STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, AURORA LOAN SERVICES LLC, as Master Servicer, and CITIBANK, N.A., as Trustee TRUST AGREEMENT Dated as of June 1, 2007 LEHMAN XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-11
EXECUTION
STRUCTURED
ASSET SECURITIES CORPORATION,
as
Depositor,
AURORA
LOAN SERVICES LLC,
as
Master
Servicer,
and
CITIBANK,
N.A.,
as
Trustee
___________________________
Dated
as
of June 1, 2007
___________________________
XXXXXX
XS
TRUST
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES
2007-11
TABLE
OF
CONTENTS
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Page
|
||
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ARTICLE
I DEFINITIONS
|
16
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|
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Section
1.01.
|
Definitions.
|
16
|
|
Section
1.02.
|
Calculations
Respecting Mortgage Loans.
|
58
|
|
Section
1.03.
|
Calculations
Respecting Accrued Interest.
|
59
|
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
59
|
|
|
Section
2.01.
|
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
59
|
|
Section
2.02.
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
|
63
|
|
Section
2.03.
|
Representations
and Warranties of the Depositor.
|
65
|
|
Section
2.04.
|
Discovery
of Breach.
|
67
|
|
Section
2.05.
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
68
|
|
Section
2.06.
|
Grant
Clause.
|
69
|
|
ARTICLE
III THE CERTIFICATES
|
70
|
|
|
Section
3.01.
|
The
Certificates.
|
70
|
|
Section
3.02.
|
Registration.
|
71
|
|
Section
3.03.
|
Transfer
and Exchange of Certificates.
|
72
|
|
Section
3.04.
|
Cancellation
of Certificates.
|
78
|
|
Section
3.05.
|
Replacement
of Certificates.
|
78
|
|
Section
3.06.
|
Persons
Deemed Owners.
|
78
|
|
Section
3.07.
|
Temporary
Certificates.
|
79
|
|
Section
3.08.
|
Appointment
of Paying Agent.
|
79
|
|
Section
3.09.
|
Book-Entry
Certificates.
|
80
|
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
81
|
|
|
Section
4.01.
|
Collection
Account.
|
81
|
|
Section
4.02.
|
Application
of Funds in the Collection Account.
|
83
|
|
Section
4.03.
|
Reports
to Certificateholders.
|
86
|
|
Section
4.04.
|
Certificate
Account.
|
90
|
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
91
|
|
|
Section
5.01.
|
Distributions
Generally.
|
91
|
|
Section
5.02.
|
Distributions
from the Certificate Account.
|
92
|
|
Section
5.03.
|
Allocation
of Losses.
|
104
|
|
Section
5.04.
|
Advances
by Master Servicer, Servicers and Trustee.
|
105
|
|
Section
5.05.
|
Compensating
Interest Payments.
|
106
|
|
Section
5.06.
|
Basis
Risk Reserve Fund.
|
106
|
|
Section
5.07.
|
Supplemental
Interest Trust; Swap and Cap Accounts.
|
107
|
|
Section
5.08.
|
Rights
of Swap Counterparty.
|
109
|
|
Section
5.09.
|
Termination
Receipts.
|
110
|
i
|
ARTICLE
VI CONCERNING THE TRUSTEE EVENTS OF DEFAULT
|
111
|
|
|
Section
6.01.
|
Duties
of Trustee and Paying Agent.
|
111
|
|
Section
6.02.
|
Certain
Matters Affecting the Trustee.
|
115
|
|
Section
6.03.
|
Trustee
Not Liable for Certificates.
|
117
|
|
Section
6.04.
|
Trustee
May Own Certificates.
|
117
|
|
Section
6.05.
|
Eligibility
Requirements for Trustee.
|
117
|
|
Section
6.06.
|
Resignation
and Removal of Trustee.
|
118
|
|
Section
6.07.
|
Successor
Trustee.
|
119
|
|
Section
6.08.
|
Merger
or Consolidation of Trustee.
|
120
|
|
Section
6.09.
|
Appointment
of Co-Trustee, Separate Trustee or Custodian.
|
120
|
|
Section
6.10.
|
Authenticating
Agents.
|
122
|
|
Section
6.11.
|
Indemnification
of Trustee.
|
123
|
|
Section
6.12.
|
Fees
and Expenses of Trustee and Custodians.
|
124
|
|
Section
6.13.
|
Collection
of Monies.
|
124
|
|
Section
6.14.
|
Events
of Default; Trustee To Act; Appointment of Successor.
|
124
|
|
Section
6.15.
|
Additional
Remedies of Trustee Upon Event of Default.
|
129
|
|
Section
6.16.
|
Waiver
of Defaults.
|
129
|
|
Section
6.17.
|
Notification
to Holders.
|
129
|
|
Section
6.18.
|
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
130
|
|
Section
6.19.
|
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
130
|
|
Section
6.20.
|
Preparation
of Tax Returns and Reports to the Commission.
|
130
|
|
Section
6.21.
|
Compliance
with Regulation AB.
|
139
|
|
Section
6.22.
|
No
Merger.
|
140
|
|
ARTICLE
VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST
FUND
|
140
|
|
|
Section
7.01.
|
Purchase
of Mortgage Loans; Termination of the Trust Fund Upon Purchase or
Liquidation of Mortgage Loans; Purchase of the Pooling REMIC 1 Regular
Interests.
|
140
|
|
Section
7.02.
|
Procedure
Upon Termination of Trust Fund or Purchase of Pooling REMIC 1 Regular
Interests.
|
142
|
|
Section
7.03.
|
Additional
Requirements for any Trust Fund Termination Event or Purchase of
the
Pooling REMIC 1 Regular Interests.
|
143
|
|
Section
7.04.
|
Optional
Purchase Right of NIMS Insurer.
|
144
|
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
145
|
|
|
Section
8.01.
|
Limitation
on Rights of Holders.
|
145
|
|
Section
8.02.
|
Access
to List of Holders.
|
146
|
|
Section
8.03.
|
Acts
of Holders of Certificates.
|
146
|
ii
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY
THE MASTER SERVICER
|
147
|
|
|
Section
9.01.
|
Duties
of the Master Servicer.
|
147
|
|
Section
9.02.
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
|
147
|
|
Section
9.03.
|
Master
Servicer’s Financial Statements and Related Information.
|
148
|
|
Section
9.04.
|
Power
to Act; Procedures.
|
148
|
|
Section
9.05.
|
Enforcement
of Servicer’s and Master Servicer’s Obligations.
|
151
|
|
Section
9.06.
|
Collection
of Taxes, Assessments and Similar Items.
|
151
|
|
Section
9.07.
|
Termination
of Servicing Agreements; Successor Servicers.
|
152
|
|
Section
9.08.
|
Master
Servicer Liable for Enforcement.
|
153
|
|
Section
9.09.
|
No
Contractual Relationship Between Any Servicer and Trustee or
Depositor.
|
153
|
|
Section
9.10.
|
Assumption
of Servicing Agreement by Trustee.
|
153
|
|
Section
9.11.
|
Due-on-Sale
Clauses; Assumption Agreements; Easements.
|
154
|
|
Section
9.12.
|
Release
of Mortgage Files.
|
154
|
|
Section
9.13.
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
|
156
|
|
Section
9.14.
|
Representations
and Warranties of the Master Servicer.
|
157
|
|
Section
9.15.
|
Opinion.
|
159
|
|
Section
9.16.
|
Standard
Hazard and Flood Insurance Policies.
|
159
|
|
Section
9.17.
|
Presentment
of Claims and Collection of Proceeds.
|
160
|
|
Section
9.18.
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
160
|
|
Section
9.19.
|
Trustee
To Retain Possession of Certain Insurance Policies and
Documents.
|
161
|
|
Section
9.20.
|
Realization
Upon Defaulted Mortgage Loans.
|
161
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|
Section
9.21.
|
Compensation
to the Master Servicer.
|
162
|
|
Section
9.22.
|
REO
Property.
|
162
|
|
Section
9.23.
|
Notice
to the Sponsor, the Depositor and the Trustee.
|
163
|
|
Section
9.24.
|
Reports
to the Trustee.
|
163
|
|
Section
9.25.
|
Assessment
of Compliance and Attestation Reports.
|
164
|
|
Section
9.26.
|
Annual
Statement of Compliance with Applicable Servicing Criteria
.
|
165
|
|
Section
9.27.
|
Merger
or Consolidation.
|
166
|
|
Section
9.28.
|
Resignation
of Master Servicer.
|
166
|
|
Section
9.29.
|
Assignment
or Delegation of Duties by the Master Servicer.
|
167
|
|
Section
9.30.
|
Limitation
on Liability of the Master Servicer and Others.
|
167
|
|
Section
9.31.
|
Indemnification;
Third-Party Claims.
|
168
|
|
ARTICLE
X REMIC ADMINISTRATION
|
169
|
|
|
Section
10.01.
|
REMIC
Administration.
|
169
|
|
Section
10.02.
|
Prohibited
Transactions and Activities.
|
172
|
|
Section
10.03.
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
172
|
|
Section
10.04.
|
REO
Property.
|
172
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
173
|
|
|
Section
11.01.
|
Binding
Nature of Agreement; Assignment.
|
173
|
iii
|
Section
11.02.
|
Entire
Agreement.
|
173
|
|
Section
11.03.
|
Amendment.
|
173
|
|
Section
11.04.
|
Voting
Rights.
|
175
|
|
Section
11.05.
|
Provision
of Information.
|
176
|
|
Section
11.06.
|
Governing
Law.
|
176
|
|
Section
11.07.
|
Notices.
|
176
|
|
Section
11.08.
|
Severability
of Provisions.
|
177
|
|
Section
11.09.
|
Indulgences;
No Waivers.
|
177
|
|
Section
11.10.
|
Headings
Not To Affect Interpretation.
|
177
|
|
Section
11.11.
|
Benefits
of Agreement.
|
177
|
|
Section
11.12.
|
Special
Notices to the Rating Agencies and any NIMS Insurer.
|
177
|
|
Section
11.13.
|
Conflicts.
|
178
|
|
Section
11.14.
|
Counterparts.
|
179
|
|
Section
11.15.
|
Transfer
of Servicing.
|
179
|
iv
ATTACHMENTS
|
Exhibit
A
|
Forms
of Certificates
|
|
Exhibit
B-1
|
Form
of Initial Certification
|
|
Exhibit
B-2
|
Form
of Interim Certification
|
|
Exhibit
B-3
|
Form
of Final Certification
|
|
Exhibit
B-4
|
Form
of Endorsement
|
|
Exhibit
C
|
Request
for Release of Documents and
Receipt
|
|
Exhibit
D-l
|
Form
of Residual Certificate Transfer Affidavit
(Transferee)
|
|
Exhibit
D-2
|
Form
of Residual Certificate Transfer Affidavit
(Transferor)
|
|
Exhibit
E
|
List
of Servicing Agreements
|
|
Exhibit
F
|
Form
of Rule 144A Transfer Certificate
|
|
Exhibit
G
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
|
Exhibit
H
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
I
|
[Reserved]
|
|
Exhibit
J
|
[Reserved]
|
|
Exhibit
K
|
List
of Custodial Agreements
|
|
Exhibit
L-1
|
Form
of Transfer Certificate for Transfer from Restricted Global Security
to
Regulation S Global Security
|
|
Exhibit
L-2
|
Form
of Transfer Certificate for Transfer from Regulation S Global Security
to
Restricted Global Security
|
|
Exhibit
M
|
Form
of Back-up Certification to be Provided by the Trustee to the Depositor
|
|
Exhibit
N-1
|
Swap
Agreement
|
|
Exhibit
N-2
|
Cap
Agreement
|
|
Exhibit
O
|
Servicing
Criteria to be Addressed in Report on Assessment of
Compliance
|
|
Exhibit
P
|
Transaction
Parties
|
|
Exhibit
Q
|
Additional
Form 10-D Disclosure
|
|
Exhibit
R
|
Additional
Form 10-K Disclosure
|
|
Exhibit
S
|
Additional
Form 8-K Disclosure
|
|
Schedule
A
|
Mortgage
Loan Schedule
|
|
Schedule
B
|
Early
Payment Default Mortgage Loan
Schedule
|
v
This
TRUST AGREEMENT (“Trust Agreement”), dated as of June 1, 2007 (the “Agreement”),
is by and among STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation,
as depositor (the “Depositor”), AURORA LOAN SERVICES LLC, as master servicer
(the “Master Servicer”), and CITIBANK, N.A., a national banking association, as
trustee (the “Trustee”).
PRELIMINARY
STATEMENT
The
Depositor has acquired the Mortgage Loans from the Seller, and at the Closing
Date is the owner of the Mortgage Loans and the other property being conveyed
by
it to the Trustee hereunder for inclusion in the Trust Fund. On the Closing
Date, the Depositor will acquire the Certificates from the Trust Fund as
consideration for its transfer to the Trust Fund of the Mortgage Loans and
the
other property constituting the Trust Fund. The Depositor has duly authorized
the execution and delivery of this Agreement to provide for the conveyance
to
the Trustee of the Mortgage Loans and the other property constituting the
Trust
Fund. All covenants and agreements made by the Seller in the Mortgage Loan
Sale
Agreement and by the Depositor, the Master Servicer and the Trustee herein
with
respect to the Mortgage Loans and the other property constituting the Trust
Fund
are for the benefit of the Holders from time to time of the Certificates
and to
the extent provided herein, any NIMS Insurer and the Swap Counterparty. The
Depositor, the Trustee and the Master Servicer are entering into this Agreement,
and the Trustee is accepting the Trust Fund created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
As
provided herein, an election shall be made that the Trust Fund (exclusive
of (i)
the Basis Risk Reserve Fund, (ii) the Swap Agreement, (iii) the Swap Account,
(iv) the Cap Agreement, (v) the Cap Account, (vi) the Supplemental Interest
Trust, (vii) the obligation to pay Class I Shortfalls, (viii) the Collateral
Account, (ix) any FPD Premiums and (x) the rights to receive (and the
obligations to pay) Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
(collectively, the “Excluded Trust Assets”), be treated for federal income tax
purposes as comprising five real estate mortgage investment conduits (each,
a
“REMIC”): Pooling REMIC 1, Lower-Tier REMIC 1, Middle-Tier REMIC 1, Middle-Tier
REMIC 2, and the Upper-Tier REMIC.
Pooling
REMIC 1 shall hold the assets of the Trust Fund, other than any Excluded
Trust
Assets, and shall issue several uncertificated interests and shall also issue
the Class LT-R Certificate, which is hereby designated as the sole residual
interest in Pooling REMIC 1. Each uncertificated interest in Pooling REMIC
1 is
hereby designated as a REMIC regular interest.
Lower-Tier
REMIC 1 shall hold the uncertificated interests issued by Pooling REMIC 1
and
shall issue several uncertificated interests. Each such interest, other than
the
LT1-R Interest, is hereby designated as a REMIC regular interest. The LT1-R
Interest is hereby designated as the sole residual interest in Lower-Tier
REMIC
1.
Middle-Tier
REMIC 1 shall hold the uncertificated interests issued by Lower-Tier REMIC
1,
other than the LT1-R Interest, and shall issue several uncertificated interests.
Each such interest, other than the Class MT1-R Interest, is hereby designated
as
a REMIC regular interest. The Class MT1-R Interest is hereby designated as
the
sole residual interest in Middle-Tier REMIC 1.
Middle-Tier
REMIC 2 shall hold the uncertificated interests issued by Middle-Tier REMIC
1,
other than the MT1-R Interest, and shall issue several uncertificated interests.
Each such interest, other than the Class MT2-R Interest, is hereby designated
as
a REMIC regular interest. The Class MT2-R Interest is hereby designated as
the
sole residual interest in Middle-Tier REMIC 2.
The
Upper-Tier REMIC shall hold the uncertificated interests issued by Middle-Tier
REMIC 2, other than the Class MT2-R Interest. Each of the Offered Certificates
represent ownership of regular interests in the Upper-Tier REMIC. Each of
the
Offered Certificates (other than the Class A-IO and Class M9 Certificates)
also
represents the right to receive Basis Risk Shortfalls or Unpaid Basis Risk
Shortfalls. In addition, each of the Offered Certificates represents the
obligation to pay Class I Shortfalls. For federal income tax purposes, the
Class
XS Component of the Class X Certificates represent ownership of regular
interests in the Upper-Tier REMIC and also represent the obligation to make
payments in respect of Basis Risk Shortfalls or Unpaid Basis Risk Shortfalls
to
the LIBOR Certificates to the extent payable from Monthly Excess Cashflow.
The
Class CX and Class SX Components of the Class 1-X Certificates shall not
represent an interest in any REMIC formed hereby. The Class P Certificates
represent ownership of regular interests in the Upper-Tier REMIC. The Class
R
Certificate represents ownership of the sole class of residual interest in
the
Upper-Tier REMIC as well as ownership of the Class LT1-R, Class MT1-R, and
Class
MT2-R Interests.
Pooling
REMIC 1
Pooling
REMIC 1 shall issue one uncertificated interest in respect of each Mortgage
Loan
held by the Trust on the Closing Date, each of which is hereby designated
as a
regular interest in Pooling REMIC 1 (the “Pooling REMIC 1 Regular Interests”).
Pooling REMIC 1 shall also issue the Class LT-R Certificate, which shall
represent the sole class of residual interest in Pooling REMIC 1. Each Pooling
REMIC 1 Regular Interest shall have an initial principal balance equal to
the
Scheduled Principal Balance of the Mortgage Loan to which it relates and
shall
bear interest at a per annum rate equal to the Net Mortgage Rate of such
Mortgage Loan. In the event a Qualifying Substitute Mortgage Loan is substituted
for such Mortgage Loan (the “Original Mortgage Loan”), no amount of interest
payable on such Qualifying Mortgage Loan shall be distributed on such Pooling
REMIC 1 Regular Interest at a rate in excess of the Net Mortgage Rate of
the
Original Mortgage Loan.
On
each
Distribution Date, the Trustee shall first pay or charge as an expense of
Pooling REMIC 1 all expenses of the Trust Fund (other than any expenses with
respect to the Swap Agreement) that are deducted in computing the Interest
Remittance Amount for such Distribution Date.
On
each
Distribution Date the Trustee shall distribute the aggregate Interest Remittance
Amount (net of expenses described in the preceding paragraph) with respect
to
each of the Lower-Tier Interests in Pooling REMIC 1 based on the above-described
interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount among the Pooling REMIC 1 Regular Interests in accordance
with
the amount of the Principal Remittance Amount attributable to the Mortgage
Loan
corresponding to each such Pooling REMIC 1 Regular Interest. All losses on
the
Mortgage Loans shall be allocated among the Pooling REMIC 1 Regular Interest
in
the same manner that principal distributions are allocated.
2
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums
collected during the preceding Prepayment Period, in the case of Principal
Prepayments in full, or during the related Collection Period, in the case
of
Principal Prepayments in part, to the Pooling REMIC 1 Regular Interest
corresponding to the Mortgage Loan with respect to which such amounts were
received.
