seller or any officer, director,
or
employee had a financial interest at the time of placement of such
insurance;
(ll) No
Violation of Environmental Laws. There is no pending action or proceeding
directly involving the Mortgaged Property in which compliance with any
environmental law, rule or regulation is an issue; there is no violation of
any
environmental law, rule or regulation with respect to the Mortgage Property;
and
nothing further remains to be done to satisfy in full all requirements of each
such law, rule or regulation constituting a prerequisite to use and enjoyment
of
said property;
(mm) Servicemembers
Civil Relief Act. The Mortgagor has not notified the Seller, and the Seller
has
no knowledge of any relief requested or allowed to the Mortgagor under the
Servicemembers Relief Act or any similar state statute;
(nn) Appraisal.
The Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the approval of the Mortgage Loan application by a Qualified Appraiser,
duly appointed by the Seller or the Originator, who had no interest, direct
or
indirect in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation is not affected by the approval or disapproval of the
Mortgage Loan, and the appraisal and appraiser both satisfy the requirements
of
Xxxxxx Xxx or Xxxxxxx Mac and Title XI of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated;
(oo) Disclosure
Materials. The Mortgagor has executed a statement to the effect that the
Mortgagor has received all disclosure materials required by, and the Originator
has complied with, all applicable law with respect to the making of the Mortgage
Loans. The Seller shall cause the Originator to maintain such statement in
the
Mortgage File;
(pp) Construction
or Rehabilitation of Mortgaged Property. No Mortgage Loan was made in connection
with the construction or rehabilitation of a Mortgaged Property or facilitating
the trade-in or exchange of a Mortgaged Property;
(qq) Value
of
Mortgaged Property. The Seller has no knowledge of any circumstances existing
that could reasonably be expected to adversely affect the value or the
marketability of any Mortgaged Property or Mortgage Loan or to cause the
Mortgage Loans to prepay during any period materially faster or slower than
similar mortgage loans held by the Seller generally secured by properties in
the
same geographic area as the related Mortgaged Property;
(rr) No
Defense to Insurance Coverage. No action has been taken or failed to be taken,
no event has occurred and no state of facts exists or has existed on or prior
to
the related Closing Date (whether or not known to the Seller on or prior to
such
date) which has resulted or will result in an exclusion from, denial of, or
defense to coverage under any primary mortgage insurance (including, without
limitation, any exclusions, denials or defenses which would limit or reduce
the
availability of the timely payment of the full amount of the loss otherwise
due
thereunder to the insured) whether arising out of actions, representations,
errors, omissions, negligence, or fraud of the Seller, the related Mortgagor
or
any party involved in the application for such coverage, including the
appraisal, plans and specifications and other exhibits or documents submitted
therewith to the insurer under such insurance policy, or for any other reason
under such coverage, but not including the failure of such insurer to pay by
reason of such insurer’s breach of such insurance policy or such insurer’s
financial inability to pay;
(ss) Escrow
Analysis. With respect to each Mortgage, the Seller or the Originator has within
the last twelve months (unless such Mortgage was originated within such twelve
month period) analyzed the required Escrow Payments for each Mortgage and
adjusted the amount of such payments so that, assuming all required payments
are
timely made, any deficiency will be eliminated on or before the first
anniversary of such analysis, or any overage will be refunded to the Mortgagor,
in accordance with RESPA and any other applicable law;
(tt) Prior
Servicing. Each Mortgage Loan has been serviced in all material respects in
strict compliance with Accepted Servicing Practices;
(uu) No
Default Under First Lien. With respect to each Second Lien Loan, the related
First Lien Loan related thereto is in full force and effect, and there is no
default, breach, violation or event which would permit acceleration existing
under such first Mortgage or Mortgage Note, and no event which, with the passage
of time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event which would permit acceleration
thereunder. This representation and warranty is a Deemed Material and Adverse
Representation;
(vv) [Reserved];
(ww) No
Failure to Cure Default. The Seller has not received a written notice of default
of any senior mortgage loan related to the Mortgaged Property which has not
been
cured;
(xx) Credit
Information. As to each consumer report (as defined in the Fair Credit Reporting
Act, Public Law 91-508) or other credit information furnished by the Seller
to
the Purchaser, that Seller has full right and authority and is not precluded
by
law or contract from furnishing such information to the Purchaser and the
Purchaser is not precluded from furnishing the same to any subsequent or
prospective purchaser of such Mortgage. The Seller shall hold the Purchaser
harmless from any and all damages, losses, costs and expenses (including
attorney’s fees) arising from disclosure of credit information in connection
with the Purchaser’s secondary marketing operations and the purchase and sale of
mortgages or Servicing Rights thereto;
(yy) Leaseholds.
If the Mortgage Loan is secured by a long-term residential lease, (1) the lessor
under the lease holds a fee simple interest in the land; (2) the terms of such
lease expressly permit the mortgaging of the leasehold estate, the assignment
of
the lease without the lessor’s consent and the acquisition by the holder of the
Mortgage of the rights of the lessee upon foreclosure or assignment in lieu
of
foreclosure or provide the holder of the Mortgage with substantially similar
protections; (3) the terms of such lease do not (a) allow the termination
thereof upon the lessee’s default without the holder of the Mortgage being
entitled to receive written notice of, and opportunity to cure, such default,
(b) allow the termination of the lease in the event of damage or destruction
as
long as the Mortgage is in existence, (c) prohibit the holder of the Mortgage
from being insured (or receiving proceeds of insurance) under the hazard
insurance policy or policies relating to the Mortgaged Property or (d) permit
any increase in rent other than pre-established increases set forth in the
lease; (4) the original term of such lease is not less than 15 years; (5) the
term of such lease does not terminate earlier than five years after the maturity
date of the Mortgage Note; and (6) the Mortgaged Property is located in a
jurisdiction in which the use of leasehold estates in transferring ownership
in
residential properties is a widely accepted practice;
(zz) Prepayment
Penalty. Each Mortgage Loan that is subject to a prepayment penalty as provided
in the related Mortgage Note is identified on the related Mortgage Loan
Schedule. With respect to each Mortgage Loan that has a prepayment penalty
feature, each such prepayment penalty is enforceable and will be enforced by
the
Seller for the benefit of the Purchaser, and each prepayment penalty is
permitted pursuant to federal, state and local law. Each such prepayment penalty
is in an amount not more than the maximum amount permitted under applicable
law
and no such prepayment penalty may be imposed for a term in excess of five
(5)
years with respect to Mortgage Loans originated prior to October, 1, 2002.
With
respect to Mortgage Loans originated on or after October 1, 2002, the duration
of the prepayment penalty period shall not exceed three (3) years from the
date
of the Mortgage Note unless the Mortgage Loan was modified to reduce the
prepayment penalty period to no more than three (3) years from the date of
the
related Mortgage Note and the Mortgagor was notified in writing of such
reduction in prepayment penalty period. This representation and warranty is
a
Deemed Material and Adverse Representation;
(aaa) Predatory
Lending Regulations. No Mortgage Loan is a High Cost Loan or Covered Loan,
as
applicable, and no Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act. No Mortgage Loan
is
covered by the Home Ownership and Equity Protection Act of 1994 and no Mortgage
Loan is in violation of any comparable state or local law. This representation
and warranty is a Deemed Material and Adverse Representation;
(bbb) [Reserved];
(ccc) Qualified
Mortgage. The Mortgage Loan is a “qualified mortgage,” within the meaning of
Section 860G(a)(3) of the Code, if transferred to a REMIC on its startup day
in
exchange for the regular or residual interests in the REMIC;
(ddd) No
Prior
Offer. The Mortgage Loan has not previously been offered for sale to another
entity that constitutes a broker dealer registered with the Commission under
Section 15 of the Exchange Act;
(eee) Fair
Credit Reporting Act. The Seller has, in its capacity as servicer for each
Mortgage Loan, fully furnished, in accordance with the Fair Credit Reporting
Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Company (three of the credit repositories),
on a
monthly basis. This representation and warranty is a Deemed Material and Adverse
Representation;
(fff) Xxxxxx
Xxx Guides Anti-Predatory Lending Eligibility. Each Mortgage Loan is in
compliance with the anti-predatory lending eligibility for purchase requirements
of Xxxxxx Mae Guides. This representation and warranty is a Deemed Material
and
Adverse Representation;
(ggg) Mortgagor
Selection. The Mortgagor was not encouraged or required to select a Mortgage
Loan product offered by the Originator which is a higher cost product designed
for less creditworthy mortgagors, unless at the time of the Mortgage Loan’s
origination, such Mortgagor did not qualify taking into such facts as, without
limitation, the Mortgage Loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities and debt to income ratios for a lower cost credit
product then offered by the Originator or any Affiliate of the Originator.
If,
at the time of loan application, the Mortgagor may have qualified for a lower
cost credit product then offered by any mortgage lending Affiliate of the
Originator, the Originator referred the related Mortgagor’s application to such
Affiliate for underwriting consideration. For a Mortgagor who seeks financing
through a Mortgage Loan originator’s higher-priced subprime lending channel, the
Mortgagor was directed towards or offered the Mortgage Loan originator’s
standard mortgage line if the Mortgagor was able to qualify for one of the
standard products. This representation and warranty is a Deemed Material and
Adverse Representation;
(hhh) Underwriting
Methodology. The methodology used in underwriting the extension of credit for
each Mortgage Loan does not rely on the extent of the related Mortgagor’s equity
in the collateral as the principal determining factor in approving such
extension of credit. The methodology employed objective criteria that related
such facts as, without limitation, the Mortgagor’s credit history, income,
assets or liabilities, to the proposed mortgage payment and, based on such
methodology, the Mortgage Loan’s originator made a reasonable determination that
at the time of origination the Mortgagor had the ability to make timely payments
on the Mortgage Loan. Such underwriting methodology confirmed that at the time
of origination (application/approval) the related Mortgagor had a reasonable
ability to make timely payments on the Mortgage Loan. This representation and
warranty is a Deemed Material and Adverse Representation;
(iii) Mortgage
Loans with Prepayment Premiums. With respect to any Mortgage Loan that contains
a provision permitting imposition of a prepayment penalty upon a prepayment
prior to maturity: (i) the Mortgage Loan provides some benefit to the Mortgagor,
including but not limited to a rate or fee reduction, in exchange for accepting
such prepayment penalty, (ii) the Mortgage Loan’s originator had a written
policy of offering the Mortgagor, or requiring third-party brokers to offer
the
Mortgagor, the option of obtaining a mortgage loan that did not require payment
of such a penalty, (iii) the prepayment penalty was adequately disclosed to
the
Mortgagor in the mortgage loan documents pursuant to applicable state, local
and
federal law, and (iv) notwithstanding any state, local or federal law to the
contrary, the Originator, as servicer, shall not impose such prepayment penalty
in any instance when the mortgage debt is accelerated or paid off in connection
with the workout of a delinquent Mortgage Loan or as a result of the Mortgagor’s
default in making the Mortgage Loan payments. This representation and warranty
is a Deemed Material and Adverse Representation;
(jjj) Purchase
of Insurance. No Mortgagor was required to purchase any single premium credit
insurance policy (e.g., life, mortgage, disability, property, accident,
unemployment or health insurance product) or debt cancellation agreement as
a
condition of obtaining the extension of credit. No Mortgagor obtained a prepaid
single premium credit insurance policy (e.g., life, mortgage, disability,
property, accident, unemployment, mortgage or health insurance) in connection
with the origination of the Mortgage Loan. No proceeds from any Mortgage Loan
were used to purchase single premium credit insurance policies as part of the
origination of, or as a condition to closing, such Mortgage Loan. This
representation and warranty is a Deemed Material and Adverse
Representation;
(kkk) [Reserved];
(lll) Disclosure
of Fees and Charges. All fees and charges (including finance charges), whether
or not financed, assessed, collected or to be collected in connection with
the
origination and servicing of each Mortgage Loan, have been disclosed in writing
to the Mortgagor in accordance with applicable state and federal law and
regulation. This representation and warranty is a Deemed Material and Adverse
Representation;
(mmm) No
Arbitration. No Mortgage Loan originated on or after July 1, 2004 requires
the
related Mortgagor to submit to arbitration to resolve any dispute arising out
of
or relating in any way to the Mortgage Loan transaction. This representation
and
warranty is a Deemed Material and Adverse Representation;
(nnn) Request
for Notice; No Consent Required. With respect to any Second Lien Loan, if
applicable to the Seller, where required or customary in the jurisdiction in
which the Mortgaged Property is located, the original lender has filed for
record a request for notice of any action by the related senior lienholder,
and
the Seller has notified the senior lienholder in writing of the existence of
the
Second Lien Loan and requested notification of any action to be taken against
the Mortgagor by the senior lienholder. Either (a) no consent for the Second
Lien Loan is required by the holder of the related first lien or (b) such
consent has been obtained and is contained in the Mortgage File. This
representation and warranty is a Deemed Material and Adverse
Representation;
(ooo) No
Negative Amortization of Related First Lien Loan. With respect to each Second
Lien Loan, the related First Lien Loan does not permit negative amortization.
This representation and warranty is a Deemed Material and Adverse
Representation; and
(ppp) Principal
Residence. With respect to each Second Lien Loan, the related Mortgaged Property
was the Mortgagor’s principal residence or second home at the time of the
origination of such Second Lien Loan, as set forth on the related Mortgage
Loan
Schedule. This representation and warranty is a Deemed Material and Adverse
Representation.
SCHEDULE
IV
Xxxxxx
Xxxxxxx ABS Capital Inc.
Mortgage
Pass-Through Certificates,
Series 2007-NC1
Representations
and Warranties as to the Responsible Party
NC
Capital Corporation hereby makes the representations and warranties set forth
in
this Schedule IV to the Depositor, the Servicer and the Trustee, as of the
Closing Date:
(a) Due
Organization and Authority. The Responsible Party is a corporation duly
organized, validly existing and in good standing under the laws of the state
of
California and has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in each state wherein
it owns or leases any material properties or where a Mortgaged Property is
located, if the laws of such state require licensing or qualification in order
to conduct business of the type conducted by the Responsible Party, and in
any
event the Responsible Party is in compliance with the laws of any such state
to
the extent necessary; the Responsible Party has the full corporate power,
authority and legal right to execute and deliver this Agreement and to perform
its obligations hereunder; the execution, delivery and performance of this
Agreement by the Responsible Party and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement and
all agreements contemplated hereby have been duly executed and delivered and
constitute the valid, legal, binding and enforceable obligations of the
Responsible Party, regardless of whether such enforcement is sought in a
proceeding in equity or at law; and all requisite corporate action has been
taken by the Responsible Party to make this Agreement and all agreements
contemplated hereby valid and binding upon the Responsible Party in accordance
with their terms;
(b) No
Conflicts. Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment of
or
compliance with the terms and conditions of this Agreement, will conflict with
or result in a breach of any of the terms, conditions or provisions of the
Responsible Party’s charter or by-laws or any legal restriction or any agreement
or instrument to which the Responsible Party is now a party or by which it
is
bound, or constitute a default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Responsible Party or its property is subject,
or
result in the creation or imposition of any lien, charge or encumbrance that
would have an adverse effect upon any of its properties pursuant to the terms
of
any mortgage, contract, deed of trust or other instrument;
(c) No
Litigation Pending. There is no action, suit, proceeding or investigation
pending or threatened against the Responsible Party, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Responsible Party,
or in any material impairment of the right or ability of the Responsible Party
to carry on its business substantially as now conducted, or in any material
liability on the part of the Responsible Party, or which would draw into
question the validity of this Agreement or of any action taken or to be taken
in
connection with the obligations of the Responsible Party contemplated herein,
or
which would be likely to impair materially the ability of the Responsible Party
to perform under the terms of this Agreement; and
(d) No
Consent Required. No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or governmental agency
or
body including the U.S. Department of Housing and Urban Development (“HUD”), the
Federal Housing Administration (“FHA”) or the U.S. Department of Veterans
Affairs (“VA”) is required for the execution, delivery and performance by the
Responsible Party of or compliance by the Responsible Party with this Agreement
or the consummation of the transactions contemplated by this Agreement, or
if
required, such approval has been obtained prior to the Closing
Date.
SCHEDULE
V
Xxxxxx
Xxxxxxx ABS Capital I Inc.
Mortgage
Pass-Through Certificates
Series
2007-NC1
Representations
and Warranties of Xxxxxx Xxxxxxx ABS Capital I Inc. as to the Mortgage
Loans
The
Depositor hereby makes with respect the Mortgage Loans the following
representations and warranties to the Trustee as of the Closing Date.
Capitalized terms used but not otherwise defined shall have the meaning ascribed
thereto in the Agreement to which this Schedule is attached.
(a) Immediately
prior to the transfer of the Mortgage Loans by the Depositor to the Trust on
the
Closing Date, the Depositor had good title to the Mortgage Loans, free and
clear
of any liens, charges, claims or encumbrances whatsoever.
(b) The
original principal balance of each Group I Mortgage Loan was within Xxxxxxx
Mac’s and Xxxxxx Mae’s dollar amount limits for conforming one- to four-family
mortgage loans and the original principal balance for each Group I Mortgage
Loan
which is a Second Lien Mortgage Loan was within one-half of Xxxxxxx Mac’s and
Xxxxxx Mae’s dollar amount limits for one-unit conforming one-to four-family
mortgage loans for first lien mortgage loans, without regard to the number
of
units in the related Mortgaged Property.
(c) With
respect to each Group I Mortgage Loan which is a Second Lien Mortgage Loan
(A)
such lien is on a one-to four-family residence that is the principal residence
of the related Mortgagor, and (B) the original principal balance of the related
first lien mortgage loan plus the original principal balance of any subordinate
lien mortgage loans relating to the same Mortgaged Property was within Xxxxxxx
Mac’s and Xxxxxx Mae’s dollar amount limits for first lien mortgage loans for
that property type.
(d) The
Depositor (i) currently operates or actively participates in an on-going and
active program or business (A) to originate mortgages, and/or (B) to make
periodic purchases of mortgage loans from originators or other sellers, and/or
(C) to issue and/or purchase securities or bonds supported by the mortgages,
with a portion of the proceeds generated by such program or business being
used
to purchase or originate mortgages made to borrowers who are (x) low-income
families (families with incomes of 80% or less of area median income) living
in
low-income areas (a census tract or block numbering area in which the median
income does not exceed 80 percent of the area median income) and/or (y) very
low-income families (families with incomes of 60% or less of area median
income); and (ii) agrees that Xxxxxxx Mac for a period of two (2) years
following the date of the Agreement may contact the Depositor to confirm that
it
continues to operate or actively participate in the mortgage program or business
and to obtain other nonproprietary information about the Depositor’s activities
that may assist Xxxxxxx Mac in completing its regulatory reporting requirements.
The Depositor will make reasonable efforts to provide such information to
Xxxxxxx Mac.
(e) No
Mortgagor was charged “points and fees” (whether or not financed) in an amount
greater than (i) $1,000, or (ii) 5% of the principal amount of such Group I
Mortgage Loan, whichever is greater. For purposes of this representation, such
5% limitation is calculated in accordance with Xxxxxx Mae’s anti-predatory
lending requirements as set forth in the Xxxxxx Mae Guides and “points and fees”
(x) include origination, underwriting, broker and finder fees and charges that
the mortgagee imposed as a condition of making the Group I Mortgage Loan,
whether they are paid to the mortgagee or a third party, and (y) exclude bona
fide discount points, fees paid for actual services rendered in connection
with
the origination of the Group I Mortgage Loan (such as attorneys’ fees, notaries
fees and fees paid for property appraisals, credit reports, surveys, title
examinations and extracts, flood and tax certifications, and home inspections),
the cost of mortgage insurance or credit-risk price adjustments, the costs
of
title, hazard, and flood insurance policies, state and local transfer taxes
or
fees, escrow deposits for the future payment of taxes and insurance premiums,
and other miscellaneous fees and charges that, in total, do not exceed 0.25%
of
the principal amount of such Group I Mortgage Loan.
SCHEDULE
VI
Xxxxxx
Xxxxxxx ABS Capital I Inc.
Mortgage
Pass Through Certificates,
Series
2007-NC1
Representations
and Warranties of Saxon, as Servicer
Saxon
hereby makes the representations and warranties set forth in this
Schedule VI to the Depositor and the Trustee as of the Closing Date.
Capitalized terms used but not otherwise defined in the Agreement to which
this
Schedule VI is attached shall have the meaning ascribed thereto in the
Agreement to which this Schedule VI is attached.
(a) Saxon
is
duly organized as a corporation and is validly existing and in good standing
under the laws of the state of Texas, and is licensed and qualified to transact
any and all business contemplated by this Agreement to be conducted by Saxon
in
any state in which a Mortgaged Property securing a Mortgage Loan is located
or
is otherwise not required under applicable law to effect such qualification
and,
in any event, is in compliance with the doing business laws of any such State,
to the extent necessary to ensure its ability to enforce each Mortgage Loan
and
to service the Mortgage Loans in accordance with the terms of this
Agreement;
(b) Saxon
has
the full power and authority to service each Mortgage Loan, and to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of Saxon the execution, delivery and performance of this Agreement;
and this Agreement, assuming the due authorization, execution and delivery
thereof by the other parties to this Agreement, constitutes a legal, valid
and
binding obligation of Saxon, enforceable against Saxon in accordance with its
terms; except to the extent that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(c) The
execution and delivery of this Agreement by Saxon, the servicing of the Mortgage
Loans required to be serviced by Saxon hereunder, the consummation by Saxon
of
any other of the transactions herein contemplated, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of business of
Saxon
and will not (A) result in a breach of any term or provision of the
organizational documents of Saxon or (B) conflict with, result in a breach,
violation or acceleration of, or result in a default under, the terms of any
other material agreement or instrument to which Saxon is a party or by which
it
may be bound, or any law, statute, rule, order, regulation, judgment or decree
applicable to Saxon or its property of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Saxon;
and
Saxon is not a party to, bound by, or in breach or violation of any indenture
or
other agreement or instrument, or subject to or in violation of any law,
statute, rule, order, regulation, judgment or decree of any court, regulatory
body, administrative agency or governmental body having jurisdiction over it,
which (w) materially and adversely affects or, to Saxon’s knowledge, would
in the future materially and adversely affect, the ability of Saxon to perform
its obligations under this Pooling and Servicing Agreement, (x) materially
and adversely affects or, to Saxon’s knowledge, would in the future materially
and adversely affect, the business, operations, financial condition, properties
or assets of Saxon taken as a whole, (y) impair the ability of the Trust to
realize on the Mortgage Loans, or (z) impair the value of the Mortgage
Loans;
(d) Saxon
has
the facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans;
(e) Saxon
does not believe, nor does it have any reason or cause to believe, that it
cannot perform each and every covenant contained in this Agreement;
(f) No
action, suit, proceeding or investigation is pending or threatened against
Saxon, before any court, administrative agency or other tribunal asserting
the
invalidity of this Agreement, seeking to prevent the consummation of any of
the
transactions contemplated by this Agreement or which, either in any one instance
or in the aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of Saxon, or in any
material impairment of the right or ability of Saxon to carry on its business
substantially as now conducted, or in any material liability on the part of
Saxon, or which would draw into question the validity of this Agreement or
the
Mortgage Loans or of any action taken or to be taken in connection with the
obligations of Saxon contemplated herein, or which would be likely to impair
materially the ability of Saxon to perform under the terms of this
Agreement;
(g) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Saxon of, or
compliance by Saxon with, this Agreement or the servicing of the Mortgage Loans
as evidenced by the consummation by Saxon of the transactions contemplated
by
this Agreement, except for such consents, approvals, authorizations or orders,
if any, that have been obtained prior to the Closing Date; and
(h) With
respect to each Mortgage Loan serviced by Saxon hereunder, to the extent Saxon
serviced such Mortgage Loan and to the extent Saxon provided monthly reports
to
the three credit repositories, Saxon has fully furnished, in accordance with
the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (i.e.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian,
and Trans Union Credit Information Company (three of the credit repositories),
on a monthly basis.
EXHIBIT A
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 REPRESENTS AN INTEREST
IN
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”),
AND
CERTAIN OTHER ASSETS.
EACH
BENEFICIAL OWNER OF THIS CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED
TO HAVE REPRESENTED THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975
OF
THE CODE OR A PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW (“SIMILAR
LAW”)
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, NOR A
PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT NOR USING THE ASSETS
OF
ANY SUCH PLAN OR ARRANGEMENT OR (II) (A) IT IS AN ACCREDITED INVESTOR WITHIN
THE
MEANING OF PROHIBITED TRANSACTION EXEMPTION 2002-41, AS AMENDED AND (B) FOR
SO
LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, THE ACQUISITION AND
HOLDING OF THIS CERTIFICATE ARE ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE
UNDER AT LEAST ONE OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”)
00-00,
XXXX 00-0, XXXX 91-38, PTCE 95-60 OR PTCE 96-23.
|
Certificate
No:
|
[___]
|
|
|
Cut-off
Date:
|
January
1, 2007
|
|
|
First
Distribution Date:
|
February
26, 2007
|
|
|
Initial
Certificate Balance of this Certificate (“Denomination”):
|
$[___]
|
|
|
Initial
Certificate Balances of all Certificates of this Class:
|
$[___]
|
|
|
CUSIP:
|
[___]
|
|
|
ISIN:
|
[___]
|
XXXXXX
XXXXXXX ABS CAPITAL I INC.
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1
Mortgage
Pass-Through Certificates, Series 2007-NC1
[Class A-][Class M-][Class B-]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
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 does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Trustee or any other party to the Agreement referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that Cede & Co. 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
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”)
among
Xxxxxx Xxxxxxx ABS Capital I Inc., as depositor (the “Depositor”),
Saxon
Mortgage Services, Inc., as a servicer (“Saxon”),
Countrywide Home Loans Servicing LP, as a servicer (“Countrywide
Servicing”;
together with Saxon, the “Servicers”),
NC
Capital Corporation, as responsible party, and Deutsche Bank National Trust
Company, as trustee (the “Trustee”).
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned 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.
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 authenticated by an authorized signatory of
the
Trustee.
* * *
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||
|
By:
|
||
|
Authenticated:
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
|||||||||||||
XXXXXX
XXXXXXX ABS CAPITAL I INC.
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2007-NC1, 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 Distribution 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 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 Business Day immediately preceding such
Distribution Date; provided,
however,
that
for any Definitive Certificates, the Record Date shall be the last Business
Day
of the month next preceding the month of 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
offices designated by the Trustee for such purposes, 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
parties to the Agreement 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 offices designated by the Trustee for such purposes, accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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.
Each
beneficial owner of the Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of the Certificate,
or
interest therein, that either (i) it is not a Plan or a trustee or other Person
acting on behalf of a Plan or using “plan assets” of a Plan to effect such
acquisition (including any insurance company using funds in its general or
separate accounts that may constitute “plan assets”) or (ii)(A) the beneficial
owner is an accredited investor within the meaning of Prohibited Transaction
Exemption 2002-41, as amended from time to time (the “Exemption”) and (B) for so
long as the Supplemental Interest Trust is in existence, the acquisition and
holding of such Certificate and the separate right to receive payments from
the
Supplemental Interest Trust are eligible for the exemptive relief available
under Prohibited Transaction Class Exemption (“PTCE”) 84-14 (for transactions by
independent “qualified professional asset managers”), 91-38 (for transactions by
bank collective investment funds), 90-1 (for transactions by insurance company
pooled separate accounts), 95-60 (for transactions by insurance company general
accounts) or 96-23 (for transactions effected by “in-house asset
managers”).
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 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 neither the Depositor, the Trustee, nor any such
agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than or equal to 5% of the Cut-off Date Pool Principal
Balance, the Servicers, individually or together, will have the option to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and
all
property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. The obligations and responsibilities
created by the Agreement will terminate as provided in Section 9.01 of 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 B
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE
TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE
AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF
COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY
BE
MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN
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”), AND CERTAIN OTHER
ASSETS.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY
SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR
LAW”)
OR A
PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN
THE
EVENT THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER
TO A PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO
SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON
ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY
SUCH
PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND
OF
NO EFFECT.
|
Certificate
No.:
|
P-1
|
|
|
Cut-off
Date:
|
January
1, 2007
|
|
|
First
Distribution Date:
|
February
26, 2007
|
|
|
Initial
Certificate Balance of this Certificate (“Denomination”):
|
$100.00
|
|
|
Initial
Certificate Balances of all Certificates of this Class:
|
$100.00
|
XXXXXX
XXXXXXX ABS CAPITAL I INC.
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1
Mortgage
Pass-Through Certificates, Series 2007-NC1
Class P
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Certificate does not evidence an obligation of, or an interest in, and
is
not guaranteed by the Depositor, the Trustee or any other party to the Agreement
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are 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
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”)
among
Xxxxxx Xxxxxxx ABS Capital I Inc., as depositor (the “Depositor”),
Saxon
Mortgage Services, Inc., as a servicer (“Saxon”),
Countrywide Home Loans Servicing LP, as a servicer (“Countrywide
Servicing”;
together with Saxon, the “Servicers”),
NC
Capital Corporation, as responsible party, and Deutsche Bank National Trust
Company, as trustee (the “Trustee”).
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned 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 does not have a Pass-Through Rate and will be entitled to
distributions only to the extent set forth in the Agreement. In addition, any
distribution of the proceeds of any remaining assets of the Trust will be made
only upon presentment and surrender of this Certificate at the offices
designated by the Trustee for such purposes, or such other location specified
in
the notice to Certificateholders.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “Securities Act”),
and
any applicable state securities laws or is made in accordance with the
Securities Act and such laws. In the event of any such transfer, the Trustee
shall require the transferor to execute a transferor certificate (in
substantially the form attached to the Pooling and Servicing Agreement) and
deliver either (i) a Rule 144A Letter, in either case substantially in
the form attached to the Agreement, or (ii) a written Opinion of Counsel to
the Trustee that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the Securities Act or
is
being made pursuant to the Securities Act, which Opinion of Counsel shall be
an
expense of the transferor.
No
transfer of a Certificate of this Class shall be made unless the Trustee shall
have received 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, Section 4975 of the Code or any materially
similar provisions of applicable federal, state or local law (“Similar
Law”),
or a
person acting on behalf of or investing plan assets of any such
plan.
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 authenticated by an authorized signatory of
the
Trustee.
* * *
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||
|
By:
|
||
|
Authenticated:
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
|||||||||||||
XXXXXX
XXXXXXX ABS CAPITAL I INC.
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2007-NC1, 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 Distribution 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.
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
offices designated by the Trustee for such purposes 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
parties to the Agreement 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 offices designated by the Trustee for such purposes, accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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 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 neither the Depositor, the Trustee, nor any such
agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than or equal to 5% of the Cut-off Date Pool Principal
Balance, the Servicers, individually or together, will have the option to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and
all
property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. The obligations and responsibilities
created by the Agreement will terminate as provided in Section 9.01 of 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 C
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN THREE “REAL ESTATE MORTGAGE INVESTMENT CONDUITS,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (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 (I) TO A PERSON
OTHER THAN A PERMITTED TRANSFEREE IN COMPLIANCE WITH
SECTION 5.02(c) OF THE AGREEMENT OR (II) UNLESS THE TRANSFEREE
DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY
SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR
LAW”)
OR A
PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN
THE
EVENT THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER
TO A PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO
SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON
ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY
SUCH
PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND
OF
NO EFFECT.
|
Certificate
No.
|
:
|
[R-1][R-X-1]
|
|
Cut-off
Date
|
:
|
January
1, 2007
|
|
First
Distribution Date
|
:
|
February
26, 2007
|
|
Percentage
Interest of this Certificate (“Denomination”)
|
:
|
100%
|
XXXXXX
XXXXXXX ABS CAPITAL I INC.
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1
Mortgage
Pass-Through Certificates, Series 2007-NC1
CLASS [R][R-X]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
Distributions
in respect of this Certificate is distributable monthly as set forth herein.
This Class [R][R-X] Certificate has no Certificate Balance and is not
entitled to distributions in respect of principal or interest. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by
the Depositor, the Trustee or any other party to the Agreement referred to
below
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that ______________________ is the registered owner of the Percentage
Interest specified above of any monthly distributions due to the Class [R][R-X]
Certificates pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the “Agreement”)
among
Xxxxxx Xxxxxxx ABS Capital I Inc., as depositor (the “Depositor”),
Saxon
Mortgage Services, Inc., as a servicer (“Saxon”),
Countrywide Home Loans Servicing LP, as a servicer (“Countrywide
Servicing”;
together with Saxon, the “Servicers”),
NC
Capital Corporation, as responsible party, and Deutsche Bank National Trust
Company, as trustee (the “Trustee”).
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned 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 [R][R-X] Certificate
at the offices designated by the Trustee for such purposes or such other
location specified in the notice to Certificateholders.
No
transfer of this Class [R][R-X] Certificate shall be made unless the Trustee
shall have received 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
or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject
to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting
on
behalf of any such plan or arrangement nor using the assets of any such plan
or
arrangement to effect such transfer. In the event that such representation
is
violated, or any attempt is made to transfer to a plan or arrangement subject
to
Section 406 of ERISA or a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, such attempted
transfer or acquisition shall be void and of no effect.
Each
Holder of this Class [R][R-X] Certificate shall be deemed by the acceptance
or
acquisition an Ownership Interest in this Class [R][R-X] Certificate to have
agreed to be bound by the following provisions, and the rights of each Person
acquiring any Ownership Interest in this Class [R][R-X] Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class [R][R-X] 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 this Class [R][R-X] Certificate may be registered on the Closing
Date or thereafter transferred, and the Trustee shall not register the Transfer
of this Certificate unless, in addition to the certificates required to be
delivered to the Trustee under Section 5.02(b) of the Agreement, the Trustee
shall have been furnished with a Transfer Affidavit of the initial owner or
the
proposed transferee in the form attached as Exhibit G to the Agreement, (iii)
each Person holding or acquiring any Ownership Interest in this Class [R][R-X]
Certificate shall agree (A) to obtain a Transfer Affidavit from any other Person
to whom such Person attempts to Transfer its Ownership Interest this Class
[R][R-X] 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 this Class [R][R-X] Certificate, (C) not to cause income with
respect to the Class [R][R-X] Certificate to be attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of such Person or any other U.S. Person and (D) not to
Transfer the Ownership Interest in this Class [R][R-X] Certificate or to cause
the Transfer of the Ownership Interest in this Class [R][R-X] Certificate to
any
other Person if it has actual knowledge that such Person is a Non-Permitted
Transferee and (iv) any attempted or purported Transfer of the Ownership
Interest in this Class [R][R-X] Certificate in violation of the provisions
herein shall be absolutely null and void and shall 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 authenticated by an authorized signatory of
the
Trustee.
* * *
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||
|
By:
|
||
|
Authenticated:
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
|||||||||||||
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2007-NC1, 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 Distribution 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 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.
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
offices designated by the Trustee for such purposes 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
parties to the Agreement 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 offices designated by the Trustee for such purposes, accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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 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 neither the Depositor, the Trustee, nor any such
agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than or equal to 5% of the Cut-off Date Pool Principal
Balance, the Servicers, individually or together, will have the option to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and
all
property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. The obligations and responsibilities
created by the Agreement will terminate as provided in Section 9.01 of 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 D
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN
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”),
AND
CERTAIN OTHER ASSETS.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE
TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE
AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF
COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY
BE
MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
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 TITLE I OF
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE
FEDERAL, STATE OR LOCAL LAW (“SIMILAR
LAW”)
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THIS
CERTFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING AND THE
TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING
THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE (A) ELIGIBLE FOR EXEMPTIVE RELIEF UNDER PROHIBITED TRANSACTION
CLASS EXEMPTION (“PTCE”) 95-60 PRIOR TO THE TERMINATION OF THE SUPPLEMENTAL
INTEREST TRUST AND (B) COVERED UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 AFTER THE TERMINATION OF THE SUPPLEMENTAL
INTEREST TRUST OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE
OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE DEPOSITOR OR THE SERVICER TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY
UNDERTAKEN IN THE AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF
THE CODE OR SIMILAR LAW WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
|
Certificate
No.
|
:
|
X-1
|
|
Cut-off
Date
|
:
|
January
1, 2007
|
|
First
Distribution Date
|
:
|
February
26, 2007
|
|
Percentage
Interest of this Certificate (“Denomination”)
|
:
|
100.00%
|
XXXXXX
XXXXXXX ABS CAPITAL I INC.
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1
Mortgage
Pass-Through Certificates, Series 2007-NC1
Class X
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Certificate does not evidence an obligation of, or an interest in, and
is
not guaranteed by the Depositor, the Trustee or any other party to the Agreement
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are 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 pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the “Agreement”)
among
Xxxxxx Xxxxxxx ABS Capital I Inc., as depositor (the “Depositor”), Saxon
Mortgage Services, Inc., as a servicer (“Saxon”),
Countrywide Home Loans Servicing LP, as a servicer (“Countrywide
Servicing”;
together with Saxon, the “Servicers”),
NC
Capital Corporation, as responsible party, and Deutsche Bank National Trust
Company, as trustee (the “Trustee”).
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned 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 does not have a Certificate Balance or Pass-Through Rate and will
be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purposes or such other location
specified in the notice to Certificateholders.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “Securities Act”),
and
any applicable state securities laws or is made in accordance with the
Securities Act and such laws. In the event of any such transfer, the Trustee
shall require the transferor to execute a transferor certificate (in
substantially the form attached to the Pooling and Servicing Agreement) and
deliver either (i) a Rule 144A Letter, in either case substantially in
the form attached to the Agreement, or (ii) a written Opinion of Counsel to
the Trustee that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the Securities Act or
is
being made pursuant to the Securities Act, which Opinion of Counsel shall be
an
expense of the transferor.
No
transfer of a Certificate of this Class 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 any
materially similar provisions of applicable Federal, state or local law
(“Similar
Law”)
or a
person acting on behalf of or investing plan assets of any such plan, or
(ii) if such Certificate has been the subject of an ERISA-Qualifying
Underwriting and the transferee is an insurance company, a representation letter
that it is purchasing such Certificates with the assets of its general account
and that the purchase and holding of such Certificates are (A) eligible for
exemptive relief under PTCE 95-60 prior to the termination of the Supplemental
Interest Trust and (B) covered under Sections I and III of PTCE 95-60 after
the termination of the Supplemental Interest Trust, or (iii) in the case of
a 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 plan subject
to Similar Law, 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 the Trustee, the Servicer or the Trust Fund,
addressed to the Trustee, to the effect that the purchase or holding of such
Certificate will not constitute or result in a non-exempt prohibited transaction
within the meaning of ERISA, Section 4975 of the Code or any Similar Law and
will not subject the Depositor, the Trustee or the Servicer to any obligation
in
addition to those expressly undertaken in the Agreement or to any
liability.
No
transfer of a Certificate of this Class shall be made unless the proposed
transferee of such Certificate provides to the Trustee 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
Certificate, the Trustee shall forward a copy of such tax certification form
to
the Supplemental Interest Trust Trustee who shall provide it to the Swap
Provider. Each Holder of a Class X Certificate and each transferee thereof
shall
be deemed to have consented to the Supplemental Interest Trust Trustee
forwarding to the Swap Provider any such tax certification form such Holder
or
transferee has provided and updated in accordance with these transfer
restrictions. Any purported sales or transfers of any Class X Certificate to
a
transferee which does not comply with these requirements shall be deemed null
and void.
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 authenticated by an authorized signatory of
the
Trustee.
* * *
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||
|
By:
|
||
|
Authenticated:
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
|||||||||||||
XXXXXX
XXXXXXX ABS CAPITAL I INC.
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2007-NC1, 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 Distribution 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.
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
offices designated by the Trustee for such purposes 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
parties to the Agreement 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 offices designated by the Trustee for such purposes, accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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 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 neither the Depositor, the Trustee, nor any such
agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than or equal to 5% of the Cut-off Date Pool Principal
Balance, the Servicers, individually or together, will have the option to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and
all
property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. The obligations and responsibilities
created by the Agreement will terminate as provided in Section 9.01 of 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 E
FORM
OF
INITIAL CERTIFICATION OF TRUSTEE
[DATE]
Xxxxxx
Xxxxxxx ABS Capital I Inc.
0000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Countrywide
Home Loans Servicing LP
000
Xxxxxxxxxxx Xxx
Xxxx
Xxxxxx, Xxxxxxxxxx 00000
NC
Capital Corporation
00000
Xxx
Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxxxx 00000
Saxon
Mortgage Services, Inc.
0000
Xxxxxxxxxx Xxxxx
Xxxx
Xxxxx, Xxxxx 00000
Re:
Pooling
and Servicing Agreement, dated as of January 1, 2007, among Xxxxxx Xxxxxxx
ABS
Capital I Inc., as depositor, Countrywide Home Loans Servicing LP, as a
servicer, Saxon Mortgage Services, Inc., as a servicer, NC Capital Corporation,
as responsible party, and Deutsche Bank National Trust Company, as trustee,
relating to the Xxxxxx Xxxxxxx ABS Capital I Inc. Trust,
Series 2007-NC1
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling
and Servicing Agreement”),
for
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan listed in the attached schedule), it has received:
(i) the
original Mortgage Note, endorsed as provided in the following form: “Pay to the
order of ________, without recourse”; and
(ii) an
executed assignment of the Mortgage (which may be included in a blanket
assignment or assignments).
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations 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 sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to which
the assignment relates.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Trustee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT F
FORM
OF
DOCUMENT CERTIFICATION
AND
EXCEPTION REPORT OF TRUSTEE
[DATE]
Xxxxxx
Xxxxxxx ABS Capital I Inc.
0000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Countrywide
Home Loans Servicing LP
000
Xxxxxxxxxxx Xxx
Xxxx
Xxxxxx, Xxxxxxxxxx 00000
NC
Capital Corporation
00000
Xxx
Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxxxx 00000
Saxon
Mortgage Services, Inc.
0000
Xxxxxxxxxx Xxxxx
Xxxx
Xxxxx, Xxxxx 00000
Re:
Pooling
and Servicing Agreement, dated as of January 1, 2007, among Xxxxxx Xxxxxxx
ABS
Capital I Inc., as depositor, Countrywide Home Loans Servicing LP, as a
servicer, Saxon Mortgage Services, Inc., as a servicer, NC Capital Corporation,
as responsible party, and Deutsche Bank National Trust Company, as trustee,
relating to the Xxxxxx Xxxxxxx ABS Capital I Inc. Trust,
Series 2007-NC1
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling
and Servicing Agreement”),
the
undersigned, as Trustee, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on the attached Document Exception Report) it has received:
(i) The
original Mortgage Note, endorsed in the form provided in Section 2.01 of
the Pooling and Servicing Agreement, with all intervening endorsements showing
a
complete chain of endorsement from the originator to the last
endorsee.
(ii) The
original recorded Mortgage.
(iii) An
executed assignment of the Mortgage in the form provided in Section 2.01 of
the Pooling and Servicing Agreement; or, if the Responsible Party has certified
or the Trustee otherwise knows that the related Mortgage has not been returned
from the applicable recording office, a copy of the assignment of the Mortgage
(excluding information to be provided by the recording office).
(iv) The
original or duplicate original recorded assignment or assignments of the
Mortgage showing a complete chain of assignment from the originator to the
last
endorsee.
(v) The
original or duplicate original lender’s title policy and all riders thereto or,
any one of an original title binder, an original preliminary title report or
an
original title commitment, or a copy thereof certified by the title
company.
Based
on
its review and examination and only as to the foregoing documents, (a) such
documents appear regular on their face and related to such Mortgage Loan, and
(b) the information set forth in items (1), (2), (7) and (9) of the
Mortgage Loan Schedule and items (1), (9) and (17) of the Data Tape
Information accurately reflects information set forth in the Custodial
File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review of the Custodial File specifically required
in
the Pooling and Servicing Agreement. The Trustee makes no representations as
to:
(i) the validity, legality, sufficiency, enforceability or genuineness of
any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations 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 sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to which
the assignment relates.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Trustee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT G
RESIDUAL
TRANSFER AFFIDAVIT
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1,
Mortgage
Pass-Through Certificates,
Series 2007-NC1
|
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 [R][R-X] Certificate (the “Certificate”)
issued
pursuant to the Pooling and Servicing Agreement (the “Agreement”),
relating to the above-referenced Series, by and among Xxxxxx Xxxxxxx ABS
Capital I Inc., as Depositor, Countrywide Home Loans Servicing LP, as a
servicer, Saxon Mortgage Services, Inc., as a servicer, NC Capital Corporation,
as Responsible Party, and Deutsche Bank National Trust Company, as Trustee
(the “Trustee”).