Lower-Tier
REMIC 1
The
following table sets forth (or describes) the designation, interest rate,
and
initial principal balance for each interest in Lower-Tier REMIC 1, each of
which, other than the LT1-R Lower-Tier Interest) is hereby designated as
a
regular interest in Lower-Tier REMIC 1 (the “Lower-Tier REMIC 1 Regular
Interests):
|
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
||
|
LT1-A
|
(5)
|
(1)
|
||
|
LT1-F1
|
$ 7,795,007.50
|
(2)
|
||
|
LT1-V1
|
$ 7,795,007.50
|
(3)
|
||
|
LT1-F2
|
$ 7,518,947.00
|
(2)
|
||
|
LT1-V2
|
$ 7,518,947.00
|
(3)
|
||
|
LT1-F3
|
$ 7,252,655.50
|
(2)
|
||
|
LT1-V3
|
$ 7,252,655.50
|
(3)
|
||
|
LT1-F4
|
$ 6,995,787.50
|
(2)
|
||
|
LT1-V4
|
$ 6,995,787.50
|
(3)
|
||
|
LT1-F5
|
$ 6,748,011.00
|
(2)
|
||
|
LT1-V5
|
$ 6,748,011.00
|
(3)
|
||
|
LT1-F6
|
$ 6,560,863.00
|
(2)
|
||
|
LT1-V6
|
$ 6,560,863.00
|
(3)
|
||
|
LT1-F7
|
$ 6,276,625.50
|
(2)
|
||
|
LT1-V7
|
$ 6,276,625.50
|
(3)
|
||
|
LT1-F8
|
$ 6,054,301.00
|
(2)
|
||
|
LT1-V8
|
$ 6,054,301.00
|
(3)
|
||
|
LT1-F9
|
$ 5,839,845.50
|
(2)
|
||
|
LT1-V9
|
$ 5,839,845.50
|
(3)
|
||
|
LT1-F10
|
$ 5,632,980.50
|
(2)
|
||
|
LT1-V10
|
$ 5,632,980.50
|
(3)
|
||
|
LT1-F11
|
$ 16,802,463.50
|
(2)
|
||
|
LT1-V11
|
$ 16,802,463.50
|
(3)
|
||
|
LT1-F12
|
$ 5,712,624.00
|
(2)
|
||
|
LT1-V12
|
$ 5,712,624.00
|
(3)
|
||
|
LT1-F13
|
$ 5,473,585.00
|
(2)
|
||
|
LT1-V13
|
$ 5,473,585.00
|
(3)
|
||
|
LT1-F14
|
$ 5,244,542.50
|
(2)
|
3
|
Designation
|
Initial Principal
Balance
|
Interest
Rate
|
||
|
LT1-V14
|
$ 5,244,542.50
|
(3)
|
||
|
LT1-F15
|
$ 5,025,078.00
|
(2)
|
||
|
LT1-V15
|
$ 5,025,078.00
|
(3)
|
||
|
LT1-F16
|
$ 4,814,792.50
|
(2)
|
||
|
LT1-V16
|
$ 4,814,792.50
|
(3)
|
||
|
LT1-F17
|
$ 4,785,437.00
|
(2)
|
||
|
LT1-V17
|
$ 4,785,437.00
|
(3)
|
||
|
LT1-F18
|
$ 4,412,978.00
|
(2)
|
||
|
LT1-V18
|
$ 4,412,978.00
|
(3)
|
||
|
LT1-F19
|
$ 4,438,296.50
|
(2)
|
||
|
LT1-V19
|
$ 4,438,296.50
|
(3)
|
||
|
LT1-F20
|
$ 4,042,476.50
|
(2)
|
||
|
LT1-V20
|
$ 4,042,476.50
|
(3)
|
||
|
LT1-F21
|
$ 3,895,279.50
|
(2)
|
||
|
LT1-V21
|
$ 3,895,279.50
|
(3)
|
||
|
LT1-F22
|
$ 3,827,481.00
|
(2)
|
||
|
LT1-V22
|
$ 3,827,481.00
|
(3)
|
||
|
LT1-F23
|
$ 16,520,425.00
|
(2)
|
||
|
LT1-V23
|
$ 16,520,425.00
|
(3)
|
||
|
LT1-F24
|
$ 3,330,524.00
|
(2)
|
||
|
LT1-V24
|
$ 3,330,524.00
|
(3)
|
||
|
LT1-F25
|
$ 3,168,050.00
|
(2)
|
||
|
LT1-V25
|
$ 3,168,050.00
|
(3)
|
||
|
LT1-F26
|
$ 3,044,171.50
|
(2)
|
||
|
LT1-V26
|
$ 3,044,171.50
|
(3)
|
||
|
LT1-F27
|
$ 2,926,999.00
|
(2)
|
||
|
LT1-V27
|
$ 2,926,999.00
|
(3)
|
||
|
LT1-F28
|
$ 2,767,135.00
|
(2)
|
||
|
LT1-V28
|
$ 2,767,135.00
|
(3)
|
||
|
LT1-F29
|
$ 2,602,144.50
|
(2)
|
||
|
LT1-V29
|
$ 2,602,144.50
|
(3)
|
||
|
LT1-F30
|
$ 2,658,393.00
|
(2)
|
||
|
LT1-V30
|
$ 2,658,393.00
|
(3)
|
||
|
LT1-F31
|
$ 2,367,130.50
|
(2)
|
||
|
LT1-V31
|
$ 2,367,130.50
|
(3)
|
||
|
LT1-F32
|
$ 2,394,658.50
|
(2)
|
||
|
LT1-V32
|
$ 2,394,658.50
|
(3)
|
||
|
LT1-F33
|
$ 2,191,893.50
|
(2)
|
||
|
LT1-V33
|
$ 2,191,893.50
|
(3)
|
||
|
LT1-F34
|
$ 2,052,568.50
|
(2)
|
||
|
LT1-V34
|
$ 2,052,568.50
|
(3)
|
||
|
LT1-F35
|
$ 1,932,263.00
|
(2)
|
||
|
LT1-V35
|
$ 1,932,263.00
|
(3)
|
||
|
LT1-F36
|
$ 1,796,843.00
|
(2)
|
||
|
LT1-V36
|
$ 1,796,843.00
|
(3)
|
4
|
Designation
|
Initial Principal
Balance
|
Interest
Rate
|
||
|
LT1-F37
|
$ 1,709,157.50
|
(2)
|
||
|
LT1-V37
|
$ 1,709,157.50
|
(3)
|
||
|
LT1-F38
|
$ 1,625,749.50
|
(2)
|
||
|
LT1-V38
|
$ 1,625,749.50
|
(3)
|
||
|
LT1-F39
|
$ 1,546,409.00
|
(2)
|
||
|
LT1-V39
|
$ 1,546,409.00
|
(3)
|
||
|
LT1-F40
|
$ 1,470,939.00
|
(2)
|
||
|
LT1-V40
|
$ 1,470,939.00
|
(3)
|
||
|
LT1-F41
|
$ 1,399,150.50
|
(2)
|
||
|
LT1-V41
|
$ 1,399,150.50
|
(3)
|
||
|
LT1-F42
|
$ 1,330,863.50
|
(2)
|
||
|
LT1-V42
|
$ 1,330,863.50
|
(3)
|
||
|
LT1-F43
|
$ 1,265,907.00
|
(2)
|
||
|
LT1-V43
|
$ 1,265,907.00
|
(3)
|
||
|
LT1-F44
|
$ 1,204,120.00
|
(2)
|
||
|
LT1-V44
|
$ 1,204,120.00
|
(3)
|
||
|
LT1-F45
|
$ 1,145,347.00
|
(2)
|
||
|
LT1-V45
|
$ 1,145,347.00
|
(3)
|
||
|
LT1-F46
|
$ 1,112,585.00
|
(2)
|
||
|
LT1-V46
|
$ 1,112,585.00
|
(3)
|
||
|
LT1-F47
|
$ 1,035,138.00
|
(2)
|
||
|
LT1-V47
|
$ 1,035,138.00
|
(3)
|
||
|
LT1-F48
|
$ 984,608.00
|
(2)
|
||
|
LT1-V48
|
$ 984,608.00
|
(3)
|
||
|
LT1-F49
|
$ 936,543.50
|
(2)
|
||
|
LT1-V49
|
$ 936,543.50
|
(3)
|
||
|
LT1-F50
|
$ 982,003.00
|
(2)
|
||
|
LT1-V50
|
$ 982,003.00
|
(3)
|
||
|
LT1-F51
|
$ 866,511.00
|
(2)
|
||
|
LT1-V51
|
$ 866,511.00
|
(3)
|
||
|
LT1-F52
|
$ 800,606.00
|
(2)
|
||
|
LT1-V52
|
$ 800,606.00
|
(3)
|
||
|
LT1-F53
|
$ 770,906.00
|
(2)
|
||
|
LT1-V53
|
$ 770,906.00
|
(3)
|
||
|
LT1-F54
|
$ 723,881.50
|
(2)
|
||
|
LT1-V54
|
$ 723,881.50
|
(3)
|
||
|
LT1-F55
|
$ 695,877.00
|
(2)
|
||
|
LT1-V55
|
$ 695,877.00
|
(3)
|
||
|
LT1-F56
|
$ 842,504.00
|
(2)
|
||
|
LT1-V56
|
$ 842,504.00
|
(3)
|
||
|
LT1-F57
|
$ 2,184,401.00
|
(2)
|
||
|
LT1-V57
|
$ 2,184,401.00
|
(3)
|
||
|
LT1-F58
|
$ 4,875,052.00
|
(2)
|
||
|
LT1-V58
|
$ 4,875,052.00
|
(3)
|
||
|
LT1-F59
|
$ 5,494,287.50
|
(2)
|
5
|
Designation
|
Initial Principal
Balance
|
Interest
Rate
|
||
|
LT1-V59
|
$ 5,494,287.50
|
(3)
|
||
|
LT1-R
|
(4)
|
(4)
|
___________________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for the LT1-A Interest shall be the Net WAC Rate.
|
|
(2)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower-Tier Interests shall be the lesser of (i)
the
REMIC Swap Rate for such Distribution Date, and (ii) the product
of (a)
the Net WAC Rate and (b) 2.
|
|
(3)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower-Tier Interests shall be the excess, if
any, of (i)
the product of (a) the Net WAC Rate and (b) 2, over (ii) the REMIC
Swap
Rate for such Distribution Date.
|
|
(4)
|
The
LT1-R interest shall not have a principal amount and shall not
bear
interest. The LT1-R interest is hereby designated as the sole class
of
residual interest in Lower-Tier REMIC
1.
|
|
(5)
|
This
interest shall have an initial principal balance equal to the aggregate
principal balance of the Mortgage Loans as of the Cut-off Date
minus the
aggregate initial principal balance of the other regular interests
in
Lower-Tier REMIC 1.
|
On
each
Distribution Date, the Trustee shall distribute the aggregate Interest
Remittance Amount (net of expenses described under Pooling REMIC 1) with
respect
to each of the Lower-Tier Interests in Lower-Tier REMIC 1 based on the
above-described interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount with respect to the Lower-Tier REMIC 1 Interests, first
to the
LT1-A Interest until its principal balance is reduced to zero, and then
sequentially, to the other Lower-Tier Interests in Lower-Tier REMIC 1 in
ascending order of their numerical designation, and, with respect to each
pair
of Lower-Tier Interests having the same numerical designation, in equal amounts
to each such Lower-Tier Interest, until the principal balance of each is
reduced
to zero. All losses on the Mortgage Loans shall be allocated among the
Lower-Tier Interests in Lower-Tier REMIC 1 in the same manner that principal
distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums
collected during the preceding Prepayment Period, in the case of Principal
Prepayments in full, or during the related Collection Period, in the case
of
Principal Prepayments in part, to the LT1-F59 and LT1-V59 Lower-Tier Interests,
respectively.
Middle-Tier
REMIC 1:
The
following table sets forth the designations, principal balances and interest
rates for each interest in Middle-Tier REMIC 1, each of which (other than
the
Class MT1-R Interest) is hereby designated as a regular interest in Middle-Tier
REMIC 1 (the “Middle-Tier REMIC 1 Regular Interests”):
6
|
Middle-Tier
REMIC
1
Designation
|
Middle-Tier
REMIC
1
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of
Certificate(s)
or
Components
|
|||
|
MT1-A1
|
(1)
|
(3)
|
A1,
AIO
|
|||
|
MT1-A2
|
(1)
|
(3)
|
A2,
AIO
|
|||
|
MT1-A3
|
(1)
|
(3)
|
A3,
AIO
|
|||
|
MT1-A4
|
(1)
|
(3)
|
A4,
AIO
|
|||
|
MT1-A5
|
(1)
|
(3)
|
A5,
AIO
|
|||
|
MT1-M1
|
(1)
|
(3)
|
M1
|
|||
|
MT1-M2
|
(1)
|
(3)
|
M2
|
|||
|
MT1-M3
|
(1)
|
(3)
|
M3
|
|||
|
MT1-M4
|
(1)
|
(3)
|
M4
|
|||
|
MT1-M5
|
(1)
|
(3)
|
M5
|
|||
|
MT1-M6
|
(1)
|
(3)
|
M6
|
|||
|
MT1-M7
|
(1)
|
(3)
|
M7
|
|||
|
MT1-M8
|
(1)
|
(3)
|
M8
|
|||
|
MT1-M9
|
(1)
|
(3)
|
X0
|
|||
|
XX0-X00
|
(1)
|
(3)
|
X00
|
|||
|
XX0-X00
|
(1)
|
(3)
|
X00
|
|||
|
XX0-X
|
(1)
|
(4)
|
N/A
|
|||
|
MT1-IO
|
(2)
|
(2)
|
N/A
|
|||
|
MT1-R
|
(5)
|
(5)
|
R
|
___________________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Interests in Middle-Tier REMIC 1 is a per annum
rate
equal to the weighted average of the interest rates on the Lower-Tier
Interests in Lower-Tier REMIC 1 for such Distribution Date, provided,
however, that
for any Distribution Date on which the Class MT1-IO Interest is
entitled
to a portion of the interest accruals on a Lower-Tier Interest
in
Lower-Tier REMIC 1 having an “F” in its class designation, as described in
footnote two below, such weighted average shall be computed by
first
subjecting the rate on such Lower-Tier Interest in REMIC 1 to a
cap equal
to Swap LIBOR for such Distribution Date.
|
|
(2)
|
The
Class MT1-IO is an interest only class that does not have a principal
balance. For only those Distribution Dates listed in the first
column in
the table below, the Class MT1-IO shall be entitled to interest
accrued on
the Lower-Tier Interest in Lower-Tier REMIC 1 listed in second
column in
the table below at a per annum rate equal to the excess, if any,
of (i)
the interest rate for such Lower-Tier Interest in Lower-Tier REMIC
1 for
such Distribution Date over (ii) Swap LIBOR for such Distribution
Date.
|
|
Distribution
Dates
|
Lower-Tier
REMIC
1
Designation
|
|
2
|
LT1-F1
|
|
2-3
|
LT1-F2
|
|
2-4
|
LT1-F3
|
|
2-5
|
LT1-F4
|
|
2-6
|
LT1-F5
|
|
2-7
|
LT1-F6
|
|
2-8
|
LT1-F7
|
|
2-9
|
LT1-F8
|
|
2-10
|
LT1-F9
|
|
2-11
|
LT1-F10
|
|
2-12
|
LT1-F11
|
7
|
2-13
|
LT1-F12
|
|
2-14
|
LT1-F13
|
|
2-15
|
LT1-F14
|
|
2-16
|
LT1-F15
|
|
2-17
|
LT1-F16
|
|
2-18
|
LT1-F17
|
|
2-19
|
LT1-F18
|
|
2-20
|
LT1-F19
|
|
2-21
|
LT1-F20
|
|
2-22
|
LT1-F21
|
|
2-23
|
LT1-F22
|
|
2-24
|
LT1-F23
|
|
2-25
|
LT1-F24
|
|
2-26
|
LT1-F25
|
|
2-27
|
LT1-F26
|
|
2-28
|
LT1-F27
|
|
2-29
|
LT1-F28
|
|
2-30
|
LT1-F29
|
|
2-31
|
LT1-F30
|
|
2-32
|
LT1-F31
|
|
2-33
|
LT1-F32
|
|
2-34
|
LT1-F33
|
|
2-35
|
LT1-F34
|
|
2-36
|
LT1-F35
|
|
2-37
|
LT1-F36
|
|
2-38
|
LT1-F37
|
|
2-39
|
LT1-F38
|
|
2-40
|
LT1-F39
|
|
2-41
|
LT1-F40
|
|
2-42
|
LT1-F41
|
|
2-43
|
LT1-F42
|
|
2-44
|
LT1-F43
|
|
2-45
|
LT1-F44
|
|
2-46
|
LT1-F45
|
|
2-47
|
LT1-F46
|
|
2-48
|
LT1-F47
|
|
2-49
|
LT1-F48
|
|
2-50
|
LT1-F49
|
|
2-51
|
LT1-F50
|
|
2-52
|
LT1-F51
|
|
2-53
|
LT1-F52
|
|
2-54
|
LT1-F53
|
|
2-55
|
LT1-F54
|
|
2-56
|
LT1-F55
|
|
2-57
|
LT1-F56
|
|
2-58
|
LT1-F57
|
|
2-59
|
LT1-F58
|
|
2-60
|
LT1-F59
|
8
|
(3)
|
This
interest shall have an initial principal balance equal to one-half
of the
initial Class Principal Amount of its Corresponding Class of
Certificates.
|
|
(4)
|
This
interest shall have an initial principal balance equal to the excess
of
(i) the Aggregate Loan Balance as of the Cut-off Date, over (ii)
the
aggregate initial class principal amount of each other regular
interest in
Middle-Tier REMIC 1.
|
|
(5)
|
The
Class MT1-R interest is the sole class of residual interests in
Middle-Tier REMIC 1. It does not have an interest rate or a principal
balance.
|
On
each
Distribution Date, interest shall be distributed on the Lower-Tier Interests
in
Middle-Tier REMIC 1 based on the above-described interest rates,
provided,
however,
that
interest that accrues on the Class MT1-Q Interest shall be deferred in an
amount
equal to one-half of the increase, if any, in the Overcollateralization Amount
for such Distribution Date. Any interest so deferred shall itself bear interest
at the interest rate for the Class MT1-Q Interest. An amount equal to the
interest so deferred shall be distributed as additional principal on the
other
interests in Middle-Tier REMIC 1 having a principal balance in the manner
described under priority (a) below.
On
each
Distribution Date principal shall be distributed, and Realized Losses shall
be
allocated, among the interests in Middle-Tier REMIC 1 in the following order
of
priority:
(a)
First, to the Class MT1-A1, Class MT1-A2, Class MT1-A3, Class MT1-A4, Class
MT1-A5, Class MT1-M1, Class MT1-M2, Class MT1-M3, Class MT1-M4, Class MT1-M5,
Class MT1-M6, Class MT1-M7, Class MT1-M8, Class MT1-M9, Class MT1-M10 and
Class
MT1-M11 Interests until the principal balance of each such interest equals
one-half of the Class Principal Amount of the Corresponding Class of
Certificates immediately after such Distribution Date; and
(b)
Second, to the Class MT1-Q Interests, any remaining amounts.
On
each
Distribution Date, the Trustee shall be deemed to have distributed the
Prepayment Premiums passed through with respect to the LT1-F59 and LT1-V59
Lower-Tier Interests in Lower-Tier REMIC 1 on such Distribution Date to the
Class MT1-Q Interest.
Middle-Tier
REMIC 2:
The
following table sets forth the designations, principal balances and interest
rates for each interest in Middle-Tier REMIC 2, each of which (other than
the
Class MT2-R Interest) is hereby designated as a regular interest in Middle-Tier
REMIC 2 (the “Middle-Tier REMIC 2 Regular Interests”):
9
|
Middle-Tier
REMIC
2
Designation
|
Middle-Tier
REMIC
2
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of
Certificate(s)
or
Components
|
|||
|
MT2-A1
|
(2)
|
(7)
|
A1,
AIO
|
|||
|
MT2-A2
|
(3)
|
(7)
|
A2,
AIO
|
|||
|
MT2-A3
|
(4)
|
(7)
|
A3,
AIO
|
|||
|
MT2-A4
|
(5)
|
(7)
|
A4,
AIO
|
|||
|
MT2-A5
|
(6)
|
(7)
|
A5,
AIO
|
|||
|
MT2-M1
|
(1)
|
(7)
|
M1
|
|||
|
MT2-M2
|
(1)
|
(7)
|
M2
|
|||
|
MT2-M3
|
(1)
|
(7)
|
M3
|
|||
|
MT2-M4
|
(1)
|
(7)
|
M4
|
|||
|
MT2-M5
|
(1)
|
(7)
|
M5
|
|||
|
MT2-M6
|
(1)
|
(7)
|
M6
|
|||
|
MT2-M7
|
(1)
|
(7)
|
M7
|
|||
|
MT2-M8
|
(1)
|
(7)
|
M8
|
|||
|
MT1-M9
|
(1)
|
(7)
|
X0
|
|||
|
XX0-X00
|
(1)
|
(7)
|
X00
|
|||
|
XX0-X00
|
(1)
|
(7)
|
X00
|
|||
|
XX0-X
|
(1)
|
(4)
|
N/A
|
|||
|
MT1-R
|
(8)
|
(8)
|
R
|
___________________________
|
(1)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Middle-Tier Interests in Middle-Tier
REMIC 2 is a per annum rate equal to the interest rate of its
Corresponding Class of Certificates or Components, determined by
substituting the REMIC Net Funds Cap for the applicable Net Funds
Cap.
|
|
(2)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for this Middle-Tier Interest in Middle-Tier REMIC
2 is a
per annum rate equal to the lesser of (i) LIBOR plus a margin of
0.13% (or
a margin of .26% after the Initial Optional Termination Date),
subject to
a floor of 6.38% (6.26%, after the Initial Optional Termination
Date) and
(ii) the REMIC Net Funds Cap.
|
|
(3)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for this Middle-Tier Interest in Middle-Tier REMIC
2 is a
per annum rate equal to the lesser of (i) LIBOR plus a margin of
0.21% (or
a margin of .42% after the Initial Optional Termination Date),
subject to
a floor of 6.46% (6.42%, after the Initial Optional Termination
Date) and
(ii) the REMIC Net Funds Cap.
|
|
(4)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for this Middle-Tier Interest in Middle-Tier REMIC
2 is a
per annum rate equal to the lesser of (i) LIBOR plus a margin of
0.26% (or
a margin of .52% after the Initial Optional Termination Date),
subject to
a floor of 6.51% (6.52%, after the Initial Optional Termination
Date) and
(ii) the REMIC Net Funds Cap.
|
|
(5)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for this Middle-Tier Interest in Middle-Tier REMIC
2 is a
per annum rate equal to the lesser of (i) LIBOR plus a margin of
0.35% (or
a margin of .70% after the Initial Optional Termination Date),
subject to
a floor of 6.60% (6.70%, after the Initial Optional Termination
Date) and
(ii) the REMIC Net Funds Cap.
|
|
(6)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for this Middle-Tier Interest in Middle-Tier REMIC
2 is a
per annum rate equal to the lesser of (i) LIBOR plus a margin of
0.30% (or
a margin of .60% after the Initial Optional Termination Date),
subject to
a floor of 6.55% (6.60%, after the Initial Optional Termination
Date) and
(ii) the REMIC Net Funds Cap.
|
|
(7)
|
This
interest shall have an initial principal balance equal to the initial
Class Principal Amount of its Corresponding Class of
Certificates.
|
|
(8)
|
The
MT2-R Interest is the sole Class of residual interest in Middle-Tier
REMIC
2. It does not have an interest rate or a principal balance.
|
10
|
(9)
|
This
interest shall have an initial principal balance equal to the amount
of
the initial overcollateralization, but shall not accrue interest
on that
balance. This interest shall also comprise two notional components,
each
of which represents a regular interest in Middle-Tier REMIC 2.