Capitalized terms used, but not defined herein, 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 for the benefit of the Depositor
and the Trustee.
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 for its own account. 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 Non-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 a Non-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 a Non-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 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 a Non-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 H to the
Agreement (a “Transferor
Certificate”)
to the
effect that, among other things, such Transferee has no actual knowledge that
the Person to which the Transfer is to be made is a Non-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. The
Transferee has historically paid its debts as they have come due and intends
to
pay its debts as they come due in the future. The Transferee intends to pay
all
taxes due with respect to the Certificate as they become due.
8. The
Transferee’s taxpayer identification number is __________.
9. The
Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
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 will not cause income from the Residual Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
U.S.
Person.
12. Check
the
applicable paragraph:
|
(i)
|
The
present value of the anticipated tax liabilities associated with
holding
the Certificate, as applicable, does not exceed the sum
of:
|
|
(ii)
|
the
present value of any consideration given to the Transferee to acquire
such
Certificate;
|
|
(iii)
|
the
present value of the expected future distributions on such Certificate;
and
|
|
(iv)
|
the
present value of the anticipated tax savings associated with holding
such
Certificate as the related REMIC generates
losses.
|
For
purposes of this calculation, (i) the Transferee is assumed to pay tax at
the highest rate currently specified in Section 11(b) of the Code (but
the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of
the highest rate specified in Section 11(b) of the Code if the
Transferee has been subject to the alternative minimum tax under Section 55
of the Code in the preceding two years and will compute its taxable income
in
the current taxable year using the alternative minimum tax rate) and
(ii) present values are computed using a discount rate equal to the
short-term Federal rate prescribed by Section 1274(d) of the Code for the
month of the transfer and the compounding period used by the
Transferee.
(i) The
transfer of the Certificate complies with U.S. Treasury Regulations Sections
1.860E-1(c)(5) and (6) and, accordingly,
(ii) the
Transferee is an “eligible corporation,” as defined in U.S. Treasury Regulations
Section 1.860E-1(c)(6)(i), as to which income from the Certificate will
only be taxed in the United States;
(iii) at
the
time of the transfer, and at the close of the Transferee’s two fiscal years
preceding the year of the transfer, the Transferee had gross assets for
financial reporting purposes (excluding any obligation of a person related
to
the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in
excess of $10 million;
(iv) the
Transferee will transfer the Certificate only to another “eligible corporation,”
as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of Sections 1.860E-1(c)(4)(i),
(ii) and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations; and
(v) the
Transferee determined the consideration paid to it to acquire the Certificate
based on reasonable market assumptions (including, but not limited to, borrowing
and investment rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee) that it
has
determined in good faith.
(vi) None
of
the above.
5. The
Transferee is not an employee benefit plan that is subject to Title I of ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject to
any Federal, state or local law that is substantially similar to Title I of
ERISA or Section 4975 of the Code, and the Transferee is not acting on
behalf of or investing plan assets of such a plan.
* * *
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 H
FORM
OF
TRANSFEROR CERTIFICATE
__________,
20__
Xxxxxx
Xxxxxxx ABS Capital I Inc.
0000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
[___]
Deutsche
Bank National Trust Company,
as
Trustee
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000
Re:
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1
Mortgage
Pass-Through Certificates, Series 2007-NC1,
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, (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 and (c) to the extent we are disposing of a
Residual Certificate, (i) we have no knowledge the Transferee is a
Non-Permitted Transferee, (ii) after conducting a reasonable investigation
of the financial condition of the Transferee, we have no knowledge and no reason
to believe that the Transferee will not pay all taxes with respect to the
Residual Certificates as they become due and (iii) we have no reason to
believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee’s Residual Transfer Affidavit are false.
| Very truly yours, | ||
|
Print
Name of Transferor
|
||
|
By:
|
||
|
Authorized
Officer
|
||
EXHIBIT I
FORM
OF
RULE 144A LETTER
____________,
20__
Xxxxxx
Xxxxxxx ABS Capital I Inc.
0000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
[___]
Deutsche
Bank National Trust Company,
as
Trustee
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000
Re:
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1, Mortgage Pass-Through
Certificates, Series 2007-NC1, 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 Title I of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”),
or a
plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended, or a plan subject to materially similar provisions
of
applicable federal, state or local law, nor are we acting on behalf of any
such
plan or arrangement nor using the assets of any such plan or arrangement to
effect such acquisition or, with respect to a Class X Certificate that has
been the subject of an ERISA-Qualifying Underwriting, the purchaser is an
insurance company that is purchasing this certificate with funds contained
in an
“insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”))
and
that is eligible for exemptive relief under PTCE 95-60 prior to the termination
of the Supplemental Interest Trust and the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 after the
termination of the Supplemental Interest Trust, (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 Securities Act
or
that would render the disposition of the Certificates a violation of
Section 5 of the Securities Act or require registration pursuant thereto,
nor will act, nor has authorized or will authorize any person to act, in such
manner with respect to the Certificates, and (f) we are a “qualified
institutional buyer” as that term is defined in Rule 144A under the
Securities Act and have completed either of the forms of certification to that
effect attached hereto as Annex 1 or Annex 2. We are aware that the
sale to us is being made in reliance on Rule 144A. 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 (i) 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 (ii) pursuant to another
exemption from registration under the Securities Act.
In
connection with our purchase of the Certificates, we acknowledge and agree
that
(i) none of you nor any of your affiliates is acting as a fiduciary or
financial or investment adviser for us; (ii) we are not relying (for
purposes of making any investment decision or otherwise) upon any advice,
counsel or representations (whether written or oral) of any of you or your
affiliates with respect to the Certificates; (iii) none of you nor any of
your affiliates has given to us (directly or indirectly through any other
person) any assurance, guarantee or representation whatsoever as to the expected
or projected success, profitability, return, performance, result, effect,
consequence, or benefit (including legal, regulatory, tax, financial, accounting
or otherwise) of our purchase of the Certificates; (iv) we have performed
our own diligence to the extent we have deemed necessary and we have consulted
with our own legal, regulatory, tax, business, investment, financial and
accounting advisers to the extent that we have deemed necessary, and we have
made our own investment decisions based upon our own judgment and upon any
advice from such advisers as we have deemed necessary and appropriate and not
upon any view expressed by any of you or your affiliates with respect to the
Certificates; (v) none of you nor any of your affiliates will be obligated
to make payments on the Certificates in the event that the assets of the trust
is insufficient to provide for such payments; (vi) you and your affiliates
may have positions and may effect transactions in any of the Series 2007-NC1
securities; and (vii) we are familiar with the Certificates and have
reviewed and understand the related pooling and servicing agreement, the
prospectus supplement and prospectus relating to Series 2007-NC1 and the other
material transaction documents related thereto.
ANNEX 1
TO EXHIBIT I
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 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 Transferee
|
||
|
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 I
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.
1. 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).
|
2. 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).
3. 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.
4. 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.
5. 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.
|
Print
Name of Transferee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
|
IF
AN ADVISER:
|
||
|
Print
Name of Buyer
|
||
EXHIBIT J
FORM
OF
REQUEST FOR RELEASE
(for
Trustee)
To: [Trustee]
Re:
In
connection with the administration of the Mortgage Loans held by you as the
Trustee on behalf of the Certificateholders, 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:
Send
Custodial File to:
Delivery
Method (check one)
____1. Regular
mail
____2. Overnight
courier (Tracking information:
)
If neither box 1 nor 2 is checked, regular mail shall be assumed.
Reason
for Requesting Documents (check one)
____1.
Mortgage
Loan Paid in Full. (The Servicer hereby certifies that all amounts received
in
connection therewith have been credited to its Collection Account as provided
in
the Pooling and Servicing Agreement.)
____2.
Mortgage
Loan Repurchase Pursuant to Subsection 2.03 of the Pooling and Servicing
Agreement. (The Servicer hereby certifies that the repurchase price has been
credited to Collection Account as provided in the Pooling and Servicing
Agreement.)
____3.
Mortgage
Loan Liquidated By _________________. (The Servicer hereby certifies that all
proceeds of foreclosure, insurance, condemnation or other liquidation have
been
finally received and credited to its Collection Account pursuant to the Pooling
and Servicing Agreement.)
____4. Mortgage
Loan in Foreclosure.
____5. Other
(explain).
If
box 1,
2 or 3 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 4
or 5 above is checked, upon our return of all of the above documents to you
as
the Trustee, please acknowledge your receipt by signing in the space indicated
below, and returning this form if requested by us.
|
[SERVICER]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Date:
|
|||
|
[ACKNOWLEDGED
AND AGREED:
|
|||
|
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Date: ]
|
|||
Name:
Title:
Date:
]
EXHIBIT K
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Sponsor and
which shall be retained by the Servicer or delivered to and retained by the
Trustee, as applicable:
(i) The
original Mortgage Note bearing all intervening endorsements, showing a complete
chain of endorsement from the originator to the last endorsee endorsed “Pay to
the order of _________________ without recourse” and signed (which may be by
facsimile signature) in the name of the last endorsee by an authorized officer.
To the extent that there is no room on the face of the Mortgage Notes for
endorsements, the endorsement may be contained on an allonge, unless the Trustee
is advised in writing by the Responsible Party that state law does not so
allow.
(ii) The
original of any guaranty executed in connection with the Mortgage
Note.
(iii) The
original Mortgage, with evidence of recording thereon or a certified true copy
of such Mortgage submitted for recording. If in connection with any Mortgage
Loan, the Responsible Party cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such Mortgage
has
been delivered for recordation or because such Mortgage has been lost or because
such public recording office retains the original recorded Mortgage, the
Responsible Party shall deliver or cause to be delivered to the Trustee, a
photocopy of such Mortgage, together with (i) in the case of a delay caused
by the public recording office, an Officer’s Certificate of the Responsible
Party or evidence of certification on the face of such photocopy of such
Mortgage or a certificate from an escrow company, a title company or closing
attorney stating that such Mortgage has been dispatched to the appropriate
public recording office for recordation and that the original recorded Mortgage
or a copy of such Mortgage certified by such public recording office to be
a
true and complete copy of the original recorded Mortgage will be promptly
delivered to the Trustee upon receipt thereof by the Responsible Party; or
(ii) in the case of a Mortgage where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage certified
by
such public recording office to be a true and complete copy of the original
recorded Mortgage.
(iv) The
originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon or a certified true copy of
such
agreement submitted for recording.
(v) The
original Assignment of Mortgage for each Mortgage Loan endorsed in
blank.
(vi) Originals
of all intervening assignments of mortgage (if any) evidencing a complete chain
of assignment from the applicable originator to the last endorsee with evidence
of recording thereon or a certified true copy of such intervening assignments
of
mortgage submitted for recording, or if any such intervening assignment has
not
been returned from the applicable recording office or has been lost or if such
public recording office retains the original recorded assignments of mortgage,
the Responsible Party shall deliver or cause to be delivered to the Trustee,
a
photocopy of such intervening assignment, together with (i) in the case of
a delay caused by the public recording office, an Officer’s Certificate of the
Responsible Party or evidence of certification on the face of such photocopy
of
such intervening assignment or a certificate from an escrow company, a title
company or a closing attorney stating that such intervening assignment of
mortgage has been dispatched to the appropriate public recording office for
recordation and that such original recorded intervening assignment of mortgage
or a copy of such intervening assignment of mortgage certified by the
appropriate public recording office to be a true and complete copy of the
original recorded intervening assignment of mortgage will be promptly delivered
to the Trustee upon receipt thereof by the Responsible Party; or (ii) in
the case of an intervening assignment where a public recording office retains
the original recorded intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording office, a copy of
such intervening assignment certified by such public recording office to be
a
true and complete copy of the original recorded intervening
assignment.
(vii) The
original mortgagee title insurance policy or attorney’s opinion of title and
abstract of title.
(viii) The
original of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage (if provided).
(ix) Residential
loan application.
(x) Mortgage
Loan closing statement.
(xi) Verification
of employment and income, if applicable.
(xii) Verification
of acceptable evidence of source and amount of down payment.
(xiii) Credit
report on Mortgagor.
(xiv) Residential
appraisal report.
(xv) Photograph
of the Mortgaged Property.
(xvi) Survey
of
the Mortgaged Property.
(xvii) Copy
of
each instrument necessary to complete identification of any exception set forth
in the exception schedule in the title policy, i.e., map or plat, restrictions,
easements, sewer agreements, home association declarations, etc.
(xviii) All
required disclosure statements.
(xix) If
required in an appraisal, termite report, structural engineer’s report, water
potability and septic certification.
(xx) Sales
contract, if applicable.
Evidence
of payment of taxes and insurance, insurance claim files, correspondence,
current and historical computerized data files (which include records of tax
receipts and payment history from the date of origination), and all other
processing, underwriting and closing papers and records which are customarily
contained in a mortgage loan file and which are required to document the
Mortgage Loan or to service the Mortgage Loan.
EXHIBIT
L
FORM
OF
CERTIFICATION TO BE
PROVIDED
WITH FORM 10-K
|
Re:
|
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1 (the “Trust”),
Mortgage Pass-Through Certificates, Series 2007-NC1, issued pursuant
to
the Pooling and Servicing Agreement, dated as of January 1, 2007,
among
Xxxxxx Xxxxxxx ABS Capital I Inc., as Depositor, Countrywide Home
Loans Servicing LP, as a Servicer, Saxon Mortgage Services, Inc.,
as a
servicer (each a “Servicer”
and, collectively, the “Servicers”),
Deutsche Bank National Trust Company, as trustee (the “Trustee”),
and NC Capital
Corporation, as responsible party
|
I,
[identify the certifying individual], certify that:
(1) I
have
reviewed this annual report on Form 10-K (“Annual
Report”),
and
all reports on Form 10-D (collectively with this Annual Report, the
“Reports”)
required to be filed in respect of period covered by this Annual Report, of
the
Trust;
(2) Based
on
my knowledge, the Reports, taken as a whole, do not contain any untrue statement
of a material fact or omit to state a material fact 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 Annual
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 Annual Report
is
included in the Reports;
(4) Based
on
my knowledge and the compliance statements required in this Annual Report under
Item 1123 of Regulation AB, and except as disclosed in the Reports, the
Servicers have fulfilled their 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 required to be included in this Annual 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 Annual Report, except as
otherwise disclosed in this Annual Report. Any material instances of
non-compliance described in such reports have been disclosed in this Annual
Report.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated parties: the Trustee and the
Servicers.
|
Date: __________________________
|
|
|
_______________________________
[Signature]
[Title]
|
EXHIBIT
M
FORM
OF
CERTIFICATION
TO
BE
PROVIDED BY THE TRUSTEE TO DEPOSITOR
|
Re:
|
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1 (the “Trust”),
Mortgage Pass-Through Certificates, Series 2007-NC1, issued pursuant
to
the Pooling and Servicing Agreement, dated as of January 1, 2007,
among
Xxxxxx Xxxxxxx ABS Capital I Inc., as depositor, Countrywide Home
Loans Servicing LP, as a servicer, Saxon Mortgage Services, Inc.,
as a
servicer (each a “Servicer”
and, collectively, the “Servicers”),
Deutsche Bank National Trust Company, as trustee (the “Trustee”),
and NC Capital Corporation,
as responsible party
|
The
Trustee hereby certifies to the Depositor, and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
(1) I
have
reviewed the annual report on Form 10-K for the fiscal year [___] (the
“Annual
Report”),
and
all reports on Form 10-D required to be filed in respect of period covered
by the Annual Report (collectively with the Annual Report, the “Reports”),
of
the Trust;
(2) To
my
knowledge, the Reports, taken as a whole, do not contain any untrue statement
of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were
made, not misleading with respect to the period covered by the Annual Report,
it
being understood that the Trustee is not responsible for verifying the accuracy
or completeness of information in the Reports (a) provided by Persons other
than the Trustee or any Subcontractor utilized by the Trustee or
(b) relating to Persons other than the Trustee or any Subcontractor
utilized by the Trustee as to which a Responsible Officer of the Trustee does
not have actual knowledge;
(3) To
my
knowledge, the distribution or servicing information required to be provided
to
the Trustee by the Servicers under the Pooling and Servicing Agreement for
inclusion in the Reports is included in the Reports; and
(4) The
report on assessment of compliance with servicing criteria for asset-backed
securities applicable to the Trustee and each Subcontractor utilized by the
Trustee and their related attestation reports on assessment of compliance with
servicing criteria applicable to it required to be included in the Annual Report
in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18
and
15d-18 has been included as an exhibit to the Annual Report. Any material
instances of non-compliance are described in such report and have been disclosed
in the Annual Report.
|
Date: _________________________
|
|
|
_______________________________
[Signature]
[Title]
|
EXHIBIT
N
FORM
OF
CERTIFICATION
TO
BE
PROVIDED BY SAXON TO DEPOSITOR
|
Re:
|
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1 (the “Trust”),
Mortgage Pass-Through Certificates, Series 2007-NC1, issued pursuant
to
the Pooling and Servicing Agreement, dated as of January 1, 2007,
among
Xxxxxx Xxxxxxx ABS Capital I Inc., as depositor, Countrywide Home
Loans Servicing LP, as a servicer, Saxon Mortgage Services, Inc.,
as a
servicer, Deutsche Bank National Trust Company, as trustee (the
“Trustee”),
and NC Capital Corporation, as responsible party
|
Saxon
Mortgage Services, Inc. (the “Company”), certifies to the Depositor and the
Trustee, and their officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification, that:
(1) The
Company has reviewed the servicer compliance statement of the Company and the
compliance statements of each Subservicer, if any, engaged by the Company
provided to the Depositor and the Trustee for the Trust’s fiscal year [___] in
accordance with Item 1123 of Regulation AB (each a “Compliance
Statement”),
the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing
Criteria”)
and
reports on assessment of compliance with servicing criteria for asset-backed
securities of the Company and of each Subservicer or Subcontractor, if any,
engaged or utilized by the Company provided to the Depositor and the Trustee
for
the Trust’s fiscal year [___] in accordance with Rules 13a-18 and 15d-18 under
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)
and
Item 1122 of Regulation AB (each a “Servicing
Assessment”),
the
registered public accounting firm’s attestation report provided in accordance
with Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB related to each Servicing Assessment (each an “Attestation
Report”),
and
all servicing reports, officer’s certificates and other information relating to
the servicing of the Mortgage Loans by the Company during 200[ ] that were
delivered or caused to be delivered by the Company pursuant to the Agreement
(collectively, the “Servicing
Information”);
(2) Based
on
the Company’s knowledge, the Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicing Information;
(3) Based
on
the Company’s knowledge, the servicing information required to be provided to
the Trustee by the Company pursuant to the Pooling and Servicing Agreement
has
been provided to the Trustee;
(4) Based
on
the Company’s knowledge and the compliance review conducted in preparing
Compliance Statement of the Company and, if applicable, reviewing each
Compliance Statement of each Subservicer, if any, engaged by the Company, and
except as disclosed in such Compliance Statement[(s)], the Company [(directly
and through its Subservicers, if any)] has fulfilled its obligations under
the
Pooling and Servicing Agreement in all material respects.
(5) Each
Servicing Assessment of the Company and of each Subservicer or Subcontractor,
if
any, engaged or utilized by the Company and its related Attestation Report
required to be included in the Annual Report in accordance with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to
the
Depositor and the Trustee. Any material instances of non-compliance are
described in any such Servicing Assessment or Attestation Report.
Date:__________________________
By:___________________________
Name:_________________________
Title:__________________________
EXHIBIT O
FORM
OF
SERVICER POWER OF ATTORNEY
When
Recorded Mail To:
[Countrywide
Home Loans Servicing LP
000
Xxxxxxxxxxx Xxx
Xxxx
Xxxxxx, Xxxxxxxxxx 00000]
[Saxon
Mortgage Services, Inc.
0000
Xxxxxxxxxx Xxxxx
Xxxx
Xxxxx, Xxxxx 00000]
LIMITED
POWER OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that Deutsche Bank National Trust Company, a national
banking association organized and existing under the laws of the United States
and having its principal place of business at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx
Xxx, Xxxxxxxxxx, 00000, as Trustee pursuant to that Xxxxxx Xxxxxxx ABS
Capital I Inc. Trust 2007-NC1 Pooling and Servicing Agreement dated as of
January 1, 2007 (the “Agreement”)
by and
among Xxxxxx Xxxxxxx ABS Capital I Inc., as depositor (the “Depositor”),
Saxon
Mortgage Services, Inc., as a servicer (“Saxon”),
Countrywide Home Loans Servicing LP, as a Servicer (“Countrywide
Servicing”),
NC
Capital Corporation, as responsible party (“NC
Capital”)
and
Deutsche Bank National Trust Company, as trustee (the “Trustee”),
hereby constitutes and appoints [Countrywide Servicing][Saxon], by and through
[Countrywide Servicing][Saxon]’s officers, the Trustee’s true and lawful
Attorney-in-fact, in the Trustee’s name, place and stead and for the Trustee’s
benefit, in connection with all mortgage loans serviced by [Countrywide
Servicing][Saxon] pursuant to the Agreement solely for the purpose of performing
such acts and executing such documents in the name of the Trustee necessary
and
appropriate to effectuate the following enumerated transactions in respect
of
any of the mortgages or deeds of trust (the “Mortgages”
and
the
“Deeds
of Trust”
respectively) and promissory notes secured thereby (the “Mortgage
Notes”)
for
which the undersigned is acting as Trustee for various certificateholders
(whether the undersigned is named therein as mortgagee or beneficiary or has
become mortgagee by virtue of endorsement of the Mortgage Note secured by any
such Mortgage or Deed of Trust) and for which [Countrywide Servicing][Saxon]
is
acting as servicer.
This
Appointment shall apply only to the following enumerated transactions and
nothing herein or in the Agreement shall be construed to the
contrary:
|
1.
|
The
modification or re-recording of a Mortgage or Deed of Trust, where
said
modification or re-recording is solely for the purpose of correcting
the
Mortgage or Deed of Trust to conform same to the original intent
of the
parties thereto or to correct title errors discovered after such
title
insurance was issued; provided
that (i) said modification or re-recording, in either instance, does
not adversely affect the lien of the Mortgage or Deed of Trust as
insured
and (ii) otherwise conforms to the provisions of the
Agreement.
|
|
2.
|
The
subordination of the lien of a Mortgage or Deed of Trust to an easement
in
favor of a public utility company of a government agency or unit
with
powers of eminent domain; this section shall include, without limitation,
the execution of partial satisfactions/releases, partial reconveyances
or
the execution or requests to trustees to accomplish
same.
|
|
3.
|
The
conveyance of the properties to the mortgage insurer, or the closing
of
the title to the property to be acquired as real estate owned, or
conveyance of title to real estate
owned.
|
|
4.
|
The
completion of loan assumption
agreements.
|
|
5.
|
The
full satisfaction/release of a Mortgage or Deed of Trust or full
conveyance upon payment and discharge of all sums secured thereby,
including, without limitation, cancellation of the related Mortgage
Note.
|
|
6.
|
The
assignment of any Mortgage or Deed of Trust and the related Mortgage
Note,
in connection with the repurchase of the mortgage loan secured and
evidenced thereby.
|
|
7.
|
The
full assignment of a Mortgage or Deed of Trust upon payment and discharge
of all sums secured thereby in conjunction with the refinancing thereof,
including, without limitation, the assignment of the related Mortgage
Note.
|
|
8.
|
With
respect to a Mortgage or Deed of Trust, the foreclosure, the taking
of a
deed in lieu of foreclosure, or the completion of judicial or non-judicial
foreclosure or termination, cancellation or rescission of any such
foreclosure, including, without limitation, any and all of the following
acts:
|
|
a.
|
the
substitution of trustee(s) serving under a Deed of Trust, in accordance
with state law and the Deed of
Trust;
|
|
b.
|
the
preparation and issuance of statements of breach or
non-performance;
|
|
c.
|
the
preparation and filing of notices of default and/or notices of
sale;
|
|
d.
|
the
cancellation/rescission of notices of default and/or notices of
sale;
|
|
e.
|
the
taking of deed in lieu of foreclosure;
and
|
|
f.
|
the
preparation and execution of such other documents and performance
of such
other actions as may be necessary under the terms of the Mortgage,
Deed of
Trust or state law to expeditiously complete said transactions in
paragraphs 8.a. through 8.e.
above.
|
|
9.
|
With
respect to the sale of property acquired through a foreclosure or
deed-in
lieu of foreclosure, including, without limitation, the execution
of the
following documentation:
|
|
a.
|
listing
agreements;
|
|
b.
|
purchase
and sale agreements;
|
|
x.
|
xxxxx/warranty/quit
claim deeds or any other deed causing the transfer of title of the
property to a party contracted to purchase
same;
|
|
d.
|
escrow
instructions; and
|
|
e.
|
any
and all documents necessary to effect the transfer of
property.
|
|
10.
|
The
modification or amendment of escrow agreements established for repairs
to
the mortgaged property or reserves for replacement of personal
property.
|
The
undersigned gives said Attorney-in-fact full power and authority to execute
such
instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this Limited
Power of Attorney as fully as the undersigned might or could do, and hereby
does
ratify and confirm to all that said Attorney-in-fact shall be effective as
of
January 26, 2007.
This
appointment is to be construed and interpreted as a limited power of attorney.
The enumeration of specific items, rights, acts or powers herein is not intended
to, nor does it give rise to, and it is not to be construed as a general power
of attorney.
Nothing
contained herein shall (i) limit in any manner any indemnification provided
by
[Countrywide Servicing][Saxon] to the Trustee under the Agreement, or (ii)
be
construed to grant [Countrywide Servicing][Saxon] the power to initiate or
defend any suit, litigation or proceeding in the name of Deutsche Bank National
Trust Company except as specifically provided for herein. If [Countrywide
Servicing][Saxon] receives any notice of suit, litigation or proceeding in
the
name of Deutsche Bank National Trust Company, then [Countrywide
Servicing][Saxon] shall promptly forward a copy of same to the
Trustee.
This
limited power of attorney is not intended to extend the powers granted to
[Countrywide Servicing][Saxon] under the Agreement or to allow [Countrywide
Servicing][Saxon] to take any action with respect to Mortgages, Deeds of Trust
or Mortgage Notes not authorized by the Agreement.
[Countrywide
Servicing][Saxon] hereby agrees to indemnify and hold the Trustee and its
directors, officers, employees and agents harmless from and against any and
all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever incurred
by
reason or result of or in connection with the exercise by [Countrywide
Servicing][Saxon] of the powers granted to it hereunder. The foregoing indemnity
shall survive the termination of this Limited Power of Attorney and the
Agreement or the earlier resignation or removal of the Trustee under the
Agreement.
This
Limited Power of Attorney is entered into and shall be governed by the laws
of
the State of New York, without regard to conflicts of law principles of such
state.
Third
parties without actual notice may rely upon the exercise of the power granted
under this Limited Power of Attorney; and may be satisfied that this Limited
Power of Attorney shall continue in full force and effect and has not been
revoked unless an instrument of revocation has been made in writing by the
undersigned.
IN
WITNESS WHEREOF, Deutsche Bank National Trust Company, as Trustee has caused
its
corporate seal to be hereto affixed and these presents to be signed and
acknowledged in its name and behalf by a duly elected and authorized signatory
this ___________ day of ____________.
|
Deutsche
Bank National Trust Company, as Trustee
|
|
|
By:______________________________________
|
|
|
Name::
|
|
|
Title
|
|
Acknowledged
and Agreed
[Countrywide
Servicing][Saxon]
|
|
By:_____________________________
|
|
Name:
|
|
Title:
|
STATE
OF
CALIFORNIA
COUNTY
OF
____________
On
________________, _____, before me, the undersigned, a Notary Public in and
for
said state, personally appeared ________________________________ of Deutsche
Bank National Trust Company, as Trustee for Xxxxxx Xxxxxxx ABS Capital I
Inc. Trust 2007-NC1 personally known to me to be the person whose name is
subscribed to the within instrument and acknowledged to me that he/she executed
that same in his/her authorized capacity, and that by his/her signature on
the
instrument the entity upon behalf of which the person acted and executed the
instrument.
WITNESS
my hand and official seal.
(SEAL)
|
Notary
Public, State of California
|
EXHIBIT
P
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Trustee, each Servicer, each
Subservicer and each Subcontractor 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.
|
Trustee/Servicer
|
|
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.
|
Trustee/Servicer
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans 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.
|
Servicer
|
|
|
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.
|
Servicer
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
Servicer/Trustee
|
|
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.
|
Servicer
|
|
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.
|
Servicer/Trustee
|
|
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.
|
Servicer/Trustee
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
Servicer/Trustee
|
|
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.
|
Servicer/Trustee
|
|
|
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.
|
Servicer/Trustee
|
|
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.
|
Servicer/Trustee
|
|
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.
|
Servicer/Trustee
|
|
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.
|
Servicer/Trustee
|
|
|
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.
|
Servicer/Trustee
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
Servicer/Trustee
|
|
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.
|
Trustee/Servicer
|
|
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.
|
Servicer
|
|
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.
|
Servicer
|
|
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.
|
Servicer
|
|
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.
|
Servicer
|
|
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).
|
Servicer
|
|
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.
|
Servicer
|
|
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.
|
Servicer
|
|
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.
|
Servicer
|
|
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.
|
Servicer
|
|
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.
|
Servicer
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
Servicer
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
Trustee
|
|
|
|
|
EXHIBIT
Q
ADDITIONAL
FORM 10-D DISCLOSURE
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
Any
information required by Item 1121 of Regulation AB which is NOT included
on the Monthly Statement
|
Servicer/Trustee
|
|
Item
2: Legal Proceedings
per
Item 1117 of Regulation AB
|
(i)
All parties to the Agreement (as to themselves), (ii) the Trustee
and
Servicer as to the issuing entity, (iii) the Depositor as to the
sponsor,
and each Originator (other than the Responsible Party) or any Regulation
AB Item 1100(d)(1) party
|
|
Item
3: Sale of Securities and Use of Proceeds
|
Depositor
|
|
Item
4: Defaults Upon Senior Securities
|
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security Holders
|
Depositor
or the party to this Agreement submitting such matter to a vote of
Certificateholders
|
|
Item
6: Significant Obligors of Pool Assets
|
N/A
|
|
Item
7: Significant Enhancement Provider Information
|
Depositor
|
|
Item
8: Other Information
|
Any
party to the Agreement responsible for disclosure items on Form
8-K
|
|
Item
9: Exhibits
|
Trustee
|
EXHIBIT
R
ADDITIONAL
FORM 10-K DISCLOSURE
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
|
Any
party to the Agreement responsible for disclosure items on Form
8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Trustee
Depositor
|
|
Additional
Item:
Disclosure
per Item 1117 of Regulation AB
|
(i)
All parties to the Agreement (as to themselves), (ii) the Trustee
and
Servicer as to the Trust, (iii) the Depositor as to the sponsor and
each
Originator (other than the Responsible Party), or any 1100(d)(1)
party
|
|
Additional
Item:
Disclosure
per Item 1119 of Regulation AB
|
(i)
All parties to the Agreement as to themselves, (ii) the Depositor
as to
the sponsor, or any derivative provider
|
|
Additional
Item:
Disclosure
per Item 1112(b) of Regulation AB
|
N/A
|
|
Additional
Item:
Disclosure
per Items 1114(b) and 1115(b) of Regulation AB
|
Depositor
|
EXHIBIT
S
FORM
8-K
DISCLOSURE INFORMATION
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
|
The
party to this Agreement entering into such material definitive
agreement
|
|
Item
1.02- Termination of a Material Definitive Agreement
|
The
party to this Agreement requesting termination of a material definitive
agreement
|
|
Item
1.03- Bankruptcy or Receivership
|
(i)
All parties to the Agreement (as to themselves), (ii) the Trustee
and
Servicer as to the Trust, (iii) the Depositor as to the sponsor and
each
Originator (other than the Responsible Party), or any 1100(d)(1)
party
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
|
Depositor/Trustee
|
|
Item
3.03- Material Modification to Rights of Security Holders
|
The
party requesting such modification.
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
|
Depositor
|
|
Item
6.01- Informational and Computational Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Trustee
|
Servicer,
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External Support
|
Depositor/Trustee
|
|
Item
6.04- Failure to Make a Required Distribution
|
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
|
Depositor
|
|
Item
7.01- Regulation FD Disclosure
|
Depositor
|
|
Item
8.01
|
Depositor
|
|
Item
9.01
|
Depositor
|
EXHIBIT
T
INTEREST
RATE SWAP AGREEMENT
ISDA®
International
Swap Dealers Association, Inc.
MASTER
AGREEMENT
dated
as
of January 26, 2007
|
XXXXXX
XXXXXXX CAPITAL SERVICES INC.
|
and
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not individually, but solely as Trustee
on
behalf of the Supplemental Interest Trust with respect to Xxxxxx
Xxxxxxx
ABS Capital I Inc. Trust 2007-NC1, Mortgage Pass-Through Certificates,
Series 2007-NC1
|
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 o-f 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 lull 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,
reorganization, 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 an 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 be entered into as soon as practicable and may be executed
and delivered in counterparts (including by facsimile transmission) or be
created by an exchange of telexes or by an exchange of electronic messages
on an
electronic messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The parties
will
specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.
(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 ease 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)(l) 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 a 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 determination 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) its
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:
—
(a) 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
(b) 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 ease) 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 ease 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.
|
XXXXXX
XXXXXXX CAPITAL SERVICES INC.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not individually, but solely as Trustee
on
behalf of the Supplemental Interest Trust with respect to Xxxxxx
Xxxxxxx
ABS Capital I Inc. Trust 2007-NC1, Mortgage Pass-Through Certificates,
Series 2007-NC1
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
Date:
|
Date:
|
|||
EXECUTION
COPY
SCHEDULE
TO
THE
1992
ISDA MASTER AGREEMENT
dated
as of January 26, 2007
between
XXXXXX
XXXXXXX CAPITAL SERVICES INC.
a
Delaware corporation
(“Party
A”)
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY
a
national banking association, not individually, but solely as Trustee on
behalf
of the Supplemental Interest Trust (the “Trust”) with respect to Xxxxxx Xxxxxxx
ABS Capital I Inc. Trust 2007-NC1, Mortgage Pass-Through Certificates, Series
2007-NC1
(“Party
B”)
| Part 1. |
Termination
Provisions.
|
| (a) |
“Specified
Entity”
means in relation to Party A for the purpose
of:
|
Section 5(a)(v),
None Specified
Section 5(a)(vi),
None Specified
Section 5(a)(vii),
None Specified
Section 5(b)(iv),
None Specified
and
in
relation to Party B for the purpose of:
Section 5(a)(v),
None Specified
Section 5(a)(vi),
None Specified
Section 5(a)(vii),
None Specified
Section 5(b)(iv),
None Specified
| (b) |
Events
of Default.
Notwithstanding anything in this Agreement to the contrary, the
following
Events of Default shall apply to the specified
party:
|
|
Party A
|
Party B
|
||
|
(i)
|
Section
5(a)(i), Failure to Pay or Deliver
|
Applicable
|
Applicable
|
|
(ii)
|
Section
5(a)(ii), Breach of Agreement
|
Applicable
|
Not
Applicable
|
|
(iii)
|
Section
5(a)(iii), Credit Support Default
|
Applicable
|
Applicable
|
|
(iv)
|
Section
5(a)(iv), Misrepresentation
|
Applicable
|
Not
Applicable
|
|
(v)
|
Section
5(a)(v), Default Under Specified Transaction
|
Not
Applicable
|
Not
Applicable
|
|
(vi)
|
Section
5(a)(vi), Cross Default
|
Applicable
|
Not
Applicable
|
|
(vii)
|
Section
5(a)(vii), Bankruptcy
|
Applicable
|
Applicable
|
|
(viii)
|
Section
5(a)(viii), Merger Without Assumption
|
Applicable
|
Applicable
|
provided,
however, that with respect to:
| (i) |
Section
5(a)(iii)(1) (Credit Support Default), as it applies to Party B
only,
shall be deleted in its entirety and replaced with the following:
“Failure
by Party B to comply with or perform any agreement or obligation
to be
complied with or performed by it in accordance with Paragraph 3(b)
of the
Credit Support Annex if such failure is continuing after any applicable
grace period has elapsed.”
|
| (ii) |
Section
5(a)(vi) (Cross Default), “Threshold Amount” means, with respect to Party
A, 3% of its Credit Support Provider’s (or the applicable Relevant
Entity’s) shareholder’s equity (as detailed in its Credit Support
Provider’s or the Relevant Entity’s most recent financial
statements).
|
| (iii) |
Section
5(a)(vii) (Bankruptcy), (i) clause (2) and (9) shall not be applicable
to
Party B; (ii) clause (4) shall not be applicable to Party B if
the
proceeding or petition is instituted or presented by Party A or
any of its
Affiliates and is in breach of Party A’s agreement set forth in Part 5(j)
of this Schedule; (iii) the appointment of a trustee or other secured
party by Party B or the Certificateholders for the purpose of holding
all
or a substantial portion of the assets of Party B for the benefit
of the
Certificateholders or Party A does not qualify as the appointment
of a
trustee, custodian or similar official under clause (6); (iv) a
security
interest granted by Party B to a trustee, collateral agent, custodian
or
other secured party, as applicable (the "Secured Party"), pursuant
to an
indenture, trust agreement, pooling and servicing agreement or
other
customary securitization transaction document (the "Security Agreement"),
in property of Party B (the "Securitization Collateral") supporting
a
rated securitization transaction (the "Securitization"), and the
rights of
the Secured Party in and to the Securitization Collateral for the
benefit
of the investors in the Securitization and/or Party A, is not intended
to
constitute and shall not be treated as a secured party taking possession
of the assets of Party B for purposes of clause (7); (v) the words
“seeks
or” shall be deleted from clause (6); and (vi) clause (8) shall not
apply
to Party B to the extent that clause (8) relates to clauses of
Section
5(a)(vii) that are not applicable to Party B as a result of the
modifications set forth herein. Notwithstanding the foregoing,
for the
avoidance of doubt, the deletion of clause (9) is not intended
to render
clauses (1) through (8) inapplicable on the basis that Party B
did not
actively contest or oppose any of the acts referred to in such
clauses or,
in the case of clause (4), if a proceeding or petition referred
to therein
is instituted or presented against Party B, on the basis that Party
B
consented to or acquiesced in a judgment of bankruptcy or insolvency
or
the entry of an order for relief or the making of an order for
its winding
up or liquidation as a result of such proceeding or
petition.
|
| (c) |
Termination
Events.
Notwithstanding anything in this Agreement to the contrary, the
following
Termination Events shall apply to the specified
party:
|
|
Party A
|
Party B
|
||||
|
(i)
|
Section
5(b)(i), Illegality
|
Applicable
|
Applicable
|
||
|
(ii)
|
Section
5(b)(ii), Tax Event
|
Applicable
|
Applicable
|
||
|
(iii)
|
Section
5(b)(iii), Tax Event Upon Merger
|
Applicable
|
Applicable
|
||
|
(iv)
|
Section
5(b)(iv), Credit Event Upon Merger
|
Not
Applicable
|
Not
Applicable
|
||
|
(v)
|
Section
5(b)(v), Additional Termination Event
|
Applicable
(as set forth in Part 1(g) below)
|
Applicable
(as set forth in Part 1(g) below)
|
provided,
however, that with respect to Section 5(b)(iii), Party A shall not be entitled
to designate an Early Termination Date by reason of a Tax Event Upon Merger
in
respect of which it is the Affected Party.
| (d) |
The “Automatic
Early Termination”
provisions of Section 6(a) will not apply to Party A and will not
apply to Party B.
|
| (e) |
The
“Transfer
to Avoid Termination Event”
provisions of 6(b)(ii) will apply, provided that the words “or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
shall be deleted.
|
| (f) |
Payments
on Early Termination.
|
| (i) |
For
the purpose of Section 6(e), “Market
Quotation”
and “Second
Method”
will apply.
|
| (ii) |
Where
an Early Termination Date is designated as a result of an Event
of Default
with respect to which Party A is the Defaulting Party or a Termination
Event under Section 5(b)(iii), Section 5(b)(iv) or Section 5(b)(v)
with
respect to which Party A is the sole Affected Party, paragraphs
(1)
through (8) below shall apply:
|
| (1) |
The
definition of “Market Quotation” shall be deleted in its entirety and
replaced with the following:
|
“‘Market
Quotation’
means,
with respect to one or more Terminated Transactions, a Firm Offer which is
(1)
made by an Eligible Replacement, (2) for an amount, if any, that would be
paid
to Party B (expressed as a negative number) or by Party B (expressed as a
positive number) in consideration of an agreement between Party B and an
Eligible Replacement 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 Transactions
or group of Terminated Transactions that would, but for the occurrence of
the
relevant Early Termination Date, have been required after that date, (3)
made on
the basis that Unpaid Amounts in respect of the Terminated Transaction or
group
of Transactions are to be excluded but, without limitation, any payment or
delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included and (4) made in respect of
a
Replacement Transaction with terms substantially the same as those of this
Agreement (save for the exclusion of provisions relating to Transactions
that
are not Terminated Transactions). Party A and Party B will request each Eligible
Replacement to provide a Firm Offer to the extent reasonably practicable
as of
the same day and time (without regard to different time zones). If no Firm
Offers are provided, it will be deemed that the Market Quotation in respect
of
such Terminated Transaction or group of Terminated Transactions cannot be
determined.
| (2) |
The
definition of “Settlement Amount” shall be deleted in its entirety and
replaced with the following:
|
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined by Party
B
in accordance with clauses (a) and (b) below; provided, however, if Party
B
fails to make such determination promptly, Party A shall have the right to
make
such determination) equal to:
(a) the
Termination Currency Equivalent of the amount (whether positive or negative)
for
each Terminated Transaction or group of Terminated Transactions for which
a
Market Quotation is determined. If more than one Market Quotation is capable
of
becoming legally binding upon acceptance, Party B shall accept the Market
Quotation that constitutes (1) the highest Market Quotation in the case of
a
payment by an Eligible Replacement to Party B or (2) the lowest Market Quotation
in the case of a payment by Party B to an Eligible Replacement; provided,
however, if Party B fails to make such determination promptly, Party A shall
have the right to make such determination. If only one Market Quotation is
provided, Party B shall accept the single Market Quotation. Party B shall
be
obligated to accept the Market Quotation immediately upon determination so
as to
become legally binding; or
(b) Party
B’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.
| (3) |
For
the purpose of paragraph (4) of the definition of Market Quotation,
Party
B shall make reasonable efforts to determine, acting in a commercially
reasonable manner, whether a Firm Offer is made in respect of a
Replacement Transaction with terms substantially the same as those
of this
Agreement (save for the exclusion of provisions relating to Transactions
that are not Terminated Transactions); provided, however, if Party
B fails
to make such determination promptly, Party A shall have the right
to make
such determination.
|
| (4) |
Party
B undertakes to use its reasonable efforts to obtain at least one
Market
Quotation on or before the later of (a) the Early Termination Date
or (b)
10 Business Days following the designation of the Early Termination
Date
(the “Latest
Settlement Amount Determination Day”).
|
| (5) |
Party
B will be deemed to have discharged its obligations under (4) above
if it
requests Party A to obtain Market Quotations, where such request
is made
in writing within two Business Days after the day on which the
Early
Termination Date is designated.
|
| (6) |
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest Settlement
Amount Determination Day.
|
| (7) |
Party
A shall have the right to obtain Market Quotations, without prior
request
by Party B, before the Latest Settlement Amount Determination
Day.
|
| (8) |
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
of this
Agreement shall be deleted in its entirety and replaced with the
following:
|
“Second
Method and Market Quotation.
If
Second Method and Market Quotation apply, (1) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect of
the
Terminated Transactions, (2) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (3) Party
A shall
pay to Party B the Termination Currency Equivalent of the Unpaid Amounts
owing
to Party B, provided
that,
(i) the
amounts payable under (2) and (3) shall be subject to netting in accordance
with
Section 2(c) of this Agreement and (ii) notwithstanding any other provision
of this Agreement, any amount payable by Party A under (3) due to a failure
by
Party A to make, when due, any payment under this Agreement, shall not be
netted
against any amount payable by Party B under (1).”
| (g) |
“Termination
Currency”
means U.S. Dollars.
|
| (h) |
Additional
Termination Event.
|
| (A) |
The
following Additional Termination Event will apply to Party A, with
Party A
as the sole Affected Party and all Transaction as Affected
Transactions.
|
| (i) |
Party
A fails to comply with the Rating Agency Downgrade provisions as
set forth
in Part 5(f) below; or
|
| (ii) |
A
Firm Offer is accepted by Party B pursuant to Part 5(f)(ii)(2)(B)
following a Xxxxx’x Second Tier Downgrade
Event.
|
| (B) |
The
following Additional Termination Events will apply to Party B,
with Party
B as the sole Affected Party and all Transaction as Affected
Transactions.
|
| (i) |
Upon
any amendment, supplement, modification or waiver of any provision
of the
PSA (as defined below) without the consent of Party A that materially
and
adversely affects the rights or interests of Party
A.
|
| (ii) |
The
Servicer exercises its option to purchase the Mortgage Loans pursuant
to
Section 9.01 of the PSA.
|
| (iii) |
Upon
the irrevocable direction to dissolve or otherwise terminate the
Trust
following which all assets of the Trust will be liquidated and
the
proceeds of such liquidation distributed to the
Certificateholders.
|
| Part 2. |
Tax
Representations.
|
Party
A and Party B Payer Tax Representations.
(i)
For
the purpose of Section 3(e), each of Party A and Party B makes 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) by reason of material
prejudice to its legal or commercial position.
(ii)
For
the purposes of Section 3(f), Party A makes the following
representation:
Party
A
is a U.S. corporation organized under the laws of Delaware.
| Part 3. |
Agreement
to Deliver Documents.
|
For
the
purpose of Sections 4(a)(i) and (ii), each party agrees to deliver the following
documents, as applicable:
| (a) |
Tax
forms, documents or certificates to be delivered are:
|
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be delivered
|
|
Party
A
|
A
correct, complete and duly executed IRS Form W-9.
|
(i)
Upon entering into this Agreement, (ii) promptly upon reasonable
demand by
Party B, and (iii) promptly upon learning that any such Form previously
provided by Party A has become obsolete or incorrect.
|
|
Party
B
|
(i)
A correct, complete and duly executed IRS Form W-9 (or any successor
thereto) that eliminates U.S. federal withholding and backup withholding
tax on payments under this Agreement, (ii) if requested by Party
A, a
correct, complete and duly executed Form W-8IMY, and (iii) a complete
and
executed IRS Form X-0, X-0XXX, X-0XXX, or W-8IMY (with attachments)
(as
appropriate) from each Certificateholder that is not an “exempt recipient”
as that term is defined in Treasury regulations section 1.6049-4(c)(ii),
that eliminates U.S. federal withholding and backup withholding
tax on
payments under this Agreement.
|
In
each case (a) upon entering into this Agreement, provided however,
with
respect to (i), the Trustee shall apply for the employer identification
number of the Trust promptly upon entering into this Agreement
and deliver
the related correct, complete and duly executed IRS Form W-9 promptly
upon
receipt, and in any event, no later than the first Payment Date
of this
Transaction; (b) in the case of a W-8ECI, W-8IMY, and W-8BEN that
does not
include a U.S. taxpayer identification number in line 6, before
December
31 of each third succeeding calendar year, (c) promptly upon reasonable
demand by Party A, and (d) promptly upon actual knowledge that
any such
Form previously provided by Party B has become obsolete or
incorrect.
|
| (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
|
Either
(1) a signature booklet containing secretary’s certificate and
resolutions (“authorizing
resolutions”)
authorizing the party to enter into derivatives transactions of
the type
contemplated by the parties or (2) a secretary’s certificate,
authorizing resolutions and incumbency certificate, in either case,
for
such party and any Credit Support Provider of such party reasonably
satisfactory in form and substance to the other party.
|
The
earlier of the fifth Business Day after the Trade Date of the first
Transaction or upon execution of this Agreement and as deemed necessary
for any further documentation.
|
Yes
|
|
Party
B
|
An
executed copy of the Pooling and Servicing Agreement (“PSA”),
dated as of January 1, 2007, among Xxxxxx Xxxxxxx ABS Capital I
Inc., as
Depositor, Deutsche Bank National Trust Company, as Trustee, Saxon
Mortgage Services, Inc., as Servicer, Countrywide Home Loans Servicing
LP,
as Servicer, and NC Capital Corporation, as Responsible
Party.
|
Upon
execution of this Agreement.
|
Yes
|
|
Party
A
and
Party
B
|
A
duly executed copy of the Credit Support Document specified in
Part 4 of
this Schedule.
|
As
soon as practicable after the execution of this Agreement.
|
No
|
|
Party
A and Party B
|
An
opinion of counsel reasonably satisfactory in form and substance
to the
other party.
|
As
soon as practicable after the execution of this Agreement.
|
No
|
| Part 4. |
Miscellaneous
|
| (a) |
Addresses
for Notices.
For the purpose of
Section 12(a):-
|
| (i) |
Address
for notices or communications to Party
A:-
|
XXXXXX
XXXXXXX CAPITAL SERVICES INC.
Transaction
Management Group
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attention:
CHIEF
LEGAL OFFICER
Fax
No: 000
000
000 0000
| (ii) |
Address
for notices or communications to Party
B:
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
0000 Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention: Trust
Administration - MS07C1
Facsimile
No.: 000
000
0000
Telephone
No.: 000
000
0000
| (b) |
Notices.
Section 12(a) is amended by adding in the third line thereof after
the phrase “messaging system” and before the “)” the words, “; provided,
however, any such notice or other communication may be given by
facsimile
transmission if telex is unavailable, no telex number is supplied
to the
party providing notice, or if answer back confirmation is not received
from the party to whom the telex is
sent.”
|
| (c) |
Process
Agent.
For the purpose of
Section 13(c):
|
Party
A
appoints as its Process Agent: Not Applicable.
Party
B
appoints as its Process Agent: Not Applicable.
| (d) |
Offices.
The provisions of Section 10(a) will not apply to Party A and to
Party B.
|
| (e) |
Multibranch
Party.
For the purpose of
Section 10(c):
|
Party
A
is not a Multibranch Party.
Party
B
is not a Multibranch Party.
| (f) |
“Calculation
Agent”
means Party A.
|
| (g) |
“Credit
Support Document”
means (a) with respect to Party A, (1) the Credit Support Annex
between
Party A and Party B dated as of the date hereof (the “Credit
Support Annex”)
and (2) the guarantee of Xxxxxx Xxxxxxx and (b) with respect to
Party B,
the Credit Support Annex.
|
| (h) |
Credit
Support Provider
means in relation to Party A: Xxxxxx Xxxxxxx, a Delaware
corporation.
|
Credit
Support Provider
means in
relation to Party B: None
| (i) |
Governing
Law; Jurisdiction.
This Agreement, each Credit Support Document and each Confirmation
will be
governed by and construed in accordance with the laws of the State
of New
York without regard to conflict of law provisions thereof other
than New
York General Obligations Law Sections 5-1401 and 5-1402.
Section 13(b) is amended by: (1) deleting “non-” from the second
line of clause (i); and (2) deleting the final
paragraph.
|
| (j) |
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 Proceedings
relating to this Agreement or any Credit Support
Document.
|
| (k) |
Netting
of Payments.
Clause (ii) of Section 2(c) will apply to any amounts payable with
respect to Transactions from the date of this
Agreement.
|
| (l) |
“Affiliate”.
Party A and Party B shall be deemed not to have any Affiliates
for
purposes of this Agreement, including for purposes of
Section 6(b)(ii). For the avoidance of doubt, with respect to Party
A, such definition shall be understood to exclude Xxxxxx Xxxxxxx
Derivative Products Inc.
|
| (m) |
Additional
Definitions.
All capitalized terms used but not otherwise defined in this Agreement
shall have the meanings given thereto in the
PSA.
|
| Part 5. |
Other
Provisions
|
| (a) |
Additional
Representations.
|
| (i) |
The
introductory clause of Section 3 of this Agreement is hereby amended
to read in its entirety as follows:
|
“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) and
Section 3(g)(4), at all times until the termination of this Agreement)
that:—”
| (ii) |
Section 3
of this Agreement is hereby amended by adding at the end thereof
the
following subsection (g):
|
“(g) Relationship
Between Parties.
(1) Nonreliance.
It is
not relying on any statement or representation of the other party regarding
a
Transaction (whether written or oral), other than the representations expressly
made in this Agreement or the Confirmation in respect of that
Transaction.
(2) Evaluation
and Understanding.
(i) Non-Reliance.
In the
case of Party A, it is acting for its own account, and in the case of Party
B,
the Trustee is acting on behalf of the Trust. 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 advisers as it has deemed necessary and, with respect to Party B, as
directed under the PSA. 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.
(ii) Assessment
and Understanding.
It is
capable of assessing the merits of and understanding (on its own behalf or
through independent professional advice), and understands and accepts, the
terms, conditions and risks of that Transaction. It is also capable of assuming,
and assumes, the risks of that Transaction.
(iii) Status
of Parties.
The
other party is not acting as a fiduciary for or an adviser to it in respect
of
that Transaction.
(3) Purpose.
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 1a(12) of, the Commodity Exchange Act,
as amended, and it is entering into the Transaction for the purposes of managing
its borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
(4) ERISA
Representation.
(i)
Party
A represents and warrants at all times hereunder that it is not a pension
plan
or employee benefit plan and that it is not using assets of any such plan
or
assets deemed to be assets of such a plan in connection with any Transaction
under this Agreement, and
(ii)
Party B represents and warrants at all times hereunder that (x) it is not
a
pension plan or employee benefit plan, and (y) (1) that it is not acting
on
behalf of any such plan or using assets of any such plan or assets deemed
to be
assets of any such plan in connection with any Transaction under this Agreement
or (2) any pension plan or employee benefits plan subject to the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”),
or
Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”),
or
any person who is acting on behalf of such a plan or using assets of such
plan
or assets deemed to be “plan assets” of such plan pursuant to U.S. Department of
Labor regulation section 2510.3-101, who purchases a certificate issued by
the
Trust while the Trust is in existence (i) shall represent or shall be deemed
to
represent that the purchase and holding of such certificate is in reliance
on at
least one of the Prohibited Transaction Class Exemptions of 00-00, 00-0,
00-00,
00-00 xx 00-00 xx (xx) shall provide an opinion of counsel which states that
such purchase and holding is permissible under applicable law and will not
result in a prohibited transaction under ERISA or Section 4975 of the
Code.”
| (b) |
Set-off.
Subject
to Section 2(c), Paragraphs 8(a) and 8(b) of the Credit Support
Annex and
Part 1(f)(ii)(8) hereof, notwithstanding any other provision of
this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net,
recoup
or otherwise withhold, suspend or condition payment or performance
of any
obligation between it and the other party hereunder against any
obligation
between it and the other party under any other agreements. Section
6(e) is
hereby amended by the deletion of the following sentence at the
end of the
first paragraph thereof: “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.”
|
| (c) |
Confirmations.
Party A will deliver to Party B a Confirmation relating to each
Transaction.
|
| (d) |
Form
of Agreement.
The parties hereby agree that the text of the body of this Agreement
is
intended to be the printed form of 1992 ISDA Master Agreement
(Multicurrency—Cross Border) as published and copyrighted by the
International Swaps and Derivatives Association,
Inc.
|
| (e) |
Transfer,
Termination, Amendment and
Assignment.
|
| (i) |
This
Agreement may not be amended unless prior written notice is given
to
Xxxxx’x and Rating Agency Confirmation from S&P is
obtained.
|
| (ii) |
Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated by Party B (other than an Early Termination
Date
designated under Part 5(f)(ii)(3)) unless Xxxxx’x has been given prior
written notice of such designation.
|
| (iii) |
Party
B may, with the prior written consent of Party A and subject prior
written
notice to Xxxxx’x and Rating Agency Confirmation from S&P, assign,
novate or transfer its rights and obligations under the Agreement
to a
third party. Notwithstanding Section 7 of this Agreement, Party
A may, at
its own discretion and at its own expense, subject to giving reasonable
notice of transfer to Moody’s and subject to Rating Agency Confirmation
with respect to S&P, assign, novate or transfer its rights and
obligations under this Agreement (including any Transactions hereunder)
to
any third party including, without limitation, another of Party
A’s
offices, branches or affiliates (the “Transferee”), provided
that:
|
(1) such
third party agrees to be bound by, inter alia, the payment, transfer and
collateral terms of this Agreement (including any Transactions hereunder)
and
substantially all other terms as the party which it replaces;
(2) such
third party is an Eligible Replacement;
(3) a
Termination Event or an Event of Default does not occur under this Agreement
as
a result of such transfer;
(4) if
the
Transferee is domiciled in a different jurisdiction from both Party A and
Party
B, the rating of the Certificates assigned by S&P are not adversely
affected;
(5) as
of the
date of the transfer the Transferee will not, as a result of such transfer,
be
required to withhold or deduct on account of tax under this Agreement;
and
(6) as
of the
date of such transfer, neither the Transferee nor Party B will be required
to
withhold or deduct any increased amount on account of any Taxes under this
Agreement as a result of such transfer, unless, as of the date of such transfer,
(x) Party B is entitled to additional amounts under Section 2(d)(i)(4) on
account of any such Taxes required to be deducted or withheld by the Transferee
and (y) Party B is not required to pay Transferee additional amounts under
Section 2(d)(i)(4) on account of any such Taxes required to be deducted or
withheld by Party B.
Following
such transfer, all references herein to Party A shall be deemed to be
references
to the Transferee.
| (f) |
Rating
Agency Downgrade.
|
| (i) |
Moody’s
First Tier Downgrade. In
the event the Relevant Entity is downgraded below the Moody’s First Tier
Required Swap Counterparty Ratings (a “Moody’s
First Tier Downgrade Event”)
then, within 30 Business Days after the occurrence of such Moody’s First
Tier Downgrade Event, Party A shall, at its option and at its own
expense,
either:
|
| (A) |
cause
an Eligible Replacement to replace Party A as party to this Agreement;
provided that if such Eligible Replacement or its Credit Support
Provider,
as applicable, is rated below the Moody’s First Tier Required Swap
Counterparty Rating, such Eligible Replacement shall immediately
Transfer
Eligible Credit Support to Party B pursuant to the Credit Support
Annex;
|
| (B) |
obtain
an Eligible Guarantee in respect of Party A’s obligations under this
Agreement that is provided by an entity with the Moody’s First Tier
Required Swap Counterparty Rating;
or
|
| (C) |
Transfer
Eligible Credit Support to Party B pursuant to the Credit Support
Annex.
|
| (ii) |
Moody’s
Second Tier Downgrade. (1)
In the event that no Relevant Entity has the Moody’s Second Tier Required
Swap Counterparty Rating (a “Moody’s Second Tier Downgrade Event”) then,
Party A shall, at its option and at its own expense, use commercially
reasonable efforts to as soon as reasonably practicable
either:
|
| (A) |
cause
an Eligible Replacement to replace Party A as party to this Agreement;
or
|
| (B) |
obtain
an Eligible Guarantee in respect of Party A’s obligations under this
Agreement that is provided by an entity with the Moody’s Second Tier
Required Swap Counterparty Rating.
|
(2)
If no
Eligible Replacement or Eligible Guarantee has been effected in accordance
with
Part 5(f)(ii)(1)(A) or (B) above within 30 Business Days of such Moody’s Second
Tier Downgrade Event then:
| (A) |
Party
A shall Transfer Eligible Credit Support to Party B pursuant to
the Credit
Support Annex until such replacement or Eligible Guarantee takes
effect
or, if sooner, no Moody’s Second Tier Downgrade Event is occurring;
and
|
| (B) |
without
prejudice to Party A’s right to continue to seek an Eligible Replacement
or an Eligible Guarantee pursuant to Part 5(f)(ii)(1)(A) and (B),
Party B
shall also have the right (but not the obligation) on any Business
Day
thereafter to obtain Firm Offers (such day a “Firm
Offer Solicitation Date”)
by giving Party A written notice of its intention to seek Firm
Offers no
later than 12:00 p.m., New York time, on the Business Day prior
to the
Firm Offer Solicitation Date. Such notice shall indicate the day
and time
as of which each Eligible Replacement will be requested to provide
its
Firm Offer; provided that Eligible Replacements shall not provide
Firm
Offers prior to 12:00 p.m. New York time, on the Firm Offer Solicitation
Date. Party B shall undertake to use reasonable efforts to seek
at least 5
Firm Offers and Party B shall request each entity providing a Firm
Offer
to do so to the extent reasonably practicable as of the same day
and time
(without regard to different time zones). If more than one Firm
Offer
remains capable of becoming legally binding upon acceptance, Party
B shall
accept the Firm Offer that constitutes (1) the highest Firm Offer
in the
case of a payment by an Eligible Replacement to Party B or (2)
the lowest
Firm Offer in the case of a payment by Party B to an Eligible Replacement;
provided, however, if Party B fails to make such determination
promptly,
Party A shall have the right to make such determination. If only
one Firm
Offer is provided, Party B shall accept the single Firm Offer.
Party B
shall be obligated to accept the Firm Offer upon determination;
provided
however, prior to accepting such Firm Offer, Party B shall (1)
on a day
that is a Business Day, provide Party A with at least 24 hours
prior
written notice of its intent to accept such Firm Offer (which acceptance,
in all cases, shall be on a Business Day) and (2) confirm that
Party A has
not identified an Eligible Replacement. If at anytime prior to
Party B’s
acceptance of a Firm Offer, Party A has identified an Eligible
Replacement
then, in its sole discretion, Party A may transfer its rights and
obligations under this Agreement to such Eligible Replacement and
an Early
Termination Date will not occur. If a Firm Offer is accepted by
Party B,
then, notwithstanding Section 6 of the ISDA Master Agreement, an
Early
Termination Date in respect of all outstanding Transactions will
occur
immediately upon such acceptance by Party B and the Settlement
Amount will
equal the Firm Offer so accepted by Party
B.
|
(3)
Notwithstanding Part 5(f)(ii)(1) and (2) above, an Additional Termination
Event
under this Part 5(f)(ii) shall only occur with Party A as the sole Affected
Party if:
| (A) |
a
Moody’s Second Tier Downgrade Event has occurred and has been continuing
for 30 or more Business Days; and
|
| (B) |
at
least one Eligible Replacement has made a Firm Offer in accordance
with
Part 5(f)(ii)(2)(B) above which remains capable of becoming legally
binding upon acceptance by the
offeree.
|
| (iii) |
S&P
First Tier Downgrade. In
the event the Relevant Entity is downgraded below the S&P First Tier
Required Swap Counterparty Rating (an “S&P
First Tier Downgrade Event”)
then, within 30 calendar days after the occurrence of such S&P First
Tier Downgrade Event, Party A shall, subject to Rating Agency
Confirmation, at its option and at its own expense,
either:
|
| (A) |
cause
an Eligible Replacement to replace Party A as party to this Agreement;
provided that if such Eligible Replacement or its Credit Support
Provider,
as applicable, is rated below the S&P First Tier Required Swap
Counterparty Rating, such Eligible Replacement shall immediately
Transfer
Eligible Credit Support to Party B pursuant to the Credit Support
Annex;
|
| (B) |
obtain
an Eligible Guarantee in respect of Party A’s obligations under this
Agreement that is provided by an entity with the S&P First Tier
Required Swap Counterparty Rating;
|
| (C) |
transfer
Eligible Credit Support to Party B pursuant to the Credit Support
Annex;
or
|
| (D) |
take
other steps, if any, to enable Party B to remedy a downgrade by
S&P
below the S&P First Tier Required Swap Counterparty
Rating.
|
| (iv) |
S&P
Second Tier Downgrade. (1)
In the event that no Relevant Entity has the S&P Second Tier Required
Swap Counterparty Rating (an “S&P
Second Tier Downgrade Event”)
then, within 10 calendar days after such S&P Second Tier Downgrade
Event, Party A shall, subject to Rating Agency Confirmation, at
its option
and at its own expense, use commercially reasonable efforts to
as soon as
reasonably practicable either:
|
| (A) |
cause
an Eligible Replacement to replace Party A as party to this Agreement;
provided that if such Eligible Replacement or its Credit Support
Provider,
as applicable, is rated below the S&P First Tier Required Swap
Counterparty Rating, such Eligible Replacement shall immediately
Transfer
Eligible Credit Support to Party B pursuant to the Credit Support
Annex;
or
|
| (B) |
obtain
an Eligible Guarantee in respect of Party A’s obligations under this
Agreement that is provided by an entity with the S&P First Tier
Required Swap Counterparty Rating.
|
(2)
Pending compliance with Part 5(f)(iv)(1)(A) or (B) Party A shall Transfer
Eligible Credit Support to Party B pursuant to the Credit Support Annex
immediately upon the occurrence of an S&P Second Tier Downgrade
Event.
| (v) |
Failure
to act in accordance with this Part 5(f), including any failure
by Party A
to comply with or perform any obligation to be complied with or
performed
by Party A under the Credit Support Annex, shall constitute an
Additional
Termination Event with Party A as the sole Affected Party; provided
that,
failure by Party A to Transfer Eligible Credit Support to Party
B in
accordance with Part 5(f)(ii)(2) above shall constitute an Event
of
Default under Section 5(a)(iii)(“Credit Support Default”) if such failure
is not remedied on or before the third Business Day after notice
of such
failure is given to Party A.
|
| (vi) |
For
purposes of this Part 5(f), but subject to Part 5(f)(ii)(3), Party
A shall
be responsible for (1) posting collateral in accordance with such
Credit
Support Annex at its own cost; and (2) any cost incurred by it
in
complying with its obligations.
|
| (g) |
Rating
Agency Downgrade Definitions.
|
| (i) |
For
purposes of this Agreement,
|
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee, letter of credit or other arrangement
that is provided by a party as principal obligor rather than surety and is
directly enforceable by Party B.
“Eligible
Replacement”
means an
entity (1) with the Moody’s First Tier Required Swap Counterparty Ratings and/or
the Moody’s Second Tier Required Swap Counterparty Ratings or whose present and
future obligations owing to Party B are supported pursuant to an Eligible
Guarantee provided by a party with the Moody’s First Tier Required Swap
Counterparty Ratings and/or the Moody’s Second Tier Required Swap Counterparty
Ratings, and (2) with the S&P First Tier Required Swap Counterparty Ratings
and/or the S&P Second Tier Required Swap Counterparty Ratings or whose
present and future obligations owing to Party B are supported pursuant to
an
Eligible Guarantee provided by a party with the S&P First Tier Required Swap
Counterparty Ratings and/or the S&P Second Tier Required Swap Counterparty
Ratings; provided that no entity shall be an Eligible Replacement unless
(A) a
legal opinion confirms that none of such Eligible Replacement’s payments to
Party B under this Agreement will be subject to deduction or withholding
for or
on account of any Tax or (B) notwithstanding the definition of “Indemnifiable
Tax” in Section 14 of this Agreement, all Taxes in relation to payments by such
Eligible Replacement shall be Indemnifiable Taxes unless such Taxes (x) are
assessed directly against Party B and not by deduction or withholding by
such
Eligible Replacement or (y) arise as a result of a Change in Tax Law (in
which
case such Tax shall be an Indemnifiable Tax only if such Tax satisfies the
definition of Indemnifiable Tax provided in Section 14).
“Firm
Offer”
means
an offer which, when made, was capable of becoming legally binding upon
acceptance.
“Moody’s”
means
Xxxxx’x Investor Services, Inc. and any successor to its rating
business.
“Moody’s
First Tier Required Swap Counterparty Rating”
means
(i) if such counterparty or entity has only Long-Term Rating by Moody’s, a
Long-Term Rating of at least “A1” by Moody’s or (ii) if such counterparty or
entity has both a Long-Term Rating and a Short-Term Rating by Moody’s, a
Long-Term Rating of at least “A2” by Moody’s and a Short-Term Rating of at least
“P-1” by Moody’s.
“Moody’s
Second Tier Required Swap Counterparty Rating”
means
(i) if such counterparty or entity has only a Long-Term Rating by Moody’s, a
Long-Term Rating of at least “A3” by Moody’s or (ii) if such counterparty or
entity has both a Long-Term Rating and a Short-Term Rating by Moody’s, a
Long-Term Rating of at least “A3” by Moody’s and a Short-Term Rating of at least
“P-2” by Xxxxx’x.
“Rating
Agencies”
means
Moody’s and S&P.
“Rating
Agency Confirmation”
means,
with respect to any particular proposed act or omission to act hereunder,
that
the party acting or failing to act must consult with S&P and receive from
S&P a prior written confirmation that the proposed action or inaction would
not cause a downgrade or withdrawal of the then current rating of the
Certificates; provided that S&P is then providing a rating of the
Certificates.
“Relevant
Entity”
means
Party A, Party A’s Credit Support Provider and any principal obligor under an
Eligible Guarantee in respect of Party A’s obligations under this
Agreement.
“S&P”
means
Standard and Poor’s Ratings Services, a division of the XxXxxx-Xxxx Companies,
Inc. and any successor to its rating business.
“S&P
First Tier Required Swap Counterparty Rating”
means
(i) a Short-Term Rating of at least “A-1” by S&P or (ii) if such
counterparty or entity does not have a Short-Term Rating by S&P, a Long-Term
Rating of at least “A+” by S&P.
“S&P
Second Tier Required Swap Counterparty Rating”
means
a
Short-Term Rating of at least “A-3” by S&P and a Long-Term Rating of at
least “BBB-” by S&P.
| (h) |
Severability.
If
any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
invalid or unenforceable (in whole or in part) for any reason,
the
remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Agreement had been
executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of
the
parties; provided, however, that nothing in this provision shall
adversely
affect the rights of each party under this Agreement; and provided
further
that this severability provision shall not be applicable if any
provision
of Section 1, 2, 5, 6, or 13 (or any definition or provision in
Section 14 to the extent it relates to, or is used in or connection
with any such Section) shall be so held to be invalid or unenforceable.
The parties shall endeavor to engage in good faith negotiations
to replace
any invalid or unenforceable term, provision, covenant or condition
with a
valid or enforceable term, provision, covenant or condition, the
economic
effect of which comes as close as possible to that of the invalid
or
unenforceable term, provision, covenant or
condition.
|
| (i) |
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at any
time and
from time to time, by the other party of any and all communications
between trading and marketing personnel of the parties, waives
any further
notice of such monitoring or recording, and agrees to notify its
officers
and employees of such monitoring or
recording.
|
| (j) |
Proceedings.
Party A shall not institute against or cause any other person to
institute
against, or join any other person in instituting against, the Trust
or
Deutsche Bank National Trust Company, not individually, but solely
as
Trustee, any bankruptcy, reorganization, arrangement, insolvency
or
liquidation proceedings, or other proceedings under any federal
or state
bankruptcy or similar law for a period of one year and one day
(or, if
longer, the applicable preference period) following payment in
full of the
Certificates; provided, however, that this shall not restrict or
prohibit
Party A from joining in any bankruptcy, reorganization, arrangement,
insolvency, moratorium or liquidation proceedings or other analogous
proceedings under applicable laws.
|
| (k) |
Regulation
AB. Upon
request by the Depositor, Party A may, at its option, but is not
required
to, (A) (a) provide the financial information required by Item
1115(b)(1)
or (b)(2) of Regulation AB (as specified by the Depositor to Party
A) with
respect to Party A (or any guarantor of Party A if providing the
financial
data of a guarantor is permitted under Regulation AB) and any affiliated
entities providing derivative instruments to Party B (the “Company
Financial Information”), in a form appropriate for use in the Exchange Act
Reports and in an XXXXX-compatible form; (b) if applicable, cause
its
accountants to issue their consent to filing or incorporation by
reference
of such financial statements in the Exchange Act Reports of Party
B and
(c) within 5 Business Days of the release of any updated financial
information, provide current Company Financial Information as required
under Item 1115(b) of Regulation AB to the Depositor in an
XXXXX-compatible form and, if applicable, cause its accountants
to issue
their consent to filing or incorporation by reference of such financial
statements in the Exchange Act Reports of Party B or (B) assign
this
Agreement at its own cost to another entity that has agreed to
take the
actions described in clause (A) of this sentence with respect to
itself
(and which has the Required Swap Counterparty Rating and the assignment
to
which would satisfy the Rating Agency Condition). For the avoidance
of
doubt, Party A is not required to take any action pursuant to this
paragraph and the failure of Party A to take any such action will
not
constitute an Event of Default under this
Agreement.
|
As
used
in this Agreement the following words shall have the following
meanings:
“Commission”
shall
mean the Securities and Exchange Commission.
“Depositor”
shall
mean Xxxxxx Xxxxxxx ABS Capital I Inc.
“XXXXX”
shall
mean the Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended and the rules and
regulations promulgated thereunder
“Exchange
Act Reports”
shall
mean all Distribution Reports on Form 10-D, Current Reports on Form 8-K and
Annual Reports on Form 10-K that are to be filed with respect to Party B
pursuant to the Exchange Act.
“Regulation
AB”
shall
mean the 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.
| (l) |
Trustee
Capacity. It
is expressly understood and agreed by the parties hereto that insofar
as
this Agreement is executed by Deutsche Bank National Trust Company
(i)
this Agreement is executed and delivered by Deutsche Bank National
Trust
Company not in its individual capacity but solely as Trustee under
the PSA
in the exercise of the powers and authority conferred and vested
in it as
trustee thereunder, (ii) each of the representations, undertakings
and
agreements herein made on behalf of Party B is made and intended
not as
personal representations of the Trustee but is made and intended
for the
purpose of binding only the Trust, and (iii) under no circumstances
shall
Deutsche Bank National Trust Company in its individual capacity
be
personally liable for the payment of any indebtedness or expenses
or be
personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this
Agreement.
|
| (m) |
“Indemnifiable
Tax”
Notwithstanding the definition of “Indemnifiable Tax” in Section 14 of
this Agreement, in relation to payments by Party A, no Tax shall
be an
Indemnifiable Tax.
|
| (n) |
If
Party A consolidates or amalgamates with, merges with or into,
or
transfers all or substantially all its assets to, another entity,
where
such action does not constitute an event described in Section 5(a)(viii),
Party A shall either (A) provide a legal opinion that none of Party
A's
payments to Party B under this Agreement will be subject to deduction
or
withholding for or on account of any Tax or (B) notwithstanding
the
definition of “Indemnifiable Tax” in Section 14 of this Agreement, all
Taxes in relation to payments by Party A shall be Indemnifiable
Taxes
unless such Taxes (x) are assessed directly against Party B and
not by
deduction or withholding by such Eligible Replacement or (y) arise
as a
result of a Change in Tax Law (in which case such Tax shall be
an
Indemnifiable Tax only if such Tax satisfies the definition of
Indemnifiable Tax provided in Section
14).
|
IN
WITNESS WHEREOF,
the
parties have executed this Schedule by their duly authorized officers as
of the
date hereof:
|
XXXXXX
XXXXXXX CAPITAL SERVICES INC.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not individually, but solely as Trustee
on
behalf of the Supplemental Interest Trust with respect to Xxxxxx
Xxxxxxx
ABS Capital I Inc. Trust 2007-NC1, Mortgage Pass-Through Certificates,
Series 2007-NC1
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
Date:
|
Date:
|
|||
EXHIBIT
A
Credit
Support Annex
| (Bilateral Form) |
(ISDA
Agreements Subject to New York Law Only)
|
ISDA®
International
Swaps and Derivatives Association, Inc.
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
MASTER AGREEMENT
dated
as of January 26, 2007
between
|
XXXXXX
XXXXXXX CAPITAL SERVICES INC.
|
and
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not individually, but solely as Trustee
on
behalf of the Supplemental Interest Trust with respect to Xxxxxx
Xxxxxxx
ABS Capital I Inc. Trust 2007-NC1, Mortgage Pass-Through Certificates,
Series 2007-NC1
|
|
(“Party
A”)
|
(“Party
B”)
|
This
Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under
this
Agreement with respect to each party.
Accordingly,
the parties agree as follows: —
Paragraph
1. Interpretation
(a) Definitions
and Inconsistency.
Capitalized terms not otherwise defined herein or elsewhere in this Agreement
have the meaning specified pursuant to Paragraph 12, and all references in
this
Annex to Paragraphs are to Paragraphs of this Annex. In the event of any
inconsistency between this Annex and the other provisions of this Schedule,
this
Annex will prevail, and in the event of any inconsistency between Paragraph
13
and the other provisions of this Annex, Paragraph 13 will prevail.
(b) Secured
Party and Pledgor.
All
references in this Annex to the “Secured Party” will be to either party when
acting in that capacity and all corresponding references to the “Pledgor” will
be to the other party when acting in that capacity; provided,
however,
that if
Other Posted Support is held by a party to this Annex, all references herein
to
that party as the Secured Party with respect to that Other Posted Support
will
be to that party as the beneficiary thereof and will not subject that support
or
that party as the beneficiary thereof to provisions of law generally relating
to
security interests and secured parties.
Paragraph
2. Security Interest
Each
party, as the Pledgor, hereby pledges to the other party, as the Secured
Party,
as security for its Obligations, and grants to the Secured Party a first
priority continuing security interest in, lien on and right of Set-off against
all Posted Collateral Transferred to or received by the Secured Party hereunder.
Upon the Transfer by the Secured Party to the Pledgor of Posted Collateral,
the
security interest and lien granted hereunder on that Posted Collateral will
be
released immediately and, to the extent possible, without any further action
by
either party.
Paragraph
3. Credit Support Obligations
(a)
Delivery
Amount.
Subject
to Paragraphs 4 and 5, upon demand made by the Secured Party on or promptly
following a Valuation Date, if the Delivery Amount for that Valuation Date
equals or exceeds the Pledgor’s Minimum Transfer Amount, then the Pledgor will
Transfer to the Secured Party Eligible Credit Support having a Value as of
the
date of Transfer at least equal to the applicable Delivery Amount (rounded
pursuant to Paragraph 13). Unless otherwise specified in Paragraph 13, the
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the amount by
which:
(i) the
Credit Support Amount
exceeds
(ii) the
Value
as of that Valuation Date of all Posted Credit Support held by the Secured
Party.
(b) Return
Amount.
Subject
to Paragraphs 4 and 5, upon a demand made by the Pledgor on or promptly
following a Valuation Date, if the Return Amount for that Valuation Date
equals
or exceeds the Secured Party’s Minimum Transfer Amount, then the Secured Party
will Transfer to the Pledgor Posted Credit Support specified by the Pledgor
in
that demand having a Value as of the date of Transfer as close as practicable
to
the applicable Return Amount (rounded pursuant to Paragraph 13). Unless
otherwise specified in Paragraph 13, the “Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the amount
by
which:
(i) the
Value
as of that Valuation Date of all Posted Credit Support held by the Secured
Party
exceeds
(ii) the
Credit Support Amount.
“Credit
Support Amount”
means,
unless otherwise specified in Paragraph 13, for any Valuation Date (i) the
Secured Party’s Exposure for that Valuation Date plus (ii) the aggregate of all
Independent Amounts applicable to the Pledgor, if any, minus (iii) all
Independent Amounts applicable to the Secured Party, if any, minus (iv) the
Pledgor’s Threshold; provided,
however,
that
the Credit Support Amount will be deemed to be zero whenever the calculation
of
Credit Support Amount yields a number less than zero.
Paragraph
4. Conditions Precedent, Transfer Timing, Calculations and
Substitutions
(a) Conditions
Precedent.
Each
Transfer obligation of the Pledgor under Paragraphs 3 and 5 and of the Secured
Party under Paragraphs 3, 4(d)(ii), 5 and 6(d) is subject to the conditions
precedent that:
(i) no
Event
of Default, Potential Event of Default or Specified Condition has occurred
and
is continuing with respect to the other party; and
(ii) no
Early
Termination Date for which any unsatisfied payment obligations exist has
occurred or been designated as the result of an Event or Default or Specified
Condition with respect to the other party.
(b) Transfer
Timing.
Subject
to Paragraphs 4(a) and 5 and unless otherwise specified, if a demand for
the
Transfer of Eligible Credit Support or Posted Credit Support is made by the
Notification Time, then the relevant Transfer will be made not later than
the
close of business on the next Local Business Day; 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 second Local Business Day thereafter.
(c) Calculations.
All
calculations of Value and Exposure for purposes of Paragraphs 3 and 6(d)
will be
made by the Valuation Agent as of the Valuation Time. The Valuation Agent
will
notify each party (or the other party, if the Valuation Agent is a party)
of its
calculations not later than Notification Time on Local Business Day following
the applicable Valuation Date (or in the case of Paragraph 6(d), following
the
date of calculation).
(d) Substitutions.
(i) Unless
otherwise specified in Paragraph 13, upon notice to the Secured Party specifying
the items of Posted Credit Support to be exchanged, the Pledgor may, on any
Local Business Day, Transfer to the Secured Party substitute Eligible Credit
Support (the “Substitute Credit Support”); and
(ii) subject
to Paragraph 4(a), the Secured Party will Transfer to the Pledgor the items
of
Posted Credit Support specified by the Pledgor in its notice not later than
the
Local Business Day following the date on which the Secured Party receives
the
Substitute Credit Support, unless otherwise specified in Paragraph 13 (the
“Substitution Date”); provided
that the
Secured Party will only be obligated to Transfer Posted Credit Support with
a
Value as of the date of Transfer of that Posted Credit Support equal to the
Value as of that date of the Substitute Credit Support.
Paragraph
5. Dispute Resolution
If
a
party (a “Disputing Party”) disputes (I) the Valuation Agent’s calculation of a
Delivery Amount or a Return Amount or (II) the Value of any Transfer of Eligible
Credit Support or Posted Credit Support, then (1) the Disputing Party will
notify the other party and the Valuation Agent (if the Valuation Agent is
not
the other party) not later than the close of business on the Local Business
Day
following (X) the date that the demand is made under Paragraph 3 in the case
of
(I) above or (Y) the date of Transfer in the case of (II) above, (2) subject
to
Paragraph 4(a), the appropriate party will Transfer the undisputed amount
to the
other party not later than the close of business on the Local Business Day
following (X) the date that the demand is made under Paragraph 3 in the case
of
(I) above or (Y) the date of Transfer in the case of (II) above, (3) the
parties
will consult with each other in an attempt to resolve the dispute and (4)
if
they fail to resolve the dispute by the Resolution Time, then:
(i) In
the
case of a dispute involving a Delivery Amount or Return Amount, unless otherwise
specified in Paragraph 13, the Valuation Agent will recalculate the Exposure
and
the Value as of the Recalculation Date by:
(A) utilizing
any calculations of Exposure for the Transactions (or Swap Transactions)
that
the parties have agreed are not in dispute;
(B) calculating
the Exposure for the Transactions (or Swap Transactions) in dispute by seeking
four actual quotations at mid-market from Reference Market-makers for purposes
of calculating Market Quotation, and taking the arithmetic average of those
obtained; provided
that if
four quotations are not available for a particular Transaction (or Swap
Transaction), then fewer than four quotations may be used for that Transaction
(or Swap Transaction); and if no quotations are available for a particular
Transaction (or Swap Transaction), then the Valuation Agent’s original
calculations will be used for that Transaction (or Swap Transaction);
and
(C) utilizing
the procedures specified in Paragraph 13 for calculating the Value, if disputed,
of Posted Credit Support.
(ii) In
the
case of a dispute involving the Value of any Transfer of Eligible Credit
Support
or Posted Credit Support, the Valuation Agent will recalculate the Value
as of
the date of Transfer pursuant to Paragraph 13.
Following
a recalculation pursuant to this Paragraph, the Valuation Agent will notify
each
party (or the other party, if the Valuation Agent is a party) not later than
the
Notification Time on the Local Business Day following the Resolution Time.
The
appropriate party will, upon demand following that notice by the Valuation
Agent
or a resolution pursuant to (3) above and subject to Paragraphs 4(a) and
4(b),
make the appropriate Transfer.
Paragraph
6. Holding and Using Posted Collateral
(a) Care
of Posted Collateral.
Without
limiting the Secured Party’s rights under Paragraph 6(c), the Secured Party will
exercise reasonable care to assure the safe custody of all Posted Collateral
to
the extent required by applicable law, and in any event the Secured Party
will
be deemed to have exercised reasonable care if it exercises at least the
same
degree of care as it would exercise with respect to its own property. Except
as
specified in the preceding sentence, the Secured Party will have no duty
with
respect to Posted Collateral, including, without limitation, any duty to
collect
any Distributions, or enforce or preserve any rights pertaining
thereto.
(b) Eligibility
to Hold Posted Collateral; Custodians.
(i)
General.
Subject
to the satisfaction of any conditions specified in Paragraph 13 for holding
Posted Collateral, the Secured Party will be entitled to hold Posted Collateral
or to appoint an agent (a “Custodian”) to hold Posted Collateral for the Secured
Party. Upon notice by the Secured Party to the Pledgor of the appointment
of a
Custodian, the Pledgor’s obligations to make any Transfer will be discharged by
making the Transfer to that Custodian. The holding of Posted Collateral by
a
Custodian will be deemed to be the holding of that Posted Collateral by the
Secured Party for which the Custodian is acting.
(ii)
Failure
to Satisfy Conditions.
If the
Secured Party or its Custodian fails to satisfy any conditions for holding
Posted Collateral, then upon demand made by the Pledgor, the Secured Party
will,
not later than five Local Business Days after the demand, Transfer or cause
its
Custodian to Transfer all Posted Collateral held by it to a Custodian that
satisfies those conditions or to the Secured Party if it satisfies those
conditions.
(iii)
Liability.
The
Secured Party will be liable for the acts or omissions of its Custodian to
the
same extent that the Secured Party would be liable hereunder for its own
acts or
omissions.
(c) Use
of Posted Collateral.
Unless
otherwise specified in Paragraph 13 and without limiting the rights and
obligations of the parties under Paragraphs 3, 4(d)(ii), 5, 6(d) and 8, if
the
Secured Party is not a Defaulting Party or an Affected Party with respect
to a
Specified Condition and no Early Termination Date has occurred or been
designated as the result of an Event of Default or Specified Condition with
respect to the Secured Party, then the Secured Party will, notwithstanding
Section 9-207 of the New York Uniform Commercial Code, have the right
to:
(i)
sell,
pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose
of,
or otherwise use in its business any Posted Collateral it holds, free from
any
claim or right of any nature whatsoever of the Pledgor, including any equity
or
right of redemption by the Pledgor; and
(ii)
register any Posted Collateral in the name of the Secured Party, its Custodian
or a nominee for either.
For
purposes of the obligation to Transfer Eligible Credit Support or Posted
Credit
Support pursuant to Paragraphs 3 and 5 and any rights or remedies authorized
under this Agreement, the Secured Party will be deemed to continue to hold
all
Posted Collateral and to receive Distributions made thereon, regardless of
whether the Secured Party has exercised any rights with respect to any Posted
Collateral pursuant to (i) or (ii) above.
(d) Distributions
and Interest Amount.
(i)
Distributions.
Subject
to Paragraph 4(a), if the Secured Party receives or is deemed to receive
Distributions on a Local Business Day, it will Transfer to the Pledgor not
later
than the following Local Business Day any Distributions it receives or is
deemed
to receive to the extent that a Delivery Amount would not be created or
increased by that Transfer, as calculated by the Valuation Agent (and the
date
of calculation will be deemed to be a Valuation Date for this
purpose).
(ii)
Interest
Amount.
Unless
otherwise specified in Paragraph 13 and subject to Paragraph 4(a), in lieu
of
any interest, dividends or other amounts paid or deemed to have been paid
with
respect to Posted Collateral in the form of Cash (all of which may be retained
by the Secured Party), the Secured Party will Transfer to the Pledgor at
the
times specified in Paragraph 13 the Interest Amount to the extent that a
Delivery Amount would not be created or increased by that Transfer, as
calculated by the Valuation Agent (and the date of calculation will be deemed
to
be a Valuation Date for this purpose). The Interest Amount or portion thereof
not Transferred pursuant to this Paragraph will constitute Posted Collateral
in
the form of Cash and will be subject to the security interest granted under
Paragraph 2.
Paragraph
7. Events of Default
For
purposes of Section 5(a)(iii)(1) of this Agreement, an Event of Default will
exist with respect to a party if:
(i)
that
party fails (or fails to cause its Custodian) to make, when due, any Transfer
of
Eligible Collateral, Posted Collateral or the Interest Amount, as applicable,
required to be made by it and that failure continues for two Local Business
Days
after notice of that failure is given to that party;
(ii)
that
party fails to comply with any restriction or prohibition specified in this
Annex with respect to any of the rights specified in Paragraph 6(c) and that
failure continues for five Local Business Days after notice of that failure
is
given to that party; or
(iii)
that party fails to comply with or perform any agreement or obligation other
than those specified in Paragraphs 7(i) and 7(ii) and that failure continues
for
30 days after notice of that failure is given to that party.
Paragraph
8. Certain Rights and Remedies
(a) Secured
Party’s Rights and Remedies.