The first
such component has a notional balance that will at all times equal
the
aggregate of the outstanding principal amounts of the Middle-Tier
Interests in Middle-Tier REMIC 1, and, for each Distribution Date
(and the
related Accrual Period) this notional component shall bear interest
at a
per annum rate equal to the excess, if any, of (i) the weighted
average of
the interest rates on the Middle-Tier Interests in Middle-Tier
REMIC 1
(other than any interest-only regular interest), over (ii) the
Adjusted
Middle Tier REMIC 1 WAC. The second notional component represents
the
right to receive all distributions in respect of the Class MT1-IO
Interest
in Middle-Tier REMIC 1.
|
On
each
Distribution Date, interest shall be distributed on the Lower-Tier Interests
in
Middle-Tier REMIC 2 based on the above-described interest rates.
On
each
Distribution Date principal shall be distributed to each Middle-Tier Interest
in
Middle-Tier REMIC 2 (other than the Class MT2-X and Class MT2-R Interests)
until
the principal balance of each such interest equals the Class Principal Amount
of
the Corresponding Class of Certificates immediately after such Distribution
Date. Realized Losses shall be allocated among the interests in Middle-Tier
REMIC 2 in the same manner as principal is allocated.
On
each
Distribution Date, the Trustee shall be deemed to have distributed the
Prepayment Premiums passed through with respect to the MT1-Q Interest in
Middle-Tier REMIC 1 on such Distribution Date to the Class MT2-X
Interest.
The
Certificates
The
following table sets forth (or describes) the Class designation, Certificate
Interest Rate, initial Class Principal Amount (or Class Notional Amount)
and
minimum denomination for each Class of Certificates comprising interests
in the
Trust Fund created hereunder.
|
Class
Designation
|
Interest
Rate
|
Initial
Class
Principal
Amount
or
Class Notional
Amount
($)
|
Minimum
Denominations
|
|||
|
|
|
|
|
|||
|
Class
A1
|
(1)
|
$255,779,000
|
$25,000
|
|||
|
Class
A2
|
(2)
|
$102,112,000
|
$25,000
|
|||
|
Class
A3
|
(3)
|
$46,653,000
|
$25,000
|
|||
|
Class
A4
|
(4)
|
$5,831,000
|
$25,000
|
|||
|
Class
A5
|
(5)
|
$45,599,000
|
$25,000
|
|||
|
Class
AIO
|
(6)
|
(6)
|
$1,000,000
|
|||
|
Class
M1
|
(7)
|
$12,268,000
|
$100,000
|
|||
|
Class
M2
|
(8)
|
$9,968,000
|
$100,000
|
|||
|
Class
M3
|
(9)
|
$3,578,000
|
$100,000
|
|||
|
Class
M4
|
(10
|
$3,833,000
|
$100,000
|
|||
|
Class
M5
|
(11)
|
$2,555,000
|
$100,000
|
|||
|
Class
M6
|
(12)
|
$2,555,000
|
$100,000
|
11
|
Class
Designation
|
Interest
Rate
|
Initial
Class
Principal
Amount
or
Class Notional
Amount
($)
|
Minimum
Denominations
|
|||
|
Class
M7
|
(13)
|
$2,555,000
|
$100,000
|
|||
|
Class
M8
|
(14)
|
$2,555,000
|
$100,000
|
|||
|
Class
M9
|
(15)
|
$2,555,000
|
$100,000
|
|||
|
Class
M10
|
(16)
|
$2,555,000
|
$100,000
|
|||
|
Class
M11
|
(17)
|
$3,322,000
|
$100,000
|
|||
|
Class
P
|
(18)
|
(18)
|
(22)
|
|||
|
Class
X
|
(19)
|
(19)
|
(22)
|
|||
|
Class
R
|
(20)
|
(20)
|
(22)
|
|||
|
Class
LT-R
|
(21)
|
(21)
|
(22)
|
_________________
|
(1)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.130% and (ii) the
Senior Net
Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class A1 Certificates
will be LIBOR plus 0.260%. For purposes of the REMIC Provisions,
the
reference to “Senior Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC Net Funds
Cap. For
any Distribution Date on which the Certificate Interest Rate for
the Cass
A1 Certificates is based on the Senior Net Funds Cap, the amount
of
interest that would have been payable on such Certificates if the
REMIC
Net Funds Cap were substituted for the Senior Net Funds Cap over
the
amount actually payable thereon shall be treated as having been
paid to
the owners of the Class A1 Certificates and then deposited by such
owners
into the Supplemental Interest Trust pursuant to Section 10.01(n)
hereof.
|
|
(2)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.210% and (ii) the
Senior Net
Funds Cap for such Distribution Date; provided, that if the Mortgage
Loans
and related property are not purchased pursuant to Section 7.01(b)
on the
Initial Optional Termination Date, then with respect to each subsequent
Distribution Date the per annum rate calculated pursuant to clause
(i)
above with respect to the Class A2 Certificates will be LIBOR plus
0.420%.
For purposes of the REMIC Provisions, the reference to “Senior Net Funds
Cap” in clause (ii) of the preceding sentence shall be deemed to be
a
reference to the REMIC Net Funds Cap. For any Distribution Date
on which
the Certificate Interest Rate for the Cass A2 Certificates is based
on the
Senior Net Funds Cap, the amount of interest that would have been
payable
on such Certificates if the REMIC Net Funds Cap were substituted
for the
Senior Net Funds Cap over the amount actually payable thereon shall
be
treated as having been paid to the owners of the Class A2 Certificates
and
then deposited by such owners into the Supplemental Interest Trust
pursuant to Section 10.01(n) hereof.
|
|
(3)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.260% and (ii) the
Senior Net
Funds Cap for such Distribution Date; provided, that if the Mortgage
Loans
and related property are not purchased pursuant to Section 7.01(b)
on the
Initial Optional Termination Date, then with respect to each subsequent
Distribution Date the per annum rate calculated pursuant to clause
(i)
above with respect to the Class A3 Certificates will be LIBOR plus
0.520%.
For purposes of the REMIC Provisions, the reference to “Senior Net Funds
Cap” in clause (ii) of the preceding sentence shall be deemed to be
a
reference to the REMIC Net Funds Cap. For any Distribution Date
on which
the Certificate Interest Rate for the Cass A3 Certificates is based
on the
Senior Net Funds Cap, the amount of interest that would have been
payable
on such Certificates if the REMIC Net Funds Cap were substituted
for the
Senior Net Funds Cap over the amount actually payable thereon shall
be
treated as having been paid to the owners of the Class A3 Certificates
and
then deposited by such owners into the Supplemental Interest Trust
pursuant to Section 10.01(n) hereof.
|
|
(4)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A4 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.350% and (ii) the
Senior Net
Funds Cap for such Distribution Date; provided, that if the Mortgage
Loans
and related property are not purchased pursuant to Section 7.01(b)
on the
Initial Optional Termination Date, then with respect to each subsequent
Distribution Date the per annum rate calculated pursuant to clause
(i)
above with respect to the Class A4 Certificates will be LIBOR plus
0.700%.
For purposes of the REMIC Provisions, the reference to “Senior Net Funds
Cap” in clause (ii) of the preceding sentence shall be deemed to be
a
reference to the REMIC Net Funds Cap. For any Distribution Date
on which
the Certificate Interest Rate for the Cass A4 Certificates is based
on the
Senior Net Funds Cap, the amount of interest that would have been
payable
on such Certificates if the REMIC Net Funds Cap were substituted
for the
Senior Net Funds Cap over the amount actually payable thereon shall
be
treated as having been paid to the owners of the Class A4 Certificates
and
then deposited by such owners into the Supplemental Interest Trust
pursuant to Section 10.01(n) hereof.
|
12
|
(5)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A5 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.300% and (ii) the
Senior Net
Funds Cap for such Distribution Date; provided, that if the Mortgage
Loans
and related property are not purchased pursuant to Section 7.01(b)
on the
Initial Optional Termination Date, then with respect to each subsequent
Distribution Date the per annum rate calculated pursuant to clause
(i)
above with respect to the Class A5 Certificates will be LIBOR plus
0.600%.
For purposes of the REMIC Provisions, the reference to “Senior Net Funds
Cap” in clause (ii) of the preceding sentence shall be deemed to be
a
reference to the REMIC Net Funds Cap. For any Distribution Date
on which
the Certificate Interest Rate for the Class A5 Certificates is
based on
the Senior Net Funds Cap, the amount of interest that would have
been
payable on such Certificates if the REMIC Net Funds Cap were substituted
for the Senior Net Funds Cap over the amount actually payable thereon
shall be treated as having been paid to the owners of the Certificates
and
then deposited by such owners into the Supplemental Interest Trust
pursuant to Section 10.01(n) hereof.
|
|
(6)
|
The
Class AIO Certificates are interest-only certificates; until and
including
the distribution date in April 2012, they shall accrue interest
on a
notional amount equal to the aggregate class principal amount of
the Class
A1, Class A2, Class A3, Class A4 and Class A5 Certificates, at
a
Certificate Interest Rate equal to the
excess if any of (x) the lesser of 6.250% (on or prior to the Initial
Optional Termination Date) or 6.00% (after the Initial Optional
Termination Date) over LIBOR and (y) the excess, if any, of (a)
the Senior
Net Funds Cap over (b) the Weighted Average Bond Coupon of the
Senior
Certificates (other than the Class AIO Certificates). For purposes
of the
REMIC Provisions, the REMIC regular interest evidenced by the Class
AIO
Certificates shall bear interest for each Distribution Date prior
to the
Distribution Date in April 2012 at a per annum rate equal to the
excess if
any of (x) the lesser of 6.250% (6.00% after the Initial Optional
Termination Date) and the REMIC Net Funds Cap over (y) LIBOR. On
any
Distribution Date on which the Certificate Interest Rate for the
Class AIO
Certificates exceeds the interest rate of its corresponding REMIC
regular
interest, interest accruals based on such excess shall be treated
as
having been paid from the Basis Risk Reserve Fund or the Supplemental
Interest Trust, as applicable; on any Distribution Date on which
the
Certificate Interest Rate on the Class AIO Certificates is less
than the
interest rate of its corresponding REMIC regular interest, the
amount of
interest that accrued on such REMIC regular interest in excess
of the
amount of interest accrued on the Class AIO Certificates shall
be treated
as having been paid by the Class AIO Certificateholders to the
Supplemental Interest Trust, all pursuant to and as further provided
in
Section 10.01(n) hereof.
|
|
(7)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.450% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date, provided, that if the
Mortgage
Loans and related property are not purchased pursuant to Section
7.01(b)
on the Initial Optional Termination Date, then with respect to
each
subsequent Distribution Date the per annum rate calculated pursuant
to
clause (i) above with respect to the Class M1 Certificates will
be LIBOR
plus 0.675%. For purposes of the REMIC Provisions, the reference
to
“Subordinate Net Funds Cap” in clause (ii) of the preceding sentence shall
be deemed to be a reference to the REMIC Net Funds Cap. For any
Distribution Date on which the Certificate Interest Rate for the
Class M1
Certificates is based on the Subordinate Net Funds Cap, the amount
of
interest that would have been payable on such Certificates if the
REMIC
Net Funds Cap were substituted for the Subordinate Net Funds Cap
over the
amount actually payable thereon shall be treated as having been
paid to
the owners of the Class M1 Certificates and then deposited by such
owners
into the Supplemental Interest Trust pursuant to Section 10.01(n)
hereof.
|
13
|
(8)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.550% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date, provided, that if the
Mortgage
Loans and related property are not purchased pursuant to Section
7.01(b)
on the Initial Optional Termination Date, then with respect to
each
subsequent Distribution Date the per annum rate calculated pursuant
to
clause (i) above with respect to the Class M2 Certificates will
be LIBOR
plus 0.825%. For purposes of the REMIC Provisions, the reference
to
“Subordinate Net Funds Cap” in clause (ii) of the preceding sentence shall
be deemed to be a reference to the REMIC Net Funds Cap. For any
Distribution Date on which the Certificate Interest Rate for the
Cass M2
Certificates is based on the Subordinate Net Funds Cap, the amount
of
interest that would have been payable on such Certificates if the
REMIC
Net Funds Cap were substituted for the Subordinate Net Funds Cap
over the
amount actually payable thereon shall be treated as having been
paid to
the owners of the Class M2 Certificates and then deposited by such
owners
into the Supplemental Interest Trust pursuant to Section 10.01(n)
hereof.
|
|
(9)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.750% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date, provided, that if the
Mortgage
Loans and related property are not purchased pursuant to Section
7.01(b)
on the Initial Optional Termination Date, then with respect to
each
subsequent Distribution Date the per annum rate calculated pursuant
to
clause (i) above with respect to the Class M3 Certificates will
be LIBOR
plus 1.125%. For purposes of the REMIC Provisions, the reference
to
“Subordinate Net Funds Cap” in clause (ii) of the preceding sentence shall
be deemed to be a reference to the REMIC Net Funds Cap. For any
Distribution Date on which the Certificate Interest Rate for the
Cass M3
Certificates is based on the Subordinate Net Funds Cap, the amount
of
interest that would have been payable on such Certificates if the
REMIC
Net Funds Cap were substituted for the Subordinate Net Funds Cap
over the
amount actually payable thereon shall be treated as having been
paid to
the owners of the Class M3 Certificates and then deposited by such
owners
into the Supplemental Interest Trust pursuant to Section 10.01(n)
hereof.
|
|
(10)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M4 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date, provided, that if the
Mortgage
Loans and related property are not purchased pursuant to Section
7.01(b)
on the Initial Optional Termination Date, then with respect to
each
subsequent Distribution Date the per annum rate calculated pursuant
to
clause (i) above with respect to the Class M4 Certificates will
be LIBOR
plus 1.500%. For purposes of the REMIC Provisions, the reference
to
“Subordinate Net Funds Cap” in clause (ii) of the preceding sentence shall
be deemed to be a reference to the REMIC Net Funds Cap. For any
Distribution Date on which the Certificate Interest Rate for the
Cass M4
Certificates is based on the Subordinate Net Funds Cap, the amount
of
interest that would have been payable on such Certificates if the
REMIC
Net Funds Cap were substituted for the Subordinate Net Funds Cap
over the
amount actually payable thereon shall be treated as having been
paid to
the owners of the Class M4 Certificates and then deposited by such
owners
into the Supplemental Interest Trust pursuant to Section 10.01(n)
hereof.
|
|
(11)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M5 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.250% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date, provided, that if the
Mortgage
Loans and related property are not purchased pursuant to Section
7.01(b)
on the Initial Optional Termination Date, then with respect to
each
subsequent Distribution Date the per annum rate calculated pursuant
to
clause (i) above with respect to the Class M5 Certificates will
be LIBOR
plus 1.875%. For purposes of the REMIC Provisions, the reference
to
“Subordinate Net Funds Cap” in clause (ii) of the preceding sentence shall
be deemed to be a reference to the REMIC Net Funds Cap. For any
Distribution Date on which the Certificate Interest Rate for the
Cass M5
Certificates is based on the Subordinate Net Funds Cap, the amount
of
interest that would have been payable on such Certificates if the
REMIC
Net Funds Cap were substituted for the Subordinate Net Funds Cap
over the
amount actually payable thereon shall be treated as having been
paid to
the owners of the Class M5 Certificates and then deposited by such
owners
into the Supplemental Interest Trust pursuant to Section 10.01(n)
hereof.
|
|
(12)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M6 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.750% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date, provided, that if the
Mortgage
Loans and related property are not purchased pursuant to Section
7.01(b)
on the Initial Optional Termination Date, then with respect to
each
subsequent Distribution Date the per annum rate calculated pursuant
to
clause (i) above with respect to the Class M6 Certificates will
be LIBOR
plus 2.625%. For purposes of the REMIC Provisions, the reference
to
“Subordinate Net Funds Cap” in clause (ii) of the preceding sentence shall
be deemed to be a reference to the REMIC Net Funds Cap. For any
Distribution Date on which the Certificate Interest Rate for the
Cass M6
Certificates is based on the Subordinate Net Funds Cap, the amount
of
interest that would have been payable on such Certificates if the
REMIC
Net Funds Cap were substituted for the Subordinate Net Funds Cap
over the
amount actually payable thereon shall be treated as having been
paid to
the owners of the Class M6 Certificates and then deposited by such
owners
into the Supplemental Interest Trust pursuant to Section 10.01(n)
hereof.
|
14
|
(13)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M7 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date, provided, that if the
Mortgage
Loans and related property are not purchased pursuant to Section
7.01(b)
on the Initial Optional Termination Date, then with respect to
each
subsequent Distribution Date the per annum rate calculated pursuant
to
clause (i) above with respect to the Class M7 Certificates will
be LIBOR
plus 3.000%. For purposes of the REMIC Provisions, the reference
to
“Subordinate Net Funds Cap” in clause (ii) of the preceding sentence shall
be deemed to be a reference to the REMIC Net Funds Cap. For any
Distribution Date on which the Certificate Interest Rate for the
Cass M7
Certificates is based on the Subordinate Net Funds Cap, the amount
of
interest that would have been payable on such Certificates if the
REMIC
Net Funds Cap were substituted for the Subordinate Net Funds Cap
over the
amount actually payable thereon shall be treated as having been
paid to
the owners of the Class M7 Certificates and then deposited by such
owners
into the Supplemental Interest Trust pursuant to Section 10.01(n)
hereof.
|
|
(14)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M8 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date, provided, that if the
Mortgage
Loans and related property are not purchased pursuant to Section
7.01(b)
on the Initial Optional Termination Date, then with respect to
each
subsequent Distribution Date the per annum rate calculated pursuant
to
clause (i) above with respect to the Class M8 Certificates will
be LIBOR
plus 3.000%. For purposes of the REMIC Provisions, the reference
to
“Subordinate Net Funds Cap” in clause (ii) of the preceding sentence shall
be deemed to be a reference to the REMIC Net Funds Cap. For any
Distribution Date on which the Certificate Interest Rate for the
Cass M8
Certificates is based on the Subordinate Net Funds Cap, the amount
of
interest that would have been payable on such Certificates if the
REMIC
Net Funds Cap were substituted for the Subordinate Net Funds Cap
over the
amount actually payable thereon shall be treated as having been
paid to
the owners of the Class M8 Certificates and then deposited by such
owners
into the Supplemental Interest Trust pursuant to Section 10.01(n)
hereof.
|
|
(15)
|
The
Class M9 Certificates are Principal-Only Certificates which do
not bear
interest at a stated rate.
|
|
(16)
|
The
Class M10 Certificates are Principal-Only Certificates which do
not bear
interest at a stated rate.
|
|
(17)
|
The
Class M11 Certificates are Principal-Only Certificates which do
not bear
interest at a stated rate.
|
|
(18)
|
The
Class P Certificates will not bear interest at a stated rate. The
Class P
Certificates shall have a Class P Principal Amount equal to $100
and shall
be entitled to receive all Prepayment Premiums paid with respect
to the
Mortgage Loans for which the Seller has retained the servicing
rights as
provided in Section 5.02(f)(vii).
|
|
(19)
|
The
Class X Certificates shall represent ownership of the Class XS
Component.
For purposes of the REMIC Provisions, the XS Component of the Class
X
Certificates shall be entitled to receive all amounts distributable
on the
Class MT2-X interest minus $100.00 allocated to the Class P Certificates
to create the $100 Class P Principal Amount. The distributions
on the
Class MT2-X interest in respect of the Class MT1-IO Interest in
Middle-Tier REMIC 1 is referred to herein as the “Class I” interest. In
addition, for purposes of the REMIC Provisions, the Class XS Component
of
the Class X Certificates shall represent beneficial ownership of
the Basis
Risk Reserve Fund and an interest in the notional principal contracts
described in Section 10.01(n) hereof. The Class SX Component of
the Class
X Certificates shall represent beneficial ownership of the Swap
Agreement
and the Swap Account. The Class CX Component of the Class X Certificates
shall represent beneficial ownership of the Cap Agreement and the
Cap
Account.
|
15
|
(20)
|
The
Class R Certificate will be issued without a Certificate Principal
Amount
and will not bear interest at a stated rate. The Class R Certificate
represents ownership of the residual interest in the Upper-Tier
REMIC, as
well as ownership of the LT1-R Interest, the MT1-R Interest and
the MT2-R
Interest.
|
|
(21)
|
The
Class LT-R Certificate will be issued without a Class Principal
Amount and
will not bear interest at a stated rate. The Class LT-R Certificate
represents ownership of the residual interest in Pooling REMIC
1.
|
|
(22)
|
The
Class X and Class P Certificates will each be issued in minimum
Percentage
Interests of 10.00%. The Class LT-R and Class R Certificate will
each be
issued as a single Certificate evidencing the entire Percentage
Interest
in each such Class.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$511,182,295.41.
In
consideration of the mutual agreements herein contained, the Depositor, the
Seller, the Master Servicer and the Trustee hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
The
following words and phrases, unless the context otherwise requires, shall
have
the following meanings:
10-K
Filing Deadline:
As
defined in Section 6.20(e)(i).