If at
any time (1) an Event of Default or Specified Condition with respect to the
Pledgor has occurred and is continuing or (2) an Early Termination Date as
occurred or been designated as the result of an Event of Default or Specified
Condition with respect to the Pledgor, then, unless the Pledgor has paid
in full
all of its Obligations that are then due, the Secured Party may exercise
one or
more of the following rights and remedies:
(i)
all
rights and remedies available to a secured party under applicable law with
respect to Posted Collateral held by the Secured Party;
(ii)
any
other rights and remedies available to the Secured Party under the terms
of
Other Posted Support, if any;
(iii)
the
right to Set-off any amounts payable by the Pledgor with respect to any
Obligations against any Posted Collateral or the Cash equivalent of any Posted
Collateral held by the Secured Party (or any obligation of the Secured Party
to
Transfer that Posted Collateral); and
(iv)
the
right to liquidate any Posted Collateral held by the Secured Party through
one
or more public or private sales or other dispositions with such notice, if
any,
as may be required under applicable law, free from any claim or right of
any
nature whatsoever of the Pledgor, including any equity or right of redemption
by
the Pledgor (with the Secured Party having the right to purchase any or all
of
the Posted Collateral to be sold) and to apply the proceeds (or the Cash
equivalent thereof) from the liquidation of the Posted Collateral to any
amounts
payable by the Pledgor with respect to any Obligations in that order as the
Secured Party may elect.
Each
party acknowledges and agrees that Posted Collateral in the form of Securities
may decline speedily in value and is of a type customarily sold on a recognized
market, and accordingly, the Pledgor is not entitled to prior notice of any
sale
of that Posted Collateral by the Secured Party, except any notice that is
required under applicable law and cannot be waived.
(b) Pledgor’s
Rights and Remedies.
If at
any time an Early Termination Date has occurred or been designated as the
result
of an Event of Default or Specified Condition with respect to the Secured
Party,
then (except in the case of an Early Termination Date relating to less than
all
Transactions (or Swap Transactions) where the Secured Party has paid in full
all
of its obligations that are then due under Section 6(e) of this
Agreement);
(i)
the
Pledgor may exercise all rights and remedies available to a pledgor under
applicable law with respect to Posted Collateral held by the Secured
Party;
(ii)
the
Pledgor may exercise any other rights and remedies available to the Pledgor
under the terms of Other Posted Support, if any;
(iii)
the
Secured Party will be obligated immediately to Transfer all Posted Collateral
and the Interest Amount to the Pledgor; and
(iv)
to
the extent that Posted Collateral or the Interest Amount is not so Transferred
pursuant to (iii) above, the Pledgor may:
(A)
Set-off any amounts payable by the Pledgor with respect to any Obligations
against any Posted Collateral or the Cash equivalent of any Posted Collateral
held by the Secured Party (or any obligation of the Secured Party to Transfer
that Posted Collateral); and
(B)
to
the extent that the Pledgor does not Set-off under (iv)(A) above, withhold
payment of any remaining amounts payable by the Pledgor with respect to any
Obligations, up to the Value of any remaining Posted Collateral held by the
Secured Party, until that Posted Collateral is Transferred to the
Pledgor.
(c) Deficiencies
and Excess Proceeds.
The
Secured Party will Transfer to the Pledgor any proceeds and Posted Credit
Support remaining after liquidation, Set-off and/or application under Paragraphs
8(a) and 8(b) after satisfaction in full of all amounts payable by the Pledgor
with respect to any Obligations; the Pledgor in all events will remain liable
for any amounts remaining unpaid after any liquidation, Set-off and/or
application under Paragraphs 8(a) and 8(b).
(d) Final
Returns.
When no
amounts are or thereafter may become payable by the Pledgor with respect
to any
Obligations (except for any potential liability under Section 2(d) of this
Agreement), the Secured Party will Transfer to the Pledgor all Posted Credit
Support and the Interest Amount, if any.
Paragraph
9. Representations
Each
party represents to the other party (which representations will be deemed
to be
repeated as of each date on which it, as the Pledgor, Transfers Eligible
Collateral) that;
(i)
it
has the power to grant a security interest in and lien on any Eligible
Collateral it Transfers as the Pledgor and has taken all necessary actions
to
authorize the granting of that security interest and lien;
(ii)
it
is the sole owner of or otherwise has the right to Transfer all Eligible
Collateral it Transfers to the Secured Party hereunder, free and clear of
any
security interest, lien, encumbrance or other restrictions other than the
security interest and lien granted under Paragraph 2;
(iii)
upon the Transfer of any Eligible Collateral to the Secured Party under the
terms of this Annex, the Secured Party will have a valid and perfected first
priority security interest therein (assuming that any central clearing
corporation or any third-party financial intermediary or other entity not
within
the control of the Pledgor involved in the Transfer of that Eligible Collateral
gives the notices and takes the action required of it under applicable law
for
perfection of that interest); and
(iv)
the
performance by it of its obligations under this Annex will not result in
the
creation of any security interest, lien or other encumbrance on any Posted
Collateral other than the security interest and lien granted under Paragraph
2.
Paragraph
10. Expenses
(a) General.
Except
as otherwise provided in Paragraphs 10(b) and 10(c), each party will pay
its own
costs and expenses in connection with performing its obligations under this
Annex and neither party will be liable for any costs and expenses incurred
by
the other party in connection herewith.
(b) Posted
Credit Support.
The
Pledgor will promptly pay when due all taxes, assessments or charges of any
nature that are imposed with resect to Posted Credit Support held by the
Secured
Party upon becoming aware of the same, regardless of whether any portion
of that
Posted Credit Support is subsequently disposed of under Paragraph 6(c), except
for those taxes, assessments and charges that result from the exercise of
the
Secured Party’s rights under Paragraph 6(c).
(c) Liquidation/Application
of Posted Credit Support.
All
reasonable costs and expenses incurred by or on behalf of the Secured Party
or
the Pledgor in connection with the liquidation and/or application of any
Posted
Credit Support under Paragraph 8 will be payable, on demand and pursuant
to the
Expenses Section of this Agreement, by the Defaulting Party or, if there
is not
Defaulting Party, equally by the parties.
Paragraph
11. Miscellaneous
(a) Default
Interest.
A
Secured Party that fails to make, when due, any Transfer of Posted Collateral
or
the Interest Amount will be obligated to pay the Pledgor (to the extent
permitted under applicable law) an amount equal to interest at the Default
Rate
multiplied by the Value of the items of property that were required to be
Transferred, from (and including) the date that Posted Collateral or Interest
Amount was required to be Transferred to (but excluding) the date of Transfer
of
that Posted Collateral or Interest Amount. This interest will be calculated
on
the basis of daily compounding and the actual number of days
elapsed.
(b) Further
Assurances.
Promptly
following a demand made by a party, the other party will execute, deliver,
file
and record any financing statement, specific assignment or other document
and
take any other action that may be necessary or desirable and reasonably
requested by that party to create, preserve, perfect or validate any security
interest or lien granted under Paragraph 2, to enable that party to exercise
or
enforce its rights under this Annex with respect to Posted Credit Support
or an
Interest Amount or to effect or document a release of a security interest
on
Posted Collateral or an Interest Amount.
(c) Further
Protection.
The
Pledgor will promptly give notice to the Secured Party of, and defend against,
any suit, action, proceeding or lien that involves Posted Credit Support
Transferred by the Pledgor or that could adversely affect the security interest
and lien granted by it under Paragraph 2, unless that suit, action, proceeding
or lien results from the exercise of the Secured Party’s rights under Paragraph
6(c).
(d) Good
Faith and Commercially Reasonable Manner.
Performance of all obligations under this Annex, including, but not limited
to,
all calculations, valuations and determinations made by either party, will
be
made in good faith and in a commercially reasonable manner.
Demands
and Notices.
All
demands and notices made by a party under this Annex will be made as specified
in the Notices Section of this Agreement, except as otherwise provided in
Paragraph 13.
(f) Specifications
of Certain Matters.
Anything
referred to in this Annex as being specified in Paragraph 13 also may be
specified in one or more Confirmations or other documents and this Annex
will be
construed accordingly.
Paragraph
12. Definitions
As
used
in this Annex:—
“Cash”
means
the lawful currency of the United States of America.
“Credit
Support Amount”
has the
meaning specified in Paragraph 3.
“Custodian”
has the
meaning specified in Paragraphs 6(b)(i) and 13.
“Delivery
Amount”
has the
meaning specified in Paragraph 3(a).
“Disputing
Party”
has the
meaning specified in Paragraph 5.
“Distributions”
means
with respect to Posted Collateral other than Cash, all principal, interest
and
other payments and distributions of cash or other property with respect thereto,
regardless of whether the Secured Party has disposed of that Posted Collateral
under Paragraph 6(c). Distributions will not include any item of property
acquired by the Secured Party upon any disposition or liquidation of Posted
Collateral or, with respect to any Posted Collateral in the form of Cash,
any
distributions on that collateral, unless otherwise specified
herein.
“Eligible
Collateral”
means,
with respect to a party, the items, if any, specified as such for that party
in
Paragraph 13.
“Eligible
Credit Support”
means
Eligible Collateral and Other Eligible Support.
“Exposure”
means
for any Valuation Date or other date for which Exposure is calculated and
subject to Paragraph 5 in the case of a dispute, the amount, if any, that
would
be payable to a party that is the Secured Party by the other party (expressed
as
a positive number) or by a party that is the Secured Party to the other party
(expressed as a negative number) pursuant to Section 6(e)(ii)(2)(A) of this
Agreement as if all Transactions (or Swap Transactions) were being terminated
as
of the relevant Valuation Time; provided
that
Market Quotation will be determined by the Valuation Agent using its estimates
at mid-market of the amounts that would be paid for Replacement Transactions
(as
that term is defined in the definition of “Market Quotation”).
“Independent
Amount”
means
with respect to a party, the amount specified as such for that party in
Paragraph 13; if no amount is specified, zero.
“Interest
Amount”
means,
with respect to an Interest Period, the aggregate sum of the amounts of interest
calculated for each day in that Interest Period on the principal amount of
Posted Collateral in the form of Cash held by the Secured Party on that day,
determined by the Secured Party for each such days as follows:
(x)
the
amount of that Cash on that day; multiplied by
(y)
the
Interest Rate in effect for that day; divided by
(z)
360.
“Interest
Period”
means
the period from (and including) the last Local Business Day on which an Interest
Amount was Transferred (or, if no Interest Amount has yet been Transferred,
the
Local Business Day on which Posted Collateral in the form of Cash was
Transferred to or received by the Secured Party) to (but excluding) the Local
Business Day on which the current Interest Amount is to be
Transferred.
“Interest
Rate”
means
the rate specified in Paragraph 13.
“Local
Business Day”,
unless
otherwise specified in Paragraph 13, has the meaning specified in the
Definitions Section of this Agreement, except that references to a payment
in
clause (b) thereof will be deemed to include a Transfer under this
Annex.
“Minimum
Transfer Amount”
means,
with respect to a party, the amount specified as such for that party in
Paragraph 13; if no amount is specified, zero.
“Notification
Time”
has the
meaning specified in Paragraph 13.
“Obligations”
means,
with a respect to a party, all present and future obligations of that party
under this Agreement and any additional obligations specified for that party
in
Paragraph 13.
“Other
Eligible Support”
means,
with respect to a party, the items, if any, specified as such for that party
in
Paragraph 13.
“Other
Posted Support”
means
all Other Eligible Support Transferred to the Secured Party that remains
in
effect for the benefit of that Secured Party.
“Pledgor”
means
either party, when that party (i) receives a demand for or is required to
Transfer Eligible Credit Support under Paragraph 3(a) or (ii) has Transferred
Eligible Credit Support under Paragraph 3(a).
“Posted
Collateral”
means
all Eligible Collateral, other property, Distributions, and all proceeds
thereof
that have been Transferred to or received by the Secured Party under this
Annex
and not Transferred to the Pledgor pursuant to Paragraph 3(b), 4(d)(ii) or
6(d)(i) or released by the Secured Party under Paragraph 8. Any Interest
Amount
or portion thereof not Transferred pursuant to Paragraph 6(d)(ii) will
constitute Posted Collateral in the form of Cash.
“Posted
Credit Support”
means
Posted Collateral and Other Posted Support.
“Recalculation
Date”
means
that Valuation Date that gives rise to the dispute under Paragraph 5;
provided,
however,
that if
a subsequent Valuation Date occurs under Paragraph 3 prior to the resolution
of
the dispute, then the “Recalculation Date” means the most recent Valuation Date
under Paragraph 3.
“Resolution
Time”
has the
meaning specified in Paragraph 13.
“Return
Amount”
has the
meaning specified in Paragraph 3(b).
“Secured
Party”
means
either party, when that party (i) makes a demand for or is entitled to receive
Eligible Credit Support under Paragraph 3(a) or (ii) holds or is deemed to
hold
Posted Credit Support.
“Specified
Condition”
means,
with respect to a party, any event specified as such for that party in Paragraph
13.
“Substitute
Credit Support”
has the
meaning specified in Paragraph 4(d)(i).
“Substitution
Date”
has the
meaning specified in Paragraph 4(d)(ii).
“Threshold”
means,
with respect to a party, the amount specified as such for that party in
Paragraph 13; if not amount is specified, zero.
“Transfer”
means,
with respect to any Eligible Credit Support, Posted Credit Support or Interest
Amount, and in accordance with the instructions of the Secured Party, Pledgor
or
Custodian, as applicable;
(i)
in
the case of Cash, payment or delivery by wire transfer into one or more bank
accounts specified by the recipient;
(ii)
in
the case of certificated securities that cannot be paid or delivered by
book-entry, payment or delivery in appropriate physical form to the recipient
or
its account accompanied by any duly executed instruments of transfer,
assignments in blank, transfer tax stamps and any other documents necessary
to
constitute a legally valid transfer to the recipient;
(iii)
in
the case of securities that can be paid or delivered by book-entry, the giving
of written instructions to the relevant depository institution or other entity
specified by the recipient, together with a written copy thereof to the
recipient, sufficient if complied with to result in a legally effective transfer
of the relevant interest to the recipient; and
(iv)
in
the case of Other Eligible Support or Other Posted Support, as specified
in
Paragraph 13.
“Valuation
Agent”
has the
meaning specified in Paragraph 13.
“Valuation
Date”
means
each date specified in or otherwise determined pursuant to Paragraph
13.
“Valuation
Percentage”
means,
for any item of Eligible Collateral, the percentage specified in Paragraph
13.
“Valuation
Time”
has the
meaning specified in Paragraph 13.
“Value”
means
for any Valuation Date or other date for which Value is calculated and subject
to Paragraph 5 in the case of a dispute, with respect to;
(i)
Eligible Collateral or Posted Collateral that is;
(A) Cash,
the
amount thereof; and
(B) a
security, the bid price obtained by the Valuation Agent multiplied by the
applicable Valuation Percentage, if any;
(ii)
Posted Collateral that consists of items that are not specified as Eligible
Collateral, zero; and
(iii)
Other Eligible Support and Other Posted Support, as specified in Paragraph
13.
Paragraph
13. Elections
and Variables
|
(a)
|
Security
Interest for “Obligations”.
The term “Obligations”
as used in this Annex includes the following additional obligations
with
respect to Party A and Party B:
None.
|
|
(b)
|
Credit
Support Obligations.
|
|
(i)
|
“Delivery
Amount”
and “Return
Amount” each
has the meaning specified in Paragraph 3; provided that, in the
event that
Party A elects or is required to post collateral pursuant to
a ratings
downgrade by S&P and Xxxxx’x, (1) the Delivery Amount shall be
calculated by reference to the requirements set forth by the
rating agency
that would result in Party A transferring the greater amount
of Eligible
Credit Support and (2) the Return Amount shall be calculated
by reference
to the requirements set forth by the rating agency that would
result in
Party B transferring the least amount of Posted Credit Support.
“Credit
Support Amount”
has the meaning specified below:
|
|
(A)
|
in
the event Party A elects or is required to post collateral pursuant
to
Part 5(f)(iii) or (iv) of the Schedule due to a ratings downgrade
or
withdrawal by S&P, “Credit
Support Amount”
shall have the meaning specified in Table 1 attached hereto;
and
|
|
(B)
|
in
the event Party A elects to post collateral pursuant to Part
5(f)(i) of
the Schedule due to a ratings downgrade by Xxxxx’x below the Xxxxx’x First
Tier Required Swap Counterparty Rating, “Credit
Support Amount”
shall have the meaning specified in Table 2A or Table 2B, as
applicable,
attached hereto; and
|
|
(C)
|
in
the event Party A is required to post collateral pursuant to
Part 5(f)(ii)
of the Schedule due to a ratings downgrade or withdrawal by Xxxxx’x below
the Xxxxx’x Second Tier Required Swap Counterparty Rating, “Credit
Support Amount”
shall have the meaning specified in Table 3A or 3B, as applicable,
attached hereto.
|
In
the
event Party A or its Credit Support Provider does not have a Long-Term
Rating of
at least “BBB+” from S&P, the Valuation Agent shall verify its calculation
of the Secured Party’s Exposure on a quarterly basis by seeking two quotations
from Reference Market-makers. If two Reference Market-makers are not available
to provide a quotation, then fewer than two Reference Market-makers may
be used
for such purpose. If no Reference Market-makers are available, then the
Valuation Agent’s estimates at mid-market will be used. The Valuation Agent may
not obtain the quotations referred to above from the same person in excess
of
four times during any 12 month period. Where more than one quotation is
obtained, the quotation representing the greatest amount of Exposure shall
be
used by the Valuation Agent. In the event the verification procedures set
forth
above indicate that there is a deficiency in the amount of Eligible Collateral
that has been Transferred to the Secured Party, the Pledgor shall Transfer
the
amount of Eligible Collateral necessary to cure such deficiency to the
Secured
Party within three Local Business Days. The Valuation Agent shall provide
to S&P its calculations of the Secured Party’s Exposure for that Valuation
Date. The Valuation Agent shall also provide to S&P any external marks
received pursuant to this paragraph.
|
(ii)
|
Eligible
Collateral.
|
|
(A)
|
In
the event Party A elects or is required to post collateral pursuant
to
Part 5(f) of the Schedule due to a ratings downgrade or withdrawal
by
S&P, the items specified in Table 4 attached hereto will qualify
as
“Eligible
Collateral” for
Party A.
|
|
(B)
|
In
the event Party A elects to post collateral pursuant to Part
5(f)(i) of
the Schedule due to a ratings downgrade by Xxxxx’x below the Xxxxx’x First
Tier Required Swap Counterparty Rating, the items specified in
Table 5
attached hereto will qualify as “Eligible
Collateral” for
Party A.
|
|
(C)
|
In
the event Party A is required to post collateral pursuant to
Part 5(f)(ii)
of the Schedule due to a ratings downgrade or withdrawal by Xxxxx’x below
the Xxxxx’x Second Tier Required Swap Counterparty Rating, the items
specified in Table 6 attached hereto will qualify as “Eligible
Collateral” for
Party A.
|
|
(iii)
|
Other
Eligible Support:
Not applicable.
|
|
(iv)
|
Thresholds.
|
|
(A)
|
“Independent
Amount”
means, with respect to Party A, not applicable in the event Party A
elects or is required to post collateral pursuant to Part 5(f)
of the
Schedule due to a ratings downgrade or withdrawal by S&P or Xxxxx’x.
|
“Independent
Amount”
means,
with respect to Party B, zero.
(B)
“Threshold”
means
with, respect to Party A, not
applicable in the event Party A elects or is required to post collateral
pursuant to Part 5(f) of the Schedule due to a ratings downgrade or withdrawal
by S&P or Xxxxx’x.
“Threshold”
means
with respect to Party B: Infinite.
“Minimum
Transfer Amount”
means
with respect to Party A: USD 50,000; and with respect to Party B: USD 50,000;
provided, however, that if such party is a Defaulting Party at the time,
“Minimum
Transfer Amount”
shall
mean zero with respect to such party.
|
(C)
|
Rounding.
The Delivery Amount will be rounded up to the nearest multiple
of $1000
and the Return Amount will be rounded down to the nearest multiple
of
$1000.
|
|
(v)
|
“Exposure”
has the meaning specified in Paragraph 12, except that after
the word
“Agreement” in the fourth line thereof the words “(assuming, for this
purpose only, that Part 1(f)(ii) of the Schedule is deleted)” shall be
inserted.
|
|
(c)
|
Valuation
and Timing.
|
|
(i)
|
“Valuation
Agent”
means Party A.
|
|
(ii)
|
“Valuation
Date”
means (A) each and every Wednesday commencing on the first such date
following the date hereof or if any Wednesday is not a Local
Business Day,
the next succeeding Local Business Day and (B) any other Local
Business Day on which notice is made before 12:00 noon, New York
time on
the immediately preceding Local Business
Day.
|
|
(iii)
|
“Valuation
Time” means
the close of business in New York on the New York Banking Day
before the
Valuation Date or date of calculation, as applicable, or any
time on 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 1:00 p.m., New York time, on a Local Business Day.
|
|
(v)
|
The
Valuation Agent’s calculations pursuant to the terms hereof shall be made
in accordance with standard market practice, using commonly accepted
third
party sources that comply with S&P’s criteria (e.g. Bloomberg, Bridge
Information Services, Reuters and
Telerate).
|
|
(d)
|
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party
of the
Termination Event occurs with respect to that party): Not
Applicable.
|
|
(e)
|
Substitution.
|
|
(i)
|
“Substitution
Date” has
the meaning specified in Paragraph
4(d)(ii).
|
|
(ii)
|
Consent.
The Pledgor need not obtain the Secured Party's consent for any
substitution pursuant to Paragraph
4(d).
|
|
(f)
|
Dispute
Resolution.
|
|
(i)
|
“Resolution
Time” means
1:00 p.m., New York 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), the Value of
Posted
Credit Support or of any Transfer of Eligible Credit Support
or Posted
Credit Support, as the case may be, will be calculated by the
Valuation
Agent in accordance with standard market practice using third
party
sources (such as, by way of example only, Bloomberg or Reuters)
where
available.
|
|
(iii)
|
Alternative.
The provisions of Paragraph 5 will
apply.
|
|
(g)
|
Holding
and Using Posted Collateral.
|
|
(i)
|
Eligibility
to Hold Posted Collateral; Custodian.
|
Party B
and its Custodian will be entitled to hold Posted Collateral pursuant to
Paragraph 6(b); provided
that the
following conditions applicable to it are satisfied:
|
(A)
|
Party B
is not a Defaulting Party.
|
|
(B)
|
Posted
Collateral may be held only in the following jurisdictions: the
United
States of America.
|
|
(C)
|
Party
B’s Custodian (or its parent) shall have a Long Term Rating by
S&P of
at least “A” and a Short Term Rating by S&P of at least “A-1” by
S&P.
|
Initially,
the Custodian
for
Party B is the Trustee.
|
(ii)
|
Use
of Posted Collateral.
The provisions of Paragraph 6(c) will apply.
|
|
(h)
|
Distributions
and Interest Amount.
|
|
(i)
|
“Interest
Rate”.
The “Interest
Rate”
shall be the rate actually earned by Party B on Posted Collateral
in the
form of Cash.
|
|
(ii)
|
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on the last
Local
Business Day of each calendar month and on any Local Business
Day that
Posted Collateral in the form of Cash is Transferred to the Pledgor
pursuant to Paragraph 3(b).
|
|
(iii)
|
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will
apply.
|
|
(i)
|
Additional
Representation(s).
None.
|
|
(j)
|
Other
Eligible Support and Other Posted Support.“Value”
and “Transfer” with
respect to Other Eligible Support and Other Posted Support each
means: Not
applicable.
|
|
(k)
|
Demands
and Notices.
|
|
(i)
|
All
demands, specifications and notices to Party A under this Annex will
be made to:
|
Xxxxxx
Xxxxxxx Capital Services Inc.
0000
Xxxxxxxx
XXX
Xxxxxxxxxxx
Xxx
Xxxx,
XX 00000
Attn:
FID
Collateral Manager
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
Email:
xxxxxxxxx@xxxxxxxxxxxxx.xxx
and
all
demands, specifications and notices to Party B under this Annex will be
to:
Deutsche
Bank National Trust Company, as trustee of the Trust
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
Trust Administration - MS07C1
Facsimile:
(000) 000-0000
Phone:
(000) 000-0000
;
provided
that any
demand, specification or notice may be made by telephone (“Telephone
Notice”)
between employees of each party if such Telephone Notice is confirmed by
a
subsequent written instruction (which may be delivered via facsimile or
email)
by the close of business on the same day that such Telephone Notice is
given.
|
(ii)
|
Demand
for Collateral.
Without prejudice to any provision of this Agreement, if a Delivery
Amount
for a Valuation Date equals or exceeds the Pledgor’s Minimum Transfer
Amount, then the Pledgor will, without prior demand by the Secured
Party,
Transfer to the Secured Party Eligible Credit Support in accordance
with
Paragraph 3(a).
|
|
(l)
|
Addresses
for Transfers.
|
|
Party A:
|
||
|
Cash:
|
CITIBANK,
New York
|
|
|
ABA
No.:
|
021
000 089
|
|
|
Account
No.:
|
4072
- 4601
|
|
|
Treasury
Securities
|
||
|
and
Agency Notes:
|
Bank
of New York, New York/Xxxxxx Xxxxxxx & Co.
Incorporated
|
|
|
ABA
No.:
|
000000000
|
|
|
Other
Forms of Eligible Collateral: As provided by
Party A.
|
||
|
Party B:
|
||
|
Cash:
|
Deutsche
Bank
|
|
|
ABA
No.:
|
000000000
|
|
|
Account
No.:
|
00000000
|
|
|
Account
Name:
|
NYLTD
Funds Control - Stars West
|
|
|
Ref:
|
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2007-NC1
|
|
| DTC Eligible Securities: As provided by Party B | ||
|
(m)
|
Other
Provisions.
|
|
(i)
|
Notwithstanding
any other provision in this Agreement to the contrary, no full
or partial
failure to exercise and no delay in exercising, on the part of
Party A or Party B, any right, remedy, power or privilege
permitted hereunder shall operate in any way as a waiver thereof
by such
party, including without limitation any failure to exercise or
any delay
in exercising to any or to the full extent of such party's rights
with
respect to transfer timing pursuant to Paragraph 4(b), regardless
of the
frequency of such failure or delay.
|
|
(ii)
|
In
all cases, in order to facilitate calculation of the Delivery
Amount and
the Return Amount for a particular Valuation Date in accordance
with
Paragraph 3 of this Annex:
|
|
(A)
|
Eligible
Collateral;
|
|
(B)
|
Exposure;
and
|
|
(C)
|
Posted
Collateral
|
shall
each be expressed in US Dollars. If any of these items are expressed in
a
currency other than US Dollars, then they shall be converted into US Dollar
amounts at the spot exchange rate determined by the Valuation Agent on
that
Valuation Date.
|
(iii)
|
Form
of Annex.
The parties hereby agree that the text of the body of this Annex
is
intended to be the printed form of 1994 ISDA Credit Support Annex
(Bilateral Form - ISDA Agreements Subject to New York Law Only
version) as
published and copyrighted by the International Swaps and Derivatives
Association, Inc.
|
|
(n)
|
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) or Paragraph
2 or
the definitions of Paragraph 12, (a) the term “Secured
Party”
as used in this Annex shall mean only Party B, (b) the term
“Pledgor”
as used in this Annex shall mean only Party A, (c) only
Party A makes the pledge and grant in Paragraph 2, the
acknowledgement in the final sentence of Paragraph 8(a) and the
representations in paragraph 9 and (d) only Party A will be
required to make Transfers of Eligible Credit Support
hereunder.
|
|
(o)
|
Events
of Default.
Paragraph 7(ii) and (iii) will not apply to Party
B.
|
|
(p)
|
Expenses.
For the avoidance of doubt, Party A shall be responsible for
posting
collateral in accordance with this Credit Support Annex at its
own cost
and any cost incurred by it in complying with its obligations
hereunder.
|
|
(q)
|
Additional
Definitions
|
“Agency
Notes”
means
U.S. Dollar-denominated fixed rate, non-amortising, non-mortgage-backed,
senior
debt securities of fixed maturity, rated Aaa by Xxxxx'x and AAA by S&P
issued by any of the Federal Home Loan Banks (including their consolidated
obligations issued through the Office of Finance of the Federal Home Loan
Bank
System), the Federal National Mortgage Association, the Federal Home Loan
Mortgage Corporation or the Federal Farm Credit Bank.
“Commercial
Paper” means
U.S. Dollar-denominated, coupon-bearing, commercial paper issued by a
corporation, finance company, partnership or limited liability
company.
“Treasury
Securities”
means
U.S. Dollar-denominated, coupon-bearing, senior debt securities of the
United
States of America issued by the U.S. Treasury Department and backed by
the full
faith and credit of the United States of America.
|
(r)
|
Trustee
Capacity.
It is expressly understood and agreed by the parties hereto that
insofar
as this Annex is executed by Deutsche Bank National Trust Company
(i) this Annex is executed and delivered by Deutsche Bank National
Trust Company not in its individual capacity but solely as Trustee
under
the PSA in the exercise of the powers and authority conferred
and invested
in it as trustee thereunder, (ii) each of the representations,
undertakings and agreements herein made on behalf of the Trust
is made and
intended not as personal representations of the Trustee but is
made and
intended for the purpose of binding only the Trust, and (iii) under
no circumstances shall Deutsche Bank National Trust Company in
its
individual capacity be personally liable for the payment of any
indebtedness or expenses or be personally liable for the breach
or failure
of any obligation, representation, warranty or covenant made
or undertaken
under this Annex.
|
IN
WITNESS WHEREOF,
the
parties have executed this Credit Support Annex by their duly authorized
officers as of the date hereof.
| XXXXXX XXXXXXX CAPITAL SERVICES INC. | |
| By:__________________________________ | |
|
Name
|
|
|
Title:
|
|
|
Date:
|
|
| DEUTSCHE BANK NATIONAL TRUST COMPANY, | |
|
not
individually, but solely as Trustee on behalf of the
Supplemental Interest Trust with respect to Xxxxxx Xxxxxxx ABS
Capital I
Inc. Trust 2007-NC1, Mortgage Pass-Through Certificates, Series
2007-NC1
|
|
|
By:
_____________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
Date:
|
TABLE
1
CREDIT
SUPPORT AMOUNT
DOWNGRADE
BY S&P
In
the
event Party A elects or is required to post collateral pursuant to Part
5(f) of
the Schedule due to a ratings downgrade or withdrawal by S&P:
“Credit
Support Amount”
means,
with respect to a Valuation Date, an amount equal to the greater of (1) the
sum of (a) the MTM and (b) the Volatility Buffer multiplied by the
Notional Amount * 10 and (2) zero.
“MTM”
means
the Secured Party’s Exposure for that Valuation Date.
“Volatility
Buffer”
means
(a) if, on the date of determination, Party A has a short-term credit
rating of “A-2” by S&P and the Termination Date of the Transaction will
occur in less than 5 years, 3.25%, (b) if, on the date of determination,
Party A has a short-term credit rating of “A-2” by S&P and the
Termination Date of the Transaction will occur in less than 10 years but
more
than 5 years, 4.00%, (c) if, on the date of determination, Party A has
a short-term credit rating of “A-3” by S&P and the Termination Date of the
Transaction will occur in less than 5 years, 4.00%, (d) if, on the date of
determination, Party A has a short-term credit rating of “A-3” by S&P
and the Termination Date of the Transaction will occur in less than 10
years but
more than 5 years, 5.00%, (e) if, on the date of determination,
Party A has a long-term credit rating of “BB+” or lower by S&P and the
Termination Date of the Transaction will occur in less than 5 years, 4.50%,
or
(f) if, on the date of determination, Party A has a long-term credit
rating of “BB+” or lower by S&P and the Termination Date of the Transaction
will occur in less than 10 years but more than 5 years, 6.75%.
TABLE
2A
CREDIT
SUPPORT AMOUNT
DOWNGRADE
BY XXXXX’X BELOW XXXXX’X FIRST TIER REQUIRED
SWAP
COUNTERPARTY RATING
In
the
event Party A elects to post collateral pursuant to Part 5(f)(i) of the
Schedule
due to a ratings downgrade by Xxxxx’x below the Xxxxx’x First Tier Required Swap
Counterparty Rating:
“Credit
Support Amount”
means,
with respect to a Valuation Date, an amount equal to either:
(A)
The
greater of (1) zero and (2) the sum of (a) the MTM and (b) the lesser of
(x) 25
multiplied by DV01 and (y) 4% multiplied by the Notional Amount * 10;
or
(B)
The
greater of (1) zero and (2) the sum of (a) the MTM and (b) the Notional
Amount *
10 multiplied by the amount specified in Table 2B attached hereto.
Party
A
shall, in its sole discretion, have the option to determine the Credit
Support
Amount based upon either (A) or (B) above.
“DV01”
means
an estimate (as determined by the Valuation Agent in good faith and in
a
commercially reasonable manner) of the change in the Secured Party’s Exposure
resulting from a one basis point change in the swap curve.
“MTM”
means
the Secured Party’s Exposure for that Valuation Date.
TABLE
2B
|
Weighted
Average
Life
of Hedge
in
Years
|
|
|
1
|
0.25%
|
|
2
|
0.50%
|
|
3
|
0.70%
|
|
4
|
1.00%
|
|
5
|
1.20%
|
|
6
|
1.40%
|
|
7
|
1.60%
|
|
8
|
1.80%
|
|
9
|
2.00%
|
|
10
|
2.20%
|
|
11
|
2.30%
|
|
12
|
2.50%
|
|
13
|
2.70%
|
|
14
|
2.80%
|
|
15
|
3.00%
|
|
16
|
3.20%
|
|
17
|
3.30%
|
|
18
|
3.50%
|
|
19
|
3.60%
|
|
20
|
3.70%
|
|
21
|
3.90%
|
|
22
|
4.00%
|
|
23
|
4.00%
|
|
24
|
4.00%
|
|
25
|
4.00%
|
|
26
|
4.00%
|
|
27
|
4.00%
|
|
28
|
4.00%
|
|
29
|
4.00%
|
|
30
|
4.00%
|
TABLE
3A
CREDIT
SUPPORT AMOUNT
DOWNGRADE
BY XXXXX’X BELOW XXXXX’X SECOND TIER REQUIRED
SWAP
COUNTERPARTY RATING
In
the
event Party A is required to post collateral pursuant to Part 5(f)(ii)
of the
Schedule due to a ratings downgrade by Xxxxx’x below the Xxxxx’x Second Tier
Required Swap Counterparty Rating:
“Credit
Support Amount”
means,
with respect to a Valuation Date, an amount equal to either:
(A)
The
greatest of (1) zero, (2) the amount payable by Party A in respect of the
next
Floating Rate Payer Payment Date, and (3) the sum of (a) the MTM and (b)
the
lesser of (x) 60 multiplied by DV01 and (y) 9% multiplied by the Notional
Amount
* 10; or
(B)
The
greatest of (1) zero, (2) the amount payable by Party A in respect of the
next
Floating Rate Payer Payment Date, and (3) the sum of (a) the MTM and (b)
the
Notional Amount * 10 multiplied by the amount specified in Table 3B attached
hereto.
Party
A
shall, in its sole discretion, have the option to determine the Credit
Support
Amount based upon either (A) or (B) above.
“DV01”
means
an estimate (as determined by the Valuation Agent in good faith and in
a
commercially reasonable manner) of the change in the Secured Party’s Exposure
resulting from a one basis point change in the swap curve.
“MTM”
means
the Secured Party’s Exposure for that Valuation Date.
TABLE
3B
|
Weighted
Average
Life
of Hedge
in
Years
|
|
|
1
|
0.60%
|
|
2
|
1.20%
|
|
3
|
1.70%
|
|
4
|
2.30%
|
|
5
|
2.80%
|
|
6
|
3.30%
|
|
7
|
3.80%
|
|
8
|
4.30%
|
|
9
|
4.80%
|
|
10
|
5.30%
|
|
11
|
5.60%
|
|
12
|
6.00%
|
|
13
|
6.40%
|
|
14
|
6.80%
|
|
15
|
7.20%
|
|
16
|
7.60%
|
|
17
|
7.90%
|
|
18
|
8.30%
|
|
19
|
8.60%
|
|
20
|
9.00%
|
|
21
|
9.00%
|
|
22
|
9.00%
|
|
23
|
9.00%
|
|
24
|
9.00%
|
|
25
|
9.00%
|
|
26
|
9.00%
|
|
27
|
9.00%
|
|
28
|
9.00%
|
|
29
|
9.00%
|
|
30
|
9.00%
|
TABLE
4
ELIGIBLE
COLLATERAL
S&P
|
Eligible
Collateral
|
Party A
|
Valuation
Percentage
|
|
|
(A)
|
Cash
|
X
|
100.0%
|
|
(B)
|
Treasury
Securities with a remaining maturity of 52 weeks or less
|
X
|
98.5%
|
|
(C)
|
Treasury
Securities with a remaining maturity of more than 52 weeks
but no more
than 5 years
|
X
|
93.6%
|
|
(D)
|
Treasury
Securities with a remaining maturity of more than 5 years but
no more than
10 years
|
X
|
89.9%
|
|
(E)
|
Treasury
Securities with a remaining maturity of more than 10 years
but no more
than 30 years
|
X
|
83.9%
|
|
(F)
|
Agency
Notes with a remaining maturity of no more than 15 years
|
X
|
81.3%
|
|
(G)
|
Agency
Notes with a remaining maturity of more than 15 years but no
more than 30
years
|
X
|
74.8%
|
|
(H)
|
Commercial
Paper rated “A-1+” by S&P and “P-1” by Xxxxx’x, with a remaining
maturity of 180 days or less
|
X
|
98.0%
|
|
(I)
|
Commercial
Paper rated “A-1” by S&P and P-1 by Xxxxx’x, with a remaining maturity
of 180 days or less
|
X
|
97.0%
|
|
(J)
|
Commercial
Paper rated “A-1” by S&P and “P-1” by Xxxxx’x, with a remaining
maturity of more than 180 days or but no more than 360
days
|
X
|
94.0%
|
Notwithstanding
the above, Commercial Paper will qualify as Eligible Collateral for Party
A only
if the aggregate amount of Commercial Paper Transferred as Eligible Collateral
under this Annex constitutes the obligations of 10 or more
issuers.
TABLE
5
ELIGIBLE
COLLATERAL
DOWNGRADE
BY XXXXX’X BELOW XXXXX’X FIRST TIER REQUIRED
SWAP
COUNTERPARTY RATING
|
Eligible
Collateral
|
Valuation
Percentage
|
|
U.S.
Dollar Cash
|
100%
|
|
EURO
Cash
|
97%
|
|
Sterling
Cash
|
97%
|
|
Fixed-Rate
Negotiable Treasury Debt Issued by The U.S. Treasury Department
with
Remaining Maturity
|
|
|
<
1 Year
|
100%
|
|
1
to 2 Years
|
100%
|
|
2
to 3 Years
|
100%
|
|
3
to 5 Years
|
100%
|
|
5
to 7 Years
|
100%
|
|
7
to 10 Years
|
100%
|
|
10
to 20 Years
|
100%
|
|
>
20 Years
|
100%
|
|
Floating-Rate
Negotiable Treasury Debt issued by The U.S. Treasury
Department
|
|
|
All
Maturities
|
100%
|
|
Fixed-Rate
U.S. Agency Debentures with Remaining Maturity
|
|
|
<
1 Year
|
100%
|
|
1
to 2 Years
|
100%
|
|
2
to 3 Years
|
100%
|
|
3
to 5 Years
|
100%
|
|
5
to 7 Years
|
100%
|
|
7
to 10 Years
|
100%
|
|
10
to 20 Years
|
100%
|
|
>
20 Years
|
100%
|
|
Floating-Rate
U.S. Agency Debentures -
|
|
|
All
Maturities
|
100%
|
|
Fixed-Rate
Euro-Zone Government Bonds Rated Aa3
or
Above with Remaining Maturity
|
|
|
<
1 Year
|
97%
|
|
1
to 2 Years
|
97%
|
|
2
to 3 Years
|
97%
|
|
3
to 5 Years
|
97%
|
|
5
to 7 Years
|
97%
|
|
7
to 10 Years
|
97%
|
|
10
to 20 Years
|
97%
|
|
>
20 Years
|
97%
|
|
Floating-Rate
Euro-Zone Government Bonds Rated Aa3
or
Above
|
|
|
All
Maturities
|
97%
|
|
Fixed-Rate
United Kingdom Gilts with Remaining Maturity
|
|
|
<
1 Year
|
97%
|
|
1
to 2 Years
|
97%
|
|
2
to 3 Years
|
97%
|
|
3
to 5 Years
|
97%
|
|
5
to 7 Years
|
97%
|
|
7
to 10 Years
|
97%
|
|
10
to 20 Years
|
97%
|
|
>
20 Years
|
97%
|
|
Floating-Rate
United Kingdom Gilts
|
|
|
All
Maturities
|
97%
|
TABLE
6
ELIGIBLE
COLLATERAL
DOWNGRADE
BY XXXXX’X BELOW XXXXX’X SECOND TIER REQUIRED
SWAP
COUNTERPARTY RATING
|
Eligible
Collateral
|
Valuation
Percentage
|
|
U.S.
Dollar Cash
|
100%
|
|
EURO
Cash
|
93%
|
|
Sterling
Cash
|
94%
|
|
Fixed-Rate
Negotiable Treasury Debt Issued by The U.S. Treasury Department
with
Remaining Maturity
|
|
|
<
1 Year
|
100%
|
|
1
to 2 Years
|
99%
|
|
2
to 3 Years
|
98%
|
|
3
to 5 Years
|
97%
|
|
5
to 7 Years
|
95%
|
|
7
to 10 Years
|
94%
|
|
10
to 20 Years
|
89%
|
|
>
20 Years
|
87%
|
|
Floating-Rate
Negotiable Treasury Debt issued by The U.S. Treasury
Department
|
|
|
All
Maturities
|
99%
|
|
Fixed-Rate
U.S. Agency Debentures with Remaining Maturity
|
|
|
<
1 Year
|
99%
|
|
1
to 2 Years
|
98%
|
|
2
to 3 Years
|
97%
|
|
3
to 5 Years
|
96%
|
|
5
to 7 Years
|
94%
|
|
7
to 10 Years
|
93%
|
|
10
to 20 Years
|
88%
|
|
>
20 Years
|
86%
|
|
Floating-Rate
U.S. Agency Debentures -
|
|
|
All
Maturities
|
98%
|
|
Fixed-Rate
Euro-Zone Government Bonds Rated Aa3
or
Above with Remaining Maturity
|
|
|
<
1 Year
|
93%
|
|
1
to 2 Years
|
92%
|
|
2
to 3 Years
|
91%
|
|
3
to 5 Years
|
89%
|
|
5
to 7 Years
|
87%
|
|
7
to 10 Years
|
86%
|
|
10
to 20 Years
|
82%
|
|
>
20 Years
|
80%
|
|
Floating-Rate
Euro-Zone Government Bonds Rated Aa3
or
Above
|
|
|
All
Maturities
|
92%
|
|
Fixed-Rate
United Kingdom Gilts with Remaining Maturity
|
|
|
<
1 Year
|
93%
|
|
1
to 2 Years
|
92%
|
|
2
to 3 Years
|
91%
|
|
3
to 5 Years
|
90%
|
|
5
to 7 Years
|
89%
|
|
7
to 10 Years
|
88%
|
|
10
to 20 Years
|
84%
|
|
>
20 Years
|
82%
|
|
Floating-Rate
United Kingdom Gilts
|
|
|
All
Maturities
|
93%
|
 |
EXECUTION
COPY
|
|
DATE:
|
January
26, 2007
|
|
TO:
|
Deutsche
Bank National Trust Company, not individually, but solely
as Trustee on
behalf of the Supplemental Interest Trust with respect to
Xxxxxx Xxxxxxx
ABS Capital I Inc. Trust 2007-NC1, Mortgage Pass-Through
Certificates,
Series 2007-NC1
|
|
ATTENTION:
|
Trust
Administration - MS07C1
|
|
TELEPHONE:
|
(000)
000-0000
|
|
FACSIMILE:
|
(000)
000-0000
|
|
FROM:
|
New
York Derivative Client Services Group
|
|
TELEPHONE:
|
(000)
000-0000
|
|
FACSIMILE:
|
(000)
000-0000
|
|
SUBJECT:
|
Fixed
Income Derivatives Confirmation
|
|
REFERENCE
NUMBER:
|
FS0HG
|
The
purpose of this letter agreement (this “Confirmation”)
is to
confirm the terms and conditions of the Swap Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between Xxxxxx Xxxxxxx Capital Services Inc. (“Party
A”)
and
Deutsche Bank National Trust Company, not individually, but solely as
Trustee on
behalf of the Supplemental Interest Trust (the “Trustee”)
under
the Pooling and Servicing Agreement, dated and effective as of January
1, 2007,
among Xxxxxx Xxxxxxx ABS Capital I Inc., as Depositor, Deutsche Bank
National
Trust Company, as Trustee, Saxon Mortgage Services, Inc., as Servicer,
Countrywide Home Loans Servicing LP, as Servicer, and NC Capital Corporation,
as
Responsible Party (the “PSA”)
for
the Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2007-NC1, Mortgage Pass-Through
Certificates, Series 2007-NC1 (“Party
B”).
The
definitions and provisions contained in the 2000 ISDA Definitions (the
“Definitions”),
as
published by the International Swaps and Derivatives Association, Inc.,
are
incorporated into this Confirmation. In the event of any inconsistency
between
the Definitions and this Confirmation, this Confirmation will govern.
Terms
capitalized but not defined in this Confirmation (including the Definitions)
have the meanings attributed to them in the PSA.
This
Confirmation constitutes a “Confirmation” as referred to in, and supplements,
forms part of and is subject to, the ISDA Master Agreement dated as of
January
26, 2007, as amended and supplemented from time to time (the “Agreement”),
between Party A and Party B. All provisions contained in the Agreement
govern
this Confirmation except as expressly modified below.
| 1. |
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
|
Notional
Amount:
|
With
respect to any Calculation Period, the notional amount set
forth for such
Calculation Period in Schedule I attached
hereto.
|
|
Trade
Date:
|
January
19, 2007
|
|
Effective
Date:
|
December
25, 2007
|
|
Termination
Date:
|
January
25, 2013, which for the purpose of the final Fixed Rate Payer
Calculation
Period is subject to No Adjustment, and for the purpose of
the final
Floating Rate Payer Calculation Period is subject to adjustment
in
accordance with the Business Day
Convention.
|
Fixed
Amounts:
|
Fixed
Rate Payer:
|
Party
B
|
|
Fixed
Rate Payer Payment Dates:
|
The
25th
calendar day of each month during the Term of this Transaction,
commencing
January 25, 2008, subject to adjustment in accordance with
the Business
Day Convention.
|
Fixed
Rate Payer Period End
|
Dates:
|
The
25th
calendar day of each month during the Term of this Transaction,
commencing
January 25, 2008, subject to No
Adjustment.
|
|
Fixed
Rate:
|
5.05%
|
|
Fixed
Amount:
|
To
be determined in accordance with the following
formula:
|
10
*
Fixed Rate * Notional Amount * Fixed Rate Day Count Fraction.
|
Fixed
Rate Day Count Fraction:
|
30/360
|
Floating
Amounts:
|
Floating
Rate Payer:
|
Party
A
|
Floating
Rate Payer Payment
|
Dates:
|
The
25th
calendar day of each month during the Term of this Transaction,
commencing
January 25, 2008, subject to adjustment in accordance with
the Business
Day Convention.
|
Floating
Rate Payer Period End
|
Dates:
|
The
25th
calendar day of each month during the Term of this Transaction,
commencing
January 25, 2008, subject to adjustment in accordance with
the Business
Day Convention.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Floating
Amount:
|
To
be determined in accordance with the following
formula:
|
10
*
Floating Rate * Notional Amount * Floating Rate Day Count
Fraction.
|
Designated
Maturity:
|
One
month
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation
Period.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
New
York and Los Angeles
|
|
Business
Day Convention:
|
Following
|
| 2. |
Account
Details and Settlement Information:
|
Payments
to Party A:
Citibank,
New York
ABA
No.:
021 000 089
Account
No.: 4072-4601
Account
Name: Xxxxxx Xxxxxxx Capital Services Inc.
Payments
to Party B:
Deutsche
Bank
ABA
No.:
000000000
Account
No: 00000000
Acct
Name: NYLTD Funds Control - Stars West
Ref:
Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2007-NC1 (swap)
| 3. |
Trustee
Capacity. It
is expressly understood and agreed by the parties hereto that
insofar as
this Confirmation is executed by Deutsche Bank National Trust
Company (i)
this Confirmation is executed and delivered by Deutsche Bank
National
Trust Company not in its individual capacity but solely as
Trustee on
behalf of the Supplemental Interest Trust under the PSA in
the exercise of
the powers and authority conferred and invested in it as trustee
thereunder, (ii) each of the representations, undertakings
and agreements
herein made on behalf of Party B is made and intended not as
personal
representations of the Trustee but is made and intended for
the purpose of
binding only the Supplemental Interest Trust, and (iii) under
no
circumstances shall Deutsche Bank National Trust Company in
its individual
capacity be personally liable for the payment of any indebtedness
or
expenses or be personally liable for the breach or failure
of any
obligation, representation, warranty or covenant made or undertaken
under
this Confirmation.
|
We
are
very pleased to have entered into this Transaction with you and we look
forward
to completing other transactions with you in the near future.
| Very truly yours, | ||
|
XXXXXX
XXXXXXX CAPITAL SERVICES INC.
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
Party
B,
acting through its duly authorized signatory, hereby agrees to, accepts
and
confirms the terms of the foregoing as of the Trade Date.
|
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
not individually, but solely as Trustee on behalf of the Supplemental
Interest Trust with respect to Xxxxxx Xxxxxxx ABS
Capital I Inc. Trust 2007-NC1, Mortgage Pass-Through Certificates,
Series
2007-NC1
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
SCHEDULE
I
|
Line
|
Calculation
Period
|
Notional
Amount ($)
|
Multiplier
|
|||||
|
1
|
Effective
Date
|
1/25/2008
|
77,167,175.55
|
10
|
||||
|
2
|
1/25/2008
|
2/25/2008
|
73,917,347.83
|
10
|
||||
|
3
|
2/25/2008
|
3/25/2008
|
70,804,122.71
|
10
|
||||
|
4
|
3/25/2008
|
4/25/2008
|
67,823,121.65
|
10
|
||||
|
5
|
4/25/2008
|
5/25/2008
|
64,968,685.98
|
10
|
||||
|
6
|
5/25/2008
|
6/25/2008
|
62,235,400.80
|
10
|
||||
|
7
|
6/25/2008
|
7/25/2008
|
59,618,084.44
|
10
|
||||
|
8
|
7/25/2008
|
8/25/2008
|
57,111,778.39
|
10
|
||||
|
9
|
8/25/2008
|
9/25/2008
|
54,702,313.97
|
10
|
||||
|
10
|
9/25/2008
|
10/25/2008
|
43,185,242.21
|
10
|
||||
|
11
|
10/25/2008
|
11/25/2008
|
40,589,845.01
|
10
|
||||
|
12
|
11/25/2008
|
12/25/2008
|
38,914,734.43
|
10
|
||||
|
13
|
12/25/2008
|
1/25/2009
|
37,309,449.71
|
10
|
||||
|
14
|
1/25/2009
|
2/25/2009
|
35,771,052.24
|
10
|
||||
|
15
|
2/25/2009
|
3/25/2009
|
34,287,170.38
|
10
|
||||
|
16
|
3/25/2009
|
4/25/2009
|
23,524,938.40
|
10
|
||||
|
17
|
4/25/2009
|
5/25/2009
|
21,766,545.41
|
10
|
||||
|
18
|
5/25/2009
|
6/25/2009
|
20,904,374.65
|
10
|
||||
|
19
|
6/25/2009
|
7/25/2009
|
20,076,746.07
|
10
|
||||
|
20
|
7/25/2009
|
8/25/2009
|
19,277,274.74
|
10
|
||||
|
21
|
8/25/2009
|
9/25/2009
|
18,336,623.70
|
10
|
||||
|
22
|
9/25/2009
|
10/25/2009
|
11,665,531.93
|
10
|
||||
|
23
|
10/25/2009
|
11/25/2009
|
10,692,872.63
|
10
|
||||
|
24
|
11/25/2009
|
12/25/2009
|
10,303,290.73
|
10
|
||||
|
25
|
12/25/2009
|
1/25/2010
|
9,927,946.81
|
10
|
||||
|
26
|
1/25/2010
|
2/25/2010
|
9,561,275.99
|
10
|
||||
|
27
|
2/25/2010
|
3/25/2010
|
9,037,993.55
|
10
|
||||
|
28
|
3/25/2010
|
4/25/2010
|
8,089,689.50
|
10
|
||||
|
29
|
4/25/2010
|
5/25/2010
|
7,726,417.63
|
10
|
||||
|
30
|
5/25/2010
|
6/25/2010
|
7,452,001.05
|
10
|
||||
|
31
|
6/25/2010
|
7/25/2010
|
7,187,298.78
|
10
|
||||
|
32
|
7/25/2010
|
8/25/2010
|
6,929,096.74
|
10
|
||||
|
33
|
8/25/2010
|
9/25/2010
|
6,583,068.67
|
10
|
||||
|
34
|
9/25/2010
|
10/25/2010
|
5,996,077.08
|
10
|
||||
|
35
|
10/25/2010
|
11/25/2010
|
5,744,564.57
|
10
|
||||
|
36
|
11/25/2010
|
12/25/2010
|
5,544,686.28
|
10
|
||||
|
37
|
12/25/2010
|
1/25/2011
|
5,351,693.25
|
10
|
||||
|
38
|
1/25/2011
|
2/25/2011
|
5,165,350.83
|
10
|
||||
|
39
|
2/25/2011
|
3/25/2011
|
4,985,432.28
|
10
|
||||
|
40
|
3/25/2011
|
4/25/2011
|
4,811,718.50
|
10
|
||||
|
41
|
4/25/2011
|
5/25/2011
|
4,643,997.75
|
10
|
||||
|
42
|
5/25/2011
|
6/25/2011
|
4,482,065.46
|
10
|
||||
|
43
|
6/25/2011
|
7/25/2011
|
4,325,723.92
|
10
|
||||
|
44
|
7/25/2011
|
8/25/2011
|
4,173,921.65
|
10
|
||||
|
45
|
8/25/2011
|
9/25/2011
|
4,019,999.98
|
10
|
||||
|
46
|
9/25/2011
|
10/25/2011
|
3,868,572.55
|
10
|
||||
|
47
|
10/25/2011
|
11/25/2011
|
3,732,465.30
|
10
|
||||
|
48
|
11/25/2011
|
12/25/2011
|
3,602,050.78
|
10
|
||||
|
49
|
12/25/2011
|
1/25/2012
|
3,476,144.50
|
10
|
||||
|
50
|
1/25/2012
|
2/25/2012
|
3,353,721.71
|
10
|
||||
|
51
|
2/25/2012
|
3/25/2012
|
3,228,056.20
|
10
|
||||
|
52
|
3/25/2012
|
4/25/2012
|
3,104,123.79
|
10
|
||||
|
53
|
4/25/2012
|
5/25/2012
|
2,994,660.60
|
10
|
||||
|
54
|
5/25/2012
|
6/25/2012
|
2,889,975.03
|
10
|
||||
|
55
|
6/25/2012
|
7/25/2012
|
2,788,908.01
|
10
|
||||
|
56
|
7/25/2012
|
8/25/2012
|
2,690,840.08
|
10
|
||||
|
57
|
8/25/2012
|
9/25/2012
|
2,591,891.89
|
10
|
||||
|
58
|
9/25/2012
|
10/25/2012
|
2,494,884.18
|
10
|
||||
|
59
|
10/25/2012
|
11/25/2012
|
2,407,040.66
|
10
|
||||
|
60
|
11/25/2012
|
12/25/2012
|
2,322,800.48
|
10
|
||||
|
61
|
12/25/2012
|
Termination
Date
|
2,241,474.37
|
10
|
||||
EXHIBIT
U
PURCHASE
AGREEMENT
EXECUTION
COPY
SIXTH
AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND
WARRANTIES
AGREEMENT
_______________
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.,
Purchaser
NC
CAPITAL CORPORATION,
Seller
_______________
Dated
as
of May 1, 2006
Conventional,
Fixed
and
Adjustable Rate, B/C Residential Mortgage Loans
TABLE
OF
CONTENTS
|
SECTION
1.
|
DEFINITIONS.
|
|
SECTION
2.
|
AGREEMENT
TO PURCHASE.
|
|
SECTION
3.
|
MORTGAGE
SCHEDULES.
|
|
SECTION
4.
|
PURCHASE
PRICE.
|
|
SECTION
5.
|
EXAMINATION
OF MORTGAGE FILES.
|
|
SECTION
6.
|
CONVEYANCE
FROM SELLER TO PURCHASER.
|
|
SECTION
7.
|
SERVICING
OF THE MORTGAGE LOANS.
|
|
SECTION
8.
|
TRANSFER
OF SERVICING.
|
|
SECTION
9.
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SELLER; REMEDIES FOR
BREACH.
|
|
SECTION
10.
|
CLOSING.
|
|
SECTION
11.
|
CLOSING
DOCUMENTS.
|
|
SECTION
12.
|
COSTS.
|
|
SECTION
13.
|
COOPERATION
OF SELLER WITH A RECONSTITUTION.
|
|
SECTION
14.
|
THE
SELLER.
|
|
SECTION
15.
|
FINANCIAL
STATEMENTS.
|
|
SECTION
16.
|
MANDATORY
DELIVERY; GRANT OF SECURITY INTEREST.
|
|
SECTION
17.
|
NOTICES.
|
|
SECTION
18.
|
SEVERABILITY
CLAUSE.
|
|
SECTION
19.
|
COUNTERPARTS.
|
|
SECTION
20.
|
GOVERNING
LAW.
|
|
SECTION
21.
|
INTENTION
OF THE PARTIES.
|
|
SECTION
22.
|
SUCCESSORS
AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT.
|
|
SECTION
23.
|
WAIVERS.
|
|
SECTION
24.
|
EXHIBITS.
|
|
SECTION
25.
|
GENERAL
INTERPRETIVE PRINCIPLES.
|
|
SECTION
26.
|
REPRODUCTION
OF DOCUMENTS.
|
|
SECTION
27.
|
FURTHER
AGREEMENTS.
|
|
SECTION
28.
|
RECORDATION
OF ASSIGNMENTS OF MORTGAGE.
|
|
SECTION
29.
|
NO
SOLICITATION.
|
|
SECTION
30.
|
WAIVER
OF TRIAL BY JURY.
|
|
SECTION
31.
|
SUBMISSION
TO JURISDICTION; WAIVERS.
|
|
SECTION
32.
|
COMPLIANCE
WITH REGULATION AB.
|
EXHIBITS
|
EXHIBIT
A
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
B
|
[RESERVED]
|
|
EXHIBIT
C
|
FORM
OF SELLER’S OFFICER’S CERTIFICATE
|
|
EXHIBIT
D
|
FORM
OF OPINION OF COUNSEL TO THE SELLER AND
ORIGINATOR
|
|
EXHIBIT
E
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
F
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
G
|
UNDERWRITING
GUIDELINES
|
|
EXHIBIT
H
|
FORM
OF ASSIGNMENT AND CONVEYANCE
AGREEMENT
|
SIXTH
AMENDED AND RESTATED MORTGAGE LOAN
PURCHASE
AND WARRANTIES AGREEMENT
This
SIXTH AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
(the
“Agreement”),
dated
as of May 1, 2006, by and between Xxxxxx Xxxxxxx Mortgage Capital Inc., a
New York corporation, having an office at 0000 Xxxxxxxx, 0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the “Purchaser”)
and NC
Capital Corporation, a California corporation, having an office at 00000
Xxx
Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000 (the “Seller”).
W I T N E S S E T H:
WHEREAS,
the Purchaser and the Seller are parties to that certain Sixth Amended and
Restated Mortgage Loan Purchase and Warranties Agreement, dated as of March
1,
2006 (the “Original
Purchase Agreement”),
pursuant to which the Seller may sell, from time to time, to the Purchaser,
and
the Purchaser may purchase, from time to time, from the Seller, certain
conventional adjustable and fixed rate B/C, residential first and second
mortgage loans (the “Mortgage
Loans”)
as
described therein, and which shall be delivered in pools of whole loans (each,
a
“Mortgage
Loan Package”)
on
various dates as provided therein (each, a “Closing
Date”);
WHEREAS,
at the present time, the Purchaser and the Seller desire to amend and restate
the Original Purchase Agreement to make certain modifications as set forth
herein, and upon the execution and delivery of this Agreement by the Purchaser
and the Seller this Agreement shall supercede the Original Purchase Agreement
and supplant the Original Purchase Agreement;
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
| SECTION 1. |
Definitions.
|
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
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 and incorporating the Delinquency Collection Policies and
Procedures.
Act:
The
National Housing Act, as amended from time to time.
Adjustable
Rate Mortgage Loan:
An
adjustable rate Mortgage Loan purchased pursuant to this Agreement.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Agency
Transfer:
A
Xxxxxx Xxx Transfer or a Xxxxxxx Mac Transfer.
Agreement:
This
Sixth Amended and Restated Mortgage Loan Purchase and Warranties Agreement
and
all amendments hereof and supplements hereto.
ALTA:
The
American Land Title Association or any successor thereto.
Ancillary
Income:
All
late charges, assumption fees, escrow account benefits, reinstatement fees,
and
similar types of fees arising from or in connection with any Mortgage, to
the
extent not otherwise payable to the Mortgagor under applicable law or pursuant
to the terms of the related Mortgage Note.
Appraised
Value:
The
value set forth in an appraisal made in connection with the origination of
the
related Mortgage Loan as the value of the Mortgaged Property.
Assignment
and Conveyance Agreement:
As
defined in Subsection 6.01.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage
to the
Purchaser.
Balloon
Mortgage Loan:
Any
Mortgage Loan which by its original terms or any modifications thereof provides
for amortization beyond its scheduled maturity date.
BIF:
The
Bank Insurance Fund, or any successor thereto.
Business
Day:
Any day
other than (i) a Saturday or Sunday, (ii) a day on which banking and
savings and loan institutions, in the State of New York or the State in which
the Originator’s servicing operations are located or (iii) the state in
which the Custodian’s operations are located, are authorized or obligated by law
or executive order to be closed.
Closing
Date:
The
date or dates on which the Purchaser from time to time shall purchase, and
the
Seller from time to time shall sell, the Mortgage Loans listed on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
CLTV:
As of
any date and as to any Second Lien Loan, the ratio, expressed as a percentage,
of the (a) sum of (i) the outstanding principal balance of the Second Lien
Loan
and (ii) the outstanding principal balance as of such date of any mortgage
loan
or mortgage loans that are senior or equal in priority to the Second Lien
Loan
and which are secured by the same Mortgaged Property to (b) the Appraised
Value
as determined pursuant to the Underwriting Guidelines of the related Mortgaged
Property as of the origination of the Second Lien Loan.
Code:
Internal Revenue Code of 1986, as amended.
Commission:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds: All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Convertible
Mortgage Loan:
Any
individual Adjustable Rate Mortgage Loan purchased pursuant to this Agreement
which contains a provision whereby the Mortgagor is permitted to convert
the
Adjustable Rate Mortgage Loan to a Fixed Rate Mortgage Loan in accordance
with
the terms of the related Mortgage Note.
Covered
Loan:
A
Mortgage Loan categorized as Covered pursuant to Appendix E of Standard &
Poor’s Glossary.
Custodial
Account:
The
separate trust account created and maintained pursuant to Section 2.04 of
the
Servicing Agreement (with respect to each Mortgage Loan, as specified
therein).
Custodial
Agreement:
The
agreement(s) governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents. If more
than
one Custodial Agreement is in effect at any given time, all of the individual
Custodial Agreements shall collectively be referred to as the “Custodial
Agreement”.
Custodian:
Deutsche Bank Trust Company Americas, or the Custodian’s successor in interest
or permitted assigns, or any successor to the Custodian under the Custodial
Agreement as therein provided.
Cut-off
Date:
The
date or dates designated as such on the related Mortgage Loan Schedule with
respect to the related Mortgage Loan Package.
Deemed
Material and Adverse Representation:
Each
representation and warranty identified as such in Subsection 9.02
of this
Agreement.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased or replaced or to be replaced with a Qualified
Substitute Mortgage Loan by the Seller in accordance with the terms of this
Agreement.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date: The
date
specified in the Servicing Agreement (with respect to each Mortgage Loan,
for an
interim period, as specified therein).
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace.
Due
Period:
With
respect to each Remittance Date and any Mortgage Loan, the period commencing
on
the day immediately succeeding the Due Date for such Mortgage Loan occurring
in
the month preceding the month of the Remittance Date and ending on the next
Due
Date.
Equity
Take-Out Refinanced Mortgage Loan:
A
Mortgage Loan used to refinance an existing mortgage loan, the proceeds of
which
were in excess of the outstanding principal balance of the existing mortgage
loan.
Escrow
Account:
The
separate account created and maintained pursuant to Section 2.06 of the
Servicing Agreement (with respect to each Mortgage Loan, as specified
therein).
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Xxxxxx
Xxx:
Xxxxxx
Xxx, f/k/a the Federal National Mortgage Association, or any successor
thereto.
Xxxxxx
Mae Guides:
The
Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae Servicers’ Guide and all amendments
or additions thereto.
Xxxxxx
Xxx Transfer:
As
defined in Section
13
hereof.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHA:
The
Federal Housing Administration, an agency within the United States Department
of
Housing and Urban Development, or any successor thereto and including the
Federal Housing Commissioner and the Secretary of Housing and Urban Development
where appropriate under the FHA Regulations.
FHA
Approved Mortgagee:
A
corporation or institution approved as a mortgagee by the FHA under the Act,
and
applicable HUD regulations, and eligible to own and service mortgage loans
such
as the FHA mortgage loans.
First
Lien Loan:
A
Mortgage Loan secured by a first lien Mortgage on the related Mortgaged
Property.
Fitch:
Fitch,
Inc., or its successor in interest.
Fixed
Rate Mortgage Loan:
A fixed
rate mortgage loan purchased pursuant to this Agreement.
Xxxxxxx
Mac:
Xxxxxxx
Mac, f/k/a the Federal Home Loan Mortgage Corporation, or any successor
thereto.
Xxxxxxx
Mac Transfer:
As
defined in Section
13
hereof.
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note which amount is added to the Index in
accordance with the terms of the related Mortgage Note to determine on each
Interest Rate Adjustment Date the Mortgage Interest Rate for such Mortgage
Loan.
High
Cost Loan:
A
Mortgage Loan (a) covered by the Home Ownership and Equity Protection Act
of 1994 (“HOEPA”),
(b)
with an “annual percentage rate” or total “points and fees” payable by the
related Mortgagor (as each such term is calculated under HOEPA) that exceed
the
thresholds set forth by HOEPA and its implementing regulations, including
12
C.F.R. § 226.32(a)(1)(i) and (ii), (c) classified as a “high cost home,”
“threshold,” “covered,” (excluding New Jersey “Covered Home Loans” as that term
was defined in clause (1) of the definition of that term in the New Jersey
Home Ownership Security Act of 2002 that were originated between November
26,
2003 and July 7, 2004), “high risk home,” “predatory” or similar 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) or (d) categorized as High Cost pursuant
to
Appendix E of Standard & Poor’s Glossary. For avoidance of doubt, the
parties agree that this definition shall apply to any law regardless of whether
such law is presently, or in the future becomes, the subject of judicial
review
or litigation.
Home
Loan:
A
Mortgage Loan categorized as Home Loan pursuant to Appendix E of Standard
&
Poor’s Glossary.
HUD:
The
Department of Housing and Urban Development, or any federal agency or official
thereof which may from time to time succeed to the functions thereof with
regard
to FHA Mortgage Insurance. The term “HUD,”
for
purposes of this Agreement, is also deemed to include subdivisions thereof
such
as the FHA and Government National Mortgage Association.
Index:
The
index indicated in the related Mortgage Note for each Adjustable Rate Mortgage
Loan.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Insured
Depository Institution:
Insured
Depository Institution shall have the meaning ascribed to such term by Section
1813(c)(2) of Title 12 of the United States Code, as amended from time to
time.
Interest
Rate Adjustment Date:
With
respect to each Adjustable Rate Mortgage Loan, the date, specified in the
related Mortgage Note and the related Mortgage Loan Schedule, on which the
Mortgage Interest Rate is adjusted.
Lifetime
Rate Cap:
The
provision of each Mortgage Note related to an Adjustable Rate Mortgage Loan
which provides for an absolute maximum Mortgage Interest Rate thereunder.
The
Mortgage Interest Rate during the terms of each Adjustable Rate Mortgage
Loan
shall not at any time exceed the Mortgage Interest Rate at the time of
origination of such Adjustable Rate Mortgage Loan by more than the Lifetime
Rate
Cap set forth as an amount per annum on the related Mortgage Loan
Schedule.
Limited
Documentation Program:
The
guidelines under which the Originator generally originates Mortgage Loans
principally on the basis of the Loan-to-Value Ratio of the related Mortgage
Loan
and the creditworthiness of the Mortgagor.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio
or
LTV:
With
respect to any Mortgage Loan, the ratio (expressed as a percentage) of the
outstanding principal amount of the Mortgage Loan as of the related Cut-off
Date
(unless otherwise indicated), to the lesser of (a) the Appraised Value of
the Mortgaged Property at origination and (b) if the Mortgage Loan was made
to finance the acquisition of the related Mortgaged Property, the purchase
price
of the Mortgaged Property.
Manufactured
Home:
A
single family residential unit that is constructed in a factory in sections
in
accordance with the Federal Manufactured Home Construction and Safety Standards
adopted on July 15, 1976, by the Department of Housing and Urban Development
(“HUD
Code”),
as
amended in 2000, which preempts state and local building codes. Each unit
is
identified by the presence of a HUD Plate/Compliance Certificate label. The
sections are then transported to the site and joined together and affixed
to a
pre-built permanent foundation (which satisfies the manufacturer’s requirements
and all state, county, and local building codes and regulations). The
manufactured home is built on a non-removable, permanent frame chassis that
supports the complete unit of walls, floors, and roof. The underneath part
of
the home may have running gear (wheels, axles, and brakes) that enable it
to be
transported to the permanent site. The wheels and hitch are removed prior
to
anchoring the unit to the permanent foundation. The manufactured home must
be
classified as real estate and taxed accordingly. The permanent foundation
may be
on land owned by the Mortgagor or may be on leased land.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Moody’s:
Xxxxx’x
Investors Service, Inc., and any successor thereto.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first lien, in the case of a First Lien Loan, or a second lien,
in the
case of a Second Lien Loan, on an unsubordinated estate in fee simple in
real
property securing the Mortgage Note; except that with respect to real property
located in jurisdictions in which the use of leasehold estates for residential
properties is a widely-accepted practice, the mortgage, deed of trust or
other
instrument securing the Mortgage Note may secure and create, with respect
to a
First Lien Loan, a first lien, and with respect to a Second Lien Loan, a
second
lien, in each case, upon a leasehold estate of the Mortgagor.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to in Exhibit A
annexed
hereto, and any additional documents required to be added to the Mortgage
File
pursuant to this Agreement.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note with respect to each Mortgage
Loan.
Mortgage
Interest Rate Cap:
With
respect to an Adjustable Rate Mortgage Loan, the limit on each Mortgage Interest
Rate adjustment as set forth in the related Mortgage Note.
Mortgage
Loan:
An
individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
applicable Mortgage Loan Schedule, which Mortgage Loan includes without
limitation the Mortgage File, the Monthly Payments, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, Servicing
Rights and all other rights, benefits, proceeds and obligations arising from
or
in connection with such Mortgage Loan, excluding replaced or repurchased
mortgage loans.
Mortgage
Loan Documents:
The
documents required to be delivered to the Custodian pursuant to Subsection 6.03
hereof
with respect to any Mortgage Loan.
Mortgage
Loan Package:
Each
pool of Mortgage Loans, which shall be purchased by the Purchaser from the
Seller from time to time on each Closing Date.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans setting forth the following information with respect
to each Mortgage Loan in the related Mortgage Loan Package: (1) the Seller’s
Mortgage Loan identifying number; (2) the Mortgagor’s name; (3) the street
address of the Mortgaged Property including the city, state and zip code;
(4) a
code indicating whether the Mortgagor is self-employed; (5) a code indicating
whether the Mortgaged Property is owner-occupied; (6) the number and type
of
residential units constituting the Mortgaged Property; (7) the original months
to maturity or the remaining months to maturity from the related Cut-off
Date,
in any case based on the original amortization schedule and, if different,
the
maturity expressed in the same manner but based on the actual amortization
schedule; (8) with respect to each First Lien Loan, the Loan-to-Value Ratio
at
origination, and with respect to each Second Lien Loan, the CLTV at origination;
(9) the Mortgage Interest Rate as of the related Cut-off Date; (10) the date
on
which the Monthly Payment was due on the Mortgage Loan and, if such date
is not
consistent with the Due Date currently in effect, such Due Date; (11) the
stated
maturity date; (12) the first payment date; (13) the amount of the Monthly
Payment as of the related Cut-off Date; (14) the last payment date on which
a
payment was actually applied to the outstanding principal balance; (15) the
original principal amount of the Mortgage Loan; (16) the principal balance
of
the Mortgage Loan as of the close of business on the related Cut-off Date,
after
deduction of payments of principal due and collected on or before the related
Cut-off Date; (17) with respect to each Second Lien Loan and First Lien Loan
with a second lien behind it, the combined principal balance of the Mortgage
Loan as of the close of business on the related Cut-off Date, after deduction
of
payments of principal due and collected on or before the related Cut-off
Date;
(18) a code indicating whether there is a simultaneous second; (19) delinquency
status as of the related Cut-off Date; (20) with respect to each Adjustable
Rate
Mortgage Loan, the Interest Rate Adjustment Date; (21) with respect to each
Adjustable Rate Mortgage Loan, the Gross Margin; (22) with respect to each
Adjustable Rate Mortgage Loan , the Lifetime Rate Cap under the terms of
the
Mortgage Note; (23) with respect to each Adjustable Rate Mortgage Loan, a
code
indicating the type of Index; (24) the type of Mortgage Loan (i.e., Fixed
Rate
or Adjustable Rate Mortgage Loan, First or Second Lien Loan); (25) a code
indicating the purpose of the loan (i.e., purchase, rate and term refinance,
equity take-out refinance); (26) a code indicating the documentation style
(i.e., full, alternative or reduced); (27) the loan credit classification
(as
described in the Underwriting Guidelines); (28) whether such Mortgage Loan
provides for a prepayment penalty and, if applicable, the prepayment penalty
period; (29) the Mortgage Interest Rate as of origination; (30) the credit
risk
score (FICO score); (31) the date of origination; (32) with respect to each
Adjustable Rate Mortgage Loan, the Mortgage Interest Rate adjustment period;
(33) with respect to each Adjustable Rate Mortgage Loan, the Mortgage Interest
Rate adjustment percentage; (34) with respect to each Adjustable Rate Mortgage
Loan, the Mortgage Interest Rate floor; (35) with respect to each Adjustable
Rate Mortgage Loan, the Mortgage Interest Rate Cap as of the first Interest
Rate
Adjustment Date; (36) with respect to each Adjustable Rate Mortgage Loan,
the
Periodic Rate Cap subsequent to the first Interest Rate Adjustment Date;
(37) a
code indicating whether the Mortgage Loan is a High Cost Loan; (38) a code
indicating whether the Mortgage Loan is a Balloon Mortgage Loan; (39) the
Due
Date for the first Monthly Payment; (40) the original Monthly Payment due;
(41)
with respect to the related Mortgagor, the debt-to-income ratio; (42) sales
price; (43) Appraised Value; (44) appraisal type; (45) appraisal date; and
(46)
a code indicating whether the Mortgage Loan is a Home Loan. With respect
to the
Mortgage Loans in the aggregate, the Mortgage Loan Schedule shall set forth
the
following information, as of the related Cut-off Date: (1) the number of
Mortgage Loans; (2) the current aggregate outstanding principal balance of
the
Mortgage Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage
Loans; (4) the weighted average maturity of the Mortgage Loans; (5) the
applicable Cut-off Date; and (6) the applicable Closing Date.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage.
Mortgaged
Property:
With
respect to each Mortgage Loan, the real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by the related Mortgage
Note.
Mortgagor:
The
obligor on a Mortgage Note.
Non-Convertible
Mortgage Loan:
Any
individual Adjustable Rate Mortgage Loan purchased pursuant to this Agreement
which does not contain a provision pursuant to which the Mortgagor may convert
the Adjustable Rate Mortgage Loan to a Fixed Rate Mortgage Loan.
Nonrecoverable
Advance:
Any
advance previously made or proposed to be made in respect of a Mortgage Loan
which, in the good faith judgment of the Originator, will not or, in the
case of
a proposed advance, would not, be ultimately recoverable from related Insurance
Proceeds, Liquidation Proceeds or otherwise. The determination by the Originator
that it has made a Nonrecoverable Advance or that any proposed advance of
principal and interest, if made, would constitute a Nonrecoverable Advance,
shall be evidenced by an Officers’ Certificate delivered to the
Purchaser.
OCC:
Office
of the Comptroller of the Currency, and any successor thereto.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or a President or a Vice President and by the Treasurer or the Secretary
or one of the Assistant Treasurers or Assistant Secretaries of the Seller,
and
delivered to the Purchaser as required by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for the Seller, reasonably
acceptable to the Purchaser, provided that any Opinion of Counsel relating
to
(a) the qualification of any account required to be maintained pursuant to
this Agreement as an Eligible Account, (b) qualification of the Mortgage
Loans in a REMIC or (c) compliance with the REMIC Provisions, must be
(unless otherwise stated in such Opinion of Counsel) an opinion of counsel
who
(i) is in fact independent of the Seller and any servicer of the Mortgage
Loans, (ii) does not have any material direct or indirect financial
interest in the Seller or any servicer of the Mortgage Loans or in an Affiliate
of either and (iii) is not connected with the Seller or any servicer of the
Mortgage Loans as an officer, employee, director or person performing similar
functions.
Originator:
New
Century Mortgage Corporation, its successors in interest and
assigns.
Periodic
Rate Cap:
The
provision of each Mortgage Note related to an Adjustable Rate Mortgage Loan
which provides for an absolute maximum amount by which the Mortgage Interest
Rate therein may increase or decrease on an Interest Rate Adjustment Date
above
or below the Mortgage Interest Rate previously in effect. The Periodic Rate
Cap
for each Adjustable Rate Mortgage Loan is the rate set forth as such on the
related Mortgage Loan Schedule.
Person:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Preliminary
Mortgage Schedule:
As
defined in Section
3.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any prepayment penalty or premium
thereon and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Purchase
Price:
The
price paid on the related Closing Date by the Purchaser to the Seller in
exchange for the Mortgage Loans purchased on such Closing Date as calculated
in
Section
4
of this
Agreement.
Purchase
Price and Terms Agreement:
Those
certain agreements setting forth the general terms and conditions of the
transactions consummated herein and identifying the Mortgage Loans to be
purchased from time to time hereunder, by and between the Seller, the Originator
and the Purchaser.
Purchaser:
Xxxxxx
Xxxxxxx Mortgage Capital Inc., or its successor in interest or assigns or
any
successor to the Purchaser under this Agreement as herein provided.
Qualified
Appraiser:
An
appraiser, duly appointed by the Seller or the Originator, who had no interest,
direct or indirect, in the Mortgaged Property or in any loan made on the
security thereof, and whose compensation was not affected by the approval
or
disapproval of the Mortgage Loan, and such appraiser and the appraisal made
by
such appraiser both satisfied the requirements of Title XI of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Correspondent:
Any
Person from which the Seller purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Seller, in accordance with underwriting guidelines designated by the
Seller
(“Designated
Guidelines”)
or
guidelines that do not vary materially from such Designated Guidelines; (ii)
such Mortgage Loans were in fact underwritten as described in clause (i)
above
and were acquired by the Seller within 180 days after origination; (iii)
either
(x) the Designated Guidelines were, at the time such Mortgage Loans were
originated, used by the Seller in origination of mortgage loans of the same
type
as the Mortgage Loans for the Seller’s own account or (y) the Designated
Guidelines were, at the time such Mortgage Loans were underwritten, designated
by the Seller on a consistent basis for use by lenders in originating mortgage
loans to be purchased by the Seller; and (iv) the Seller employed, at the
time
such Mortgage Loans were acquired by the Seller, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review
of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Seller.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in
which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, approved as an insurer by Xxxxxx Mae and Xxxxxxx Mac and whose
claims
paying ability is rated in the highest rating category by any of the Rating
Agencies with respect to primary mortgage insurance and in the two highest
rating categories by Best’s with respect to hazard and flood insurance (or such
other rating as may be required by a Rating Agency in connection with a
Securitization Transaction in order to achieve the desired ratings for the
securities to be issued in connection with such Securitization
Transaction).
Qualified
Substitute Mortgage Loan:
A
mortgage loan eligible to be substituted by the Seller for a Deleted Mortgage
Loan which must, on the date of such substitution, (i) have an outstanding
principal balance, after deduction of all scheduled payments 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
the outstanding principal balance of the Deleted Mortgage Loan (the amount
of
any shortfall will be deposited in the Custodial Account by the Seller in
the
month of substitution); (ii) have a Mortgage Interest Rate not less than
and not more than 1% greater than the Mortgage Interest Rate of the Deleted
Mortgage Loan; (iii) have a remaining term to maturity not greater than and
not more than one year less than that of the Deleted Mortgage Loan; (iv) be
of the same type as the Deleted Mortgage Loan (i.e., fixed rate or adjustable
rate with same Mortgage Interest Rate Caps); and (v) comply with each
representation and warranty (respecting individual Mortgage Loans) set forth
in
Section
9
hereof.
Rating
Agency:
Any of
Fitch, Moody’s or Standard & Poor’s, or their respective successors
designated by the Purchaser.
Reconstitution:
A Whole
Loan Transfer or a Securitization Transaction.
Reconstitution
Agreements:
The
agreement or agreements entered into by the Seller and/or the Originator
and the
Purchaser and/or certain third parties on the Reconstitution Date or Dates
with
respect to any or all of the Mortgage Loans sold hereunder, in connection
with a
Whole Loan Transfer, Agency Transfer or a Securitization Transaction pursuant
to
Section 13,
including, but not limited to, a seller’s warranties and servicing agreement
with respect to a Whole Loan Transfer, and a pooling and servicing agreement
and/or seller/servicer agreements and related custodial/trust agreement and
documents with respect to a Securitization Transaction.
Reconstitution
Date:
As
defined in Section
13.
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.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the
Code,
and related provisions and regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Date:
The
date specified in the Servicing Agreement (with respect to each Mortgage
Loan,
as specified therein).
Repurchase
Price:
As
defined in the related Purchase Price and Terms Agreement.
RESPA:
Real
Estate Settlement Procedures Act, as amended from time to time.
Second
Lien Loan:
A
Mortgage Loan secured by a second lien Mortgage on the related Mortgaged
Property.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Seller:
NC
Capital Corporation, its successors in interest and assigns.
Seller
Information:
As
defined in Subsection
32.04(a).
Servicing
Agreement:
The
Amended and Restated Interim Servicing Agreement, dated as of December 1,
2005,
between the Purchaser and the Originator, providing for the Originator to
service the Mortgage Loans as specified in the Servicing Agreement.
Servicing
Fee:
With
respect to each Mortgage Loan subject to the Servicing Agreement, a fee payable
monthly equal to one-twelfth of the product of (a) the Servicing Fee Rate
and (b) the outstanding principal balance of such Mortgage Loan. Such fee
shall be payable monthly and shall be pro-rated for any portion of a month
during which the Mortgage Loan is serviced by the Originator under the Servicing
Agreement. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds,
to the
extent permitted by this Agreement) of such Monthly Payment collected by
the
Originator, or as otherwise provided under this Agreement.
Servicing
Fee Rate:
An
amount per annum as set forth in the Servicing Agreement.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Originator consisting
of
originals of all documents in the Mortgage File which are not delivered to
the
Purchaser or the Custodian and copies of the Mortgage Loan Documents set
forth
in Section 2 of the Custodial Agreement.
Servicing
Rights:
Any and
all of the following: (a) any and all rights to service the Mortgage Loans;
(b) any payments to or monies received by the Seller for servicing the
Mortgage Loans; (c) any late fees, penalties or similar payments with
respect to the Mortgage Loans; (d) all agreements or documents creating,
defining or evidencing any such servicing rights to the extent they relate
to
such servicing rights and all rights of the Seller thereunder; (e) Escrow
Payments or other similar payments with respect to the Mortgage Loans and
any
amounts actually collected by the Seller with respect thereto; (f) all
accounts and other rights to payment related to any of the property described
in
this paragraph; and (g) any and all documents, files, records, servicing
files, servicing documents, servicing records, data tapes, computer records,
or
other information pertaining to the Mortgage Loans or pertaining to the past,
present or prospective servicing of the Mortgage Loans.
Sponsor:
The
sponsor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Standard
& Poor’s:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies
Inc., and any successor thereto.
Standard
& Poor’s Glossary:
The
Standard & Poor’s LEVELS® Glossary, as may be in effect from time to
time.
Stated
Principal Balance:
As to
each Mortgage Loan on any date of determination, (i) the principal balance
of such Mortgage Loan at the related Cut-off Date after giving effect to
payments of principal due on or before such date, to the extent actually
received, minus (ii) all amounts previously distributed to the Purchaser
with respect to the related Mortgage Loan representing payments or recoveries
of
principal on such Mortgage Loan.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Successor
Servicer:
Any
servicer of one or more Mortgage Loans designated by the Purchaser as being
entitled to the benefits of the indemnifications set forth in Sections 9.03
and
14.01.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Seller.
Transfer
Date:
The
date on which the Purchaser, or its designee, shall receive the transfer
of
servicing responsibilities and begin to perform the servicing of the Mortgage
Loans with respect to the related Mortgage Loan Package, and the Seller shall
cease all servicing responsibilities. Such date shall occur on the day indicated
by the Purchaser to the Seller in accordance with the Servicing
Agreement.
Underwriting
Guidelines:
The
underwriting guidelines of the Originator, a copy of which is attached hereto
as
Exhibit G
and a
then-current copy of which shall be attached as an exhibit to the related
Assignment and Conveyance.
VA
Approved Lender:
Those
lenders which are approved by the VA to act as a lender in connection with
the
origination of VA mortgage loans.
Whole
Loan Agreement:
Any
Reconstitution Agreement in respect of a Whole Loan Transfer.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
| SECTION 2. |
Agreement
to Purchase.
|
The
Seller agrees to sell from time to time, and the Purchaser agrees to purchase
from time to time, Mortgage Loans having an aggregate principal balance on
the
related Cut-off Date in an amount as set forth in the related Purchase Price
and
Terms Agreement, or in such other amount as agreed by the Purchaser and the
Seller as evidenced by the actual aggregate principal balance of the Mortgage
Loans accepted by the Purchaser on each Closing Date.
| SECTION 3. |
Mortgage
Schedules.
|
The
Seller from time to time shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans to be purchased
on each
Closing Date in accordance with the related Purchase Price and Terms Agreement
and this Agreement (each, a “Preliminary
Mortgage Schedule”).
The
Seller is obligated to deliver those Mortgage Loans owned by the Seller and
funded by the Originator pursuant to the original terms of the Originator’s
commitment to the mortgagor. The Seller shall deliver the related Mortgage
Loan
Schedule for the Mortgage Loans to be purchased on a particular Closing Date
to
the Purchaser at least two (2) Business Days prior to the related Closing
Date.
The related Mortgage Loan Schedule shall be the related Preliminary Mortgage
Schedule with those Mortgage Loans which have not been funded prior to the
related Closing Date deleted.
| SECTION 4. |
Purchase
Price.
|
The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the related Purchase Price and Terms Agreement (subject to adjustment
as
provided therein), multiplied by the aggregate principal balance, as of the
related Cut-off Date, of the Mortgage Loans listed on the related Mortgage
Loan
Schedule, after application of scheduled payments of principal due on or
before
the related Cut-off Date, but only to the extent such payments were actually
received. The initial principal amount of the related Mortgage Loans shall
be
the aggregate principal balance of the Mortgage Loans, so computed as of
the
related Cut-off Date. If so provided in the related Purchase Price and Terms
Agreement, portions of the Mortgage Loans shall be priced
separately.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Seller, at closing, accrued interest on the current principal amount
of the
related Mortgage Loans as of the related Cut-off Date at the weighted average
Mortgage Interest Rate of those Mortgage Loans. The Purchase Price plus accrued
interest as set forth in the preceding paragraph shall be paid to the Seller
by
wire transfer of immediately available funds to an account designated by
the
Seller in writing.