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that service
or
master service mortgage loans of the same type and quality as such Mortgage
Loan
in the jurisdiction where the related Mortgaged Property is located, to the
extent applicable to the Trustee (as successor master servicer) or the Master
Servicer or (y) as provided in the applicable Servicing Agreement, to the
extent
applicable to the related Servicer.
Accountant:
A person engaged in the practice
of accounting who (except when this Agreement provides that an Accountant
must
be Independent) may be employed by or affiliated with the Depositor or an
Affiliate of the Depositor.
Accrual
Period:
With respect to any Distribution Date and each Class of Senior Certificates
and
Subordinate Certificates (other than the Principal-Only Certificates), the
period beginning on the immediately preceding Distribution Date (or, in the
case
of the first Accrual Period on June 25, 2007) and ending on the day immediately
preceding the related Distribution Date. With respect to any Distribution
Date
and the Class X Certificates (or
the
components thereof) and
each Lower-Tier Interest, the calendar month preceding the month of such
Distribution Date. The Principal-Only Certificates do not have an Accrual
Period.
16
Act:
As defined in Section 3.03(c).
Additional
Form 10-D Disclosure:
As
defined in Section 6.20(d)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 6.20(e)(i).
Additional
Servicer:
Each
affiliate of each Servicer that Services any of the Mortgage Loans and each
Person who is not an affiliate of any Servicer, who Services 10% or more
of the
Mortgage Loans.
Additional
Termination Event:
As
defined in the Swap Agreement.
Adjustable
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for the adjustment
of the Mortgage Rate applicable thereto.
Adjusted
Middle-Tier REMIC 1 WAC:
For any
Distribution Date (and the related Accrual Period), an amount equal to (i)
two,
multiplied by (ii) the weighted average of the interest rates for such
Distribution Date for each regular interest in Middle-Tier REMIC 1 (other
than
any interest-only regular interest), weighted in proportion to their Class
Principal Amounts as of the beginning of the related Accrual Period and computed
(i) by subjecting the rate on the Class MT1-Q Interest to a cap of 0.00%,
(ii)
by subjecting the rate on each of the Class MT1-A1, Class MT1-A2, Class MT1-A3,
Class MT1-A4 and Class MT1-A5 Interests to a cap equal to the interest rate
on
the Middle-Tier REMIC 2 Interest with the same Corresponding Class of
Certificates, and (iii) and by subjecting the rate on each remaining regular
interest to a cap that corresponds to the Certificate Interest Rate for the
Corresponding Class of Certificates, provided,
however,
that
for this purpose, the REMIC Net Funds Cap shall be substituted for the Senior
Net Funds Cap or Subordinate Net Funds Cap, as applicable, in the definition
of
Certificate Interest Rate, and for each Class of Certificates for which interest
is accrued on the basis of a 360-day year and the actual number of days in
the
related Accrual Period, the Certificate Interest Rate shall be multiplied
by an
amount equal to (a) the actual number of days in the Accrual Period, divided
by
(b) 30.
Advance:
An
advance of the aggregate of payments (other than Balloon Payments) of principal
and interest (net of the applicable Servicing Fee) on one or more Mortgage
Loans
that were due on the Due Date in the related Collection Period and not received
as of the close of business on the related Determination Date, required to
be
made by the related Servicer or by the Master Servicer on behalf of the related
Servicer (or by the Trustee as successor master servicer) pursuant to Section
5.04, but only to the extent that such amount is expected, in the reasonable
judgment of the Master Servicer or Servicer (or by the Trustee as successor
to
the Master Servicer), to be recoverable from collections or recoveries in
respect of such Mortgage Loan.
Adverse
REMIC Event:
Either
(i) loss of status as a REMIC, within the meaning of Section 860D of the
Code,
for any group of assets identified as a REMIC in the Preliminary Statement
to
this Agreement, or (ii) imposition of any tax, including the tax imposed
under
Section 860F(a)(1) on prohibited transactions, and the tax imposed under
Section
860G(d) on certain contributions to a REMIC, on any REMIC created hereunder
to
the extent such tax would be payable from assets held as part of the Trust
Fund.
17
Affected
Party:
As
defined in the Swap Agreement.
Affiliate:
With respect to any specified Person, any other Person controlling or controlled
by or under common control with such specified Person. For the purposes of
this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Aggregate
Loan Balance:
As of
any date of determination, the aggregate of the Scheduled Principal Balances
of
all the Mortgage Loans.
Aggregate
Voting Interests:
The aggregate of the Voting
Interests of all the Certificates under this Agreement.
Agreement:
This Trust Agreement and all amendments
and supplements hereto.
Anniversary
Year:
The
one-year period beginning on the Closing Date and ending on the first
anniversary thereof, and each subsequent one-year period beginning on the
day
after the end of the preceding Anniversary Year and ending on the next
succeeding anniversary of the Closing Date.
Applied
Loss Amounts:
With
respect to any Distribution Date, after giving effect to all Realized Losses
incurred with respect to the Mortgage Loans during the related Collection
Period
and distributions of principal on such Distribution Date, the amount by which
the aggregate Class Principal Amount of the Offered Certificates (other than
the
Class AIO Certificates) and the Class M10 and Class M11 Certificates exceeds
the
Aggregate Loan Balance for such Distribution Date.
Appraised
Value:
With respect to any Mortgage Loan, the amount set forth in an appraisal made
in
connection with the origination of such Mortgage
Loan as the value of the related Mortgaged Property.
Assignment
of Mortgage:
An assignment of the Mortgage, notice of transfer or equivalent instrument,
in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage
to the
Trustee, which assignment, notice of transfer or equivalent instrument may
be in
the form of one or more blanket assignments covering the Mortgage Loans secured
by Mortgaged Properties located in the same jurisdiction, if permitted by
law;
provided,
however,
that none of the Custodians nor the Trustee shall be responsible for determining
whether any such assignment is in recordable form.
Aurora:
Aurora Loan Services LLC or its successors in interest.
Authenticating
Agent:
Any authenticating
agent appointed by the Trustee pursuant to Section 6.10.
Authorized
Officer:
Any Person who may execute
an Officer’s Certificate on behalf of the Depositor.
18
Available
Basis Risk Amount:
For any Distribution Date and the Senior Certificates (other than the Class
AIO
Certificates), the lesser of:
(i)
the
product of:
(a)
the
excess, if any of (1) LIBOR over (2) 6.82% per annum, and
(b)
the
Scheduled Notional Amount of the Interest Rate Swap Agreement for such
Distribution Date, and
(c)
a
fraction, the numerator of which is the actual number of days in the Accrual
Period and the denominator of which is 360, and
(ii)
the
amount on deposit in the Interest Rate Swap Account after all required
distributions have been made on such Distribution Date pursuant to Sections
5.02(h)(i) through (iv).
Back-Up
Certification:
As
defined in Section 6.20(e)(iii).
Balloon
Mortgage Loan:
Any Mortgage Loan that provides for (1) equal monthly Scheduled Payments
that
will not reduce the Scheduled Principal Balance of the Mortgage Loans to
zero at
the maturity date and (2) a larger monthly payment at the maturity date equal
to
the unpaid Scheduled Principal Balance of the Mortgage Loan, with interest
thereon.
Balloon
Payment:
The final Scheduled Payment in respect of a Balloon Mortgage Loan.
Bankruptcy:
As to any Person, the making of an assignment for the benefit of creditors,
the
filing of a voluntary petition in bankruptcy, adjudication as bankrupt or
insolvent, the entry of an order for relief in a bankruptcy or insolvency
proceeding, the seeking of reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief, or seeking, consenting
to or acquiescing in the appointment of a trustee, receiver or liquidator,
dissolution, or termination, as the case may be, of such Person pursuant
to the
provisions of either the Bankruptcy Code, or any other similar state
laws.
Bankruptcy
Code:
The United States Bankruptcy Code of 1986, as amended.
Basis
Risk Payment:
With
respect to any Distribution Date and the Senior Certificates (other than
the
Class AIO Certificates) an amount equal the excess, if any, of (A) the sum
of
(i) any Basis Risk Shortfall for such Classes for such Distribution Date,
(ii)
any Unpaid Basis Risk Shortfall for such Classes from previous Distribution
Dates and (iii) any Required Reserve Fund Amount for such Distribution Date
over
(B) the amount of Available Basis Risk Amount and payments of Basis Risk
Shortfalls and Unpaid Basis Risk Shortfalls made to such Classes pursuant
to
Sections 5.02(g)and 5.02(h). With respect to any Distribution Date and the
Offered Subordinate Certificates (other
than the Class M9 Certificates),
the sum
of (i) any Basis Risk Shortfall for such Classes for such Distribution Date,
(ii) any Unpaid Basis Risk Shortfall for such Classes from previous Distribution
Dates and (iii) any Required Reserve Fund Amount for such Distribution Date.
The
amount of the Basis Risk Payment for any Distribution Date cannot exceed
the
amount of Monthly Excess Cashflow otherwise available for distribution pursuant
to Section 5.02(f) of this Agreement.
19
Basis
Risk
Reserve Fund:
A fund created as part of the Trust
Fund pursuant to Section 5.06 of this Agreement but which is not an asset
of any
of the REMICs.
Basis
Risk Shortfall:
With
respect to any Distribution Date and any Class of Offered Certificates (other
than the Class AIO Certificates and the Class M9 Certificates), the amount
by
which the amount of interest calculated at the Certificate Interest Rate
applicable to such Class for such date, determined without regard to the
applicable Net Funds Cap, exceeds the amount of interest calculated at the
applicable Net Funds Cap.
Benefit
Plan Opinion:
An Opinion of Counsel satisfactory to the Depositor and the Trustee to the
effect that any proposed transfer of Certificates will not (i) cause the
assets
of the Trust Fund to be regarded as “plan assets” for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the Depositor
or the Trustee, respectively.
Book-Entry
Certificates:
Beneficial interests in Certificates
designated as “Book-Entry Certificates” in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a Clearing
Agency as described in Section 3.09; provided, that after the occurrence
of a
condition whereupon book-entry registration and transfer are no longer permitted
and Definitive Certificates are to be issued to Certificate Owners, such
Book-Entry Certificates shall no longer be “Book-Entry Certificates.” As of the
Closing Date, each Class of Offered Certificates and the Class M10 and Class
M11
Certificates constitutes Book-Entry Certificates.
Bulk
PMI Policy:
Not applicable.
Business
Day:
Any day other than (i) a Saturday or a Sunday, (ii) a day on which banking
institutions in the States of Colorado or New York or the city in which the
Corporate Trust Office of the Trustee is located are closed, or (iii) with
respect to any Servicer Remittance Date or any Servicer reporting date, a
day on
which banking institutions in the States specified in the definition of
“Business Day” in the related Servicing Agreements, are authorized
or obligated by law or executive order to be closed.
Cap
Account:
The
account created pursuant to Section 5.07(b).
Cap
Agreement:
The
interest rate cap agreement dated as of June 29, 2007, entered into by the
Supplemental Interest Trust and the Cap Counterparty, which agreement provides
for the monthly payment specified therein to the Trustee (for the benefit
of the
Senior Certificates (other than the Class AIO Certificates) commencing with
the
Distribution Date in July 2008 and terminating in (but including the
Distribution Date in) August 2012, by the Cap Counterparty, but subject to the
conditions set forth therein, including the 1992 ISDA Master Swap Agreement
(Multi-Currency Cross Border), together with any schedules, confirmations,
Credit Support Annex or other agreements relating thereto, attached hereto
as
Exhibit N-2.
Cap
Amount:
With
respect to each Distribution Date, the amount of any Cap Payment deposited
into
the Cap Account, and any investment earnings thereon.
20
Cap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Cap Agreement,
and any
successor in interest or assigns. Initially, the Cap Counterparty shall be
Swiss
Re Financial Products Corporation.
Cap
Payment:
With
respect to each Distribution Date, any payment required to be made by the
Cap
Counterparty to the Supplemental Interest Trust pursuant to the terms of
the Cap
Agreement.
Cap
Payment Date:
For so
long as the Cap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day immediately preceding each Distribution Date.
Cap
Replacement Receipts:
As
defined in Section 5.08(b).
Cap
Replacement Receipts Account:
As
defined in Section 5.08(b).
Cap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Cap Agreement,
the payment required to be made by the Cap Counterparty to the Supplemental
Interest Trust pursuant to the terms of the Cap Agreement, and any unpaid
amounts due on previous Cap Payment Dates and accrued interest thereon as
provided in the Cap Agreement, as calculated by the Cap Counterparty and
furnished to the Trustee.
Cap
Termination Receipts:
As
defined in Section 5.08(b).
Cap
Termination Receipts Account:
As
defined in Section 5.08(b).
Carryforward
Interest:
With respect to any Distribution Date and any Class of Certificates (other
than
the Principal-Only Certificates, Class X, Class P, Class R and Class LT-R
Certificates), the
sum
of (i) the amount, if any, by which (x) the sum of (A) Current Interest for
such
Class for the immediately preceding Distribution Date and (B) any unpaid
Carryforward Interest for such Class from previous Distribution Dates exceeds
(y) the amount distributed in respect of interest on such Class on such
immediately preceding Distribution Date, and (ii) interest on such amount
for
the related Accrual Period at the applicable Certificate Interest
Rate.
Certificate:
Any one of the certificates signed and countersigned by the Trustee in
substantially the forms attached hereto
as Exhibit A.
Certificate
Account:
The
account maintained by the Trustee in accordance with the provisions of Section
4.04.
Certificate
Interest Rate:
With respect to each Class of Certificates (other than the Principal-Only
Certificates, the Class X, Class P, Class R and Class LT-R Certificates)
and any
Distribution Date, the applicable per annum rate set forth or described under
the heading “The Certificates” in the Preliminary Statement hereto.
Certificate
Owner:
With respect to a Book-Entry Certificate, the Person who is the owner of
such
Book-Entry Certificate, as reflected on the books of the Clearing Agency,
or on
the books of a Person maintaining an account with such Clearing Agency (directly
or as an indirect participant, in accordance with the rules of such Clearing
Agency).
21
Certificate
Principal Amount:
With respect to any Certificate (other than the Class AIO, Class P, Class
X,
Class R and Class LT-R Certificates) and any Distribution Date, the initial
Certificate Principal Amount thereof on the Closing Date, less the amount
of all
principal distributions previously distributed with respect to such Certificate
prior to such Distribution Date, and, in the case of the Offered Certificates
(other than the Class AIO Certificates) and the Class M10 and Class M11
Certificates, as reduced by any Applied Loss Amount previously allocated
thereto; provided,
however,
that on each Distribution Date on which a related Subsequent Recovery is
distributed, (i) the Certificate Principal Amount of any Offered Certificates
(other than the Class AIO Certificates) and Class M10 or Class M11 Certificates
whose Certificate Principal Amount has previously been reduced by application
of
Applied Loss Amounts will be increased, in order of seniority, by an amount
(to
be applied pro
rata
to all Certificates of such Class) equal to the lesser of (1) any Deferred
Amount for each such Class immediately prior to such date and (2) the total
amount of any Subsequent Recovery distributed on such Distribution Date after
application (for this purpose) to any more senior Classes of such Certificates.
The Class AIO, Class X, Class R and Class LT-R Certificates are issued without
Certificate Principal Amounts. The Class P Certificates are issued with an
initial Class P Principal Amount of $100.00.
Certificate
Register
and Certificate
Registrar:
The register
maintained and the registrar appointed pursuant to Section 3.02.
Certificateholder:
The meaning provided in the definition
of “Holder.”
Certifying
Party:
As
defined in Section 6.20(e)(iii).
Class:
All Certificates and, in the case of each of Lower-Tier REMIC 1, Middle-Tier
REMIC 1 and Middle-Tier REMIC 2 and all Lower Tier Interests bearing the
same
Class designation.
Class
I Shortfalls:
As defined in Section 10.01(l) hereof. For purposes of clarity, the Class
I
Shortfall for any Distribution Date shall equal the amount payable to the
Swap
Counterparty on such Distribution Date in excess of the amount payable on
the
related Class I interest on such Distribution Date, all as further provided
in
Section 10.01(l) hereof.
Class
LT-R Certificates:
Each Class LT-R Certificate executed by the Trustee, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed
hereto
as Exhibit A and evidencing the residual interest in Pooling REMIC
1.
Class
Notional
Amount:
With
respect to the Class AIO Certificates and any Distribution Date up to and
including the Distribution Date in April 2012, the Class Notional Amount
of the
Class AIO Certificates will be an amount equal to the sum of the Class Principal
Amounts of the Class A1, Class A2, Class A3, Class A4 and Class A5 Certificates
for the related Distribution Date.
Class
P Interest:
An
interest in the Upper-Tier REMIC, as described in the Preliminary Statement
footnote (18) under the caption “The Certificates,” which interest shall be
evidenced by the rights of the holders of the Class P Certificates to receive
Prepayment Premiums with respect to Mortgage Loans.
22
Class
P Principal Amount:
As of
the Closing Date, $100.00.
Class
Principal
Amount:
With respect to each Class of
Certificates other than the Class AIO, Class P, Class R, Class LT-R and Class
X
Certificates, the aggregate of the Certificate Principal Amounts (or related
Percentage Interest therein aggregating to 100%) of all Certificates of such
Class at the date of determination. With respect to the Class P Certificates,
the Class P Principal Amount. With respect to the Class AIO, Class R, Class
LT-R
and Class X Certificates, zero.
Class
R Certificate:
The Class R Certificate executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A and evidencing the ownership of the sole
class
of residual interest in the
Upper-Tier REMIC as well as ownership of the Class LT1-R Interest, Class
MT1-R
Interest and Class MT2-R Interest.
Class
X-S Component Principal Amount:
As of
the Closing Date, $6,909,195.41.
Class
X Distributable Amount:
On any Distribution Date, the amount of interest that has accrued on the
notional balance of the Class X Certificates (as described in the Preliminary
Statement in footnote (19) under the caption “The Certificates”), but that has
not been distributed prior to such date. In
addition, such amount shall include the initial Class X-S Component Principal
Amount of $6,909,295.41 (less $100 of such amount allocated to the Class
P
Certificates) to the extent such amount has not been distributed on an earlier
Distribution Date as part of the Overcollateralization Release Amount.
Class
X Notional Balance:
With respect to any Distribution Date (and the related Accrual Period) the
aggregate of the Class Principal Amount of the interests in Middle-Tier REMIC
1,
as described in the Preliminary Statement.
Clearing
Agency:
An organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act. As of the Closing Date, the Clearing Agency shall be The
Depository Trust Company.
Clearing
Agency Participant:
A broker, dealer, bank, other financial institution or other Person for whom
from time to time a Clearing Agency effects book-entry transfers and pledges
of
securities deposited with the Clearing Agency.
Clearstream:
Clearstream Banking, S.A., Luxembourg, and any successor thereto.
Closing
Date:
June
29, 2007.
Code:
The Internal Revenue Code of 1986, as amended, and as it may be further amended
from time to time, any successor
statutes thereto, and applicable U.S. Department of Treasury regulations
issued
pursuant thereto in temporary or final form.
Collateral
Account:
The
account maintained by the Trustee in accordance with the provisions of Section
5.07(c).
Collection
Account:
A
separate account established and maintained by the Master Servicer pursuant
to
Section 4.01.
23
Collection
Period:
With respect to any Distribution Date, the period commencing on the second
day
of the month immediately preceding the month in which such Distribution Date
occurs and ending on the first day
of the month in which such Distribution Date occurs.
Commission:
The
United States Securities and Exchange Commission.
Compensating
Interest Payment:
With respect to any Distribution Date and prepayments in full or in part,
an
amount equal to the aggregate amount of any Prepayment Interest Shortfalls
required to be paid by the Servicers with respect to such Distribution Date.
The
Master Servicer (solely in its capacity as master servicer) shall not be
responsible for making any Compensating Interest Payment.
Component:
The
Class X Certificate shall be issued in three non-severable Components: the
X-S
Component, the C-X Component and the S-X Component. The X-S Component, C-X
Component and S-X Component shall not be issued with either a Certificate
Interest Rate or a balance but shall evidence the right to receive distributions
pursuant to Section 5.02(f)(viii), Section 5.02(g)(vi) and (vii) and Section
5.02(h)(x) and (xi), respectively.
Component
Interest Rate:
Not
applicable.
Component
Principal Amount:
Not applicable.
Conventional
Loan:
A
Mortgage Loan that is not insured by the United States Federal Housing
Administration or guaranteed by the United States Department of Veterans
Affairs.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
Cooperative
Loan Documents:
As to
any Cooperative Loan, (i) the Cooperative Shares, together with a stock power
in
blank; (ii) the original executed Security Agreement and the assignment of
the
Security Agreement endorsed in blank; (iii) the original executed Proprietary
Lease and the assignment of the Proprietary Lease endorsed in blank; (iv)
the
original executed Recognition Agreement and the assignment of the Recognition
Agreement (or a blanket assignment of all Recognition Agreements) endorsed
in
blank; (v) the executed UCC-1 financing statement with evidence of recording
thereon, which has been filed in all places required to perfect the security
interest in the Cooperative Shares and the Proprietary Lease; and (vi) executed
UCC-3 financing statements (or copies thereof) or other appropriate UCC
financing statements required by state law, evidencing a complete and unbroken
line from the mortgagee to the Trustee with evidence of recording thereon
(or in
a form suitable for recordation).