The
Purchaser shall be entitled to (l) all scheduled principal due after the
related Cut-off Date, (2) all other recoveries of principal collected on or
after the related Cut-off Date, and (3) all payments of interest on the
Mortgage Loans net of applicable Servicing Fees (minus that portion of any
such
payment which is allocable to the period prior to the related Cut-off Date).
The
outstanding principal balance of each Mortgage Loan as of the related Cut-off
Date is determined after application of payments of principal due on or before
the related Cut-off Date, to the extent actually collected, together with
any
unscheduled principal prepayments collected prior to such Cut-off Date;
provided, however, that payments of scheduled principal and interest paid
prior
to such Cut-off Date, but to be applied on a Due Date beyond the related
Cut-off
Date shall not be applied to the principal balance as of the related Cut-off
Date. Such prepaid amounts shall be the property of the Purchaser. The Seller
shall deposit any such prepaid amounts into the Custodial Account, which
account
is established for the benefit of the Purchaser for subsequent remittance
by the
Seller to the Purchaser.
| SECTION 5. |
Examination
of Mortgage Files.
|
At
least
three (3) Business Days prior to the related Closing Date, the Seller shall
(a) deliver to the Purchaser or its designee in escrow, for examination
with respect to each Mortgage Loan to be purchased, the related Mortgage
File,
including a copy of the Assignment of Mortgage, pertaining to each Mortgage
Loan, or (b) make the related Mortgage File available to the Purchaser for
examination at such other location as shall otherwise be acceptable to the
Purchaser. Such examination may be made by the Purchaser or its designee
at any
reasonable time before or after the related Closing Date. If the Purchaser
makes
such examination prior to the related Closing Date and determines, in its
sole
discretion, that any Mortgage Loans are unacceptable to the Purchaser for
any
reason, such Mortgage Loans shall be deleted from the related Mortgage Loan
Schedule, and may be replaced by a Qualified Substitute Mortgage Loan (or
Loans)
acceptable to the Purchaser. The Purchaser may, at its option and without
notice
to the Seller, purchase some or all of the Mortgage Loans without conducting
any
partial or complete examination. The fact that the Purchaser or its designee
has
conducted or has failed to conduct any partial or complete examination of
the
Mortgage Files shall not affect the Purchaser’s (or any of its successor’s)
rights to demand repurchase, substitution or other relief as provided
herein.
| SECTION 6. |
Conveyance
from Seller to Purchaser.
|
Subsection
6.01 Conveyance
of Mortgage Loans; Possession of Servicing Files.
The
Seller, simultaneously with the delivery of the Mortgage Loan Schedule with
respect to the related Mortgage Loan Package to be purchased on each Closing
Date, shall execute and deliver an Assignment and Conveyance Agreement in
the
form attached hereto as Exhibit H
(the
“Assignment
and Conveyance Agreement”).
The
Seller
shall cause the Servicing File retained by the Originator pursuant to this
Agreement to be appropriately identified in the Seller’s computer system and/or
books and records, as appropriate, to clearly reflect the sale of the related
Mortgage Loan to the Purchaser. The Seller shall cause the Originator to
release
from its custody the contents of any Servicing File retained by it only in
accordance with this Agreement or the Servicing Agreement, except when such
release is required in connection with a repurchase of any such Mortgage
Loan
pursuant to Subsection 9.03.
Subsection
6.02 Books
and Records.
Record
title to each Mortgage as of the related Closing Date shall be in the name
of
the Seller, an Affiliate of the Seller, the Purchaser or one or more designees
of the Purchaser, as the Purchaser shall select. Notwithstanding the foregoing,
each Mortgage and related Mortgage Note shall be possessed solely by the
Purchaser or the appropriate designee of the Purchaser, as the case may be.
All
rights arising out of the Mortgage Loans including, but not limited to, all
funds received by the Seller or the Originator after the related Cut-off
Date on
or in connection with a Mortgage Loan shall be vested in the Purchaser or
one or
more designees of the Purchaser; provided, however, that all funds received
on
or in connection with a Mortgage Loan shall be received and held by the Seller
or the Originator in trust for the benefit of the Purchaser or the appropriate
designee of the Purchaser, as the case may be, as the owner of the Mortgage
Loans pursuant to the terms of this Agreement.
The
sale
of each Mortgage Loan shall be reflected on the Seller’s balance sheet and other
financial statements as a sale of assets by the Seller.
The
Seller shall or shall cause the Originator to be responsible for maintaining,
and shall maintain, a complete set of books and records for each Mortgage
Loan
which shall be marked clearly to reflect the ownership of each Mortgage Loan
by
the Purchaser. In particular, the Seller shall or shall cause the Originator
to
maintain in its possession, available for inspection by the Purchaser, and
shall
deliver to the Purchaser upon demand, evidence of compliance with all federal,
state and local laws, rules and regulations, and requirements of Xxxxxx Xxx
or
Xxxxxxx Mac, including but not limited to documentation as to the method
used in
determining the applicability of the provisions of the National Flood Insurance
Act of 1968, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage and periodic inspection reports, as required by the Xxxxxx
Mae Guides. To the extent that original documents are not required for purposes
of realization of Liquidation Proceeds or Insurance Proceeds, documents
maintained by the Seller or Originator may be in the form of microfilm or
microfiche so long as the Seller or Originator complies with the requirements
of
the Xxxxxx Xxx Guides.
Subsection
6.03 Delivery
of Mortgage Loan Documents.
The
Seller shall deliver and release to the Custodian no later than three (3)
Business Days prior to the related Closing Date those Mortgage Loan Documents
set forth on Exhibit A
hereto
as required by the Custodial Agreement with respect to each Mortgage Loan
set
forth on the related Mortgage Loan Schedule.
The
Custodian shall certify its receipt of all such Mortgage Loan Documents required
to be delivered pursuant to the Custodial Agreement for the related Closing
Date, as evidenced by the Initial Certification of the Custodian in the form
annexed to the Custodial Agreement. The Seller shall comply with the terms
of
the Custodial Agreement and the Purchaser shall pay all fees and expenses
of the
Custodian.
The
Seller shall or shall cause the Originator to forward to the Custodian, or
to
such other Person as the Purchaser shall designate in writing, original
documents evidencing an assumption, modification, consolidation or extension
of
any Mortgage Loan entered into in accordance with this Agreement within two
weeks of their execution, provided, however, that the Seller shall provide the
Custodian, or to such other Person as the Purchaser shall designate in writing,
with a certified true copy of any such document submitted for recordation
within
two weeks of its execution, and shall promptly provide the original of any
document submitted for recordation or a copy of such document certified by
the
appropriate public recording office to be a true and complete copy of the
original within ninety days of its submission for recordation.
In
the
event any document required to be delivered to the Custodian in the Custodial
Agreement, including an original or copy of any document submitted for
recordation to the appropriate public recording office, is not so delivered
to
the Custodian, or to such other Person as the Purchaser shall designate in
writing, within 90 days following the related Closing Date (other than with
respect to the Assignments of Mortgage which shall be delivered to the Custodian
in blank and recorded subsequently by the Purchaser or its designee), and
in the
event that the Seller does not cure such failure within 30 days of discovery
or
receipt of written notification of such failure from the Purchaser, the related
Mortgage Loan shall, upon the request of the Purchaser, be repurchased by
the
Seller at the price and in the manner specified in Subsection
9.03.
The
foregoing repurchase obligation shall not apply in the event that the Seller
cannot deliver an original document submitted for recordation to the appropriate
public recording office within the specified period due to a delay caused
by the
recording office in the applicable jurisdiction; provided that the Seller
shall
instead deliver a recording receipt of such recording office or, if such
recording receipt is not available, an officer’s certificate of a servicing
officer of the Seller, confirming that such documents have been accepted
for
recording; provided that, upon request of the Purchaser and delivery by the
Purchaser to the Seller of a schedule of the related Mortgage Loans, the
Seller
shall reissue and deliver to the Purchaser or its designee said officer’s
certificate.
The
Seller shall pay all fees or costs in transferring all original documents
to the
Custodian or, upon written request of the Purchaser, to the Purchaser or
the
Purchaser’s designee. The Purchaser or the Purchaser’s designee shall be
responsible for paying for and recording the Assignments of
Mortgage.
Subsection
6.04 Quality
Control Procedures.
The
Seller shall, or shall cause the Originator to, have an internal quality
control
program that verifies, on a regular basis, the existence and accuracy of
the
legal documents, credit documents, property appraisals, and underwriting
decisions. The program shall include evaluating and monitoring the overall
quality of the Originator’s loan production and the servicing activities of the
Originator. The program is to ensure that the Mortgage Loans are originated
and
serviced in accordance with Accepted Servicing Standards and the Underwriting
Guidelines; guard against dishonest, fraudulent, or negligent
acts; and guard against errors and omissions by officers, employees, or other
authorized persons.
| SECTION 7. |
Servicing
of the Mortgage Loans.
|
The
Mortgage Loans have been sold by the Seller to the Purchaser on a servicing
released basis. Subject to, and upon the terms and conditions of this Agreement
and the Servicing Agreement (with respect to each Mortgage Loan, for an interim
period, as specified therein), the Seller hereby sells, transfers, assigns,
conveys and delivers to the Purchaser the Servicing Rights. The Purchaser
shall
retain the Originator as independent contract servicer of the Mortgage Loans
pursuant to and in accordance with the terms and conditions contained in
the
Servicing Agreement. Pursuant to the Servicing Agreement, the Originator
shall
begin servicing the Mortgage Loans on behalf of the Purchaser and shall be
entitled to the Servicing Fee and any Ancillary Income with respect to such
Mortgage Loans from the related Closing Date until the termination of the
Servicing Agreement with respect to any of the Mortgage Loans as set forth
in
the Servicing Agreement. The Seller shall cause the Originator to service
the
Mortgage Loans in accordance with the terms of the Servicing
Agreement.
| SECTION 8. |
Transfer
of Servicing.
|
On
the
applicable Transfer Date, the Purchaser, or its designee, shall assume all
servicing responsibilities related to, and the Seller shall cause the Originator
to cease all servicing responsibilities related to the related Mortgage Loans
subject to such Transfer Date. The Transfer Date shall be the date determined
in
accordance with Section 6.03 of the Servicing Agreement (with respect to
each Mortgage Loan, for an interim period, as specified therein).
On
or
prior to the applicable Transfer Date, the Seller shall cause the Originator
shall, at its sole cost and expense, take such steps as may be necessary
or
appropriate to effectuate and evidence the transfer of the servicing of the
related Mortgage Loans to the Purchaser, or its designee, including but not
limited to the following:
(a) Notice
to Mortgagors.
The
Seller shall cause the Originator to mail to the Mortgagor of each related
Mortgage Loan a letter advising such Mortgagor of the transfer of the servicing
of the related Mortgage Loan to the Purchaser, or its designee, in accordance
with the Xxxxxxxx Xxxxxxxx National Affordable Housing Act of 1990; provided,
however, the content and format of the letter shall have the prior approval
of
the Purchaser. The Seller shall cause the Originator to provide the Purchaser
with copies of all such related notices no later than the Transfer
Date.
(b) Notice
to Taxing Authorities and Insurance Companies.
The
Seller shall cause the Originator to transmit to the applicable taxing
authorities and insurance companies (including primary mortgage insurance
policy
insurers, if applicable) and/or agents, notification of the transfer of the
servicing to the Purchaser, or its designee, and instructions to deliver
all
notices, tax bills and insurance statements, as the case may be, to the
Purchaser from and after the related Transfer Date. The Seller shall cause
the
Originator to provide the Purchaser with copies of all such notices no later
than such Transfer Date.
(c) Delivery
of Servicing Records.
The
Seller shall cause the Originator to forward to the Purchaser, or its designee,
all servicing records and the Servicing File in the Originator’s possession
relating to each related Mortgage Loan including the information enumerated
in
the Servicing Agreement (with respect to each such Mortgage Loan, for an
interim
period, as specified therein).
(d) Escrow
Payments.
The
Seller shall cause the Originator to provide the Purchaser, or its designee,
with immediately available funds by wire transfer in the amount of the net
Escrow Payments and suspense balances and all loss draft balances associated
with the related Mortgage Loans. The Seller shall cause the Originator to
provide the Purchaser with an accounting statement of Escrow Payments and
suspense balances and loss draft balances sufficient to enable the Purchaser
to
reconcile the amount of such payment with the accounts of the Mortgage Loans.
Additionally, the Seller shall cause the Originator to wire transfer to the
Purchaser the amount of any agency, trustee or prepaid Mortgage Loan payments
and all other similar amounts held by the Originator.
(e) Payoffs
and Assumptions.
The
Seller shall cause the Originator to provide to the Purchaser, or its designee,
copies of all assumption and payoff statements generated by the Originator
on
the related Mortgage Loans from the related Cut-off Date to the Transfer
Date.
(f) Mortgage
Payments Received Prior to Transfer Date.
Prior
to the Transfer Date all payments received by the Originator on each related
Mortgage Loan shall be properly applied by the Originator to the account
of the
particular Mortgagor.
(g) Mortgage
Payments Received After Transfer Date.
The
Seller shall cause the amount of any related Monthly Payments received by
the
Originator after the Transfer Date to be forwarded to the Purchaser by overnight
mail on the date of receipt. The Seller shall cause the Originator to notify
the
Purchaser of the particulars of the payment, which notification requirement
shall be satisfied if the Originator forwards with its payment sufficient
information to permit appropriate processing of the payment by the Purchaser.
The Seller shall cause the Originator to assume full responsibility for the
necessary and appropriate legal application of such Monthly Payments received
by
the Originator after the Transfer Date with respect to related Mortgage Loans
then in foreclosure or bankruptcy; provided, for purposes of this Agreement,
necessary and appropriate legal application of such Monthly Payments shall
include, but not be limited to, endorsement of a Monthly Payment to the
Purchaser with the particulars of the payment such as the account number,
dollar
amount, date received and any special Mortgagor application instructions
and the
Seller shall comply with the foregoing requirements with respect to all Monthly
Payments received by the it after the Transfer Date.
(h) Misapplied
Payments.
Misapplied payments shall be processed as follows:
(1) All
parties shall cooperate in correcting misapplication errors;
(2) The
party
receiving notice of a misapplied payment occurring prior to the applicable
Transfer Date and discovered after such Transfer Date shall immediately notify
the other party;
(3) If
a
misapplied payment which occurred prior to the Transfer Date cannot be
identified and said misapplied payment has resulted in a shortage in a Custodial
Account or Escrow Account, the Seller shall or the Seller shall cause the
Originator to be liable for the amount of such shortage. The Seller shall
or the
Seller shall cause the Originator to reimburse the Purchaser for the amount
of
such shortage within thirty (30) days after receipt of written demand
therefor from the Purchaser;
(4) If
a
misapplied payment which occurred prior to the Transfer Date has created
an
improper Purchase Price as the result of an inaccurate outstanding principal
balance, a check shall be issued to the party shorted by the improper payment
application within five (5) Business Days after notice thereof by the other
party; and
(5) Any
check
issued under the provisions of this Section 8(h) shall be accompanied by
a
statement indicating the corresponding Seller and/or the Purchaser Mortgage
Loan
identification number and an explanation of the allocation of any such
payments.
(i) Books
and Records.
On the
Transfer Date, the books, records and accounts of the Originator with respect
to
the related Mortgage Loans shall be in accordance with all applicable Purchaser
requirements.
(j) Reconciliation.
The
Seller shall or shall cause the Originator to, on or before the Transfer
Date,
reconcile principal balances and make any monetary adjustments required by
the
Purchaser. Any such monetary adjustments will be transferred between the
Seller,
the Originator and the Purchaser as appropriate.
(k) IRS
Forms.
The
Seller shall or shall cause the Originator to file all IRS forms 1099,
1099A, 1098 or 1041 and K-1 which are required to be filed on or before the
Transfer Date in relation to the servicing and ownership of the related Mortgage
Loans. The Seller or Originator shall provide copies of such forms to the
Purchaser upon request and shall reimburse the Purchaser for any costs or
penalties incurred by the Purchaser due to the Seller’s or Originator’s failure
to comply with this paragraph.
| SECTION 9. |
Representations,
Warranties and Covenants of the Seller; Remedies for
Breach.
|
Subsection
9.01 Representations
and Warranties Regarding the Seller.
The
Seller represents, warrants and covenants to the Purchaser that as of the
date
hereof and as of each Closing Date:
(a) Due
Organization and Authority.
The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the state of California and has all licenses necessary
to
carry on its business as now being conducted and is licensed, qualified and
in
good standing in each state wherein it owns or leases any material properties
or
where a Mortgaged Property is located, if the laws of such state require
licensing or qualification in order to conduct business of the type conducted
by
the Seller, and in any event the Seller is in compliance with the laws of
any
such state to the extent necessary to ensure the enforceability of the related
Mortgage Loan and the servicing of such Mortgage Loan in accordance with
the
terms of this Agreement and the Servicing Agreement; the Seller has the full
corporate power, authority and legal right to hold, transfer and convey the
Mortgage Loans and to execute and deliver this Agreement and to perform its
obligations hereunder and thereunder; the execution, delivery and performance
of
this Agreement (including all instruments of transfer to be delivered pursuant
to this Agreement) by the Seller and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized; this
Agreement and all agreements contemplated hereby have been duly executed
and
delivered and constitute the valid, legal, binding and enforceable obligations
of the Seller, regardless of whether such enforcement is sought in a proceeding
in equity or at law; and all requisite corporate action has been taken by
the
Seller to make this Agreement and all agreements contemplated hereby valid
and
binding upon the Seller in accordance with their terms;
(b) Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant
to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(c) No
Conflicts.
Neither
the execution and delivery of this Agreement, the acquisition or origination
of
the Mortgage Loans by the Seller, the sale of the Mortgage Loans to the
Purchaser, the consummation of the transactions contemplated hereby and thereby,
nor the fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Seller’s charter or by-laws or any legal
restriction or any agreement or instrument to which the Seller is now a party
or
by which it is bound, or constitute a default or result in an acceleration
under
any of the foregoing, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Seller or its property is subject, or
result in the creation or imposition of any lien, charge or encumbrance that
would have an adverse effect upon any of its properties pursuant to the terms
of
any mortgage, contract, deed of trust or other instrument, or impair the
ability
of the Purchaser to realize on the Mortgage Loans, impair the value of the
Mortgage Loans, or impair the ability of the Purchaser to realize the full
amount of any insurance benefits accruing pursuant to this
Agreement;
(d) Ability
to Service.
Originator has the facilities, procedures, and experienced personnel necessary
for the sound servicing of mortgage loans of the same type as the Mortgage
Loans. The Originator is duly qualified, licensed, registered and otherwise
authorized under all applicable federal, state and local laws, and regulations,
if applicable, meets the minimum capital requirements set forth by HUD, the
OTS,
the OCC or the FDIC, if applicable, and is in good standing to enforce,
originate, sell mortgage loans to, and service mortgage loans in each
jurisdiction wherein the Mortgaged Properties are located;
(e) Reasonable
Servicing Fee.
The
Originator acknowledges and agrees that the Servicing Fee, represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Originator, for accounting and tax purposes, as
compensation for the servicing and administration of the Mortgage Loans pursuant
to this Agreement and the Servicing Agreement;
(f) Ability
to Perform; Solvency.
The
Seller does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this Agreement. The
Seller is solvent and the sale of the Mortgage Loans will not cause the Seller
to become insolvent. The sale of the Mortgage Loans is not undertaken with
the
intent to hinder, delay or defraud any of Seller’s creditors;
(g) No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending or threatened against
the Seller, before any court, administrative agency or other tribunal asserting
the invalidity of this Agreement, seeking to prevent the consummation of
any of
the transactions contemplated by this Agreement or which, either in any one
instance or in the aggregate, may result in any material adverse change in
the
business, operations, financial condition, properties or assets of the Seller,
or in any material impairment of the right or ability of the Seller to carry
on
its business substantially as now conducted, or in any material liability
on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform
under
the terms of this Agreement;
(h) No
Consent Required.
No
consent, approval, authorization or order of, or registration or filing with,
or
notice to any court or governmental agency or body including HUD, the FHA
or the
Department of Veterans Affairs is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement
or
the Mortgage Loans, the delivery of a portion of the Mortgage Files to the
Custodian or the sale of the Mortgage Loans or the consummation of the
transactions contemplated by this Agreement, or if required, such approval
has
been obtained prior to the related Closing Date;
(i) Selection
Process.
The
Mortgage Loans were selected from among the outstanding one- to four-family
mortgage loans in the Seller’s portfolio at the related Closing Date as to which
the representations and warranties set forth in Subsection
9.02
could be
made and such selection was not made in a manner so as to affect adversely
the
interests of the Purchaser;
(j) Delivery
to the Custodian.
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered with respect to each Mortgage Loan pursuant to the
Custodial Agreement, shall be delivered to the Custodian all in compliance
with
the specific requirements of the Custodial Agreement. With respect to each
Mortgage Loan, the Seller will be in possession of a complete Mortgage File
in
compliance with Exhibit A
hereto,
except for such documents as will be delivered to the Custodian;
(k) Mortgage
Loan Characteristics.
The
characteristics of the related Mortgage Loan Package are as set forth on
the
description of the pool characteristics for the applicable Mortgage Loan
Package
delivered pursuant to Section 11
on the
related Closing Date in the form attached as Exhibit B
to each
related Assignment and Conveyance Agreement;
(l) No
Untrue Information.
Neither
this Agreement nor any information, statement, tape, diskette, report, form,
or
other document furnished or to be furnished pursuant to this Agreement or
any
Reconstitution Agreement or in connection with the transactions contemplated
hereby (including any Securitization Transaction or Whole Loan Transfer)
contains or will contain any untrue statement of fact or omits or will omit
to
state a fact necessary to make the statements contained herein or therein
not
misleading;
(m) Financial
Statements.
The
Seller has delivered to the Purchaser financial statements as to its last
three
complete fiscal years and any later quarter ended more than 60 days prior
to the
execution of this Agreement. All such financial statements fairly present
the
pertinent results of operations and changes in financial position for each
of
such periods and the financial position at the end of each such period of
the
Seller and its subsidiaries and have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as set forth in the notes thereto. In addition, the Seller
has
delivered information as to its loan gain and loss experience in respect
of
foreclosures and its loan delinquency experience for the immediately preceding
three-year period, in each case with respect to mortgage loans owned by it
and
such mortgage loans serviced for others during such period, and all such
information so delivered shall be true and correct in all material respects.
There has been no change in the business, operations, financial condition,
properties or assets of the Seller since the date of the Seller’s financial
statements that would have a material adverse effect on its ability to perform
its obligations under this Agreement. The Seller has completed any forms
requested by the Purchaser in a timely manner and in accordance with the
provided instructions;
(n) No
Brokers.
The
Seller has not dealt with any broker, investment banker, agent or other person
that may be entitled to any commission or compensation in connection with
the
sale of the Mortgage Loans;
(o) Sale
Treatment.
The
Seller intends to reflect the transfer of the Mortgage Loans as a sale on
the
books and records of the Seller and the Seller has determined that the
disposition of the Mortgage Loans pursuant to this Agreement will be afforded
sale treatment for tax and accounting purposes;
(p) Owner
of Record.
The
Seller is the owner of record of each Mortgage and the indebtedness evidenced
by
each Mortgage Note, except for the Assignments of Mortgage which have been
sent
for recording, and upon recordation the Seller will be the owner of record
of
each Mortgage and the indebtedness evidenced by each Mortgage Note, and upon
the
sale of the Mortgage Loans to the Purchaser, the Seller will retain the Mortgage
Files with respect thereto in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan;
(q) Origination.
The
Originator’s decision to originate any mortgage loan or to deny any mortgage
loan application is an independent decision based upon Originator’s Underwriting
Guidelines, and is in no way made as a result of Purchaser’s decision to
purchase, or not to purchase, or the price Purchaser may offer to pay for,
any
such mortgage loan, if originated;
(r) Compliance
with Anti-Money Laundering Laws.
The
Seller has complied with all applicable anti-money laundering laws, regulations
and executive orders, including, without limitation, the USA Patriot Act
of 2001
(collectively, the “Anti-Money
Laundering Laws”).
Additionally, no Mortgage Loan is subject to nullification pursuant to Executive
Order 13224 (the “Executive
Order”)
or the
regulations promulgated by the Office of Foreign Assets Control of the United
States Department of Treasury (the “OFAC
Regulations”)
or in
violation of the Executive Order or the OFAC Regulations; and no Mortgagor
is
subject to the provisions of such Executive Order or the OFAC Regulations
nor
listed as a “blocked person” for purposes of the OFAC Regulations;
and
(s) Credit
Reporting.
The
Seller shall cause the Originator, as servicer, to fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (e.g., favorable and unfavorable) on its borrower
credit files to Equifax, Experian and Trans Union Credit Information Company
(three of the credit repositories), on a monthly basis. Additionally, the
Seller
shall cause the Originator, as servicer, to transmit full-file credit reporting
data for each Mortgage Loan pursuant to Xxxxxx Xxx Guide Announcement 95-19
and
that for each Mortgage Loan, the Seller shall cause the Originator, as servicer,
to report one of the following statuses each month as follows: new origination,
current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or
charged-off.
Subsection
9.02 Representations
and Warranties Regarding Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser that, as to each Mortgage
Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage
Loans as Described.
The
information set forth in the related Mortgage Loan Schedule is complete,
true
and correct;
(b) Payments
Current.
All
payments required to be made up to the related Closing Date for the Mortgage
Loan under the terms of the Mortgage Note, other than payments not yet 30
days
delinquent, have been made and credited. No payment required under the Mortgage
Loan is 30 days or more delinquent nor, except as otherwise disclosed to
the
Purchaser and set forth on an exhibit to the related Assignment and Conveyance
Agreement, has any payment under the Mortgage Loan been 30 days or more
delinquent at any time since the origination of the Mortgage Loan. The first
Monthly Payment shall be made with respect to the Mortgage Loan on its related
Due Date or within the grace period, all in accordance with the terms of
the
related Mortgage Note;
(c) No
Outstanding Charges.
There
are no defaults in complying with the terms of the Mortgage, and 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 an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has
been
assessed but is not yet due and payable. The Seller has not advanced funds,
or
induced, solicited or knowingly received any advance of funds by a party
other
than the Mortgagor, directly or indirectly, for the payment of any amount
required under the Mortgage Loan, except for interest accruing from the date
of
the Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the day which precedes by one month the related
Due
Date of the first installment of principal and interest;
(d) Original
Terms Unmodified.
The
terms of the Mortgage Note and Mortgage have not been impaired, waived, altered
or modified in any respect, from the date of origination except by a written
instrument which has been recorded, if necessary to protect the interests
of the
Purchaser, and which has been delivered to the Custodian or to such other
Person
as the Purchaser shall designate in writing, and the terms of which are
reflected in the related Mortgage Loan Schedule. The substance of any such
waiver, alteration or modification has been approved by the title insurer,
if
any, to the extent required by the policy, and its terms are reflected on
the
related Mortgage Loan Schedule, if applicable. No Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement, approved
by the issuer of the title insurer, to the extent required by the policy,
and
which assumption agreement is part of the Mortgage Loan File delivered to
the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related Mortgage Loan
Schedule;
(e) No
Defenses.
The
Mortgage Loan is 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 either the Mortgage Note or the
Mortgage unenforceable, in whole or in part and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto,
and no
Mortgagor was a debtor in any state or Federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated;
(f) Hazard
Insurance.
Pursuant to the terms of the Mortgage, all buildings or other improvements
upon
the Mortgaged Property are insured by a generally acceptable insurer against
loss by fire, hazards of extended coverage and such other hazards as are
customarily insured against in the jurisdiction where the related Mortgaged
Property is located and acceptable to the Rating Agencies, as well as all
additional requirements set forth in Section 2.10 of the Servicing Agreement.
If
required by the National Flood Insurance Act of 1968, as amended, each Mortgage
Loan is covered by a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration as in effect,
as well
as all additional requirements set forth in Section 2.10 of the Servicing
Agreement. All individual insurance policies contain a standard mortgagee
clause
naming the Seller and its successors and assigns as mortgagee, and all premiums
thereon have been paid. The Mortgage obligates the Mortgagor thereunder to
maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on
the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at such Mortgagor’s cost and expense, and to
seek reimbursement therefor from the Mortgagor. Where required by state law
or
regulation, the Mortgagor has been given an opportunity to choose the carrier
of
the required hazard insurance, provided the policy is not a “master”
or
“blanket”
hazard
insurance policy covering a condominium, or any hazard insurance policy covering
the common facilities of a planned unit development. The hazard insurance
policy
is the valid and binding obligation of the insurer, is in full force and
effect,
and will be in full force and effect and inure to the benefit of the Purchaser
upon the consummation of the transactions contemplated by this Agreement.
The
Seller has not engaged in, and has no knowledge of the Mortgagor’s having
engaged in, any act or omission which would impair the coverage of any such
policy, the benefits of the endorsement provided for herein, or the validity
and
binding effect of either including, without limitation, no unlawful fee,
commission, kickback or other unlawful compensation or value of any kind
has
been or will be received, retained or realized by any attorney, firm or other
person or entity, and no such unlawful items have been received, retained
or
realized by the Seller;
(g) Compliance
with Applicable Laws.
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, disclosure and all predatory,
abusive and fair lending laws applicable to the Mortgage Loan, including,
without limitation, any provisions relating to the Illinois Interest Act
and
prepayment penalties, have been complied with, the consummation of the
transactions contemplated hereby will not involve the violation of any such
laws
or regulations, and the Seller shall maintain in its possession, available
for
the Purchaser’s inspection, and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements. This
representation and warranty is a Deemed Material and Adverse
Representation;
(h) No
Satisfaction of Mortgage.
The
Mortgage has not been satisfied, canceled, subordinated or rescinded, in
whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission.
The
Seller has not waived the performance by the Mortgagor of any action, if
the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(i) Location
and Type of Mortgaged Property.
The
Mortgaged Property is located in the state identified in the Mortgage Loan
Schedule and consists of real property with a detached single family residence
erected thereon, or a two- to four-family dwelling, or an individual condominium
unit in a low-rise condominium project, or an individual unit in a planned
unit
development or a de minimis planned unit development which is in each case
four
stories or less, provided, however, that any mobile home (double wide only)
shall conform with the applicable Xxxxxx Xxx and Xxxxxxx Mac requirements
regarding such dwellings and that no Mortgage Loan is secured by a single
parcel
of real property with a cooperative housing corporation, a log home, a
Manufactured Home or, except as described in Exhibit B
to the
related Assignment and Conveyance Agreement, a mobile home erected thereon
or by
a mixed-use property, a property in excess of 10 acres, or other unique property
types. As of the date of origination, no portion of the Mortgaged Property
was
used for commercial purposes, and since the date of origination, no portion
of
the Mortgaged Property has been used for commercial purposes; provided, that
Mortgaged Properties which contain a home office shall not be considered
as
being used for commercial purposes as long as the Mortgaged Property has
not
been altered for commercial purposes and is not storing any chemicals or
raw
materials other than those commonly used for homeowner repair, maintenance
and/or household purposes. This representation and warranty is a Deemed Material
and Adverse Representation;
(j) Valid
First or Second Lien.
The
Mortgage is a valid, subsisting, enforceable and perfected, first lien (with
respect to a First Lien Loan) or a second lien (with respect to a Second
Lien
Loan) on the Mortgaged Property, including all buildings and improvements
on the
Mortgaged Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or annexed to such buildings,
and all additions, alterations and replacements made at any time with respect
to
the foregoing. The lien of the Mortgage is subject only to:
(1) with
respect to a Second Lien Loan only, the lien of the first mortgage on the
Mortgaged Property;
(2) the
lien
of 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 acceptable to prudent mortgage
lending
institutions generally and specifically referred to in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan and
(A) specifically 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 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 a
valid,
subsisting, enforceable and perfected first lien (with respect to a First
Lien
Loan) or second lien (with respect to a Second Lien Loan) and first priority
(with respect to a First Lien Loan) or second priority (with respect to a
Second
Lien Loan) security interest on the property described therein and the Seller
has full right to sell and assign the same to the Purchaser.;
(k) Validity
of Mortgage Documents.
The
Mortgage Note and the Mortgage and any other agreement executed and delivered
by
a Mortgagor in connection with a Mortgage Loan are genuine, and each is the
legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms (including, without limitation, any provisions
therein
relating to prepayment penalties). All parties to the Mortgage Note, the
Mortgage and any other such related agreement had legal capacity to enter
into
the Mortgage Loan and to execute and deliver the Mortgage Note, the Mortgage
and
any such agreement, and the Mortgage Note, the Mortgage and any other such
related agreement have been duly and properly executed by other such related
parties. No fraud, error, omission, misrepresentation, negligence or similar
occurrence with respect to a Mortgage Loan has taken place on the part of
any
Person, including without limitation, the Mortgagor, any appraiser, any builder
or developer, or any other party involved in the origination of the Mortgage
Loan. The Seller has reviewed all of the documents constituting the Servicing
File and has made such inquiries as it deems necessary to make and confirm
the
accuracy of the representations set forth herein;
(l) Full
Disbursement of Proceeds.
The
Mortgage Loan has been closed and the proceeds of the Mortgage Loan have
been
fully disbursed and there is no requirement for future advances thereunder,
and
any and all requirements as to completion of any on-site or off-site improvement
and as to disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing the Mortgage Loan
and
the recording of the Mortgage were paid, and the Mortgagor is not entitled
to
any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(m) Ownership.
The
Seller is the sole owner of record and holder of the Mortgage Loan and the
indebtedness evidenced by each Mortgage Note and upon the sale of the Mortgage
Loans to the Purchaser, the Seller will retain the Mortgage Files or any
part
thereof with respect thereto not delivered to the Custodian, the Purchaser
or
the Purchaser’s designee, in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan. The Mortgage Loan is not
assigned or pledged, and the Seller has good, indefeasible and marketable
title
thereto, and has full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, and has full right and
authority subject to no interest or participation of, or agreement with,
any
other party, to sell and assign each Mortgage Loan pursuant to this Agreement
and following the sale of each Mortgage Loan, the Purchaser will own such
Mortgage Loan free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest. The Seller intends to
relinquish all rights to possess, control and monitor the Mortgage Loan.
After
the related Closing Date, the Seller will have no right to modify or alter
the
terms of the sale of the Mortgage Loan and the Seller will have no obligation
or
right to repurchase the Mortgage Loan or substitute another Mortgage Loan,
except as provided in this Agreement;
(n) Doing
Business.
All
parties which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (1) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (2) either (i) organized under the laws of
such state, or (ii) qualified to do business in such state, or (iii) a
federal savings and loan association, a savings bank or a national bank having
a
principal office in such state, or (3) not doing business in such
state;
(o) LTV.
No
Mortgage Loan has an LTV greater than 100%;
(p) Title
Insurance.
The
Mortgage Loan is covered by an ALTA lender’s title insurance policy, or with
respect to any Mortgage Loan for which the related Mortgaged Property is
located
in California a CLTA lender’s title insurance policy, or other generally
acceptable form of policy or insurance acceptable to Xxxxxx Xxx or Xxxxxxx
Mac
and each such title insurance policy is issued by a title insurer acceptable
to
Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the jurisdiction
where
the Mortgaged Property is located, insuring the Seller, its successors and
assigns, as to the first (with respect to a First Lien Loan) or second (with
respect to a Second Lien Loan) priority lien of the Mortgage in the original
principal amount of the Mortgage Loan (or to the extent a Mortgage Note provides
for negative amortization, the maximum amount of negative amortization in
accordance with the Mortgage), subject only to the exceptions contained in
clauses (1), (2) and (3) of Paragraph (j) of this Subsection 9.02,
and in
the case of Adjustable Rate Mortgage Loans, against any loss by reason of
the
invalidity or unenforceability of the lien resulting from the provisions
of the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been
given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender’s title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or
any
interest therein. The Seller, its successor and assigns, are the sole insureds
of such lender’s title insurance policy, and such lender’s title insurance
policy is valid and remains in full force and effect and will be in force
and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender’s title insurance policy, and no
prior holder of the related Mortgage, including the Seller, has done, by
act or
omission, anything which would impair the coverage of such lender’s title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or
will be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(q) No
Defaults.
Other
than payments due but not yet 30 days or more delinquent, there is no default,
breach, violation or event which would permit acceleration existing under
the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event which would permit acceleration, and
neither
the Seller nor any of its affiliates nor any of their respective predecessors,
have waived any default, breach, violation or event which would permit
acceleration;
(r) No
Mechanics’ Liens.
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 the law could
give
rise to such liens) affecting the related Mortgaged Property which are or
may be
liens prior to, or equal or coordinate with, the lien of the related
Mortgage;
(s) Location
of Improvements; No Encroachments.
All
improvements which were considered in determining the Appraised Value of
the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being
part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(t) Origination;
Payment Terms.
Either
(a) the Mortgage Loan was originated by a mortgagee approved by the Secretary
of
Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or other similar institution
which is supervised and examined by a federal or state authority, or (b)
the
following requirements have been met with respect to the Mortgage Loan: the
Seller meets the requirements set forth in clause (a), and (i) such Mortgage
Loan was underwritten in accordance with standards established by the Seller,
using application forms and related credit documents approved by the Seller,
(ii) the Seller approved each application and the related credit documents
before a commitment by the correspondent was issued, and no such commitment
was
issued until the Seller agreed to fund such Mortgage Loan, (iii) the closing
documents for such Mortgage Loan were prepared on forms approved by the Seller,
and (iv) such Mortgage Loan was actually funded by the Seller and was purchased
by the Seller at closing or soon thereafter. The documents, instruments and
agreements submitted for loan underwriting were not falsified and contain
no
untrue statement of material fact or omit to state a material fact required
to
be stated therein or necessary to make the information and statements therein
not misleading. Principal payments on the Mortgage Loan commenced no more
than
sixty days after funds were disbursed in connection with the Mortgage Loan.
The
Mortgage Interest Rate as well as, with respect to Adjustable Rate Mortgage
loans, the Lifetime Rate Cap and the Periodic Cap, are as set forth on the
related Mortgage Loan Schedule. The Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment
Date,
with interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of
not
more than thirty years from commencement of amortization. Unless otherwise
specified on the related Mortgage Loan Schedule, the Mortgage Loan is payable
on
the first day of each month. There are no Convertible Mortgage Loans which
contain a provision allowing the Mortgagor to convert the Mortgage Note from
an
adjustable interest rate Mortgage Note to a fixed interest rate Mortgage
Note;
(u) Customary
Provisions.
The
Mortgage contains customary and enforceable provisions such as to render
the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (ii) otherwise by judicial foreclosure. Upon default by
a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, the
Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property. There is no homestead or other exemption available to a Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee’s sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy
and
right of redemption or similar law;
(v) Conformance
with Agency and Underwriting Guidelines.
The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines.
The Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx Mac or
Xxxxxx
Mae and neither the Seller nor the Originator has made any representations
to a
Mortgagor that are inconsistent with the mortgage instruments used;
(w) Occupancy
of the Mortgaged Property.
As of
the related Closing Date the Mortgaged Property is lawfully occupied under
applicable law. All inspections, licenses and certificates required to be
made
or issued with respect to all occupied portions of the Mortgaged Property
and,
with respect to the use and occupancy of the same, including but not limited
to
certificates of occupancy and fire underwriting certificates, have been made
or
obtained from the appropriate authorities;
(x) No
Additional Collateral.
The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in Paragraph (j)
above;
(y) Deeds
of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, authorized and
duly
qualified under applicable law to serve as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by the Purchaser to the trustee under the deed
of
trust, except in connection with a trustee’s sale after default by the
Mortgagor;
(z) Acceptable
Investment.
There
are no circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, the Mortgagor, the Mortgage File or the Mortgagor’s credit standing
that can reasonably be expected to cause private institutional investors
who
invest in mortgage loans similar to the Mortgage Loan to regard the Mortgage
Loan as an unacceptable investment, cause the Mortgage Loan to become
delinquent, or adversely affect the value or marketability of the Mortgage
Loan,
or cause the Mortgage Loans to prepay during any period materially faster
or
slower than the mortgage loans originated by the Seller generally;
(aa) Delivery
of Mortgage Documents.
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered under the Custodial Agreement for each Mortgage
Loan
have been delivered to the Custodian. The Seller is in possession of a complete,
true and accurate Mortgage File in compliance with Exhibit A
hereto,
except for such documents the originals of which have been delivered to the
Custodian;
(bb) Condominiums/Planned
Unit Developments.
If the
Mortgaged Property is a condominium unit or a planned unit development (other
than a de minimis planned unit development) such condominium or planned unit
development project such Mortgage Loan was originated in accordance with,
and
the Mortgaged Property meets the guidelines set forth in the Originator’s
Underwriting Guidelines;
(cc) Transfer
of Mortgage Loans.
The
Assignment of Mortgage with respect to each Mortgage Loan is in recordable
form
and is acceptable for recording under the laws of the jurisdiction in which
the
Mortgaged Property is located. The transfer, assignment and conveyance of
the
Mortgage Notes and the Mortgages by the Seller are not subject to the bulk
transfer or similar statutory provisions in effect in any applicable
jurisdiction;
(dd) Due-On-Sale.
With
respect to each Fixed Rate Mortgage Loan, the Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance
of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the mortgagee thereunder,
and
such provision is enforceable;
(ee) Assumability.
With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
(ff) No
Buydown Provisions; No Graduated Payments or Contingent
Interests.
The
Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are
paid or partially paid with funds deposited in any separate account established
by the Seller, the Mortgagor, or anyone on behalf of the Mortgagor, or paid
by
any source other than the Mortgagor nor does it contain any other similar
provisions which may constitute a “buydown” provision. The Mortgage Loan is not
a graduated payment mortgage loan and the Mortgage Loan does not have a shared
appreciation or other contingent interest feature;
(gg) Consolidation
of Future Advances.
Any
future advances made to the Mortgagor prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest rate
and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first (with respect to a
First
Lien Loan) or a second (with respect to a Second Lien Loan) lien priority
by a
title insurance policy, an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to Xxxxxx Xxx
and
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(hh) Mortgaged
Property Undamaged; No Condemnation Proceedings.
There
is no proceeding pending or threatened for the total or partial condemnation
of
the Mortgaged Property. The Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty
so as
to affect adversely the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended and each Mortgaged
Property is in good repair. There have not been any condemnation proceedings
with respect to the Mortgaged Property and the Seller has no knowledge of
any
such proceedings in the future;
(ii) Collection
Practices; Escrow Deposits; Interest Rate Adjustments.
The
origination, servicing and collection practices used by the Seller and the
Originator with respect to the Mortgage Loan have been in all respects in
compliance with Accepted Servicing Practices, applicable laws and regulations,
and have been in all respects legal and proper. With respect to escrow deposits
and Escrow Payments, all such payments are in the possession of, or under
the
control of, the Seller or the Originator and there exist no deficiencies
in
connection therewith for which customary arrangements for repayment thereof
have
not been made. All Escrow Payments have been collected in full compliance
with
state and federal law and the provisions of the related Mortgage Note and
Mortgage. An escrow of funds is not prohibited by applicable law and has
been
established in an amount sufficient to pay for every item that remains unpaid
and has been assessed but is not yet due and payable. No escrow deposits
or
Escrow Payments or other charges or payments due the Seller have been
capitalized under the Mortgage or the Mortgage Note. All Mortgage Interest
Rate
adjustments have been made in strict compliance with state and federal law
and
the terms of the related Mortgage and Mortgage Note on the related Interest
Rate
Adjustment Date. If, pursuant to the terms of the Mortgage Note, another
index
was selected for determining the Mortgage Interest Rate, the same index was
used
with respect to each Mortgage Note which required a new index to be selected,
and such selection did not conflict with the terms of the related Mortgage
Note.
The Seller or the Originator executed and delivered any and all notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the Mortgage Interest Rate and the Monthly Payment adjustments.
Any
interest required to be paid pursuant to state, federal and local law has
been
properly paid and credited;
(jj) Conversion
to Fixed Interest Rate.
With
respect to Adjustable Rate Mortgage Loans, the Mortgage Loan is not a
Convertible Mortgage Loan;
(kk) Other
Insurance Policies.
No
action, inaction or event has occurred and no state of facts exists or has
existed that has resulted or will result in the exclusion from, denial of,
or
defense to coverage under any applicable, special hazard insurance policy,
or
bankruptcy bond, irrespective of the cause of such failure of coverage. In
connection with the placement of any such insurance, no commission, fee,
or
other compensation has been or will be received by the Seller or by any officer,
director, or employee of the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director, or employee had
a
financial interest at the time of placement of such insurance;
(ll) No
Violation of Environmental Laws.
There
is no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with respect
to the Mortgage Property; and nothing further remains to be done to satisfy
in
full all requirements of each such law, rule or regulation constituting a
prerequisite to use and enjoyment of said property;
(mm) Servicemembers
Civil Relief Act.
The
Mortgagor has not notified the Seller, and the Seller has no knowledge of
any
relief requested or allowed to the Mortgagor under the Servicemembers Relief
Act
or any similar state statute;
(nn) Appraisal.
The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the approval of the Mortgage Loan application by a Qualified Appraiser,
duly appointed by the Seller or the Originator, who had no interest, direct
or
indirect in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation is not affected by the approval or disapproval of
the
Mortgage Loan, and the appraisal and appraiser both satisfy the requirements
of
Xxxxxx Xxx or Xxxxxxx Mac and Title XI of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated;
(oo) Disclosure
Materials.
The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by, and the Originator has complied with,
all
applicable law with respect to the making of the Mortgage Loans. The Seller
shall cause the Originator to maintain such statement in the Mortgage
File;
(pp) Construction
or Rehabilitation of Mortgaged Property.
No
Mortgage Loan was made in connection with the construction or rehabilitation
of
a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(qq) Value
of Mortgaged Property.
The
Seller has no knowledge of any circumstances existing that could reasonably
be
expected to adversely affect the value or the marketability of any Mortgaged
Property or Mortgage Loan or to cause the Mortgage Loans to prepay during
any
period materially faster or slower than similar mortgage loans held by the
Seller generally secured by properties in the same geographic area as the
related Mortgaged Property;
(rr) No
Defense to Insurance Coverage.
No
action has been taken or failed to be taken, no event has occurred and no
state
of facts exists or has existed on or prior to the related Closing Date (whether
or not known to the Seller on or prior to such date) which has resulted or
will
result in an exclusion from, denial of, or defense to coverage under any
primary
mortgage insurance (including, without limitation, any exclusions, denials
or
defenses which would limit or reduce the availability of the timely payment
of
the full amount of the loss otherwise due thereunder to the insured) whether
arising out of actions, representations, errors, omissions, negligence, or
fraud
of the Seller, the related Mortgagor or any party involved in the application
for such coverage, including the appraisal, plans and specifications and
other
exhibits or documents submitted therewith to the insurer under such insurance
policy, or for any other reason under such coverage, but not including the
failure of such insurer to pay by reason of such insurer’s breach of such
insurance policy or such insurer’s financial inability to pay;
(ss) Escrow
Analysis.
With
respect to each Mortgage, the Seller or the Originator has within the last
twelve months (unless such Mortgage was originated within such twelve month
period) analyzed the required Escrow Payments for each Mortgage and adjusted
the
amount of such payments so that, assuming all required payments are timely
made,
any deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance
with
RESPA and any other applicable law;
(tt) Prior
Servicing.
Each
Mortgage Loan has been serviced in all material respects in strict compliance
with Accepted Servicing Practices;
(uu) No
Default Under First Lien.
With
respect to each Second Lien Loan, the related First Lien Loan related thereto
is
in full force and effect, and there is no default, breach, violation or event
which would permit acceleration existing under such first Mortgage or Mortgage
Note, and no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event which would permit acceleration thereunder. This
representation and warranty is a Deemed Material and Adverse
Representation;
(vv) [Reserved];
(ww) No
Failure to Cure Default.
The
Seller has not received a written notice of default of any senior mortgage
loan
related to the Mortgaged Property which has not been cured;
(xx) Credit
Information.
As to
each consumer report (as defined in the Fair Credit Reporting Act, Public
Law
91-508) or other credit information furnished by the Seller to the Purchaser,
that Seller has full right and authority and is not precluded by law or contract
from furnishing such information to the Purchaser and the Purchaser is not
precluded from furnishing the same to any subsequent or prospective purchaser
of
such Mortgage. The Seller shall hold the Purchaser harmless from any and
all
damages, losses, costs and expenses (including attorney’s fees) arising from
disclosure of credit information in connection with the Purchaser’s secondary
marketing operations and the purchase and sale of mortgages or Servicing
Rights
thereto;
(yy) Leaseholds.
If the
Mortgage Loan is secured by a long-term residential lease, (1) the lessor
under the lease holds a fee simple interest in the land; (2) the terms of
such lease expressly permit the mortgaging of the leasehold estate, the
assignment of the lease without the lessor’s consent and the acquisition by the
holder of the Mortgage of the rights of the lessee upon foreclosure or
assignment in lieu of foreclosure or provide the holder of the Mortgage with
substantially similar protections; (3) the terms of such lease do not
(a) allow the termination thereof upon the lessee’s default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease
in the event of damage or destruction as long as the Mortgage is in existence,
(c) prohibit the holder of the Mortgage from being insured (or receiving
proceeds of insurance) under the hazard insurance policy or policies relating
to
the Mortgaged Property or (d) permit any increase in rent other than
pre-established increases set forth in the lease; (4) the original term of
such lease is not less than 15 years; (5) the term of such lease does not
terminate earlier than five years after the maturity date of the Mortgage
Note;
and (6) the Mortgaged Property is located in a jurisdiction in which the
use of leasehold estates in transferring ownership in residential properties
is
a widely accepted practice;
(zz) Prepayment
Penalty.
Each
Mortgage Loan that is subject to a prepayment penalty as provided in the
related
Mortgage Note is identified on the related Mortgage Loan Schedule. With respect
to each Mortgage Loan that has a prepayment penalty feature, each such
prepayment penalty is enforceable and will be enforced by the Seller for
the
benefit of the Purchaser, and each prepayment penalty is permitted pursuant
to
federal, state and local law. Each such prepayment penalty is in an amount
not
more than the maximum amount permitted under applicable law and no such
prepayment penalty may be imposed for a term in excess of five (5) years
with
respect to Mortgage Loans originated prior to October, 1, 2002. With respect
to
Mortgage Loans originated on or after October 1, 2002, the duration of the
prepayment penalty period shall not exceed three (3) years from the date
of the
Mortgage Note unless the Mortgage Loan was modified to reduce the prepayment
penalty period to no more than three (3) years from the date of the related
Mortgage Note and the Mortgagor was notified in writing of such reduction
in
prepayment penalty period. This representation and warranty is a Deemed Material
and Adverse Representation;
(aaa) Predatory
Lending Regulations.
No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable, and no
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act. No Mortgage Loan is covered by
the
Home Ownership and Equity Protection Act of 1994 and no Mortgage Loan is
in
violation of any comparable state or local law. This representation and warranty
is a Deemed Material and Adverse Representation;
(bbb) [Reserved];
(ccc) Qualified
Mortgage.
The
Mortgage Loan would be a “qualified mortgage,” within the meaning of Section
860G(a)(3) of the Code, if transferred to a REMIC on its startup day in exchange
for the regular or residual interests in the REMIC;
(ddd) No
Prior Offer.
The
Mortgage Loan has not previously been offered for sale to another entity
that
constitutes a broker dealer registered with the Commission under Section
15 of
the Exchange Act;
(eee) Fair
Credit Reporting Act.
The
Seller has, in its capacity as servicer for each Mortgage Loan, fully furnished,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Company (three of the credit repositories),
on a
monthly basis. This representation and warranty is a Deemed Material and
Adverse
Representation;
(fff) Xxxxxx
Xxx Guides Anti-Predatory Lending Eligibility.
Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for
purchase requirements of Xxxxxx Mae Guides. This representation and warranty
is
a Deemed Material and Adverse Representation;
(ggg) Mortgagor
Selection.
The
Mortgagor was not encouraged or required to select a Mortgage Loan product
offered by the Originator which is a higher cost product designed for less
creditworthy mortgagors, unless at the time of the Mortgage Loan’s origination,
such Mortgagor did not qualify taking into such facts as, without limitation,
the Mortgage Loan’s requirements and the Mortgagor’s credit history, income,
assets and liabilities and debt-to-income ratios for a lower-cost credit
product
then offered by the Originator or any Affiliate of the Originator. If, at
the
time of loan application, the Mortgagor may have qualified for a lower-cost
credit product then offered by any mortgage lending Affiliate of the Originator,
the Originator referred the related Mortgagor’s application to such Affiliate
for underwriting consideration. For a Mortgagor who seeks financing through
a
Mortgage Loan originator’s higher-priced subprime lending channel, the Mortgagor
was directed towards or offered the Mortgage Loan originator’s standard mortgage
line if the Mortgagor was able to qualify for one of the standard products.
This
representation and warranty is a Deemed Material and Adverse
Representation;
(hhh) Underwriting
Methodology.
The
methodology used in underwriting the extension of credit for each Mortgage
Loan
does not rely on the extent of the related Mortgagor’s equity in the collateral
as the principal determining factor in approving such extension of credit.
The
methodology employed objective criteria that related such facts as, without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology, the Mortgage
Loan’s originator made a reasonable determination that at the time of
origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan. Such underwriting methodology confirmed that at the time of
origination (application/approval) the related Mortgagor had a reasonable
ability to make timely payments on the Mortgage Loan. This representation
and
warranty is a Deemed Material and Adverse Representation;
(iii) Mortgage
Loans with Prepayment Premiums.
With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a prepayment penalty upon a prepayment prior to maturity: (i) the Mortgage
Loan
provides some benefit to the Mortgagor, including but not limited to a rate
or
fee reduction, in exchange for accepting such prepayment penalty, (ii) the
Mortgage Loan’s originator had a written policy of offering the Mortgagor, or
requiring third-party brokers to offer the Mortgagor, the option of obtaining
a
mortgage loan that did not require payment of such a penalty, (iii) the
prepayment penalty was adequately disclosed to the Mortgagor in the mortgage
loan documents pursuant to applicable state, local and federal law, and (iv)
notwithstanding any state, local or federal law to the contrary, the Originator,
as servicer, shall not impose such prepayment penalty in any instance when
the
mortgage debt is accelerated or paid off in connection with the workout of
a
delinquent Mortgage Loan or as a result of the Mortgagor’s default in making the
Mortgage Loan payments. This representation and warranty is a Deemed Material
and Adverse Representation;
(jjj) Purchase
of Insurance.
No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g., life, mortgage, disability, property, accident, unemployment or health
insurance product) or debt cancellation agreement as a condition of obtaining
the extension of credit. No Mortgagor obtained a prepaid single premium credit
insurance policy (e.g., life, mortgage, disability, property, accident,
unemployment, mortgage or health insurance) in connection with the origination
of the Mortgage Loan. No proceeds from any Mortgage Loan were used to purchase
single premium credit insurance policies as part of the origination of, or
as a
condition to closing, such Mortgage Loan. This representation and warranty
is a
Deemed Material and Adverse Representation;
(kkk) Points
and Fees.
No
Mortgagor was charged “points and fees” (whether or not financed) in an amount
greater than (i) $1,000, or (ii) 5% of the principal amount of such Mortgage
Loan, whichever is greater. For purposes of this representation, such 5%
limitation is calculated in accordance with Xxxxxx Mae’s anti-predatory lending
requirements as set forth in the Xxxxxx Mae Guides and “points and fees” (x)
include origination, underwriting, broker and finder fees and charges that
the
mortgagee imposed as a condition of making the Mortgage Loan, whether they
are
paid to the mortgagee or a third party, and (y) exclude bona fide discount
points, fees paid for actual services rendered in connection with the
origination of the Mortgage Loan (such as attorneys’ fees, notaries fees and
fees paid for property appraisals, credit reports, surveys, title examinations
and extracts, flood and tax certifications, and home inspections), the cost
of
mortgage insurance or credit-risk price adjustments, the costs of title,
hazard,
and flood insurance policies, state and local transfer taxes or fees, escrow
deposits for the future payment of taxes and insurance premiums, and other
miscellaneous fees and charges that, in total, do not exceed 0.25% of the
principal amount of such Mortgage Loan. This representation and warranty
is a
Deemed Material and Adverse Representation;
(lll) Disclosure
of Fees and Charges.
All
fees and charges (including finance charges), whether or not financed, assessed,
collected or to be collected in connection with the origination and servicing
of
each Mortgage Loan, have been disclosed in writing to the Mortgagor in
accordance with applicable state and federal law and regulation. This
representation and warranty is a Deemed Material and Adverse Representation;
(mmm) No
Arbitration.
No
Mortgage Loan originated on or after July 1, 2004 requires the related Mortgagor
to submit to arbitration to resolve any dispute arising out of or relating
in
any way to the Mortgage Loan transaction. This representation and warranty
is a
Deemed Material and Adverse Representation;
(nnn) Request
for Notice; No Consent Required.
With
respect to any Second Lien Loan, if applicable to the Seller, where required
or
customary in the jurisdiction in which the Mortgaged Property is located,
the
original lender has filed for record a request for notice of any action by
the
related senior lienholder, and the Seller has notified the senior lienholder
in
writing of the existence of the Second Lien Loan and requested notification
of
any action to be taken against the Mortgagor by the senior lienholder. Either
(a) no consent for the Second Lien Loan is required by the holder of the
related first lien or (b) such consent has been obtained and is contained
in the Mortgage File. This representation and warranty is a Deemed Material
and
Adverse Representation;
(ooo) No
Negative Amortization of Related First Lien Loan.
With
respect to each Second Lien Loan, the related First Lien Loan does not permit
negative amortization. This representation and warranty is a Deemed Material
and
Adverse Representation; and
(ppp) Principal
Residence.
With
respect to each Second Lien Loan, the related Mortgaged Property was the
Mortgagor’s principal residence or second home at the time of the origination of
such Second Lien Loan, as set forth on the related Mortgage Loan Schedule.
This
representation and warranty is a Deemed Material and Adverse
Representation;
Subsection
9.03 Remedies
for Breach of Representations and Warranties.
It
is
understood and agreed that the representations and warranties set forth in
Subsections 9.01
and 9.02
shall
survive the sale of the Mortgage Loans to the Purchaser and shall inure to
the
benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination
or
failure to examine any Mortgage File. Upon discovery by either the Seller
or the
Purchaser of a breach of any of the foregoing representations and warranties,
the party discovering such breach shall give prompt written notice to the
other.
Within
60
days of the earlier of either discovery by or notice to the Seller of any
such
breach of a representation or warranty, which materially and adversely affects
the value of the Mortgage Loans or the interest of the Purchaser therein
(or
which materially and adversely affects the value of the applicable Mortgage
Loan
or the interest of the Purchaser therein in the case of a representation
and
warranty relating to a particular Mortgage Loan), the Seller shall use its
best
efforts promptly to cure such breach in all material respects and, if such
breach cannot be cured, the Seller shall, at the Purchaser’s option, repurchase
such Mortgage Loan at the Repurchase Price. Notwithstanding the above sentence,
(i) within sixty (60) days after the earlier of either discovery by, or notice
to, the Seller of any breach of the representation and warranty set forth
in
clause (ccc) of Subsection
9.02,
the
Seller shall repurchase such Mortgage Loan at the Repurchase Price and (ii)
any
breach of a Deemed Material and Adverse Representation shall automatically
be
deemed to materially and adversely affect the value of the Mortgage Loans
and
the interest of the Purchaser therein. In the event that a breach shall involve
any representation or warranty set forth in Subsection 9.01,
and
such breach cannot be cured within 60 days of the earlier of either discovery
by
or notice to the Seller of such breach, all of the Mortgage Loans affected
by
such breach shall, at the Purchaser’s option, be repurchased by the Seller at
the Repurchase Price. However, if the breach shall involve a representation
or
warranty set forth in Subsection 9.02
(other
than the representation and warranty set forth in clause (ccc) of such Section
or any Deemed Material Breach Representation) and the Seller discovers or
receives notice of any such breach within 120 days of the related Closing
Date, the Seller shall, at the Purchaser’s option and provided that the Seller
has a Qualified Substitute Mortgage Loan, rather than repurchase the Mortgage
Loan as provided above, remove such Mortgage Loan (a “Deleted
Mortgage Loan”)
and
substitute in its place a Qualified Substitute Mortgage Loan or Loans, provided
that any such substitution shall be effected not later than 120 days after
the related Closing Date. If the Seller has no Qualified Substitute Mortgage
Loan, it shall repurchase the deficient Mortgage Loan at the Repurchase Price.
Any repurchase of a Mortgage Loan or Loans pursuant to the foregoing provisions
of this Subsection
9.03
shall be
accomplished by either (a) if the Servicing Agreement has been entered into
and is in effect, deposit in the Custodial Account of the amount of the
Repurchase Price for distribution to the Purchaser on the next scheduled
Remittance Date, after deducting therefrom any amount received in respect
of
such repurchased Mortgage Loan or Loans and being held in the Custodial Account
for future distribution or (b) if the Servicing Agreement has not been
entered into or is no longer in effect, by direct remittance of the Repurchase
Price to the Purchaser or its designee in accordance with the Purchaser’s
instructions.
At
the
time of repurchase or substitution, the Purchaser and the Seller shall arrange
for the reassignment of the Deleted Mortgage Loan to the Seller and the delivery
to the Seller of any documents held by the Custodian relating to the Deleted
Mortgage Loan. In the event of a repurchase or substitution, the Seller shall,
simultaneously with such reassignment, give written notice to the Purchaser
that
such repurchase or substitution has taken place, amend the Mortgage Loan
Schedule to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement, and, in the case of substitution, identify a Qualified Substitute
Mortgage Loan and amend the related Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, the Seller shall be deemed to have
made
as to such Qualified Substitute Mortgage Loan the representations and warranties
set forth in this Agreement except that all such representations and warranties
set forth in this Agreement shall be deemed made as of the date of such
substitution. The Seller shall effect such substitution by delivering to
the
Custodian or to such other party as the Purchaser may designate in writing
for
such Qualified Substitute Mortgage Loan the documents required by Subsection 6.03
and the
Custodial Agreement, with the Mortgage Note endorsed as required by Subsection 6.03
and the
Custodial Agreement. No substitution will be made in any calendar month after
the Determination Date for such month. The Seller shall cause the Originator
to
remit directly to the Purchaser, or its designee in accordance with the
Purchaser’s instructions the Monthly Payment less the Servicing Fee due, if any,
on such Qualified Substitute Mortgage Loan or Loans in the month following
the
date of such substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution shall be retained
by the
Seller. For the month of substitution, distributions to the Purchaser shall
include the Monthly Payment due on any Deleted Mortgage Loan in the month
of
substitution, and the Seller shall thereafter be entitled to retain all amounts
subsequently received by the Seller in respect of such Deleted Mortgage
Loan.
For
any
month in which the Seller substitutes a Qualified Substitute Mortgage Loan
for a
Deleted Mortgage Loan, the Seller shall determine the amount (if any) by
which
the aggregate principal balance of all Qualified Substitute Mortgage Loans
as of
the date of substitution is less than the aggregate Stated Principal Balance
of
all Deleted Mortgage Loans (after application of scheduled principal payments
due in the month of substitution). The amount of such shortfall shall be
distributed by the Seller directly to the Purchaser or its designee in
accordance with the Purchaser’s instructions within two (2) Business Days of
such substitution.
In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Purchaser and the Successor Servicer and hold such parties
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on
or
grounded upon, or resulting from, a breach of the Seller representations
and
warranties contained in this Agreement or any Reconstitution Agreement. It
is
understood and agreed that the obligations of the Seller set forth in this
Subsection
9.03
to cure,
substitute for or repurchase a defective Mortgage Loan and to indemnify the
Purchaser and the Successor Servicer as provided in this Subsection
9.03
constitute the sole remedies of the Purchaser and the Successor Servicer
respecting a breach of the foregoing representations and
warranties.
Any
cause
of action against the Seller relating to or arising out of the breach of
any
representations and warranties made in Subsections
9.01 and 9.02
shall
accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by
the Seller to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Seller by the Purchaser for compliance
with this Agreement.
Subsection
9.04 [RESERVED].
Subsection
9.05 Repurchase
of Mortgage Loans With First Payment Defaults.
If
the
related Mortgagor is delinquent with respect to the Mortgage Loan’s first
Monthly Payment either (i) after origination of such Mortgage Loan, or
(ii) after the related Closing Date, the Seller, at the Purchaser’s option,
shall repurchase such Mortgage Loan from the Purchaser at a price equal to
the
percentage of par as stated in the related Purchase Price and Terms Agreement
(subject to adjustment as provided therein) multiplied by the then outstanding
principal balance of such Mortgage Loan, plus accrued and unpaid interest
thereon from the date to which interest was last paid through the day prior
to
the repurchase date at the applicable Mortgage Interest Rate, plus any
outstanding advances owed to any servicer in connection with such Mortgage
Loan.
For purposes of clarification, with respect to a Mortgage Loan’s first Monthly
Payment after the related Closing Date, such payment shall not be considered
a
“First Payment Default” for purposes of clause (ii) of the previous sentence
until the payment has not been received by the Purchaser within sixty (60)
days
of the related Due Date (effectively allowing for a thirty (30) day cure
period). The Purchaser shall have ninety (90) days following any such
delinquency to notify the Seller of any repurchase request and the Seller
shall
repurchase such delinquent Mortgage Loan within thirty (30) days of the date
of
such request.
Subsection
9.06 Repurchase
of Certain Mortgage Loans That Prepay in Full.
With
respect to Mortgage Loans without prepayment penalties, in the event that
any
such Mortgage Loan prepays in full either (i) on or before a Securitization
Transaction or (ii) during the first three (3) months following the related
Closing Date, the Seller shall pay the Purchaser, within three (3) Business
Days
of such prepayment in full, the difference between the Purchase Price for
such
Mortgage Loan and the outstanding principal balance of such Mortgage Loan
as of
the related Cut-off Date.
| SECTION 10. |
Closing.
|
The
closing for the purchase and sale of each Mortgage Loan Package shall take
place
on the related Closing Date. At the Purchaser’s option, each Closing shall be
either: by telephone, confirmed by letter or wire as the parties shall agree,
or
conducted in person, at such place as the parties shall agree.
The
closing for the Mortgage Loans to be purchased on each Closing Date shall
be
subject to each of the following conditions:
|
(i)
|
at
least two Business Days prior to the related Closing Date, the
Seller
shall deliver to the Purchaser a magnetic diskette, or transmit
by modem,
a listing on a loan-level basis of the necessary information to
compute
the Purchase Price of the Mortgage Loans delivered on such Closing
Date
(including accrued interest), and prepare a Mortgage Loan
Schedule;
|
|
(ii)
|
all
of the representations and warranties of the Seller under this
Agreement
and of the Originator under the Servicing Agreement (with respect
to each
Mortgage Loan, as specified therein) shall be true and correct
as of the
related Closing Date and no event shall have occurred which, with
notice
or the passage of time, would constitute a default under this Agreement
or
an Event of Default under the Servicing
Agreement;
|
|
(iii)
|
the
Purchaser shall have received, or the Purchaser’s attorneys shall have
received in escrow, all closing documents as specified in Section
11
of
this Agreement, in such forms as are agreed upon and acceptable
to the
Purchaser, duly executed by all signatories other than the Purchaser
as
required pursuant to the terms
hereof;
|
|
(iv)
|
the
Seller shall have delivered and released to the Custodian all documents
required pursuant to the Custodial Agreement;
and
|
|
(v)
|
all
other terms and conditions of this Agreement and the related Purchase
Price and Terms Agreement shall have been complied
with.
|
Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
related Closing Date the Purchase Price, plus accrued interest pursuant to
Section
4
of this
Agreement, by wire transfer of immediately available funds to the account
designated by the Seller.
| SECTION 11. |
Closing
Documents.
|
The
Closing Documents for the Mortgage Loans to be purchased on each Closing
Date
shall consist of fully executed originals of the following
documents:
| 1. |
this
Agreement (to be executed and delivered only for the initial Closing
Date);
|
| 2. |
the
related Mortgage Loan Schedule (one copy to be attached to the
Custodian’s
counterpart of the Custodial Agreement in connection with the initial
Closing Date, and one copy to be attached to the related Assignment
and
Conveyance as the Mortgage Loan Schedule
thereto);
|
| 3. |
a
Custodian’s Certification, as required under the Custodial Agreement, in
the form of Exhibit 2
to
the Custodial Agreement;
|
| 4. |
with
respect to the initial Closing Date, an Officer’s Certificate, in the form
of Exhibit C
hereto with respect to each of the Seller and the Originator, including
all attachments thereto; with respect to subsequent Closing Dates,
an
Officer’s Certificate upon request of the
Purchaser;
|
| 5. |
with
respect to the initial Closing Date, an Opinion of Counsel of the
Seller
(who may be an employee of the Seller), in the form of Exhibit D
hereto (“Opinion
of Counsel of the Seller”);
with respect to subsequent Closing Dates, an Opinion of Counsel
of the
Seller upon request of the
Purchaser;
|
| 6. |
with
respect to the initial Closing Date, an Opinion of Counsel of the
Custodian (who may be an employee of the Custodian), in the form
of an
exhibit to the Custodial Agreement;
|
| 7. |
a
Security Release Certification, in the form of Exhibit E
or F, as applicable,
hereto executed by any person, as requested by the Purchaser, if
any of
the Mortgage Loans have at any time been subject to any security
interest,
pledge or hypothecation for the benefit of such
person;
|
| 8. |
a
certificate or other evidence of merger or change of name, signed
or
stamped by the applicable regulatory authority, if any of the Mortgage
Loans were acquired by the Seller by merger or acquired or originated
by
the Seller while conducting business under a name other than its
present
name, if applicable;
|
| 9. |
with
respect to the initial Closing Date, the Underwriting Guidelines
to be
attached hereto as Exhibit G;
and
|
| 10. |
Assignment
and Conveyance Agreement in the form of Exhibit H
hereto, and all exhibits thereto.
|
The
Seller shall bear the risk of loss of the closing documents until such time
as
they are received by the Purchaser or its attorneys.
| SECTION 12. |
Costs.
|
The
Purchaser shall pay any fees and expenses relating to due diligence review
of
the Mortgage Files, commissions due its salesmen, fees of the Custodian incurred
following the related Closing Date, fees for recording each Assignment of
Mortgage, any loan file shipping fees and the legal fees and expenses of
its
attorneys and custodial fees. All other costs and expenses incurred in
connection with the transfer and delivery of the Mortgage Loans and the
Servicing Rights including fees for title policy endorsements and continuations,
and the Seller’s attorney’s fees, shall be paid by the Seller.
| SECTION 13. |
Cooperation
of Seller with a Reconstitution.
|
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, after each Closing Date, on one or more dates (each, a “Reconstitution
Date”)
at the
Purchaser’s sole option, the Purchaser may effect a sale (each a “Reconstitution”)
of
some or all of the Mortgage Loans then subject to this Agreement, without
recourse, to:
|
(i)
|
Xxxxxx
Xxx under its Cash Purchase Program or MBS Program (Special Servicing
Option) (each, a “Xxxxxx
Mae Transfer”);
or
|
|
(ii)
|
Xxxxxxx
Mac (the “Xxxxxxx
Mac Transfer”);
or
|
|
(iii)
|
one
or more third party purchasers in one or more Whole Loan Transfers;
or
|
|
(iv)
|
one
or more trusts or other entities to be formed as part of one or
more
Securitization Transactions.
|
The
Seller agrees to execute in connection with any Agency Transfer, any and
all
pool purchase contracts, and/or agreements reasonably acceptable to the Seller
among the Purchaser, the Seller, Xxxxxx Xxx or Xxxxxxx Mac (as the case may
be)
and any servicer in connection with a Whole Loan Transfer, a seller’s warranties
and servicing agreement or a participation and servicing agreement in form
and
substance reasonably acceptable to the Seller, and in connection with a
Securitization Transaction, a pooling and servicing agreement in form and
substance reasonably acceptable to the Seller (collectively the agreements
referred to herein are designated, the “Reconstitution
Agreements”).
With
respect to each Whole Loan Transfer and each Securitization Transaction entered
into by the Purchaser, the Seller agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser; and (3) to restate the
representations and warranties set forth in this Agreement and the Servicing
Agreement as of the settlement or closing date in connection with such
Reconstitution that occurs on or prior to the date which is six (6) months
following the related Closing Date and in connection with any Reconstitution
on
or after the date which is six (6) months following the related Closing
Date, to restate the representations and warranties set forth in this Agreement
as of the Closing Date (each, a “Reconstitution
Date”)
or
make the representations and warranties set forth in the related
selling/servicing guide of the master servicer or issuer, as the case may
be, in
connection with such Reconstitution. The Seller shall use its reasonable
best
efforts to provide to such master servicer or issuer, as the case may be,
and
any other participants in such Reconstitution: (i) any and all information
and appropriate verification of information which may be reasonably available
to
the Seller or its affiliates, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
request; (ii) such additional representations, warranties, covenants,
opinions of counsel, letters from auditors, and certificates of public officials
or officers of the Seller or the Originator as are reasonably believed necessary
by the Purchaser or any such other participant; and (iii) to execute,
deliver and satisfy all conditions set forth in any indemnity agreement required
by the Purchaser or any such participant. The Seller shall indemnify the
Purchaser, each Affiliate designated by the Purchaser and each Person who
controls the Purchaser or such Affiliate and hold each of them harmless from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees
and
expenses that each of them may sustain in any way related to any information
provided by or on behalf of the Seller or the Originator regarding the Seller,
the Originator, the Seller’s or other originator’s Static Pool Information, the
Seller’s and Originator’s servicing practices or performance, the Mortgage Loans
or the Underwriting Guidelines set forth in any offering document prepared
in
connection with any Reconstitution. For purposes of the previous sentence,
“Purchaser” shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were “Purchasers” under this
Agreement. Moreover, the Seller agrees to cooperate with all reasonable requests
made by the Purchaser to effect such Reconstitution Agreements.
In
the
event the Purchaser has elected to have the Seller or the Originator hold
record
title to the Mortgages, prior to the Reconstitution Date, the Seller shall
prepare an assignment of mortgage in blank or to the prospective purchaser
or
trustee, as applicable, from the Seller or the Originator, as applicable,
acceptable to the prospective purchaser or trustee, as applicable, for each
Mortgage Loan that is part of the Reconstitution and shall pay all preparation
and recording costs associated therewith. In connection with the Reconstitution,
the Seller shall execute or shall cause the Originator to execute each
assignment of mortgage, track such Assignments of Mortgage to ensure they
have
been recorded and deliver them as required by the prospective purchaser or
trustee, as applicable, upon the Seller’s receipt thereof. Additionally, the
Seller shall prepare and execute or shall cause the Originator to execute,
at
the direction of the Purchaser, any note endorsement in connection with any
and
all seller/servicer agreements.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall
remain
subject to this Agreement and, if the Servicing Agreement shall remain in
effect
with respect to the related Mortgage Loan Package, shall continue to be serviced
in accordance with the terms of this Agreement and the Servicing Agreement
and
with respect thereto this Agreement shall remain in full force and
effect.
| SECTION 14. |
The
Seller.
|
Subsection
14.01 Additional
Indemnification by the Seller; Third Party Claims.
The
Seller shall indemnify the Purchaser and the Successor Servicer and hold
such
parties harmless against any and all claims, losses, damages, penalties,
fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that such parties may sustain in any
way
related to the failure of the Seller to perform its duties and the Originator
to
service the Mortgage Loans in strict compliance with the terms of this Agreement
or any Reconstitution Agreement entered into pursuant to Section 13.
The
Seller immediately shall notify the Purchaser if a claim is made by a third
party with respect to this Agreement or any Reconstitution Agreement or the
Mortgage Loans, assume (with the prior written consent of the Purchaser)
the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or the Purchaser in respect of such
claim. The Purchaser promptly shall reimburse the Seller for all amounts
advanced by it pursuant to the preceding sentence, except when the claim
is in
any way related to the Seller’s indemnification pursuant to Section 9,
or is
in any way related to the failure of the Originator or the Seller to service
and
administer the Mortgage Loans in strict compliance with the terms of this
Agreement or any Reconstitution Agreement.
Subsection
14.02 Merger
or Consolidation of the Seller.
The
Seller will keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and will 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 duties under this
Agreement.
Any
Person into which the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall
be the
successor of the Seller 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 shall have a net worth of at least $25,000,000.
| SECTION 15. |
Financial
Statements.
|
The
Seller understands that in connection with the Purchaser’s marketing of the
Mortgage Loans, the Purchaser shall make available to prospective purchasers
audited financial statements of the Seller for the most recently completed
three
fiscal years respecting which such statements are available, as well as a
Consolidated Statement of Condition of the Seller at the end of the last
two
fiscal years covered by such Consolidated Statement of Operations. The Seller
shall also make available any comparable interim statements to the extent
any
such statements have been prepared by the Seller (and are available upon
request
to members or stockholders of the Seller or the public at large). The Seller,
if
it has not already done so, agrees to furnish promptly to the Purchaser copies
of the statements specified above. The Seller shall also make available
information on its servicing performance with respect to loans serviced for
others, including delinquency ratios.
The
Seller also agrees to allow reasonable access to a knowledgeable financial
or
accounting officer for the purpose of answering questions asked by any
prospective purchaser regarding recent developments affecting the Seller
or the
financial statements of the Seller.
| SECTION 16. |
Mandatory
Delivery; Grant of Security Interest.
|
The
sale
and delivery on the related Closing Date of the Mortgage Loans described
on the
related Mortgage Loan Schedule is mandatory from and after the date of the
execution of the related Purchase Price and Terms Agreement, it being
specifically understood and agreed that each Mortgage Loan is unique and
identifiable on the date hereof and that an award of money damages would
be
insufficient to compensate the Purchaser for the losses and damages incurred
by
the Purchaser (including damages to prospective purchasers of the Mortgage
Loans) in the event of the Seller’s failure to deliver (i) each of the
related Mortgage Loans or (ii) one or more Qualified Substitute Mortgage
Loans or (iii) one or more Mortgage Loans otherwise acceptable to the
Purchaser on or before the related Closing Date. The Seller hereby grants
to the
Purchaser a lien on and a continuing security interest in each Mortgage Loan
and
each document and instrument evidencing each such Mortgage Loan to secure
the
performance by the Seller of its obligations under the related Purchase Price
and Terms Agreement, and the Seller agrees that it shall hold such Mortgage
Loans in custody for the Purchaser subject to the Purchaser’s (a) right to
reject any Mortgage Loan (or Qualified Substitute Mortgage Loan) under the
terms
of this Agreement and to require another Mortgage Loan (or Qualified Substitute
Mortgage Loan) to be substituted therefor, and (b) obligation to pay the
Purchase Price for the Mortgage Loans. All rights and remedies of the Purchaser
under this Agreement are distinct from, and cumulative with, any other rights
or
remedies under this Agreement or afforded by law or equity and all such rights
and remedies may be exercised concurrently, independently or
successively.
| SECTION 17. |
Notices.
|
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
return receipt requested, or, if by other means, when received by the other
party at the address as follows:
|
(i)
|
if
to the Seller:
|
NC
Capital Corporation
00000
Xxx
Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxxxx 00000
Attention:
Xx. Xxxxx Xxxxx
| (ii) |
if
to the Purchaser:
|
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
1221
Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxxxxx - Whole Loan Operations Manager
Fax:
000-000-0000
Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
with
copies to:
Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxx - RFPG
0000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
000-000-0000
Email:
xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
or
such
other address as may hereafter be furnished to the other party 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 18. |
Severability
Clause.
|
Any
part,
provision representation or warranty of this Agreement which is prohibited
or
unenforceable or is held to be void or unenforceable in any jurisdiction
shall
be ineffective, as to such jurisdiction, to the extent of such prohibition
or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any
provision hereof. If the invalidity of any part, provision, representation
or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate,
in
good-faith, to develop a structure the economic effect of which is nearly
as
possible the same as the economic effect of this Agreement without regard
to
such invalidity.
| SECTION 19. |
Counterparts.
|
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts
shall
constitute one and the same instrument.
| SECTION 20. |
Governing
Law.
|
This
Agreement shall be deemed in effect when a fully executed counterpart thereof
is
received by the Purchaser in the State of New York and shall be deemed to
have
been made in the State of New York. The 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
the
substantive laws of the State of New York (without regard to conflicts of
laws
principles), except to the extent preempted by Federal law.
| SECTION 21. |
Intention
of the Parties.
|
It
is the
intention of the parties that the Purchaser is purchasing, and the Seller
is
selling the Mortgage Loans and not a debt instrument of the Seller or another
security. Accordingly, the parties hereto each intend to treat the transaction
for Federal income tax purposes as a sale by the Seller, and a purchase by
the
Purchaser, of the Mortgage Loans. Moreover, the arrangement under which the
Mortgage Loans are held shall be consistent with classification of such
arrangement as a grantor trust in the event it is not found to represent
direct
ownership of the Mortgage Loans. The Purchaser shall have the right to review
the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the Federal income
tax
consequences of owning the Mortgage Loans and the Seller shall cooperate
with
all reasonable requests made by the Purchaser in the course of such
review.
| SECTION 22. |
Successors
and Assigns; Assignment of Purchase Agreement.
|
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective permitted successors and assigns
of
the Seller and the successors and assigns of the Purchaser. This Agreement
shall
not be assigned, pledged or hypothecated by the Seller to a third party without
the consent of the Purchaser. This Agreement may be assigned, pledged or
hypothecated by the Purchaser without the consent of the Seller. In the event
the Purchaser assigns this Agreement, and the assignee assumes any of the
Purchaser’s obligations hereunder, the Seller acknowledges and agrees to look
solely to such assignee, and not to the Purchaser, for performance of the
obligations so assumed and the Purchaser shall be relieved from any liability
to
the Seller with respect thereto.
| SECTION 23. |
Waivers.
|
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
| SECTION 24. |
Exhibits.
|
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
| SECTION 25. |
General
Interpretive Principles.
|
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender
herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference to
such
Subsection as contained in the same Section in which the reference appears,
and
this rule shall also apply to Paragraphs and other subdivisions;
(e) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
| SECTION 26. |
Reproduction
of Documents.
|
This
Agreement and all documents relating thereto, including, without limitation,
(a) consents, waivers and modifications which may hereafter be executed,
(b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, 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 27. |
Further
Agreements.
|
The
Seller and the Purchaser each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
| SECTION 28. |
Recordation
of Assignments of Mortgage.
|
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or their comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at
the
Seller’s expense in the event recordation is either necessary under applicable
law or requested by the Purchaser at its sole option.
| SECTION 29. |
No
Solicitation.
|
From
and
after the related Closing Date, the Seller 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 the Seller’s behalf, to
personally, by telephone or mail, solicit the borrower or obligor under any
Mortgage Loan for any purpose whatsoever, including to refinance a Mortgage
Loan, in whole or in part, without (i) the prior written consent of the
Purchaser; or (ii) written notice from the related borrower or obligor
under a Mortgage Loan of such party’s intention to refinance such Mortgage Loan.
It is understood and agreed that all rights and benefits relating to the
solicitation of any Mortgagors and the attendant rights, title and interest
in
and to the list of such Mortgagors and data relating to their Mortgages
(including insurance renewal dates) shall be transferred to the Purchaser
pursuant hereto on the related Closing Date and the Seller shall take no
action
to undermine these rights and benefits. Notwithstanding the foregoing, it
is
understood and agreed that promotions undertaken by the Seller or any affiliate
of the Seller which are directed to the general public at large, including,
without limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this Section
29.
| SECTION 30. |
Waiver
of Trial by Jury.
|
THE
SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A
TRIAL
BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
| SECTION 31. |
Submission
To Jurisdiction; Waivers.
|
The
Seller hereby irrevocably and unconditionally:
(A) SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS
AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO
THE
EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT
TO
PLEAD OR CLAIM THE SAME;
(C) AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED
BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR
AT
SUCH OTHER ADDRESS OF WHICH THE PURCHASER SHALL HAVE BEEN NOTIFIED;
AND
(D) AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION.
| SECTION 32. |
Compliance
With Regulation AB.
|
Subsection
32.01 Intent
of the Parties; Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose of Section 32
of this
Agreement is to facilitate compliance by the Purchaser and any Depositor
with
the provisions of Regulation AB and related rules and regulations of the
Commission. Although Regulation AB is applicable by its terms only to offerings
of asset-backed securities that are registered under the Securities Act,
the
Seller acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
Neither
the Purchaser nor any Depositor shall 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 thereunder (or
the
provision in a private offering of disclosure comparable to that required
under
the Securities Act). The Seller acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise,
and
agrees to comply with requests made by the Purchaser or any Depositor in
good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with any Securitization
Transaction, the Seller shall cooperate fully with the Purchaser to deliver
to
the Purchaser (including any of its assignees or designees) and any Depositor,
any and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Purchaser or
any
Depositor to permit the Purchaser or such Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Seller, any Third-Party Originator and the Mortgage Loans, or the servicing
of
the Mortgage Loans, reasonably believed by the Purchaser or any Depositor
to be
necessary in order to effect such compliance.
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Seller by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB.
Subsection
32.02 Additional
Representations and Warranties of the Seller.
(a) The
Seller shall be deemed to represent to the Purchaser and to any Depositor,
as of
the date on which information is first provided to the Purchaser or any
Depositor under Subsection
32.03
that,
except as disclosed in writing to the Purchaser or such Depositor prior to
such
date: (i) the Seller is not aware and has not received notice that any default,
early amortization or other performance triggering event has occurred as
to any
other securitization due to any act or failure to act of the Seller; (ii)
the
Interim Servicer has not been terminated as servicer in a residential mortgage
loan securitization, either due to a servicing default or to application
of a
servicing performance test or trigger; (iii) no material noncompliance with
the
applicable servicing criteria with respect to other securitizations of
residential mortgage loans involving the Interim Servicer as servicer has
been
disclosed or reported by the Seller; (iv) no material changes to the Interim
Servicer’s policies or procedures with respect to the servicing function it will
perform under the Interim Servicing Agreement and any Reconstitution Agreement
for mortgage loans of a type similar to the Mortgage Loans have occurred
during
the three-year period immediately preceding the related Securitization
Transaction; (v) there are no aspects of the Interim Servicer’s financial
condition that could have a material adverse effect on the performance by
the
Interim Servicer of its servicing obligations under the Interim Servicing
Agreement or any Reconstitution Agreement; (vi) there are no material legal
or
governmental proceedings pending (or known to be contemplated) against the
Seller, Interim Servicer, any Subservicer or any Third-Party Originator;
and
(vii) there are no affiliations, relationships or transactions relating to
the
Seller, Interim Servicer, any Subservicer or any Third-Party Originator with
respect to any Securitization Transaction and any party thereto identified
by
the related Depositor of a type described in Item 1119 of Regulation
AB.
(b) If
so
requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
Subsection
32.03,
the
Seller 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 request, provide reasonably adequate disclosure
of the pertinent facts, in writing, to the requesting party.
Subsection
32.03 Information
to Be Provided by the Seller.
In
connection with any Securitization Transaction the Seller shall (i) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, the information and materials
specified in paragraphs (a) and (b) of this Section, and (ii) as promptly
as
practicable following notice to or discovery by the Seller, provide to the
Purchaser and any Depositor (in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor) the information specified
in
paragraph (d) of this Section.
(a) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, as is requested for the purpose of compliance
with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation AB. Such
information shall include, at a minimum:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information
as the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
(C) a
description of any material legal or governmental proceedings pending (or
known
to be contemplated) against the Seller and each Third-Party Originator;
and
(D) a
description of any affiliation or relationship between the Seller, each
Third-Party Originator and any of the following parties to a Securitization
Transaction, as such parties are identified to the Seller by the Purchaser
or
any Depositor in writing in advance of such Securitization
Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(b) If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage
Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall
be
prepared in form and substance reasonably satisfactory to the Purchaser by
the
Seller (or Third-Party Originator) on the basis of its reasonable, good faith
interpretation of the requirements of Item 1105(a)(1)-(3) of Regulation AB.
To
the extent that there is reasonably available to the Seller (or Third-Party
Originator) Static Pool Information with respect to more than one mortgage
loan
type, the Purchaser or any Depositor shall be entitled to specify whether
some
or all of such information shall be provided pursuant to this paragraph.