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
24
Cooperative
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Unit:
A
single-family dwelling located in a Cooperative Property.
Corporate
Trust Office:
The
office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office
at
the date of execution of this Agreement shall be in the case of Certificate
transfers and for purposes of presentment and surrender of the Certificates
for
final distribution thereon, Citibank, N.A., 000 Xxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Window, and for all other purposes,
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Agency and Trust—Xxxxxx XS Trust 2007-11 or
any such other address as the Trustee may designate from time to time by
notice
to the Certificateholders, the Depositor and the Master Servicer.
Corresponding
Class:
The
Class of Certificates that corresponds to a class of Lower-Tier Interests
or
Middle-Tier Interests in as described in the Preliminary Statement.
Credit
Score:
With
respect to any Mortgage Loan, a numerical assessment of default risk with
respect to the Mortgagor under such Mortgage Loan, determined on the basis
of a
methodology developed by Fair, Xxxxx & Co., Inc.
Credit
Support Annex:
Each
credit support annex to the Swap Agreement and the Cap Agreement dated as
of
June 29, 2007 between the Supplemental Interest Trust and the Swap Counterparty
and Cap Counterparty, as applicable.
Cumulative
Loss Trigger Event:
With
respect to any Distribution Date, a Cumulative Loss Trigger Event shall occur
if
the fraction, expressed as a percentage, obtained by dividing (x) the aggregate
amount of cumulative Realized Losses incurred on the Mortgage Loans from
the
Cut-off Date through the last day of the related Collection Period by (y)
the
Cut-off Date Balance, exceeds the applicable percentages described below
with
respect to such Distribution Date:
|
Distribution
Date
|
Loss
Percentage
|
|
July
2009 through June 2010
|
0.20%
for the first month plus an additional 1/12th of 0.35% for each
month
thereafter
|
|
July
2010 through June 2011
|
0.55%
for the first month plus an additional 1/12th of 0.40% for each
month
thereafter
|
|
July
2011 through June 2012
|
0.95%
for the first month plus an additional 1/12th of 0.40% for each
month
thereafter
|
|
July
2012 through June 2013
|
1.35%
for the first month plus an additional 1/12th of 0.25% for each
month
thereafter
|
|
July
2013 and thereafter
|
1.60%
|
25
Current
Interest:
With
respect to any Offered Certificate (other than the Class M9 Certificates)
and
any Distribution Date, the aggregate amount of interest accrued at the
applicable Certificate Interest Rate during the related Accrual Period on
the
Class Principal Amount (or Class Notional Amount) thereof immediately prior
to
such Distribution Date.
Custodial
Account:
Any
custodial account (other than an Escrow Account) established and maintained
by a
Servicer pursuant to a Servicing Agreement.
Custodial
Agreement:
Each
custodial agreement as identified on Exhibit K hereto, and any custodial
agreement subsequently executed by the Trustee and acknowledged by the Master
Servicer substantially in the form thereof.
Custodian:
Each
custodian appointed by the Trustee pursuant to a Custodial Agreement and
any
successor thereto. The initial Custodians are Deutsche Bank National Trust
Company, LaSalle Bank National Association, U.S. Bank National Association
and
Xxxxx Fargo Bank, N.A.
Cut-off
Date:
June 1,
2007.
Cut-off
Date Balance:
With
respect to the Mortgage Loans in the Trust Fund on the Closing Date, the
aggregate Scheduled Principal Balance of such Mortgage Loans as of the Cut-off
Date.
C-X
Component:
A
component of the Class X Certificate entitled to receive distributions pursuant
to Section 5.02(g)(vii).
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction of the Scheduled Payment that the
related Mortgagor is obligated to pay on any Due Date as a result of, or
in
connection with, any proceeding under Bankruptcy law or any similar
proceeding.
Defaulting
Party:
As
defined in the Swap Agreement.
Deferred
Amount:
With
respect to any Distribution Date and each Offered Certificate (other than
the
Class AIO Certificates) and the Class M10 and Class M11 Certificates, the
aggregate Applied Loss Amounts previously applied in reduction of the
Certificate Principal Amount thereof, less (i) any amounts previously reimbursed
in respect thereof and (ii) the amount by which the Certificate Principal
Amount
of any such Certificate has been increased due to any Subsequent Recovery.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
under Bankruptcy law or any similar proceeding.
Definitive
Certificate:
A
Certificate of any Class issued in definitive, fully registered, certificated
form.
26
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Fund pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans are
substituted therefor.
Delinquency
Event:
With
respect to any Distribution Date, a Delinquency Event shall occur if the
Rolling
Three Month Delinquency Rate as of the last day of the immediately preceding
calendar month equals or exceeds 32.25% of the Senior Enhancement Percentage
for
such Distribution Date.
Delinquency
Rate:
With
respect to any calendar month, the fraction, expressed as a percentage, the
numerator of which is the aggregate outstanding principal balance of all
Mortgage Loans which are 60 days Delinquent or more (including all foreclosures,
bankruptcies and REO Properties) as of the close of business on the last
day of
such month, and the denominator of which is the Aggregate Loan Balance
as of
the close of business on the last day of such month.
Delinquent:
For
reporting purposes, a Mortgage Loan is considered “delinquent” when any payment
contractually due thereon has not been made by the close of business on the
Due
Date therefor. Such Mortgage Loan is “30 days Delinquent” if such payment has
not been received by the close of business on the corresponding day of the
month
immediately succeeding the month in which such payment was first due, or,
if
there is no such corresponding day (e.g.,
as
when a
30-day month follows a 31-day month in which a payment was due on the 31st
day
of such month), then on the last day of such immediately succeeding month.
Similarly for “60 days Delinquent” and the second immediately succeeding month
and “90 days Delinquent” and the third immediately succeeding
month.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation, having its
principal place of business in New York, or its successors in
interest.
Determination
Date:
With
respect to each Distribution Date, the 18th day of the month in which such
Distribution Date occurs, or, if such 18th day is not a Business Day, the
next
succeeding Business Day.
Direct
Obligations:
Direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which
are
backed by the full faith and credit of the United States of
America.
Disqualified
Organization:
A
“disqualified organization” as defined in Section 860E(e)(5) of the
Code.
Distressed
Mortgage Loan:
Any
Mortgage Loan that at the date of determination is Delinquent in payment
for a
period of 90 days or more without giving effect to any grace period permitted
by
the related Mortgage Note or for which the applicable Servicer on behalf
of the
Trustee has accepted a deed in lieu of foreclosure.
Distribution
Date:
The
25th day of each month or, if such 25th day is not a Business Day, the next
succeeding Business Day, commencing in June 2007.
27
Distribution
Date Statement:
As
defined in Section 4.03(a) hereof.
Document
Transfer Event:
With
respect to those Mortgage Loans originated and serviced by Xxxxx Fargo, the
day
on which (i) Xxxxx Fargo is no longer the Servicer of any of such Mortgage
Loans, (ii) the senior unsecured long-term debt rating of Xxxxx Fargo &
Company is less than BBB- by Fitch or (iii) any Rating Agency requires Xxxxx
Fargo to deliver Retained Mortgage Documents to a Custodian.
Due
Date:
With
respect to any Mortgage Loan, the date on which a Scheduled Payment is due
under
the related Mortgage Note.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies
or
(ii) an account at a depository institution or trust company whose commercial
paper or other short term debt obligations (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short term debt or deposit obligations
of
such holding company or depository institution, as the case may be) have
been
rated by each Rating Agency in its highest short-term rating category, or
(iii)
a segregated trust account or accounts (which shall be a “special deposit
account”) maintained with the Trustee or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity,
in a
manner acceptable to the Trustee and the Rating Agencies. Eligible Accounts
may
bear interest.
Eligible
Investments:
Any one
or more of the following obligations or securities:
(i) Direct
Obligations;
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of
the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for
such
investment the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of
its
two highest long-term rating categories;
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed
by
Xxxxxx Mae, Xxxxxx Xxx or Xxxxxxx Mac with any registered broker/dealer subject
to Securities Investors’ Protection Corporation jurisdiction or any commercial
bank insured by the FDIC, if such broker/dealer or bank has an uninsured,
unsecured and unguaranteed obligation rated by each Rating Agency in its
highest
short-term rating category;
28
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which
have a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest long-term credit rating categories of each Rating Agency;
provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the Aggregate Loan Balance and the aggregate
principal amount of all Eligible Investments in the Certificate Account;
provided,
further,
that
such securities will not be Eligible Investments if they are published as
being
under review with negative implications from any Rating Agency;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not
more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment (including those managed
or
advised by the Trustee or any Affiliate thereof), (A) rated in the highest
rating category by each Rating Agency or (B) that would not adversely affect
the
then current rating assigned by each Rating Agency of any of the Certificates
or
the related NIM Securities and has a short term rating of at least “A-1” or its
equivalent by each Rating Agency. Such investments in this subsection (viii)
may
include money market mutual funds or common trust funds, including any fund
for
which Citibank, N.A., in its capacity other than as Trustee, the Trustee,
the
Master Servicer, any NIMS Insurer or an Affiliate thereof serves as an
investment advisor, administrator, shareholder, servicing agent, and/or
custodian or subcustodian, notwithstanding that (x) Citibank, N.A., the Trustee,
the Master Servicer, any NIMS Insurer or any Affiliate thereof charges and
collects fees and expenses from such funds for services rendered,
(y) Citibank, N.A., the Trustee, the Master Servicer, any NIMS Insurer or
any Affiliate thereof charges and collects fees and expenses for services
rendered pursuant to this Agreement, and (z) services performed for such
funds and pursuant to this Agreement may converge at any time. Citibank,
N.A. or
an Affiliate thereof is hereby authorized to charge and collect from the
Trustee
such fees as are collected from all investors in such funds for services
rendered to such funds (but not to exceed investment earnings
thereon);
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations, provided that any such investment will be a “permitted investment”
within the meaning of Section 860G(a)(5) of the Code.
29
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
ERISA-Restricted
Certificate:
Any
Class M10, Class M11, Class P, Class R, Class LT-R and Class X Certificate
and
any Certificate with a rating below the lowest applicable rating permitted
under
the Underwriter’s Exemption.
ERISA-Restricted
Trust Certificate:
Any
Senior Certificate (other than the Class AIO Certificate).
Errors
and Omission Insurance Policy:
The
errors or omission insurance policy required to be obtained by each Servicer
satisfying the requirements of the related Servicing Agreement.
Escrow
Account:
Any
account established and maintained by each Servicer pursuant to the related
Servicing Agreement.
Euroclear:
Euroclear Bank, S.A./N.V., as operator of the Euroclear System.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 6.14(a).
Exchange
Act:
The
Securities and Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
Exchange
Act Signing Party:
Either
the Depositor or the Master Servicer, to be determined by mutual agreement
between such parties.
Excluded
Trust Assets:
As
described in the Preliminary Statement.
Xxxxxx
Xxx:
Xxxxxx
Xxx, f/k/a the Federal National Mortgage Association, a federally chartered
and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
Fidelity
Bond:
The
fidelity bond required to be obtained by each Servicer satisfying the
requirements of the related Servicing Agreement.
Final
Scheduled Distribution Date:
With
respect to each Class of Certificates (other than the Class AIO Certificates),
the Distribution Date in February 2047, and in the case of the Class AIO
Certificates, the Distribution Date in April 2012.
30
Financial
Intermediary:
A
broker, dealer, bank or other financial institution or other Person that
clears
through or maintains a custodial relationship with a Clearing Agency
Participant.
First
Payment Default Mortgage Loan:
Any
Mortgage Loan (i) originated by Xxxxxx Brothers Bank, FSB specified in Section
1.04(e) of the Mortgage Loan Sale Agreement in respect of which the related
Mortgagor does not make the first payment due to the Seller within the time
frame required under such section or (ii) originated by Xxxxxx Brothers Bank,
FSB specified in Section 1.04(e) of the Mortgage Loan Sale Agreement in respect
of which the related Mortgagor does not make the first or second payment
due to
the Seller within the time frame required under such section.
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
FPD
Premium:
With
respect to any First Payment Default Mortgage Loan purchased by the Seller
from
Xxxxxx Brothers Bank, FSB, the excess, if any of the FPD Purchase Price over
the
Purchase Price for such Mortgage Loan.
FPD
Purchase Price:
With
respect to any First Payment Default Mortgage Loan, an amount equal to the
sum
of (a) the greater of (i) 100% of the unpaid principal balance of such Mortgage
Loan and (ii) the price at which such Mortgage Loan was originally purchased
by
the Seller as set forth on Schedule B, and (b) accrued interest thereon at
the
applicable Mortgage Rate from the date interest was last paid to (but not
including) the Due Date in the Collection Period immediately preceding the
related Distribution Date.
Xxxxxxx
Mac:
Xxxxxxx
Mac, f/k/a the Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III
of the
Emergency Home Finance Act of 1970, as amended, or any successor
thereto.
Xxxxxx
Mae
or
GNMA:
Xxxxxx
Xxx, f/k/a the Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
Holder
or
Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except that, solely for the purposes of taking any action or giving
any consent pursuant to this Agreement, any Certificate registered in the
name
of the Depositor, the Trustee, the Master Servicer, any Servicer, the Swap
Counterparty, the Cap Counterparty or any Affiliate thereof shall be deemed
not
to be outstanding in determining whether the requisite percentage necessary
to
effect any such consent has been obtained, except that, in determining whether
the Trustee shall be protected in relying upon any such consent, only
Certificates which a Responsible Officer of the Trustee knows to be so owned
shall be disregarded. The Trustee and any NIMS Insurer may request and
conclusively rely on certifications by the Depositor, the Master Servicer,
the
Swap Counterparty, the Cap Counterparty or the applicable Servicer, in
determining whether any Certificates are registered to an Affiliate of the
Depositor, the Master Servicer, the Swap Counterparty, the Cap Counterparty
or
any Servicer, respectively. After a Section 7.01(d) Purchase Event, other
than
in Sections 5.02(a) through (h) and 11.03(a) and (b) and, except in the case
of
the Class LT-R Certificates, Sections 3.03, 3.04, 3.05, 3.06, 3.07 and 3.09
herein, all references in this Agreement to “Holder” or “Certificateholder”
shall be deemed to be references to the LTURI-holder, as recorded on the
books
of the Certificate Registrar, as holder of the Pooling REMIC 1 Regular Interests
(in the case of a Section 7.01(d) Purchase Event).
31
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with
respect to any other Person, a Person who (a) is in fact independent of another
specified Person and any Affiliate of such other Person, (b) does not have
any
material direct financial interest in such other Person or any Affiliate
of such
other Person, (c) is not connected with such other Person or any Affiliate
of
such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (d) is not a
member
of the immediate family of a Person defined in clause (b) or (c)
above.
Initial
LIBOR Rate:
5.320%
per annum.
Initial
Optional Termination Date:
The
first Distribution Date occurring in the month following the date on which
the
Aggregate Loan Balance is less than 10.00% of the Cut-off Date
Balance.
Insurance
Fee Rate:
Not
applicable.
Insurance
Policy:
Any
Primary Mortgage Insurance Policy, any standard hazard insurance policy,
flood
insurance policy, earthquake insurance policy or title insurance policy relating
to the Mortgage Loans or the Mortgaged Properties, to be in effect as of
the
Closing Date or thereafter during the term of this Agreement.
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy, other than amounts (i) to
cover
expenses incurred by or on behalf of any Servicer or Master Servicer in
connection with procuring such proceeds, (ii) to be applied to restoration
or
repair of the related Mortgaged Property or (iii) required to be paid over
to
the Mortgagor pursuant to law or the related Mortgage Note.
Interest-Only
Certificates:
The
Class AIO Certificates.
Interest
Remittance Amount:
With
respect any Distribution Date, (a) the sum of (1) all interest collected
(other
than in connection with Payaheads and Prepayment Premiums) or advanced in
respect of Scheduled Payments during the related Collection Period by the
Servicers, the Master Servicer, or the Trustee (solely acting in its capacity
as
successor Master Servicer), minus
(x) the
Servicing Fee with respect to the Mortgage Loans and (y) previously unreimbursed
Advances and other amounts due to the Servicers, the Master Servicer or the
Trustee (solely acting in its capacity as successor master servicer) to the
extent allocable to interest and the allocable portion of previously
unreimbursed Servicing Advances with respect to the Mortgage Loans to the
extent
allocable to interest, (2) amounts actually paid by the Servicers with respect
to Prepayment Interest Shortfalls and any Compensating Interest Payments
with
respect to the Mortgage Loans with respect to the related Prepayment Period
or
related Collection Period, as applicable, (3) the portion of any Purchase
Price
(or FPD Purchase Price (excluding any FPD Premiums) payable with respect
to a
First Payment Default Mortgage Loan) or Substitution Amount paid with respect
the Mortgage Loans during the related Prepayment Period (or in the case of
Mortgage Loans serviced by Aurora, the relevant Collection Period) allocable
to
interest, and (4) all Net Liquidation Proceeds, Subsequent Recoveries,
Insurance Proceeds and any other recoveries collected with respect to the
Mortgage Loans during the related Prepayment Period (or in the case of Mortgage
Loans serviced by Aurora, the relevant Collection Period), to the extent
allocable to interest, as reduced by (b) other costs, expenses or liabilities
reimbursable to the Trustee, the Master Servicer or each Servicer to the
extent
provided in this Agreement and each Servicing Agreement, and each Custodian
pursuant to the Custodial Agreement; provided,
however,
that in the case of the Trustee, such reimbursable amounts to the Trustee
payable from the Interest Remittance Amount and the Principal Remittance
Amount
may not exceed $500,000 during any Anniversary Year up to and including the
Anniversary Year in which the Stepdown Date occurs and $200,000 during any
Anniversary Year thereafter (the “Applicable Maximum Reimbursement Amount”). In
the event that the Trustee incurs reimbursable amounts in excess of the
Applicable Maximum Reimbursement Amount in any Anniversary Year, it may obtain
reimbursement for such amounts in subsequent Anniversary Years, but in no
event
shall more than the Applicable Maximum Reimbursement Amount in aggregate
be
reimbursed to the Trustee per Anniversary Year. Notwithstanding the foregoing,
costs and expenses incurred by the Trustee pursuant to Section 6.14(a) in
connection with any transfer of servicing shall be excluded in determining
the
Applicable Maximum Reimbursement Amount limitation on reimbursable amounts
per
Anniversary Year. For
the
avoidance of doubt, (i) the Interest Remittance Amount available on each
Swap
Payment Date for distributions to the Swap Account shall be equal to the
Interest Remittance Amount on the related Distribution Date and (ii) the
Interest Remittance Amount for each Distribution Date shall be calculated
without regard to any distributions to the Swap Account on the related Swap
Payment Date.
32
Interest
Subordinate Priority:
To the
Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class M7 and
Class
M8 Certificates, sequentially, in that order.
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notices of transfer or
equivalent instrument.
Item
1122 Responsible Party:
With
respect to the criteria to be addressed under Item 1122 of Regulation AB,
the
attesting party as indicated in the table attached hereto at Exhibit
O.
Latest
Possible Maturity Date:
The
Distribution Date occurring in June 2052.
LBH:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
LIBOR:
(a)
With respect to the first Accrual Period, the Initial LIBOR Rate. With respect
to each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Trustee on the basis of
the
“Interest Settlement Rate” set by the British Bankers’ Association (the “BBA”)
for one-month United States dollar deposits, as such rates appear on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination
Date.
33
(b) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Reuters Screen LIBOR01 as of 11:00 a.m. (London time), or if
the
Reuters Screen LIBOR01 is not available on such date, the Trustee will obtain
such rate from the Bloomberg L.P. page “US0001M.” If any such rate is not
published for such LIBOR Determination Date, LIBOR for such date will be
the
most recently published Interest Settlement Rate. In the event that the BBA
no
longer sets an Interest Settlement Rate, the Trustee will designate an
alternative index that has performed, or that the Trustee expects to perform,
in
a manner substantially similar to the BBA’s Interest Settlement Rate. The
Trustee will select a particular index as the alternative index only if it
receives an Opinion of Counsel (a copy of which shall be furnished to the
Trustee and any NIMS Insurer), which opinion shall be an expense reimbursed
from
the Certificate Account pursuant to Section 4.04, that the selection of such
index will not cause any of the REMICs to lose their classification as REMICs
for federal income tax purposes.
(c) The
establishment of LIBOR by the Trustee and the Trustee’s subsequent calculation
of the Certificate Interest Rate applicable to the LIBOR Certificates for
the
relevant Accrual Period, in the absence of manifest error, will be final
and
binding.
LIBOR
Business Day:
Any day
on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
LIBOR
Certificates:
The
Senior Certificates (other than the Class AIO Certificates) and the Subordinate
Certificates (other than the Principal-Only Certificates).
LIBOR
Determination Date:
The
second LIBOR Business Day immediately preceding the commencement of each
Accrual
Period for any LIBOR Certificates.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the Master Servicer or the applicable
Servicer has determined that all amounts that it expects to recover on behalf
of
the Trust Fund from or on account of such Mortgage Loan have been
recovered.
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or a Servicer in connection
with the liquidation of any defaulted Mortgage Loan and are not recoverable
under the applicable Primary Mortgage Insurance Policy, if any, including,
without limitation, foreclosure and rehabilitation expenses, legal expenses
and
unreimbursed amounts, if any, expended pursuant to Sections 9.06, 9.16 or
9.22.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale, payment in full, discounted payoff, condemnation proceeds,
Insurance Proceeds, or otherwise, or the sale of the related Mortgaged Property
if the Mortgaged Property is acquired in satisfaction of the Mortgage Loan
by
foreclosure or deed in lieu of foreclosure, including any amounts remaining
in
the related Escrow Account.
34
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination, or such other date as is specified, to the
Original Value of the related Mortgaged Property.
Lower-Tier
Interest:
As
described in the Preliminary Statement.
Lower-Tier
REMIC:
Any of
Pooling REMIC 1 or Lower-Tier REMIC 1.
Lower-Tier
REMIC 1:
As
described in the Preliminary Statement.
LTURI-holder:
The
holder of the Pooling REMIC 1 Regular Interests, which upon the occurrence
of a
Section 7.01(d) Purchase Event, shall be the Master Servicer or its designee,
including any trustee in its capacity as a trustee in any privately placed
securitization.
M1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amount
of the Senior Certificates (other than the Class AIO Certificates), after
giving
effect to distributions on such Distribution Date and (ii) the Class Principal
Amount of the Class M1 Certificates immediately prior to such Distribution
Date
exceeds (y) the M1 Target Amount.
M1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 83.20% and (ii) the Aggregate Loan Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period
immediately prior to such Distribution Date) and (b) the amount, if any,
by
which (1) the Aggregate Loan Balance for such Distribution Date determined
as of
the last day of the related Collection Period (after giving effect to any
prepayments received during the related Prepayment Period immediately prior
to
such Distribution Date) exceeds (2) the Overcollateralization Floor.
M2
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amount
of the Senior Certificates (other than the Class AIO Certificates) and the
Class
M1 Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class M2
Certificates immediately prior to such Distribution Date exceeds (y) the
M2
Target Amount.
M2
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 87.10% and (ii) the Aggregate Loan Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period
immediately prior to such Distribution Date) and (b) the amount, if any,
by
which (1) the Aggregate Loan Balance for such Distribution Date determined
as of
the last day of the related Collection Period (after giving effect to any
prepayments received during the related Prepayment Period immediately prior
to
such Distribution Date) exceeds (2) the Xxxxxxxxxxxxxxxxxxxxx
Xxxxx.
00
X0
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of the aggregate Class Principal Amount
of
the Senior Certificates (other than the Class AIO Certificates), the Class
M1
Certificates and Class M2 Certificates, in each case after giving effect
to
distributions on such Distribution Date and (ii) the Class Principal Amount
of
the Class M3 Certificates immediately prior to such Distribution Date exceeds
(y) the M3 Target Amount.
M3
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 88.50% and (ii) the Aggregate Loan Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period
immediately prior to such Distribution Date) and (b) the amount, if any,
by
which (1) the Aggregate Loan Balance for such Distribution Date determined
as of
the last day of the related Collection Period (after giving effect to any
prepayments received during the related Prepayment Period immediately prior
to
such Distribution Date) exceeds (2) the Overcollateralization
Floor.
M4
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of the aggregate Class Principal Amount
of
the Senior Certificates (other than the Class AIO Certificates), the Class
M1
Certificates, Class M2 Certificates and Class M3 Certificates, in each case
after giving effect to distributions on such Distribution Date and (ii) the
Class Principal Amount of the Class M4 Certificates immediately prior to
such
Distribution Date exceeds (y) the M4 Target Amount.
M4
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 90.00% and (ii) the Aggregate Loan Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period
immediately prior to such Distribution Date) and (b) the amount, if any,
by
which (1) the Aggregate Loan Balance for such Distribution Date determined
as of
the last day of the related Collection Period (after giving effect to any
prepayments received during the related Prepayment Period immediately prior
to
such Distribution Date) exceeds (2) the Overcollateralization
Floor.
M5
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of the aggregate Class Principal Amount
of
the Senior Certificates (other than the Class AIO Certificates), the Class
M1
Certificates, Class M2 Certificates, Class M3 Certificates and Class M4
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class M5
Certificates immediately prior to such Distribution Date exceeds (y) the
M5
Target Amount.
M5
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 91.00% and (ii) the Aggregate Loan Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period
immediately prior to such Distribution Date) and (b) the amount, if any,
by
which (1) the Aggregate Loan Balance for such Distribution Date determined
as of
the last day of the related Collection Period (after giving effect to any
prepayments received during the related Prepayment Period immediately prior
to
such Distribution Date) exceeds (2) the Xxxxxxxxxxxxxxxxxxxxx
Xxxxx.
00
X0
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of the aggregate Class Principal Amount
of
the Senior Certificates (other than the Class AIO Certificates), the Class
M1
Certificates, Class M2 Certificates, Class M3 Certificates, Class M4
Certificates and Class M5 Certificates, in each case after giving effect
to
distributions on such Distribution Date and (ii) the Class Principal Amount
of
the Class M6 Certificates immediately prior to such Distribution Date exceeds
(y) the M6 Target Amount.
M6
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 92.00% and (ii) the Aggregate Loan Balance for such Distribution
Date determined as of the last day of the related Collection Period(after
giving
effect to any prepayments received during the related Prepayment Period
immediately prior to such Distribution Date) and (b) the amount, if any,
by
which (1) the Aggregate Loan Balance for such Distribution Date determined
as of
the last day of the related Collection Period (after giving effect to any
prepayments received during the related Prepayment Period immediately prior
to
such Distribution Date) exceeds (2) the Overcollateralization
Floor.
M7
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of the aggregate Class Principal Amount
of
the Senior Certificates (other than the Class AIO Certificates), the Class
M1
Certificates, Class M2 Certificates, Class M3 Certificates, Class M4
Certificates, Class M5 Certificates and Class M6 Certificates, in each case
after giving effect to distributions on such Distribution Date and (ii) the
Class Principal Amount of the Class M7 Certificates immediately prior to
such
Distribution Date exceeds (y) the M7 Target Amount.
M7
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 93.00% and (ii) the Aggregate Loan Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period
immediately prior to such Distribution Date) and (b) the amount, if any,
by
which (1) the Aggregate Loan Balance for such Distribution Date determined
as of
the last day of the related Collection Period (after giving effect to any
prepayments received during the related Prepayment Period immediately prior
to
such Distribution Date) exceeds (2) the Overcollateralization
Floor.
M8
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of the aggregate Class Principal Amount
of
the Senior Certificates (other than the Class AIO Certificates), the Class
M1
Certificates, Class M2 Certificates, Class M3 Certificates, Class M4
Certificates, Class M5 Certificates, Class M6 Certificates and Class M7
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class M8
Certificates immediately prior to such Distribution Date exceeds (y) the
M8
Target Amount.
37
M8
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 94.00% and (ii) the Aggregate Loan Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period
immediately prior to such Distribution Date) and (b) the amount, if any,
by
which (1) the Aggregate Loan Balance for such Distribution Date determined
as of
the last day of the related Collection Period (after giving effect to any
prepayments received during the related Prepayment Period immediately prior
to
such Distribution Date) exceeds (2) the Overcollateralization
Floor.
M9
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amount
of the Senior Certificates (other than the Class AIO Certificates) the Class
M1
Certificates, the Class M2 Certificates, the Class M3 Certificates, the Class
M4
Certificates, the Class M5 Certificate, the Class M6 Certificates, the Class
M7
Certificates and the Class M8 Certificates, in each case after giving effect
to
distributions on such Distribution Date, and (ii) the Class Principal Amount
of
the Class M9 Certificates immediately prior to such Distribution Date exceeds
(y) the M9 Target Amount.
M9
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (1) approximately 95.00% and (2) the Aggregate Loan Balance for
such
Distribution Date determined as of the last day of the related Collection
Period
(after giving effect to any prepayments received during the related Prepayment
Period) and (b) the amount, if any, by which (1) the Aggregate Loan Balance
for
such Distribution Date determined as of the last day of the related Collection
Period (after
giving effect to any prepayments received during the related Prepayment Period)
exceeds
(2) the Overcollateralization Floor.
M10
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amount
of the Senior Certificates (other than the Class AIO Certificates) the Class
M1
Certificates, the Class M2 Certificates, the Class M3 Certificates, the Class
M4
Certificates, the Class M5 Certificate, the Class M6 Certificates, the Class
M7
Certificates, the Class M8 Certificates and the Class M9 Certificates, in
each
case after giving effect to distributions on such Distribution Date, and
(ii)
the Class Principal Amount of the Class M10 Certificates immediately prior
to
such Distribution Date exceeds (y) the M10 Target Amount.
M10
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (1) approximately 96.00% and (2) the Aggregate Loan Balance for
such
Distribution Date determined as of the last day of the related Collection
Period
(after giving effect to any prepayments received during the related Prepayment
Period) and (b) the amount, if any, by which (1) the Aggregate Loan Balance
for
such Distribution Date determined as of the last day of the related Collection
Period (after
giving effect to any prepayments received during the related Prepayment Period)
exceeds
(2) the Overcollateralization Floor.
38
M11
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amount
of the Senior Certificates (other than the Class AIO Certificates) the Class
M1
Certificates, the Class M2 Certificates, the Class M3 Certificates, the Class
M4
Certificates, the Class M5 Certificate, the Class M6 Certificates, the Class
M7
Certificates, the Class M8 Certificates, the Class M9 Certificates and the
Class
M10 Certificates, in each case after giving effect to distributions on such
Distribution Date, and (ii) the Class Principal Amount of the Class M11
Certificates immediately prior to such Distribution Date exceeds (y) the
M11
Target Amount.
M11
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (1) approximately 97.30% and (2) the Aggregate Loan Balance for
such
Distribution Date determined as of the last day of the related Collection
Period
(after giving effect to any prepayments received during the related Prepayment
Period) and (b) the amount, if any, by which (1) the Aggregate Loan Balance
for
such Distribution Date determined as of the last day of the related Collection
Period (after
giving effect to any prepayments received during the related Prepayment Period)
exceeds
(2) the Overcollateralization Floor.
Master
Servicer:
Aurora
Loan Services LLC, or any successor in interest, or if any successor master
servicer shall be appointed as herein provided, then such successor master
servicer.
Master
Servicer Remittance Date:
With
respect to each Distribution Date, the Business Day immediately preceding
such
Distribution Date.
Master
Servicing Fee:
As to
any Distribution Date, an amount equal to one-twelfth the product of (a)
the
Master Servicing Fee Rate and (b) the outstanding principal balance of each
Mortgage Loan.
Master
Servicing Fee Rate:
0.00%
per annum.
Material
Defect:
As
defined in Section 2.02(c) hereof.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as nominee for the holder
from
time to time of the Mortgage Note.
Middle-Tier
REMIC 1:
As
described in the Preliminary Statement.
Middle-Tier
REMIC 2:
As
described in the Preliminary Statement.
Monthly
Excess Cashflow:
For any
Distribution Date, an amount equal to the sum of (i) the Monthly Excess Interest
for such Distribution Date, (ii) the Overcollateralization Release Amount
for
such Distribution Date and (iii) any remaining Principal Distribution Amount
for
such Distribution Date remaining after distribution pursuant to Section
5.02(d)(i)(C) or Section 5.02(d)(ii)(M), as applicable.
39
Monthly
Excess Interest:
With
respect to any Distribution Date, the amount of any Interest Remittance Amount
remaining after application pursuant to clauses (i) through (iii) of Section
5.02(b) on such date.
Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor in interest.
Mortgage:
A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note, together with improvements
thereto.
Mortgage
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular Mortgage
Loan required to be delivered to the Trustee pursuant to this
Agreement.
Mortgage
Loan:
A
Mortgage and the related notes or other evidences of indebtedness secured
by
each such Mortgage conveyed, transferred, sold, assigned to or deposited
with
the Trustee pursuant to Section 2.01 or Section 2.05, including without
limitation, each Mortgage Loan listed on the Mortgage Loan Schedule, as amended
from time to time.
Mortgage
Loan Sale Agreement:
The
mortgage loan sale and assignment agreement dated as of June 1, 2007 for
the
sale of the Mortgage Loans by the Seller to the Depositor.
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition
of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust Fund.
Such
schedule shall set forth, among other things, the following information with
respect to each Mortgage Loan: (i) the Mortgage Loan identifying number;
(ii)
the city, state and zip code of the Mortgaged Property; (iii) the original
principal amount of the Mortgage Loan; (iv) the Mortgage Rate at origination;
(v) the monthly payment of principal and interest at origination; (vi) the
Mortgage Pool in which such Mortgage Loan is included; (vii) the applicable
Servicer servicing such Mortgage Loan and the applicable Servicing Fee Rate;
(viii) the applicable Custodian with respect to the Mortgage File related
to
such Mortgage Loan; (ix) whether such Mortgage Loan is subject to a Prepayment
Premium for voluntary prepayments by the Mortgagor, the term during which
such
Prepayment Premiums are imposed and the methods of calculation of the Prepayment
Premium; and (x) whether such Mortgage Loan is a First Payment Default Mortgage
Loan. The Depositor shall be responsible for providing the Trustee and the
Master Servicer with all amendments to the Mortgage Loan Schedule.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
under a Mortgage Loan.
Mortgage
Rate:
With
respect to any Mortgage Loan, the per annum rate at which interest accrues
on
such Mortgage Loan, as determined under the related Mortgage Note as reduced
by
any Relief Act Reductions.
40
Mortgaged
Property:
Either
of (x) the fee simple interest in real property, together with improvements
thereto including any exterior improvements to be completed within 120 days
of
disbursement of the related Mortgage Loan proceeds, or (y) in the case of
a
Cooperative Loan, the related Cooperative Shares and Proprietary Lease, securing
the indebtedness of the Mortgagor under the related Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Excess Spread Percentage:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is equal to the product of (i) the amount, if any, by
which
(a) the Interest Remittance Amount for such Distribution Date exceeds (b)
the
Current Interest payable with respect to the Offered Certificates (other
than
the Class M9 Certificates) for such Distribution Date and (ii) 12, and the
denominator of which is the Aggregate Loan Balance for such Distribution
Date.
Net
Funds Cap:
The
Senior Net Funds Cap or the Subordinate Net Funds Cap, as
applicable.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the related Liquidation Proceeds
net of
(i) unreimbursed expenses and (ii) any unreimbursed Advances, if any, received
and retained in connection with the liquidation of such Mortgage
Loan.
Net
Mortgage Rate:
With
respect to any Mortgage Loan, the Mortgage Rate thereof reduced by the Servicing
Fee Rate for such Mortgage Loan.
Net
Prepayment Interest Shortfall:
With
respect to any Master Servicer Remittance Date, the excess, if any, of any
Prepayment Interest Shortfalls with respect to the Mortgage Loans for such
date
over the sum of (i) any Prepayment Interest Excess with respect to the
Mortgage Loans for such date and (ii) any amounts paid with respect to such
shortfalls by the Servicers pursuant to the Servicing Agreements.
Net
Swap Payment:
With
respect to each Swap Payment Date, the sum of (i) the net payment required
to be
made pursuant to the terms of the Swap Agreement, which net payment shall
not
take into account any Swap Termination Payment, and (ii) any unpaid amounts
due
on previous Swap Payment Dates and accrued interest thereon as provided in
the
Swap Agreement, as calculated by the Swap Counterparty and furnished to the
Trustee.
Net
WAC Rate:
With
respect to any Distribution Date (and the related Accrual Period), a per
annum
rate equal to the weighted average of the Net Mortgage Rates of the Mortgage
Loans as of the first day of the related Collection Period (not including
for
this purpose Mortgage Loans for which prepayments in full have been received
and
distributed in the month prior to that Distribution Date).
NIM
Redemption Amount:
As
defined in Section 7.01(b).
NIM
Securities:
Any net
interest margin securities (other than any related NIM Residual Securities)
issued subsequent to the Closing Date by an owner trust or other special
purpose
entity, the principal assets of such trust or other entity including the
Class X
and Class P Certificates and the payments received thereon, as provided herein,
which principal assets back such securities.
41
NIM
Residual Securities:
Any
preference shares, ownership certificate or other residual certificates issued
in connection with any NIM Securities.
NIMS
Agreement:
Any
agreement pursuant to which any NIM Securities are issued.
NIMS
Insurer:
One or
more insurers issuing financial guaranty insurance policies in connection
with
the issuance of NIM Securities.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Non-permitted
Foreign Holder:
As defined in Section 3.03(f).
Non-U.S.
Person:
Any
person other than a “United States person” within the meaning of Section
7701(a)(30) of the Code.
Notional
Amount:
With
respect to any Notional Certificate and any Distribution Date, such
Certificate’s Percentage Interest of the Class Notional Amount of such Class of
Certificates for such Distribution Date.
Notional
Certificate:
Any
Class AIO Certificate.
Offered
Certificates:
The
Senior Certificates and the Offered Subordinate Certificates.
Offered
Subordinate Certificates:
The
Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class M7, Class
M8
and Class M9 Certificates.
Offering
Document:
Each of
the Prospectus and the Private Placement Memorandum.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of a Person,
and
in each case delivered to the Trustee.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Trustee, and which may be in-house or outside counsel to the Depositor, the
Master Servicer or the Trustee but which must be Independent outside counsel
with respect to any such opinion of counsel concerning the transfer of any
Residual Certificate or concerning certain matters with respect to ERISA,
or the
taxation, or the federal income tax status, of each REMIC.
Optimal
Interest Remittance Amount:
For
each Distribution Date, the product of (A) (x) the weighted average of the
Net
Mortgage Rates for the Mortgage Loans as of the first day of the related
Collection Period divided by (y) 12 and (B) the Aggregate Loan Balance as
of the
first day of the related Collection Period (not including for this purpose
Mortgage Loans for which prepayments in full have been received and distributed
in the month prior to that Distribution Date).
42
Original
Loan-to-Value Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination, or such other date as is specified, to the
Original Value of the related Mortgage Property.
Original
Value:
The
lesser of (a) the Appraised Value of a Mortgaged Property at the time the
related Mortgage Loan was originated and (b) if the Mortgage Loan was made
to
finance the acquisition of the related Mortgaged Property, the purchase price
paid for the Mortgaged Property by the Mortgagor at the time the related
Mortgage Loan was originated.
Overcollateralization
Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the Aggregate
Loan Balance for such Distribution Date determined as of the last day of
the
related Collection Period exceeds (y) the aggregate Class Principal Amount
of
the Offered Certificates (other than the Class AIO Certificates) and the
Class
M10 and Class M11 Certificates, in each case after giving effect to
distributions on such Distribution Date.
Overcollateralization
Deficiency:
With
respect to any Distribution Date, the amount, if any, by which (x) the Targeted
Overcollateralization Amount for such Distribution Date exceeds (y) the
Overcollateralization Amount for such Distribution Date, calculated for this
purpose after giving effect to the reduction on such Distribution Date of
the
aggregate Certificate Principal Amount of the Offered Certificates (other
than
the Class AIO Certificates) and the Class M10 and Class M11 Certificates
resulting from the distribution of the Principal Distribution Amount on such
Distribution Date, but prior to allocation of any Applied Loss Amount on
such
Distribution Date to the Offered Certificates (other than the Class AIO
Certificates) and the Class M10 and Class M11 Certificates.
Overcollateralization
Floor:
An
amount equal to 0.35% of the Aggregate Loan Balance as of the Cut-off
Date.
Overcollateralization
Release Amount:
With
respect to any Distribution Date, the lesser of (x) the Principal Remittance
Amount for such Distribution Date and (y) the amount, if any, by which (1)
the
Overcollateralization Amount for such Distribution Date (calculated for this
purpose on the basis of the assumption that 100% of the Principal Remittance
Amount for such date is applied on such Distribution Date in reduction of
the
aggregate Certificate Principal Amount of the Offered Certificates (other
than
the Class AIO Certificates) and the Class M10 and Class M11 Certificates)
exceeds (2) the Targeted Overcollateralization Amount for such Distribution
Date.
Payahead:
With
respect to any Mortgage Loan and any Due Date therefor, any Scheduled Payment
received by the applicable Servicer during any Collection Period in addition
to
the Scheduled Payment due on such Due Date, intended by the related Mortgagor
to
be applied on a subsequent Due Date or Due Dates.
Paying
Agent:
Any
paying agent appointed pursuant to Section 3.08.
PCAOB:
The
Public Company Accounting Oversight Board.
43
Percentage
Interest:
With
respect to any Certificate, its percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the
same
Class as such Certificate. With respect to any Certificate other than the
Class
AIO, Class X, Class P, Class R and Class LT-R Certificates, the Percentage
Interest evidenced thereby shall equal the initial Certificate Principal
Amount
thereof divided by the initial Class Principal Amount of all Certificates
of the
same Class. With respect to the Class X, Class P, Class R and Class LT-R
Certificates, the Percentage Interest evidenced thereby shall be as specified
on
the face thereof, or otherwise be equal to 100%. With respect to any Class
AIO
Certificate, the Percentage Interest evidenced thereby shall equal the initial
Notional Amount of such Class as set forth on the face thereof divided by
the
initial Class Notional Amount thereof.
Permitted
Servicing Amendment:
Any
amendment to any Servicing Agreement pursuant to Section 11.03(a)(ii) hereunder
in connection with any servicing transfer or transfer of any servicing
rights.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Placement
Agent:
Xxxxxx
Brothers Inc. or its successor in interest.
Plan:
An
employee benefit plan or other retirement arrangement which is subject to
Section 406 of ERISA and/or Section 4975 of the Code or any entity whose
underlying assets include such plan’s or arrangement’s assets by reason of their
investment in the entity.