Such
Static Pool Information for each vintage origination year or prior securitized
pool, as applicable, shall be presented in increments no less frequently
than
quarterly over the life of the mortgage loans included in the vintage
origination year or prior securitized pool. The most recent periodic increment
must be as of a date no later than 135 days prior to the date of the prospectus
or other offering document in which the Static Pool Information is to be
included or incorporated by reference. The Static Pool Information shall
be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Purchaser or the Depositor,
as
applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information to
the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense
of the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining to Static Pool Information relating
to
prior securitized pools for securitizations closed on or after January 1,
2006 or, in the case of Static Pool Information with respect to the Seller’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such letters shall be addressed to and be for the benefit
of
such parties as the Purchaser or such Depositor shall designate, which may
include, by way of example, any Sponsor, any Depositor and any broker dealer
acting as underwriter, placement agent or initial purchaser with respect
to a
Securitization Transaction. Any such statement or letter may take the form
of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) [Reserved].
(d) If
so
requested by the Purchaser or any Depositor for the purpose of satisfying
its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause each Third-Party
Originator to) (i) notify the Purchaser and any Depositor in writing of (A)
any
material litigation or governmental proceedings pending against the Seller
or
any Third-Party Originator and (B) any affiliations or relationships that
develop following the closing date of a Securitization Transaction between
the
Seller or any Third-Party Originator and any of the parties specified in
clause
(D) of paragraph (a) of this Section (and any other parties identified in
writing by the requesting party) with respect to such Securitization
Transaction, and (ii) provide to the Purchaser and any Depositor a description
of such proceedings, affiliations or relationships.
Subsection
32.04 Indemnification;
Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Securitization Transaction: each
sponsor and issuing entity; each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect
to such Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the Securities
Act
and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing and of
the
Depositor, and shall hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them
may
sustain arising out of or based upon:
(1) (A) any
untrue statement of a material fact contained or alleged to be contained
in any
information, report, certification, accountants’ letter or other material
provided in written or electronic form under this Section 32
by or on
behalf of the Seller, or provided under this Section 32
by or on
behalf of any Third-Party Originator (collectively, the “Seller
Information”),
or
(B) the omission or alleged omission to state in the Seller Information a
material fact required to be stated in the Seller Information or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, by way of clarification,
that
clause (B) of this paragraph shall be construed solely by reference to the
Seller Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Seller
Information or any portion thereof is presented together with or separately
from
such other information;
(2) any
failure by the Seller or any Third-Party Originator to deliver any information,
report, certification, accountants’ letter or other material when and as
required under this Section 32;
or
(3) any
breach by the Seller of a representation or warranty set forth in Subsection
32.02(a)
or in a
writing furnished pursuant to Subsection
32.02(b)
and made
as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing
date,
or any breach by the Seller of a representation or warranty in a writing
furnished pursuant to Subsection
32.02(b)
to the
extent made as of a date subsequent to such closing date.
In
the
case of any failure of performance described in clause (a)(2) of this Section,
the Seller shall promptly reimburse the Purchaser, any Depositor, as applicable,
and each Person responsible for the preparation, execution or filing of any
report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant
to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller or any Third-Party
Originator.
(b) Any
failure by the Seller or any Third-Party Originator to deliver any information,
report, certification, accountants’ letter or other material when and as
required under this Section 32,
or any
breach by the Seller of a representation or warranty set forth in Subsection
32.02(a)
or in a
writing furnished pursuant to Subsection
32.02(b)
and made
as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing
date,
or any breach by the Seller of a representation or warranty in a writing
furnished pursuant to Subsection
32.02(b)
to the
extent made as of a date subsequent to such closing date, shall immediately
and
automatically, without notice or grace period, constitute an Event of Default
with respect to the Seller under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor, as
applicable, in its sole discretion to terminate the rights and obligations
of
the Interim Servicer as servicer under the Interim Servicing Agreement and/or
any applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement or any applicable Reconstitution Agreement to
the
contrary) of any compensation to the Interim Servicer; provided that to the
extent that any provision of this Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Interim Servicer as servicer, such provision
shall
be given effect.
[Signatures
Commence on Following Page]
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be
signed hereto by their respective officers thereunto duly authorized as of
the
date first above written.
|
XXXXXX
XXXXXXX MORTGAGE
CAPITAL
INC.
(Purchaser)
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
|
NC
CAPITAL CORPORATION
(Seller)
|
||
| |
|
|
| By: | ||
|
|
||
| Name:
Title:
|
||
EXHIBIT
A
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser
and
any prospective Purchaser, and which shall be delivered to the Custodian,
or to
such other Person as the Purchaser shall designate in writing, pursuant to
Section 6 of the Sixth Amended and Restated Mortgage Loan Purchase and
Warranties Agreement to which this Exhibit is attached (the “Agreement”):
(c) (a)
the
original Mortgage Note bearing all intervening endorsements, endorsed “Pay to
the order of _________, without recourse” and signed in the name of the last
endorsee (the “Last
Endorsee”)
by an
authorized officer. To the extent that there is no room on the face of the
Mortgage Notes for endorsements, the endorsement may be contained on an allonge,
if state law so allows and the Custodian is so advised by the Seller that
state
law so allows. If the Mortgage Loan was acquired by the Seller in a merger,
the
endorsement must be by “[Last Endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the Last
Endorsee while doing business under another name, the endorsement must be
by
“[Last Endorsee], formerly known as [previous name]”;
(d) the
original of any guarantee executed in connection with the Mortgage
Note;
(e) the
original Mortgage with evidence of recording thereon. If in connection with
any
Mortgage Loan, the Seller cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such Mortgage
has
been delivered for recordation or because such Mortgage has been lost or
because
such public recording office retains the original recorded Mortgage, the
Seller
shall deliver or cause to be delivered to the Custodian, a photocopy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer’s Certificate of the Seller (or certified by the
title company, escrow agent, or closing attorney) stating that such Mortgage
has
been dispatched to the appropriate public recording office for recordation
and
that the original recorded Mortgage or a copy of such Mortgage certified
by such
public recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Custodian upon receipt thereof
by the
Seller; or (ii) in the case of a Mortgage where a public recording office
retains the original recorded Mortgage or in the case where a Mortgage is
lost
after recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete copy
of the
original recorded Mortgage;
(f) the
originals of all assumption, modification, consolidation or extension
agreements, if any, with evidence of recording thereon, or certified copies
thereof if the original has been sent for recording;
(g) the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording. The Assignment of Mortgage must be duly recorded
only
if recordation is either necessary under applicable law or commonly required
by
private institutional mortgage investors in the area where the Mortgaged
Property is located or on direction of the Purchaser as provided in this
Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage
shall
be assigned to the Purchaser or its designee. If the Assignment of Mortgage
is
not to be recorded, the Assignment of Mortgage shall be delivered in blank.
If
the Mortgage Loan was acquired by the Seller in a merger, the Assignment
of
Mortgage must be made by “[Seller], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the Seller
while doing business under another name, the Assignment of Mortgage must
be by
“[Seller], formerly known as [previous name]”;
(h) the
originals of all intervening assignments of mortgage (if any) evidencing
a
complete chain of assignment from the Originator to the Last Endorsee with
evidence of recording thereon, or if any such intervening assignment has
not
been returned from the applicable recording office or has been lost or if
such
public recording office retains the original recorded assignments of mortgage,
the Seller shall deliver or cause to be delivered to the Custodian, a photocopy
of such intervening assignment, together with (i) in the case of a delay
caused by the public recording office, an Officers Certificate of the Seller
(or
certified by the title company, escrow agent, or closing attorney) stating
that
such intervening assignment of mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening assignment
of
mortgage certified by the appropriate public recording office to be a true
and
complete copy of the original recorded intervening assignment of mortgage
will
be promptly delivered to the Custodian upon receipt thereof by the Seller;
or
(ii) in the case of an intervening assignment where a public recording
office retains the original recorded intervening assignment or in the case
where
an intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public recording
office to be a true and complete copy of the original recorded intervening
assignment;
(i) the
original mortgagee policy of title insurance or, in the event such original
title policy is unavailable, a certified true copy of the related policy
binder
or commitment for title certified to be true and complete by the title insurance
company;
(j) the
original or, if unavailable, a copy of any security agreement, chattel mortgage
or equivalent document executed in connection with the Mortgage;
and
(k) if
any of
the above documents has been executed by a person holding a power of attorney,
an original or photocopy of such power certified by the Seller to be a true
and
correct copy of the original.
In
the
event an Officer’s Certificate of the Seller is delivered to the Purchaser
because of a delay caused by the public recording office in returning any
recorded document, the Seller shall deliver to the Purchaser, within 90 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 Custodian due solely to a delay caused by the public recording
office, (iii) state the amount of time generally required by the applicable
recording office to record and return a document submitted for recordation,
and
(iv) specify the date the applicable recorded document will be delivered to
the Custodian. An extension of the date specified in clause (iv) above may
be requested from the Purchaser, which consent shall not be unreasonably
withheld.
EXHIBIT
B
[RESERVED]
EXHIBIT
C
SELLER’S
OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected [Vice] President
of ________________ [COMPANY], a [state] [federally] chartered institution
organized under the laws of the [state of ____________] [United States] (the
“Company”)
and
further as follows:
1. Attached
hereto as Exhibit
1
is a
true, correct and complete copy of the charter of the Company which is in
full
force and effect on the date hereof and which has been in effect without
amendment, waiver, rescission or modification since ___________.
2. Attached
hereto as Exhibit
2
is a
true, correct and complete copy of the bylaws of the Company which are in
effect
on the date hereof and which have been in effect without amendment, waiver,
rescission or modification since ___________.
3. Attached
hereto as Exhibit
3
is an
original certificate of good standing of the Company issued within ten days
of
the date hereof, and no event has occurred since the date thereof which would
impair such standing.
4. Attached
hereto as Exhibit
4
is a
true, correct and complete copy of the corporate resolutions of the Board
of
Directors of the Company authorizing the Company to execute and deliver (a)
the
Sixth Amended and Restated Mortgage Loan Purchase and Warranties Agreement,
dated as of _______ __, 200_, by and between Xxxxxx Xxxxxxx Mortgage Capital
Inc. (the “Purchaser”)
and
the Company (the “Purchase
Agreement”)
and
(b) the Amended and Restated Interim Servicing Agreement, dated as of _______
__, 200_, by and between the Purchaser and New Century Mortgage Corporation
(the
“Servicing
Agreement”),
[and
to endorse the Mortgage Notes and execute the Assignments of Mortgages by
original [or facsimile] signature], and such resolutions are in effect on
the
date hereof and have been in effect without amendment, waiver, rescission
or
modification since ____________.
5. Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Purchase
Agreement, the Servicing Agreement, [the sale of the mortgage loans] or the
consummation of the transactions contemplated by the agreements; or
(ii) any required consent, approval, authorization or order has been
obtained by the Company.
6. Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the
terms of the Purchase Agreement or the Servicing Agreement conflicts or will
conflict with or results or will result in a breach of or constitutes or
will
constitute a default under the charter or by-laws of the Company or, to the
best
of my knowledge, the terms of any indenture or other agreement or instrument
to
which the Company is a party or by which it is bound or to which it is subject,
or any statute or order, rule, regulations, writ, injunction or decree of
any
court, governmental authority or regulatory body to which the Company is
subject
or by which it is bound.
7. To
the
best of my knowledge, there is no action, suit, proceeding or investigation
pending or threatened against the Company which, in my judgment, either in
any
one instance or in the aggregate, may result in any material adverse change
in
the business, operations, financial condition, properties or assets of the
Company or in any material impairment of the right or ability of the Company
to
carry on its business substantially as now conducted or in any material
liability on the part of the Company or which would draw into question the
validity of the Purchase Agreement or the Servicing Agreement, or the mortgage
loans or of any action taken or to be taken in connection with the transactions
contemplated hereby, or which would be likely to impair materially the ability
of the Company to perform under the terms of the Purchase Agreement or the
Servicing Agreement.
8. Each
person listed on Exhibit
5
attached
hereto who, as an officer or representative of the Company, signed (a) the
Purchase Agreement, (b) the Servicing Agreement or (c) any other document
delivered or on the date hereof in connection with any purchase described
in the
agreements set forth above was, at the respective times of such signing and
delivery, and is now, a duly elected or appointed, qualified and acting officer
or representative of the Company, who holds the office set forth opposite
his or
her name on Exhibit
5,
and the
signatures of such persons appearing on such documents are their genuine
signatures.
9. The
Company is duly authorized to engage in the transactions described and
contemplated in the Purchase Agreement and the Servicing Agreement.
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Company.
| Dated:____________________ | By:___________________________ | |
| Name:_________________________ | ||
| [Seal] | Title: [Vice] President |
I,
________________________, an [Assistant] Secretary of ______________[COMPANY],
hereby certify that ____________ is the duly elected, qualified and acting
[Vice] President of the Company and that the signature appearing above is
[her]
[his] genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
| Dated:____________________ | By:___________________________ | |
| Name:_________________________ | ||
| [Seal] | Title: [Assistant] Secretary |
EXHIBIT
5
to
Company’s
Officer’s Certificate
|
NAME
|
TITLE
|
SIGNATURE
|
||
|
|
||||
|
|
||||
|
|
||||
|
|
||||
|
|
||||
|
|
||||
|
|
EXHIBIT
D
FORM
OF OPINION OF COUNSEL TO THE SELLER AND ORIGINATOR
(date)
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
1500
Xxxxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Dear
Sirs:
You
have
requested [our] [my] opinion, as [Assistant] General Counsel to
___________________ (the “Company”),
with
respect to certain matters in connection with the sale by the Company of
the
Mortgage Loans pursuant to that certain Sixth Amended and Restated Mortgage
Loan
Purchase and Warranties Agreement by and between the Company and Xxxxxx Xxxxxxx
Mortgage Capital Inc. (the “Purchaser”),
dated
as of _________ __, 200_ (the “Purchase
Agreement”)
and
the Amended and Restated Interim Servicing Agreement, by and between the
Purchaser and New Century Mortgage Corporation (the “Originator”),
dated
as of _________ __, 200_ (the “Servicing
Agreement”,
and
together with the Purchase Agreement, the “Agreements”).
which
sale is in the form of whole loans. Capitalized terms not otherwise defined
herein have the meanings set forth in the Purchase Agreement and the Servicing
Agreement.
[We]
[I]
have examined the following documents:
| 1. |
the
Agreements;
|
| 2. |
the
form of Assignment of Mortgage;
|
| 3. |
the
form of endorsement of the Mortgage Notes;
and
|
|
4.
|
such
other documents, records and papers as we have deemed necessary
and
relevant as a basis for this
opinion.
|
To
the
extent [we] [I] have deemed necessary and proper, [we] [I] have relied upon
the
representations and warranties of the Company and the Originator contained
in
the Agreements. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of
all
documents.
Based
upon the foregoing, it is [our] [my] opinion that:
|
1.
|
The
Company and the Originator are [type of entity] duly organized,
validly
existing and in good standing under the laws of the [United States]
and
are qualified to transact business in, and is in good standing
under, the
laws of [the state of
incorporation].
|
|
2.
|
Each
of the Company and the Originator has the power to engage in the
transactions contemplated by the Agreements and all requisite power,
authority and legal right to execute and deliver the Agreements
and to
perform and observe the terms and conditions of the
Agreements.
|
|
3.
|
Each
Agreement has been duly authorized, executed and delivered by the
Company
and the Originator, as applicable, and is a legal, valid and binding
agreement enforceable in accordance with its terms against the
Company and
the Originator, as applicable, subject to bankruptcy laws and other
similar laws of general application affecting rights of creditors
and
subject to the application of the rules of equity, including those
respecting the availability of specific performance, none of which
will
materially interfere with the realization of the benefits provided
thereunder or with the Purchaser’s ownership of the Mortgage
Loans.
|
|
4.
|
Each
of the Company and the Originator has been duly authorized to allow
any of
its officers to execute any and all documents by original signature
in
order to complete the transactions contemplated by the
Agreements.
|
|
[5.
|
The
Company has been duly authorized to allow any of its officers to
execute
by original [or facsimile] signature the endorsements to the Mortgage
Notes and the Assignments of Mortgages, and the original [or facsimile]
signature of the officer at the Company executing the endorsements
to the
Mortgage Notes and the Assignments of Mortgages represents the
legal and
valid signature of said officer of the
Company].
|
|
6.
|
Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Company or the Originator of or compliance by
the
Company or the Originator with the Agreements and the sale of the
Mortgage
Loans by the Company or the consummation of the transactions contemplated
by the Agreements or (ii) any required consent, approval,
authorization or order has been obtained by the Company or the
Originator.
|
|
7.
|
Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the terms of, the Agreements conflicts or will conflict with
or results
or will result in a breach of or constitutes or will constitute
a default
under the charter or by-laws of the Company or the Originator,
as
applicable, or, to the best of my knowledge, the material terms
of any
indenture or other agreement or instrument to which the Company
or the
Originator is a party or by which it is bound or to which it is
subject,
or violates any statute or order, rule, regulations, writ, injunction
or
decree of any court, governmental authority or regulatory body
to which
the Company or the Originator is subject or by which it is
bound.
|
|
8.
|
There
is no action, suit, proceeding or investigation pending or, to
the best of
[our] [my] knowledge, threatened against the Company or the Originator
which, in [our] [my] judgment, either in any one instance or in
the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Company
or
the Originator or in any material impairment of the right or ability
of
the Company or the Originator to carry on its business substantially
as
now conducted or in any material liability on the part of the Company
or
the Originator or which would draw into question the validity of
the
Agreements or the Mortgage Loans or of any action taken or to be
taken in
connection with the transactions contemplated thereby, or which
would be
likely to impair materially the ability of the Company or the Originator
to perform under the terms of the
Agreements.
|
|
9.
|
The
sale of each Mortgage Note and Mortgage as and in the manner contemplated
by the Purchase Agreement, is sufficient to fully transfer to the
Purchaser all right, title and interest of the Company thereto
as
noteholder and mortgagee.
|
|
10.
|
The
endorsement of the Mortgage Notes, the delivery to the Purchaser,
or its
designee, of the Assignments of Mortgage, and the delivery of the
original
endorsed Mortgage Notes to the Purchaser, or its designee, are
sufficient
to permit the Purchaser to avail itself of all protection available
under
applicable law against the claims of any present or future creditors
of
the Company, and are sufficient to prevent any other sale, transfer,
assignment, pledge or hypothecation of the Mortgages and the Mortgage
Notes by the Company from being
enforceable.
|
Except
as
otherwise set forth in the Agreements, I assume no obligation to revise this
opinion or alter its conclusions to update or support this letter to reflect
any
facts or circumstances that may hereafter develop.
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which
you
initially and directly resell the Mortgage Loans may rely on this opinion
as if
it were addressed to them as of the date of this opinion.
|
Very
truly
yours,
|
||
| |
|
|
|
|
||
|
[Name]
[Assistant]
General Counsel
|
||
EXHIBIT
E
FORM
OF SECURITY RELEASE CERTIFICATION
___________________,
200__
[Federal
Home Loan Bank of
______
(the “Association”)]
________________________
________________________
________________________
| Attention: |
___________________________
___________________________
|
| Re: |
Notice
of Sale and Release of
Collateral
|
Dear
Sirs:
This
letter serves as notice that ________________________ [COMPANY] a [type of
entity], organized pursuant to the laws of [the State of incorporation] (the
“Company”)
has
committed to sell to Xxxxxx Xxxxxxx Mortgage Capital Inc. under the Sixth
Amended and Restated Mortgage Loan Purchase and Warranties Agreement, dated
as
of ______ __, 200_, certain mortgage loans originated by the Association.
The
Company warrants that the mortgage loans to be sold to Xxxxxx Xxxxxxx Mortgage
Capital Inc. are in addition to and beyond any collateral required to secure
advances made by the Association to the Company.
The
Company acknowledges that the mortgage loans to be sold to Xxxxxx Xxxxxxx
Mortgage Capital Inc. shall not be used as additional or substitute collateral
for advances made by the Association. Xxxxxx Xxxxxxx Mortgage Capital Inc.
understands that the balance of the Company’s mortgage loan portfolio may be
used as collateral or additional collateral for advances made by the
Association, and confirms that it has no interest therein.
Execution
of this letter by the Association shall constitute a full and complete release
of any security interest, claim, or lien which the Association may have against
the mortgage loans to be sold to Xxxxxx Xxxxxxx Mortgage Capital
Inc.
Very
truly yours,
____________________________
By:__________________________
Name:________________________
Title:_________________________
Date:_________________________
Acknowledged
and approved:
[FEDERAL
HOME LOAN BANK OF]
__________________________
By:______________________________
Name:___________________________
Title:____________________________
Date:____________________________
Exhibit
F
EXHIBIT
F
FORM
OF SECURITY RELEASE CERTIFICATION
I. Release
of Security Interest
The
financial institution named below hereby relinquishes any and all right,
title,
interest, lien or claim of any kind it may have in all mortgage loans described
on the attached Schedule
A
(the
“Mortgage
Loans”),
to be
purchased by Xxxxxx Xxxxxxx Mortgage Capital Inc. from the company named
on the
next page (the “Company”)
pursuant to that certain Sixth Amended and Restated Mortgage Loan Purchase
and
Warranties Agreement, dated as of ______ __, 200_, and certifies that all
notes,
mortgages, assignments and other documents in its possession relating to
such
Mortgage Loans have been delivered and released to the Company or its designees,
as of the date and time of the sale of such Mortgage Loans to Xxxxxx Xxxxxxx
Mortgage Capital Inc. Such release shall be effective automatically without
any
further action by any party upon payment in one or more installments, in
immediately available funds, of $_____________, in accordance with the wire
instructions set forth below.
Name
and
Address and Wire Instructions of Financial Institution
________________________________
(Name)
________________________________
(Address)
By:_____________________________
II. Certification
of Release
The
Company named below hereby certifies to Xxxxxx Xxxxxxx Mortgage Capital Inc.
that, as of the date and time of the sale of the above-mentioned Mortgage
Loans
to Xxxxxx Xxxxxxx Mortgage Capital Inc. the security interests in the Mortgage
Loans released by the above-named financial institution comprise all security
interests relating to or affecting any and all such Mortgage Loans. The Company
warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
_____________________________
By:__________________________
Title:_________________________
Date:_________________________
EXHIBIT
G
UNDERWRITING
GUIDELINES
EXHIBIT
H
FORM
OF ASSIGNMENT AND CONVEYANCE AGREEMENT
On
this
___ day of __________, ____, ___________________ NC Capital Corporation
(“Seller”),
as
the Seller under (i) that certain Purchase Price and Terms Agreement, dated
as of ___________, _____ (the “PPTA”),
and
(ii) that certain Sixth Amended and Restated Mortgage Loan Purchase and
Warranties Agreement, dated as of May 1, 2006 (the “Purchase
Agreement”),
does
hereby sell, transfer, assign, set over and convey to Xxxxxx Xxxxxxx Mortgage
Capital Inc. (“Purchaser”)
as the
Purchaser under the Agreements (as defined below), without recourse, but
subject
to the terms of the Agreements, all right, title and interest of, in and to
the Mortgage Loans listed on the Mortgage Loan Schedule attached hereto as
Exhibit A
(the
“Mortgage
Loans”),
together with the Servicing Rights, and the Mortgage Files and all rights
and
obligations arising under the documents contained therein. Each Mortgage
Loan
subject to the Agreements was underwritten in accordance with, and conforms
to,
the Underwriting Guidelines attached hereto as Exhibit
C.
Pursuant to Section 6 of the Purchase Agreement, the Seller has delivered
to the Custodian the documents for each Mortgage Loan to be purchased as
set
forth in the Purchase Agreement. The contents of each Servicing File required
to
be retained by New Century Mortgage Corporation (“Servicer”),
as
Originator/Servicer under that certain Amended and Restated Interim Servicing
Agreement, dated as of December 1, 2005 (the “Servicing
Agreement”)
to
service the Mortgage Loans pursuant to the Servicing Agreement and thus not
delivered to the Purchaser are and shall be held in trust by the Servicer
for
the benefit of the Purchaser as the owner thereof. The Servicer’s possession of
any portion of the Servicing File is at the will of the Purchaser for the
sole
purpose of facilitating servicing of the related Mortgage Loan pursuant to
the
Servicing Agreement, and such retention and possession by the Servicer shall
be
in a custodial capacity only. The ownership of each Mortgage Note, Mortgage,
the
Servicing Rights and the contents of the Mortgage File and Servicing File
is
vested in the Purchaser and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller or the Servicer shall immediately vest in the Purchaser
and shall be retained and maintained, in trust, by the Seller at the will
of the
Purchaser in such custodial capacity only. The PPTA, the Purchase Agreement
and
the Servicing Agreement shall collectively be referred to as the “Agreements”
herein.
The
Mortgage Loan Package characteristics of the Mortgage Loans subject hereto
are
set forth on Exhibit B
hereto.
In
accordance with Section 6 of the Purchase Agreement, the Purchaser accepts
the Mortgage Loans listed on Exhibit A
attached
hereto. Notwithstanding the foregoing the Purchaser does not waive any rights
or
remedies it may have under the Agreements.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
|
[SELLER]
|
||
| |
|
|
| By:_______________________________________ | ||
|
Name:_____________________________________
Title:______________________________________
|
||
|
[SERVICER]
|
||
| |
|
|
| By:_______________________________________ | ||
|
Name:_____________________________________
Title:______________________________________
|
||
Accepted
and Agreed:
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
By:_______________________________
Name:_____________________________
Title:______________________________
EXHIBIT
A
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
THE
MORTGAGE LOANS
EXHIBIT
B
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS
AND WARRANTIES WITH RESPECT TO THE POOL
CHARACTERISTICS
OF EACH MORTGAGE LOAN PACKAGE
Pool
Characteristics of the Mortgage Loan Package as delivered on the related
Closing
Date:
No
Mortgage Loan has: (1) an outstanding principal balance less than
$_________; (2) an origination date earlier than __ months prior to the
related Cut-off Date; (3) a CLTV of greater than _____%; (4) a FICO
Score of less than ___; or (5) a debt-to-income ratio of more than __%.
Each Mortgage Loan has a Mortgage Interest Rate of at least ___% per annum
and
an outstanding principal balance less than $_________. Each Adjustable Rate
Mortgage Loan has an Index of [_______].
EXHIBIT
C
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING
GUIDELINES
EXHIBIT
V
FORM
OF ADDITIONAL DISCLOSURE NOTIFICATION
**SEND
VIA EMAIL TO XXXxx.Xxxxxxxxxxxxx@xx.xxx
AND VIA OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW
Deutsche
Bank National Trust Company, as trustee
0000
Xx.
Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000
Email:
XXXxx.Xxxxxxxxxxxxx@xx.xxx
Attn.: Trust
& Securities Services - MS07C1
RE: **Additional
Form [10-D] [10-K] [8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section 8.12 of the Pooling and Servicing Agreement (the
“Agreement”), dated as of January 1, 2007, among Xxxxxx Xxxxxxx ABS Capital I
Inc., as depositor, Saxon Mortgage Services, Inc., as a servicer (“Saxon”),
Countrywide Home Loans Servicing LP, as a servicer (“Countrywide Servicing”;
together with Saxon, the “Servicers”), NC Capital Corporation, as responsible
party, and Deutsche Bank National Trust Company, as trustee, the undersigned,
as
[_________________________] hereby notifies you that certain events have come
to
our attention that we are required to report to you for disclosure on Form
[10-D] [10-K] [8-K].
Description
of additional Form [10-D] [10-K] [8-K] Disclosure:
List
of
any attachments hereto to be included in the Additional Form [10-D] [10-K]
[8-K] Disclosure:
Each
of
the attachments hereto is being transmitted to the Trustee in an
XXXXX-compatible format.
Any
inquiries related to this notification should be directed to [_________________]
phone number [___________________]; email address
[______________________].
| [NAME OF PARTY], | |
| As [Role] | |
| By:_____________________________ | |
| Name: | |
EXHIBIT
W-1
FORM
OF
SAXON SERVICER REPORTS
(Available
upon request)
EXHIBIT
W-2
FORM
OF
COUNTRYWIDE SERVICING SERVICER REPORTS
(Available
upon request)
EXHIBIT
X
FORM
OF
COUNTRYWIDE AMENDMENT TO REGULATION AB
Capitalized
terms used in this Exhibit X, but not defined in this Exhibit X shall have
the
meanings given to such terms in this Agreement, except the term “Mortgage Loan”
shall mean “Mortgage Loan” as defined in this Agreement.
EXHIBIT
Y
REPRESENTATIONS
AND WARRANTIES AGREEMENT
REPRESENTATIONS
AND WARRANTIES
AGREEMENT
This
REPRESENTATIONS AND WARRANTIES AGREEMENT (this “Agreement”),
dated
as of January 26, 2007 (the “Closing
Date”),
is
between XXXXXX XXXXXXX MORTGAGE CAPITAL INC. (the “Sponsor”)
and
XXXXXX XXXXXXX ABS CAPITAL I INC. (the “Depositor”).
W
I T
N E S S E T H:
WHEREAS,
the Sponsor acquired certain mortgage loans (the “Mortgage
Loans”)
set
forth on the mortgage loan schedule attached hereto as Schedule I (the
“Mortgage
Loan Schedule”)
from
various mortgage loan sellers pursuant to certain purchase
agreements;
WHEREAS,
the Sponsor subsequently sold certain of the Mortgage Loans (the “MSSA Mortgage
Loans”) to Xxxxxx Xxxxxxx Securitized Assets LLC (“MSSA”);
WHEREAS,
pursuant to that certain xxxx of sale, dated as of the Closing Date, between
MSSA and the Depositor, the MSSA Mortgage Loans are to be transferred by
MSSA to
the Depositor;
WHEREAS,
pursuant to that certain xxxx of sale, dated as of the Closing Date, between
the
Sponsor and the Depositor, the remaining Mortgage Loans are to be transferred
by
the Sponsor to the Depositor;
WHEREAS,
pursuant to that certain Pooling and Servicing Agreement, dated as of January
1,
2007 (the “Pooling
and Servicing Agreement”),
among
the Depositor, Countrywide Home Loans Servicing LP, as a servicer (“Countrywide
Servicing”),
Saxon
Mortgage Services, Inc., as a servicer (“Saxon”,
together with Countrywide Servicing, the “Servicers”),
NC
Capital Corporation, as responsible party (the “Responsible
Party”)
and
Deutsche Bank National Trust Company, as a trustee, (the “Trustee”),
Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2007-NC1 (the “Trust”)
shall
issue its Mortgage Pass-Through Certificates, Series 2007-NC1 (the “Certificates”),
representing beneficial ownership interest in a trust, the assets of which
include, but are not limited to, the Mortgage Loans transferred by the Depositor
to the Trust pursuant to the Pooling and Servicing Agreement;
WHEREAS,
in connection with the sale of the Mortgage Loans by the Sponsor and MSSA
to the
Depositor, the Sponsor shall make various representations and warranties
to the
Depositor regarding the Mortgage Loans;
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants
herein
contained, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto hereby agree as follows:
Section
1. Defined
Terms.
Capitalized
terms used and not defined herein shall have the meanings assigned to such
terms
in the Pooling and Servicing Agreement.
Section
2. Representations
and Warranties of the Sponsor.
The
Sponsor represents and warrants to the Depositor as of the date hereof
that:
(a) No
Mortgage Loan is a “High Cost Loan” or “Covered Loan”, as applicable (as such
terms are defined in the then current Standard & Poor’s LEVELS® Glossary
Appendix E).
(b) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act.
Section
3. Assignment
and Assumption of EPD Provision.
(a) The
Sponsor hereby assigns, conveys, transfers and sets over to the Depositor
all of
the Sponsor’s right, title and interest (except as otherwise set forth in
Section 3(b) below) in, to and under the Sponsor’s rights to require any
Responsible Party to repurchase a Mortgage Loan as a result of a scheduled
payment of principal and interest not being made during the period of time
specified in the third full paragraph (the “EPD Provision”) under the heading
“Purchase Agreement” in each of the letter agreements listed on Schedule II
attached hereto (each a “Purchase Price and Terms Agreement”) between the
Sponsor and the applicable Responsible Party, but only to the extent such
provision relates to any Mortgage Loans that are the subject of this Agreement.
(b) Notwithstanding
the foregoing set forth in Section 3(a), the Sponsor specifically reserves
and
does not assign to the Depositor any and all right, title and interest in,
to
and under the right to receive as part of the repurchase price for any such
Mortgage Loan repurchased pursuant to any EPD Provision the excess (the
“Repurchase Premium”) of the Purchase Price Percentage (as defined in the
applicable Purchase Price and Terms Agreement) over 100% multiplied by the
unpaid principal balance of such Mortgage Loan. In the event any Mortgage
Loan
is required to be repurchased by the applicable Responsible Party pursuant
to
the provisions of the applicable Purchase Price and Terms Agreement specified
in
Section 3(a) above, the Depositor shall require the applicable Responsible
Party
to repurchase such Mortgage Loan at the Repurchase Price (as defined in such
Purchase Price and Terms Agreement), and the Depositor shall cause the
applicable Responsible Party to pay such Repurchase Premium to the Sponsor
or
its designee as instructed by the Sponsor.
Section
4. Remedies
for Breach of Representations and Warranties of the Sponsor; the Repurchase
Price.
(a) Within
ninety (90) days of the earlier of either discovery by or notice to the Sponsor
of any breach of a representation or warranty set forth in Section
2
of this
Agreement that materially and adversely affects the value of any Mortgage
Loan
or the interest of the Trustee or the holders of the Certificates therein,
the
Sponsor shall use its best efforts to promptly cure such breach in all material
respects and, if such breach cannot be remedied, the Sponsor shall repurchase
such Mortgage Loan at a repurchase price (the “Repurchase
Price”)
equal
to the sum of: (i) the unpaid principal balance of such Mortgage Loan as
of the
date of repurchase, (ii) interest on such unpaid principal balance of such
Mortgage Loan at the mortgage interest rate of such Mortgage Loan from the
last
date through which interest has been paid and distributed to the Trustee
to the
date of repurchase, (iii) all unreimbursed Servicing Advances (as defined
in the
Pooling and Servicing Agreement), (iv) all costs and expenses incurred by
the
Trustee arising out of or based upon such breach, including without limitation,
costs and expenses relating to the Trustee’s enforcement of the repurchase
obligation of the Sponsor under this Agreement, and (v) any costs and
damages incurred by the Trust in connection with any violation by such Mortgage
Loan of any predatory lending law or abusive lending law. Any repurchase
of a
Mortgage Loan pursuant to the foregoing provisions of this Section 3
shall be
accomplished by direct remittance of the Repurchase Price to the Depositor
or
its designee in accordance with the Depositor’s instructions.
(b) At
the
time of repurchase, the Depositor and the Sponsor shall arrange for the
reassignment of the repurchased Mortgage Loan to the Sponsor and the delivery
to
the Sponsor of any documents held by the Trustee, relating to the repurchased
Mortgage Loan. In the event of a repurchase, the Sponsor shall, simultaneously
with such reassignment, give written notice to the Depositor that such
repurchase has taken place and amend the Mortgage Loan Schedule to reflect
the
withdrawal of the repurchased Mortgage Loan from this Agreement.
(c) Any
cause
of action against the Sponsor relating to or arising out of the breach of
any
representations and warranties made in Section
2
shall
accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Depositor or notice thereof by the Sponsor to the Depositor, (ii) failure
by the Sponsor to cure such breach, repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Sponsor by the Depositor for compliance
with this Agreement.
(d) It
is
understood and agreed that the obligation of the Sponsor set forth in
Section 4(a)
to
repurchase for a Mortgage Loan in breach of a representation or warranty
contained in Section
2
constitutes the sole remedy of the Depositor or any other person or entity
with
respect to such breach.
(e) The
representations and warranties of the Sponsor set forth in Section 2
shall
inure to the benefit of the Depositor and its successors and assigns until
all
amounts payable to the holders of the Certificates under the Pooling and
Servicing Agreement have been paid in full.
Section
5. Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts and by different
parties
hereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section
6. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK WITHOUT REGARDS TO CONFLICTS OF LAWS
PRINCIPLES.
Section
7. Severability
of Provisions.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section
8. Captions.
The
captions in this Agreement are for convenience of reference only and shall
not
define or limit any of the terms or provisions hereof.
Section
9. Successors
and Assigns.
This
Agreement shall inure to the benefit of the parties hereto and their respective
successors and assigns. Any entity into which the Sponsor or the Depositor
may
be merged or consolidated shall, without the requirement for any further
writing, be deemed the Sponsor or the Depositor, respectively,
hereunder.
Section
10. Amendments
This
Agreement may be amended from time to time by the parties hereto.
[Remainder
of this Page Intentionally Left Blank.]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the date and year first above written.
|
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
|
|||||||||||||
|
By:
|
|
||||||||||||
|
Name:
|
|
||||||||||||
|
Title:
|
|
||||||||||||
|
XXXXXX
XXXXXXX ABS CAPITAL I INC.
|
|||||||||||||
|
By:
|
|
||||||||||||
|
Name:
|
|
||||||||||||
|
Title:
|
|
||||||||||||
SCHEDULE
I
Mortgage
Loan Schedule
(Delivered
to the Trustee and not attached to the Pooling and Servicing
Agreement)
SCHEDULE
II
List
of
Purchase Price and Terms Agreements
| 1. |
Purchase
Price and Terms Agreement dated August 25, 2006 among Xxxxxx Xxxxxxx
Mortgage Capital Inc., NC Capital Corporation and New Century Mortgage
Corporation.
|
| 2. |
Purchase
Price and Terms Agreement dated July 24, 2006 among Xxxxxx Xxxxxxx
Mortgage Capital Inc., NC Capital Corporation and New Century Mortgage
Corporation.
|
EXHIBIT
Z
INTEREST
RATE CAP AGREEMENT
|
|
EXECUTION
COPY
|
|
DATE:
|
January
26, 2007
|
|
TO:
|
Deutsche
Bank National Trust Company, not individually, but solely as
Trustee on
behalf of the Supplemental Interest Trust with respect to Xxxxxx
Xxxxxxx
ABS Capital I Inc. Trust 2007-NC1, Mortgage Pass-Through Certificates,
Series 2007-NC1
|
|
ATTENTION:
|
Trust
Administration - MS07C1
|
|
TELEPHONE:
|
(000)
000-0000
|
|
FACSIMILE:
|
(000)
000-0000
|
|
FROM:
|
New
York Derivative Client Services Group
|
|
TELEPHONE:
|
(000)
000-0000
|
|
FACSIMILE:
|
(000)
000-0000
|
|
SUBJECT:
|
Fixed
Income Derivatives Confirmation
|
|
REFERENCE
NUMBER:
|
HR3HY
|
The
purpose of this letter agreement (this “Confirmation”)
is to
confirm the terms and conditions of the Swap Transaction entered into on
the
Trade Date specified below (the “Transaction”)
between Xxxxxx Xxxxxxx Capital Services Inc. (“Party
A”)
and
Deutsche Bank National Trust Company, not individually, but solely as Trustee
(the “Trustee”)
under
the Pooling and Servicing Agreement, dated and effective as of January
1, 2007,
among Xxxxxx Xxxxxxx ABS Capital I Inc., as Depositor, Deutsche Bank National
Trust Company, as Trustee, Saxon Mortgage Services, Inc., as Servicer,
Countrywide Home Loans Servicing LP, as Servicer, and NC Capital Corporation,
as
Responsible Party (the “PSA”)
for
the Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2007-NC1, Mortgage Pass-Through
Certificates, Series 2007-NC1 (“Party
B”).
The
definitions and provisions contained in the 2000 ISDA Definitions (the
“Definitions”),
as
published by the International Swaps and Derivatives Association, Inc.,
are
incorporated into this Confirmation. In the event of any inconsistency
between
the Definitions and this Confirmation, this Confirmation will govern. Terms
capitalized but not defined in this Confirmation (including the Definitions)
have the meanings attributed to them in the PSA.
This
Confirmation constitutes a “Confirmation” as referred to in, and supplements,
forms part of and is subject to, the ISDA Master Agreement dated as of
January
26, 2007, as amended and supplemented from time to time (the “Agreement”),
between Party A and Party B. All provisions contained in the Agreement
govern
this Confirmation except as expressly modified below.
| 1. |
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
|
Notional
Amount:
|
With
respect to any Calculation Period, the notional amount set forth
for such
Calculation Period in Schedule I attached
hereto.
|
|
Trade
Date:
|
January
24, 2007
|
|
Effective
Date:
|
January
26, 2007
|
|
Termination
Date:
|
December
25, 2007
|
Fixed
Amounts:
|
Fixed
Rate Payer:
|
Party
B
|
|
Fixed
Rate Payer Payment Dates:
|
January
26, 2007
|
|
Fixed
Amount:
|
None
|
Floating
Amounts:
|
Floating
Rate Payer:
|
Party
A
|
|
Cap
Rate:
|
7.35%
|
Floating
Rate Payer Payment
|
Dates:
|
Early
Payment—For each Calculation Period, the first Business Day prior to
each
Floating Rate Payer Period End
Date.
|
Floating
Rate Payer Period End
|
Dates:
|
The
25th
calendar day of each month during the Term of this Transaction,
commencing
February 25, 2007, subject to adjustment in accordance with the
Business
Day Convention.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Floating
Amount:
|
To
be determined in accordance with the following
formula:
|
10
*
Floating Rate * Notional Amount * Floating Rate Day Count
Fraction.
|
Designated
Maturity:
|
One
month
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation
Period.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
New
York and Los Angeles
|
|
Business
Day Convention:
|
Following
|
| 2. |
Account
Details and Settlement Information:
|
Payment
to Party A:
Citibank,
New York
ABA
No.:
021 000 089
Account
No.: 4072-4601
Account
Name: Xxxxxx Xxxxxxx Capital Services Inc.
Payments
to Party B:
Deutsche
Bank
ABA
No.:
000000000
Account
No: 00000000
Acct
Name: NYLTD Funds Control - Stars West
Ref:
Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2007-NC1 (cap)
| 3. |
Trustee
Capacity.
It is expressly understood and agreed by the parties hereto that
insofar
as this Confirmation is executed by Deutsche Bank National Trust
Company
(i) this Confirmation is executed and delivered by Deutsche Bank
National
Trust Company not in its individual capacity but solely as Trustee
of the
Trust under the PSA in the exercise of the powers and authority
conferred
and invested in it as trustee thereunder, (ii) each of the
representations, undertakings and agreements herein made on behalf
of
Party B is made and intended not as personal representations of
the
Trustee but is made and intended for the purpose of binding only
the
Trust, and (iii) under no circumstances shall Deutsche Bank National
Trust
Company in its individual capacity be personally liable for the
payment of
any indebtedness or expenses or be personally liable for the breach
or
failure of any obligation, representation, warranty or covenant
made or
undertaken under this Confirmation.
|
| 4. |
Modifications
to the Agreement.
For purposes of this Transaction only, the Agreement is modified
as
follows: Part 1(f)(ii), Part 1(h)(A) and Part 5(f) of the Schedule
to the
ISDA Master Agreement are hereby deleted in their
entirety.
|
We
are
very pleased to have entered into this Transaction with you and we look
forward
to completing other transactions with you in the near future.
|
Very
truly yours,
|
||
|
XXXXXX
XXXXXXX CAPITAL SERVICES INC.
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
Party
B,
acting through its duly authorized signatory, hereby agrees to, accepts
and
confirms the terms of the foregoing as of the Trade Date.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not individually, but solely as Trustee on behalf of the Supplemental
Interest Trust with respect to Xxxxxx Xxxxxxx ABS Capital I Inc.
Trust
2007-NC1, Mortgage Pass-Through Certificates, Series
2007-NC1
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
SCHEDULE
I
|
Line
|
Calculation
Period
|
Notional
Amount ($)
|
Multiplier
|
||||
|
1
|
Effective
Date
|
2/25/2007
|
120,000,764.32
|
10
|
|||
|
2
|
2/25/2007
|
3/25/2007
|
115,491,029.43
|
10
|
|||
|
3
|
3/25/2007
|
4/25/2007
|
111,122,782.50
|
10
|
|||
|
4
|
4/25/2007
|
5/25/2007
|
106,888,765.93
|
10
|
|||
|
5
|
5/25/2007
|
6/25/2007
|
102,782,321.68
|
10
|
|||
|
6
|
6/25/2007
|
7/25/2007
|
98,797,372.59
|
10
|
|||
|
7
|
7/25/2007
|
8/25/2007
|
94,928,406.05
|
10
|
|||
|
8
|
8/25/2007
|
9/25/2007
|
91,170,445.47
|
10
|
|||
|
9
|
9/25/2007
|
10/25/2007
|
87,519,034.58
|
10
|
|||
|
10
|
10/25/2007
|
11/25/2007
|
83,970,207.54
|
10
|
|||
|
11
|
11/25/2007
|
Termination
Date
|
80,520,482.29
|
10
|
|||