Plan
Asset Regulations:
The
Department of Labor regulations set forth in 29 C.F.R. 2510.3-101.
Pool
Purchase Price:
A price
equal to the sum of (i) 100% of the unpaid principal balance of each Mortgage
Loan on the day of such purchase plus
interest
accrued thereon at the applicable Mortgage Rate to the Due Date in the Due
Period immediately preceding the related Distribution Date, (ii) the amount
of
any costs and damages incurred by the Trust Fund as a result of any violation
of
any applicable federal, state or local predatory- or abusive-lending law
arising
from or in connection with the origination of such Mortgage Loan, (iii) the
amount of any unreimbursed Servicing Advances and amounts owed to the Trustee
hereunder, (iv) the fair market value of any REO Property and any other property
held by the Trust Fund, such fair market value to be determined by an appraiser
or appraisers mutually agreed upon by the Master Servicer and the Trustee
(reduced, in the case of REO Property, by (1) reasonably anticipated disposition
costs and (2) any amount by which the fair market value as so reduced exceeds
the outstanding principal balance of the related Mortgage Loan) plus interest
accrued thereon at the applicable Net Mortgage Rate to the date of such purchase
and (v) any unpaid Net Swap Payment and any Swap Termination Payment
payable to the Swap Counterparty due to the exercise of the Master Servicer’s
option to purchase the Mortgage Loans.
Pooling
REMIC 1 Regular Interests:
Lower-Tier Interests in Pooling REMIC 1 as described in the Preliminary
statement.
44
Prepayment
Interest Excess:
With respect to any Distribution Date and any Mortgage Loan for which Aurora
is
the primary servicer, any Principal Prepayment in full received on the Mortgage
Loans from the first day through the sixteenth (16th)
day of the month during which such Distribution Date occurs, all amounts
paid in
respect of interest at the applicable Net Mortgage Rate on such Principal
Prepayment.
Prepayment
Interest Shortfall:
With respect to any Distribution Date and (x) any Principal Prepayment in
full
(with respect to those Mortgage Loans serviced by Servicers other than Aurora)
and (y) any Principal Prepayment in full with respect to those Mortgage Loans
serviced by Aurora if such Principal Prepayment is received on or after the
seventeenth (17th)
day of the month immediately preceding the month of such Distribution Date,
but
on or before the last day of the month immediately preceding the month of
such
Distribution Date, the difference between (i) one full month’s interest at the
applicable Net Mortgage Rate (after giving effect to any applicable Relief
Act
Reduction) on the outstanding principal balance of such Mortgage Loan
immediately prior to such prepayment and (ii) the amount of interest actually
received with respect to such Mortgage Loan in connection with such Principal
Prepayment.
Prepayment
Period:
With
respect to those Mortgage Loans serviced by Servicers other than Aurora and
any
Distribution Date and any Principal Prepayment, whether in part or in full
(including any liquidation), the calendar month immediately preceding the
month
in which such Distribution Date occurs. With respect to any Distribution
Date
and a Principal Prepayment in full (including any liquidation) with respect
to
those Mortgage Loans serviced by Aurora, the period from the seventeenth
(17th)
day of
the month immediately preceding the month of such Distribution Date to the
sixteenth (16th)
day of
the month of such Distribution Date (except in the case of the July 2007
Distribution Date, for which the related Prepayment Period will be the period
from June 1, 2007 through July 16, 2007). With respect to those Mortgage
Loans
serviced by Aurora, any Distribution Date and any Principal Prepayment in
part,
the calendar month immediately preceding the month in which such Distribution
Date occurs.
Prepayment
Premiums:
Any
prepayment fees and penalties to be paid by the Mortgagor on a Mortgage Loan
with respect to which the Seller owns the servicing rights, as indicated
in the
Mortgage Loan Schedule. Prepayment Premiums shall not be included in the
Principal Remittance Amount or the Interest Remittance Amount.
Primary
Mortgage Insurance Policy:
Any
mortgage guaranty insurance, if any, on an individual Mortgage Loan as evidenced
by a policy or certificate, whether such policy is obtained by the originator,
the lender or the borrower.
Principal
Distribution Amount:
With
respect to any Distribution Date, an amount equal to the Principal Remittance
Amount for such date minus
the
Overcollateralization Release Amount, if any, for such Distribution Date.
Principal-Only
Certificates:
Any of
the Class M9, Class M10 and Class M12 Certificates.
Principal
Prepayment:
Any
Mortgagor payment of principal (other than a Balloon Payment) or other recovery
of principal on a Mortgage Loan that is recognized as having been received
or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
Mortgage Note or the related Servicing Agreement.
45
Principal
Remittance Amount:
With
respect to any Distribution Date (a) the sum of (i) all principal collected
(other than in connection with Payaheads and Prepayment Premiums) or advanced
in
respect of Scheduled Payments on the Mortgage Loans during the related
Collection Period whether by a Servicer, the Master Servicer or the Trustee,
solely in its capacity as successor Master Servicer (less unreimbursed Advances
due to the Master Servicer, any Servicer, or the Trustee, in its capacity
as
successor master servicer, with respect to the related Mortgage Loans, to
the
extent allocable to principal and any unreimbursed Servicing Advances), (ii)
all
Principal Prepayments in full or in part received during the related Prepayment
Period or the related Collection Period, as applicable, with respect to the
Mortgage Loans, (iii) the outstanding principal balance of each Mortgage
Loan
(excluding any FPD Premium) that was purchased from the Trust Fund by the
Seller
or the related Transferor during the related Prepayment Period or the related
Collection Period, as applicable, or the NIMS Insurer (in the case of certain
Mortgage Loans 90 days or more delinquent), (iv) the portion of the Purchase
Price (or FPD Purchase Price (excluding any FPD Premium) payable with respect
to
a First Payment Default Mortgage Loan) or the portion of any Substitution
Amount
paid with respect to any Deleted Mortgage Loan during the related Prepayment
Period or the related Collection Period, as applicable, allocable to principal,
and (v) all Net Liquidation Proceeds, Insurance Proceeds, any Subsequent
Recovery and other recoveries collected with respect to the Mortgage Loans
during the related Prepayment Period or Collection Period, to the extent
allocable to principal, as reduced by (b) to the extent not reimbursed from
the
Interest Remittance Amount, other
costs, expenses or liabilities reimbursable to the Trustee, the Master Servicer
and each Servicer to the extent provided in this Agreement and each Servicing
Agreement, and to each Custodian pursuant to the related Custodial Agreement;
provided,
however,
in the case of the Trustee such reimbursement may not exceed the Applicable
Maximum Reimbursement Amount. In the event the Trustee incurs reimbursable
amounts in excess of the Applicable Maximum Reimbursement Amount, it may
seek
reimbursement for such amounts in subsequent Anniversary Years, but in no
event
shall more than the Applicable Maximum Reimbursement Amount be reimbursed
to the
Trustee per Anniversary Year. Notwithstanding the foregoing, costs and expenses
incurred by the Trustee pursuant to Section 6.14(a) in connection with any
transfer of servicing shall be excluded in determining the Applicable Maximum
Reimbursement Amount limitation on reimbursable amounts per Anniversary Year.
For the avoidance of doubt, (i) the Principal Remittance Amount available
on
each Swap Payment Date for distributions to the Swap Account shall be equal
to
the Principal Remittance Amount on the related Distribution Date and (ii)
the
Principal Remittance Amount for each Distribution Date shall be calculated
without regard to any distributions to the Swap Account on the related Swap
Payment Date.
Principal
Subordinate Priority:
To the
Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class M7, Class
M8,
Class M9, Class M10 and Class M11 Certificates, sequentially, in that
order.
Private
Placement Memorandum
The
private placement memorandum dated June 28, 2007, relating to the private
placement of the Class M10 and Class M11 Certificates.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
46
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
Prospectus:
The
prospectus supplement dated June 28, 2007 together with the accompanying
prospectus dated May 22, 2007, relating to the Offered
Certificates.
Purchase
Price:
With
respect to the purchase of a Mortgage Loan or related REO Property pursuant
to
Section 2.05 of this Agreement, an amount equal to the sum of (a) 100% of
the
unpaid principal balance of such Mortgage Loan, (b) accrued interest thereon
at
the applicable Mortgage Rate, from the date as to which interest was last
paid
to (but not including) the Due Date in the Collection Period immediately
preceding the related Distribution Date; (c) the amount of any unreimbursed
Servicing Advances with respect to such Mortgage Loan; (d) any costs and
damages
incurred by the Trust Fund with respect to such Mortgage Loan in connection
with
any violation of any federal, state or local predatory or abusive lending
laws
or other similar laws arising from or in connection with the origination
of such
Mortgage Loan; and (e) the fair market value of all other property being
purchased (reduced, in the case of REO Property, by (1) reasonably
anticipated disposition costs and (2) any amount by which the fair market
value
as so reduced exceeds the outstanding principal balance of the related Mortgage
Loan). The Master Servicer, each Servicer (or the Trustee, in its capacity
as
successor master servicer, if applicable) and each Custodian shall be reimbursed
from the Purchase Price for any Mortgage Loan or related REO Property for
any
Advances made or other amounts advanced with respect to such Mortgage Loan
or
related REO Property that are reimbursable to the Master Servicer or such
Servicer under this Agreement, the related Servicing Agreement (or to the
Trustee hereunder in its capacity as successor master servicer) or the related
Custodial Agreement, together with any accrued and unpaid compensation due
to
the Master Servicer, any Servicer, each Custodian or the Trustee hereunder
or
thereunder.
QIB:
As
defined in Section 3.03(c).
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account or the Certificate Account and insuring a
minimum, fixed or floating rate of return on investments of such funds, which
contract or surety bond shall:
(i) be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability
is
rated by each Rating Agency in one of its two highest rating categories,
and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(ii) provide
that the Trustee or the Master Servicer, as applicable, may exercise all
of the
rights under such contract or surety bond without the necessity of taking
any
action by any other Person;
(iii) provide
that if at any time the then current credit standing of the obligor under
such
guaranteed investment contract is such that continued investment pursuant
to
such contract of funds would result in a downgrading of any rating of the
Certificates or the NIM Securities, the Trustee or the Master Servicer, as
applicable, shall terminate such contract without penalty and be entitled
to the
return of all funds previously invested thereunder, together with accrued
interest thereon at the interest rate provided under such contract to the
date
of delivery of such funds to the Trustee;
47
(iv) provide
that the Trustee’s or Master Servicer’s interest therein shall be transferable
to any successor trustee or successor master servicer hereunder;
and
(v) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account or the Certificate Account, as the case may be,
not
later than the Business Day prior to any Distribution Date.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in
which
the related Mortgaged Properties are located, duly authorized and licensed
in
such states to transact the applicable insurance business related to this
transaction and to write the insurance provided in connection therewith and
whose claims paying ability is rated by each Rating Agency in its highest
rating
category or whose selection as an insurer will not adversely affect the ratings
of the Certificates.
Qualifying
Substitute Mortgage Loan:
In the
case of a Mortgage Loan substituted for a Deleted Mortgage Loan pursuant
to the
terms of this Agreement, a Mortgage Loan that, on the date of such substitution,
(i) has an outstanding Scheduled Principal Balance (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan,
an
aggregate Scheduled Principal Balance), after application of all Scheduled
Payments due during or prior to the month of substitution, not in excess
of, and
not more than 5% less than, the outstanding Scheduled Principal Balance of
the
Deleted Mortgage Loan as of the Due Date in the calendar month during which
the
substitution occurs, (ii) has a Mortgage Rate not less than the Mortgage
Rate on
the Deleted Mortgage Loan, (iii) if applicable, has a maximum Mortgage Rate
not
less than the maximum Mortgage Rate on the Deleted Mortgage Loan, (iv) if
applicable, has a minimum Mortgage Rate not less than the minimum Mortgage
Rate
of the Deleted Mortgage Loan, (v) if applicable, has a gross margin equal
to or
greater than the gross margin of the Deleted Mortgage Loan, (vi) is not a
Cooperative Loan unless the related Deleted Mortgage Loan was a Cooperative
Loan, (vii) if applicable, has a next adjustment date not later than the
next
adjustment date on the Deleted Mortgage Loan, (viii) has the same Due Date
as
the Deleted Mortgage Loan, (ix) has a remaining stated term to maturity not
longer than 18 months and not more than 18 months shorter than the remaining
stated term to maturity of the related Deleted Mortgage Loan; provided,
that
in
no case should such substitute Mortgage Loan have a maturity date later than
the
Final Scheduled Distribution Date; (x) is current as of the date of
substitution, (xi) has a Loan-to-Value Ratio as of the date of substitution
equal to or lower than the Loan-to-Value Ratio of the Deleted Mortgage Loan
as
of such date, (xii) has been underwritten by the Transferor in accordance
with
the same underwriting criteria and guidelines as the Deleted Mortgage Loan,
(xiii) has a risk grading determined by the Seller at least equal to the
risk
grading assigned on the Deleted Mortgage Loan, (xiv) is secured by the same
property type as the Deleted Mortgage Loan, (xv) conforms to each representation
and warranty applicable to the Deleted Mortgage Loan made in the related
Mortgage Loan Sale Agreement, (xvi) has the same or higher lien position
as the
Deleted Mortgage Loan, (xvii) is covered by a Primary Mortgage Insurance
Policy
if the Deleted Mortgage Loan was so covered and (xviii) contains provisions
covering the payment of Prepayment Premium by the Mortgagor for early prepayment
of the Mortgage Loan at least as favorable as the Deleted Mortgage Loan.
In the
event that one or more mortgage loans are substituted for one or more Deleted
Mortgage Loans, the amounts described in clause (i) hereof shall be determined
on the basis of aggregate Scheduled Principal Balances, the Mortgage Rates
described in clause (ii) hereof shall be determined on the basis of weighted
average Mortgage Rates, the risk gradings described in clause (xiii) hereof
shall be satisfied as to each such mortgage loan, the terms described in
clause
(ix) hereof shall be determined on the basis of weighted average remaining
term
to maturity; provided,
that
the
stated maturity date of any Qualifying Substitute Mortgage Loan shall not
be
later than the Final Scheduled Distribution Date, the Loan-to-Value Ratios
described in clause (xi) hereof shall be satisfied as to each such mortgage
loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (xv) hereof must be satisfied
as to each Qualifying Substitute Mortgage Loan or in the aggregate, as the
case
may be.
48
Rating
Agency:
Each of
Xxxxx’x and S&P.
Realized
Loss:
With
respect to each Liquidated Mortgage Loan, an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of liquidation,
minus
(ii)
Liquidation Proceeds received, to the extent allocable to principal, net
of
amounts that are reimbursable therefrom to the Master Servicer or any Servicer
with respect to such Mortgage Loan (other than Advances of principal) including
expenses of liquidation. In determining whether a Realized Loss is a Realized
Loss of principal, Liquidation Proceeds shall be allocated, first, to payment
of
expenses related to such Liquidated Mortgage Loan, then to accrued unpaid
interest and finally to reduce the principal balance of the Mortgage
Loan.
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
Record
Date:
With
respect to the Offered Certificates and the Class M10 and Class M11
Certificates, and any Distribution Date, the close of business on the Business
Day immediately preceding such Distribution Date. With respect to the Class
P,
Class X, Class LT-R and Class R Certificates and any Class of Definitive
Certificates and any Distribution Date, the last Business Day of the month
immediately preceding the month in which the Distribution Date occurs (or,
in
the case of the first Distribution Date, the Closing Date).
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Regulation
S:
Not
applicable.
Regulation
S Global Security:
Not
applicable.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit O attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the
Master
Servicer, the Trustee, the Paying Agent, each Custodian or each Servicer,
the
term “Relevant Servicing Criteria” may refer to a portion of the Relevant
Servicing Criteria applicable to such parties.
49
Relief
Act:
The
Servicemembers Civil Relief Act, as amended, and any similar state law or
regulation.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of interest collectible thereon as a result of application of the
Relief
Act, any amount by which interest collectible on such Mortgage Loan for the
Due
Date in the related Collection Period is less than interest accrued thereon
for
the applicable one-month period at the Mortgage Rate without giving effect
to
such reduction.
REMIC:
Each
pool of assets in the Trust Fund designated as a REMIC pursuant to Section
10.01(a) hereof.
REMIC
Net Funds Cap:
For any
Distribution Date (and the related Accrual Period) and any Class of
Certificates, an amount equal to (i) the weighted average of the interest
rates
on the regular interests in Middle-Tier REMIC 1 (other than the Class MT1-IO
Interests), weighted in proportion to their Class Principal Amounts as of
the
beginning of the related Accrual Period, multiplied, in the case of the LIBOR
Certificates, by (ii) the quotient of (a) 30 divided by (b) the actual number
of
days in the Accrual Period.
REMIC
Provisions:
The
provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at sections 860A through 860G of Subchapter
M
of Chapter 1 of the Code, and related provisions, and regulations, including
proposed regulations and rulings, and administrative pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
REMIC
Swap Rate:
For
each Distribution Date (and the related Accrual Period), a per annum rate
equal
to the product of: (i) the “Rate of Payment (%)” under the Swap Agreement for
such Distribution Date, as set forth in Annex D to the Prospectus Supplement,
(ii) 2, and (iii) the quotient of (a) the actual number of days in the related
Accrual Period divided by (b) 30.
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan
or
otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Reportable
Event:
As
defined in Section 6.20(f)(i).
Reporting
Servicer:
As
defined in Section 6.20(e)(i).
Required
Reserve Fund Amount:
With
respect to any Distribution Date on which the Net Excess Spread Percentage
is
less than 0.25%, the amount, if any by which (a) the product of 1.00% and
the
aggregate Class
Principal Amount of the Offered Certificates (other
than the Class AIO Certificates) and the Class M10 and Class M11
Certificates
immediately prior to such Distribution Date
exceeds
(b) the amount on deposit in the Basis Risk Reserve Fund immediately prior
to
such date. With respect to any Distribution Date on which the Net Excess
Spread
Percentage is equal to or greater than 0.25%, the amount, if any, by which
$1,000 exceeds the amount on deposit in the Basis Risk Reserve Fund immediately
prior to such date; provided,
however,
that on
any Distribution Date on which the Class Principal Amounts of each Class
of the
Offered Certificates
(other
than the Class AIO Certificates) and
the
Class M10 and Class M11 Certificates has been reduced to zero, the Required
Reserve Fund Amount shall be zero.
50
Residual
Certificates:
The
Class LT-R and Class R Certificates.
Responsible
Officer:
When
used with respect to the Trustee, any Vice President, Assistant Vice President,
the Secretary, any assistant secretary, or any officer, working in its Corporate
Trust Office and having responsibility for the administration of this Agreement,
and any other officer to whom a matter arising under this Agreement may be
referred.
Restricted
Certificate:
Any
Class M10, Class M11, Class P, Class X, Class LT-R or Class R
Certificate.
Restricted
Global Security:
Not
Applicable.
Retained
Mortgage Documents:
As
defined in Section 2.02(b) hereof.
Rolling
Three Month Delinquency Rate:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
equal
to the average of the Delinquency Rates for each of the three (or one and
two,
in the case of the first and second Distribution Dates, respectively)
immediately preceding calendar months.
Rules:
As
defined in Section 6.20(c).
S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor in interest.
Scheduled
Notional Amount:
For
each Distribution Date and the Swap Agreement, the amount set forth in Exhibit
N-1. The initial Scheduled Notional Amount with respect to the Swap Agreement
will be $439,811,607.00. For each Distribution Date and the Cap Agreement,
the
amount set forth in Exhibit N-2. The initial Scheduled Notional Amount with
respect to the Cap Agreement will be $22,738,053.00.
Scheduled
Payment:
Each
scheduled payment of principal and interest (or of interest only, if applicable)
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service Reduction
or as a result of any related Deficient Valuation (in each case, excluding
all
amounts of principal and interest that were due on or before the Cut-off
Date
whenever received) and, in the case of an REO Property, an amount equivalent
to
the Scheduled Payment that would have been due on the related Mortgage Loan
if
such Mortgage Loan had remained in existence.
Scheduled
Principal Balance:
With
respect to (i) any Mortgage Loan as of any Distribution Date, the principal
balance of such Mortgage Loan at the close of business on the Cut-off Date
after
giving effect to principal payments due on or before the Cut-off Date, whether
or not received, less an amount equal to principal payments due after the
Cut-off Date, and on or before the Due Date in the related Collection Period,
whether or not received from the Mortgagor or advanced by any Servicer or
the
Master Servicer, and all amounts received thereon which are allocable to
unscheduled principal payments (including Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and condemnation proceeds, in each case to the
extent identified and applied prior to or during the related Prepayment Period)
and (ii) any REO Property as of any Distribution Date, the Scheduled Principal
Balance of the related Mortgage Loan on the Due Date immediately preceding
the
date of acquisition of such REO Property by or on behalf of the Trustee (reduced
by any amount applied as a reduction of principal on the Mortgage Loan).
With
respect to any Mortgage Loan and the Cut-off Date, as specified in the Mortgage
Loan Schedule. The Scheduled Principal Balance of a Liquidated Mortgage Loan
shall be zero.
51
Section
7.01(d) Purchase Event:
The
purchase of all the Pooling REMIC 1 Regular Interests.
Securities
Act:
The
Securities
Act of 1933, as amended
Security
Agreement:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
Seller:
Xxxxxx
Brothers Holdings Inc. or any successor in interest thereto.
Senior
Certificates:
Collectively, the Class A1, Class A2, Class A3, Class A4, Class A5 and Class
AIO
Certificates.
Senior
Enhancement Percentage:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is the sum of (x) the aggregate Class Principal Amount
of the
Offered Subordinate Certificates and the Class M10 and Class M11 Certificates
and (y) the Overcollateralization Amount (which amount, for purposes of this
definition only, shall not be less than zero and assuming for purposes of
this
definition that the Principal Distribution Amount has been distributed on
such
Distribution Date and no Trigger Event has occurred) and the denominator
of
which is the Aggregate Loan Balance for such Distribution Date, in each case
after giving effect to distributions on such Distribution Date.
Senior
Net Funds Cap:
With
respect to any Distribution Date and the Senior Certificates (other than
the
Class AIO Certificates), an annual rate equal to (a) a fraction, expressed
as a
percentage, the numerator of which is the product of (1) the excess, if any,
of
(i) the Optimal Interest Remittance Amount for such Distribution Date over
(ii)
any Net Swap Payment or Swap Termination Payment (not due to a Swap Counterparty
Trigger Event) owed to the Swap Counterparty on the related Swap Payment
Date
and (2) 12, and (b) the denominator of which is the Aggregate Loan Balance
as of
the first day of the related Collection Period (not including for this purpose
Mortgage Loans for which prepayments in full have been received and distributed
in the month prior to that Distribution Date), multiplied by a fraction,
the
numerator of which is 30 and the denominator of which is the actual number
of
days in the Accrual Period related to such Distribution Date.
52
Senior
Principal Distribution Amount:
With
respect to any Distribution Date (a) prior to the Stepdown Date or if a
Trigger Event is
in effect with
respect to such Distribution Date, an amount equal to 100% of the Principal
Distribution Amount and (b) on or after the Stepdown Date and as long as a
Trigger Event is
not in effect with
respect to such Distribution Date, the amount, if any, by which (x) the
aggregate Class Principal Amount of the Senior Certificates (other than the
Class AIO Certificates) immediately prior to such Distribution Date exceeds
(y)
the Senior Target Amount.
Senior
Priority:
The
priority of distributions on the Senior Certificates described in Section
5.02(d)(i)(B).
Senior
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 78.40% and (ii) the Aggregate Loan Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period
immediately prior to such Distribution Date) and
(b) the amount, if any, by which (1) the Aggregate Loan Balance for such
Distribution Date determined as of the last day of the related Collection
Period
(after
giving effect to any prepayments received during the related Prepayment Period
immediately prior to such Distribution Date) exceeds
(2) the Overcollateralization Floor.
Servicer:
Any
Servicer that has entered into any of the Servicing Agreements listed on
Exhibit
E hereto, or any successor in interest.
Servicer
Remittance Date:
The day
in each calendar month on which each Servicer is required to remit payments
to
the Collection Account, as specified in the related Servicing Agreement,
which
is the 18th
day of
each calendar month (or, if such 18th
day is
not a Business Day, the next succeeding Business Day).
Service(s)(ing):
In
accordance with Regulation AB, the act of managing or collecting payments
on the
Mortgage Loans or any other assets of the Trust Fund by an entity that meets
the
definition of “servicer’ set forth in Item 1101 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
Servicing
Advances:
Expenditures incurred by the related Servicer in connection with the liquidation
or foreclosure of a Mortgage Loan which are eligible for reimbursement under
the
Servicing Agreement.
Servicing
Agreement:
Each
servicing agreement or reconstituted servicing agreement identified on Exhibit
E
hereto, dated as of June 1, 2007, among the Seller, the Master Servicer and
a
Servicer, and any other servicing agreement entered into between a successor
servicer and the Seller pursuant to the terms of this Agreement.
Servicing
Criteria:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
Servicing
Fee:
As to
any Distribution Date and each Mortgage Loan, an amount equal to the product
of
(a) one-twelfth of the Servicing Fee Rate and (b) the Scheduled Principal
Balance of such Mortgage Loan as of the first day of the related Collection
Period.
53
Servicing
Fee Rate:
With
respect to each Mortgage Loan and each Servicer, the rate specified in the
related Servicing Agreement.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than each Servicer,
each
Custodian, the Master Servicer, the Paying Agent and the Trustee, that is
participating in the servicing function within the meaning of Regulation
AB,
unless such Person’s activities relate only to 5% or less of the Mortgage
Loans.
Servicing
Officer:
Any
officer of the related Servicer involved in or responsible for, the
administration and servicing of the Mortgage Loans whose name appears on
a list
of servicing officers furnished by the related Servicer to the Master Servicer
or Seller upon request, as such list may from time to time be
amended.
Six-Month
LIBOR:
The
average of the interbank offered rates for six-month U.S. dollar deposits
in the
London market, calculated as provided in the related mortgage note.
Sponsor:
Xxxxxx
Brothers Holdings Inc.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Stepdown
Date:
The
earlier of (x) the first Distribution Date following the Distribution Date
on
which the Class Principal Amounts of the Senior Certificates (other than
the
Class AIO Certificates) have each been reduced to zero or (y) the later to
occur
of (1) the Distribution Date in July 2010 and (2) the first Distribution
Date on
which the Senior Enhancement Percentage (calculated for this purpose after
giving effect to payments or other recoveries in respect of the Mortgage
Loans
during the related Collection Period, but before giving effect to distributions
on any related Certificate on such Distribution Date) is greater than or
equal
to 21.60%.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of the Mortgage Loans but performs one
or
more discrete material servicing functions required to be performed under
this
Agreement, any Servicing Agreement or any subservicing agreement, as identified
in Item 1122(d) of Regulation AB with respect to the Mortgage Loans under
the
direction or authority of a Servicer, the Master Servicer, the Paying Agent,
the
Trustee or a Custodian.
Subordinate
Certificates:
The
Offered Subordinate Certificates together with the Class M10 and Class M11
Certificates.
Subordinate
Net Funds Cap:
For
each Distribution Date and the Class M1, Class M2, Class M3, Class M4, Class
M5,
Class M6, Class M7 and Class M8 Certificates, an annual rate equal to the
product of (1) the Senior Net Funds Cap for such Distribution Date and (2)
the
fraction, the numerator of which is the aggregate Certificate Principal Balances
of the Subordinate Certificates immediately prior to such Distribution Date,
and
the denominator of which is the aggregate Certificate Principal Balances
of the
Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class M7 and
Class
M8 Certificates immediately prior to such Distribution Date.
54
Subsequent
Recovery:
Any
amount recovered by a Servicer or the Master Servicer with respect to a
Liquidated Mortgage Loan with respect to which a Realized Loss was incurred
after the liquidation or disposition of such Mortgage Loan.
Subservicer:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer or Additional Servicer,
and
(iii) is responsible for the performance (whether directly or through
subservicers or Subcontractors) of Servicing functions required to be performed
under this Agreement, any related Servicing Agreement or any subservicing
agreement that are identified in Item 1122(d) of Regulation AB.
Substitution
Amount:
The
amount, if any, by which the Scheduled Principal Balance of a Deleted Mortgage
Loan exceeds the Scheduled Principal Balance of the related Qualifying
Substitute Mortgage Loan, or aggregate Scheduled Principal Balance, if
applicable, plus unpaid interest thereon, and any related unpaid Advances
or
Servicing Advances or unpaid Servicing Fees, plus any costs and damages incurred
by the Trust Fund associated with violation of any federal, state or local
predatory or abusive lending laws in connection with the origination of such
Deleted Mortgage Loan.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 5.07 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Swap Account, the Cap Agreement, the Cap Account, the Collateral
Account, the right to receive the Class X Distributable Amount to the extent
provided in Section 5.02(f)(viii), the Class I interest in the Upper-Tier
REMIC
and the right to receive Class I Shortfalls.
Swap
Account:
The
account created pursuant to Section 5.07 of this Agreement.
Swap
Agreement:
The
interest rate swap agreement entered into by the Supplemental Interest Trust,
which agreement provides for, among other things, a Net Swap Payment to be
paid
pursuant to the conditions provided therein, together with any schedules,
confirmations, credit support annex or other agreements relating thereto,
attached hereto as Exhibit N-1.
Swap
Amount:
With
respect to each Distribution Date and the related Swap Payment Date, the
sum of
any Net Swap Payment and any Swap Termination Payment deposited into the
Swap
Account.
Swap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Swap Agreement,
and
any successor in interest or assigns. Initially, the Swap Counterparty shall
be
Swiss Re Financial Products Corporation.
Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of a Swap Default with
respect to which the Swap Counterparty is a Defaulting Party, a Termination
Event (other than a Termination Event of Illegality or Tax Event) with respect
to which the Swap Counterparty is the sole Affected Party or an Additional
Termination Event with respect to which the Swap Counterparty is the sole
Affected Party has occurred.
55
Swap
Default:
Any of
the circumstances constituting an “Event of Default” under the Swap
Agreement.
Swap
LIBOR:
With
respect to any Distribution Date and the related Swap Payment Date (and the
Accrual Period relating to such Distribution Date), the product of (i) the
Floating Rate Option (as defined in the Swap Agreement) for the related Swap
Payment Date as calculated by the Swap Counterparty and furnished to the
Trustee, (ii) two, and (iii) the quotient of (a) the actual number of days
in
the Accrual Period for the LIBOR Certificates and (b) 30.
Swap
Payment Date:
For so
long as the Swap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day prior to each Distribution Date.
Swap
Replacement Receipts:
As
defined in Section 5.08(a).
Swap
Replacement Receipts Account:
As
defined in Section 5.08(a).
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment required to be made by the Supplemental Interest Trust to the
Swap
Counterparty, or by the Swap Counterparty to the Supplemental Interest Trust,
as
applicable, pursuant to the terms of the Swap Agreement, and any unpaid amounts
due on previous Swap Payment Dates and accrued interest thereon as provided
in
the Swap Agreement, as calculated by the Swap Counterparty and furnished
to the
Trustee.
Swap
Termination Receipts:
As
defined in Section 5.08(a).
Swap
Termination Receipts Account:
As
defined in Section 5.08(a).
S-X
Component:
A
component of the Class X Certificate entitled to receive distributions pursuant
to Section 5.02(h)(iv)(C) and Section 5.02 (h)(x).
Target
Amount:
With
respect to any Distribution Date, an amount equal to the Aggregate Loan Balance
for such Distribution Date minus
the
Targeted Overcollateralization Amount for such Distribution Date.
Targeted
Overcollateralization Amount:
With
respect to any Distribution Date (x) prior to the Stepdown Date an amount
equal
to $6,900,961.41 (i.e.,
approximately 1.35% of the Cut-Off Date Balance) and (y) for any Distribution
Date on or after the Stepdown Date, the greater of (1) the lesser of (a)
$6,900,961.41 and (b) 2.70% of the Aggregate Loan Balance as of the last
day of
the Collection Period and (2) the Overcollateralization Floor; provided,
however,
for any
Distribution Date on or after the Stepdown Date and for which a Trigger Event
is
in effect, the Targeted Overcollateralization Amount will be equal to the
Targeted Overcollateralization Amount in effect for the immediately preceding
Distribution Date.
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Termination
Event:
As
defined in the Swap Agreement.
Termination
Price:
As
defined in Section 7.01.
56
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Total
Distribution Amount:
With
respect to any Distribution Date, the sum of (i) the Interest Remittance
Amount
for such date; (ii) the Principal Remittance Amount for such date; and (iii)
the
Prepayment Premiums collected during the related Prepayment Period.
Transfer
Agreements:
As
defined in the Mortgage Loan Sale Agreement.
Transferor:
Each
seller of Mortgage Loans to the Seller pursuant to the Transfer
Agreements.
Trigger
Event:
With
respect to any Distribution Date, means that either a Delinquency Event or
a
Cumulative Loss Trigger Event is in effect for such Distribution
Date.
Trust
Fund:
The
corpus of the Xxxxxx XS Trust 2007-11 created pursuant to this Agreement,
consisting of the Mortgage Loans, the assignment of the Depositor’s rights under
the Transfer Agreements, the Mortgage Loan Sale Agreement and each Servicing
Agreement, such amounts as shall from time to time be held in the Basis Risk
Reserve Fund, the Collection Account, Certificate Account, any Custodial
Account
and any Escrow Account, the Insurance Policies (or coverage thereunder),
any REO
Property and the other items referred to in, and conveyed to the Trustee
under,
Section 2.01(a).
Trust
Fund Termination Event:
As
defined in Section 7.01(a).
Trustee:
Citibank, N.A., a national banking association, not in its individual capacity,
but solely in its capacity as trustee for the benefit of the Certificateholders
under this Agreement or solely in its capacity as trustee of the Supplemental
Interest Trust, as applicable, and any successor thereto, and any corporation
or
national banking association resulting from or surviving any consolidation
or
merger to which it or its successors may be a party and any successor trustee
as
may from time to time be serving as successor trustee hereunder.
UCC
or
Uniform Commercial Code:
The
Uniform Commercial Code as in effect in any applicable jurisdiction from
time to
time.
Underwriter:
Xxxxxx
Brothers Inc.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2007-5, 72 Fed. Reg. 13130 (2007), as amended
(or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor.
Unpaid
Basis Risk Shortfall:
With
respect to any Distribution Date and any Class of LIBOR Certificates, the
aggregate of all Basis Risk Shortfalls with respect to such Class remaining
unpaid from previous Distribution Dates, plus interest accrued thereon at
the
applicable Certificate Interest Rate computed without regard to the applicable
Net Funds Cap.
Upper-Tier
REMIC:
As
described in the Preliminary Statement.
57
Voting
Interests:
The
portion of the voting rights of all the Certificates that is allocated to
any
Certificate for purposes of the voting provisions of this Agreement. At all
times during the term of this Agreement, 96.00% of all Voting Interests shall
be
allocated to the Senior Certificates (other than the Class AIO Certificates)
and
the Subordinate Certificates. At all times during the term of this Agreement,
1%
of all Voting Interests shall be allocated to each of the Class AIO and Class
P
Certificates, while they remain outstanding. At all times during the term
of
this Agreement, 1% of all Voting Interests shall be allocated to the Class
X
Certificates, while they remain outstanding. If the Class AIO Certificates
or
the Class P Certificates are no longer outstanding, their Voting Interests
shall
be reallocated to the Senior Certificates (other than the Class AIO
Certificates) and the Subordinate Certificates. At all times during the term
of
this Agreement, 1% of all Voting Interests shall be allocated to the Class
R
Certificates. Voting Interests shall be allocated among the Classes of
Certificates (and among the Certificates within each such Class) in proportion
to Class Principal Amounts (or Certificate Principal Amounts) or Percentage
Interests. In the case of the purchase by the Master Servicer of the Pooling
REMIC 1 Regular Interests pursuant to a Section 7.01(d) Purchase Event, the
LTURI-holder shall be allocated 100% of the Voting Interests and upon such
purchase any provision in this agreement which requires a vote by, a direction
or notice given by, an action taken by, a request in writing by or the consent
of any percentage of the Holders of any Class of Certificates may be exercised
by the LTURI-holder.
Weighted
Average Bond Coupon:
With
respect to the Class AIO Certificates and any Distribution Date, the per
annum
rate equal to (a) the sum of (i) the product of (x) the Class Principal Amount
of the Class A1 Certificates immediately prior to that Distribution Date
and (y)
the Certificate Interest Rate on the Class A1 Certificates, (ii) the product
of
(x) the Class Principal Amount of the Class A2 Certificates immediately prior
to
that Distribution Date and (y) the Certificate Interest Rate on the Class
A2
Certificates, (iii) the product of (x) the Class Principal Amount of the
Class
A3 Certificates immediately prior to that Distribution Date and (y) the
Certificate Interest Rate on the Class A3 Certificates, (iv) the product
of (x)
the Class Principal Amount of the Class A4 Certificates immediately prior
to
that Distribution Date and (y) the Certificate Interest Rate on the Class
A4
Certificates, (v) the product of (x) the Class Principal Amount of the Class
A5
Certificates immediately prior to that Distribution Date and (y) the Certificate
Interest Rate on the Class A5 Certificates, divided by (b) the Class Principal
Amounts of the Senior Certificates (other than the Class AIO Certificates)
immediately prior to such Distribution Date.
Xxxxx
Fargo:
Xxxxx
Fargo Bank, N.A. (and its successors in interest) in either its capacity
as a
Servicer or a Custodian.
X-S
Component:
A
component of the Class X Certificate entitled to receive distributions pursuant
to Section 5.02(f)(viii).
Section
1.02. Calculations
Respecting Mortgage Loans.
Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan
in the Trust Fund shall be made based upon current information as to the
terms
of the Mortgage Loans and reports of payments received from the Mortgagor
on
such Mortgage Loans and payments to be made to the Trustee as supplied to
the
Trustee by the Master Servicer. The Trustee shall not be required to recompute,
verify or recalculate the information supplied to it by the Master Servicer
or
any Servicer.
58
Section
1.03. Calculations
Respecting Accrued Interest.
Accrued
interest, if any, on the LIBOR Certificates, shall be calculated based upon
a
360-day year and the actual number of days in each Accrual Period. Accrued
interest on the Class AIO and Class X Certificates and each Lower-Tier Interest
shall be calculated based upon a 360-day year consisting of twelve 30-day
months.
ARTICLE
II
DECLARATION
OF TRUST;
ISSUANCE
OF CERTIFICATES
Section
2.01. Creation
and Declaration of Trust Fund; Conveyance of Mortgage Loans.
(a)
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, subject to Sections 2.02, 2.04, 2.05 and 2.06, in trust,
all
the right, title and interest of the Depositor in and to the Mortgage Loans.
Such conveyance includes, without limitation, the right to all payments of
principal and interest received on or with respect to the Mortgage Loans
on and
after the Cut-off Date (other than payments of principal and interest due
on or
before such date), and all such payments due after such date but received
prior
to such date and intended by the related Mortgagors to be applied after such
date together with all of the Depositor’s right, title and interest in and to
the Collection Account and all amounts from time to time credited to and
the
proceeds of the Collection Account, the Certificate Account and all amounts
from
time to time credited to and the proceeds of the Certificate Account (exclusive
of investment earnings thereon), any Custodial Accounts and all amounts from
time to time credited to and the proceeds of the Custodial Accounts, any
Escrow
Account established pursuant to Section 9.06, the Basis Risk Reserve Fund
established pursuant to Section 5.06 and all amounts from time to time credited
to and the proceeds of each such account, any REO Property and the proceeds
thereof, the Depositor’s rights under any Insurance Policies related to the
Mortgage Loans, the Depositor’s security interest in any collateral pledged to
secure the Mortgage Loans, including the Mortgaged Properties, and any proceeds
of the foregoing, to have and to hold (or a Custodian on its behalf), in
trust;
and the Trustee declares that, subject to the review provided for in Section
2.02, it has received and shall hold the Trust Fund, as trustee, in trust,
for
the benefit and use of the Holders of the Certificates and for the purposes
and
subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, has caused to be executed, authenticated
and
delivered to or upon the order of the Depositor, in exchange for the Trust
Fund,
Certificates in the authorized denominations evidencing the entire ownership
of
the Trust Fund.
Concurrently
with the execution of this Agreement, the Swap Agreement and the Cap Agreement
shall be delivered to the Trustee. In connection therewith, the Depositor
hereby
authorizes and directs the Trustee (solely in its capacity as trustee of
the
Supplemental Interest Trust) to execute and deliver the Swap Agreement and
the
Cap Agreement (on behalf of the Supplemental Interest Trust), in trust for
the
benefit of the Senior Certificateholders (other than the Holders of the Class
AIO Certificates). The Seller, the Master Servicer, the Depositor, the Servicer
and the Senior Certificateholders (other than the Holders of the Class AIO
Certificates) (by their acceptance of such Certificates) acknowledge and
agree
that the Trustee is executing and delivering the Swap Agreement and the Cap
Agreement solely in its capacity as trustee of the Supplemental Interest
Trust,
and not in its individual capacity. The Depositor hereby authorizes and directs
the Trustee, in its capacity as trustee of the Supplemental Interest Trust,
to
represent in the Swap Agreement that it is not required by any applicable
law of
any relevant jurisdiction to make any deduction or withholding for or on
account
of any tax from Net Swap Payment. The Trustee shall have no duty or
responsibility to enter into any other interest rate swap agreement or interest
rate cap agreement upon the expiration or termination of the Swap Agreement
or
the Cap Agreement. To the extent that the Swap Counterparty or the Cap
Counterparty assigns rights or delegates its obligations under the Swap
Agreement or the Cap Agreement to a transferee, the Trustee shall act only upon
the direction of the Depositor with respect to such transfer. In addition,
in
determining whether a firm offer is made, the Trustee shall act at the direction
of the Depositor.
59
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Sale Agreement, including all rights of the Seller under each Servicing
Agreement and each Transfer Agreement (including the rights to enforce the
related Transferor’s obligation to repurchase First Payment Default Mortgage
Loans), but only to the extent assigned under the Mortgage Loan Sale Agreement.
The Trustee hereby accepts such assignment, and shall be entitled to exercise
all the rights of the Depositor under the Mortgage Loan Sale Agreement as
if,
for such purpose, it were the Depositor.
The
foregoing sale, transfer, assignment, set-over, deposit and conveyance does
not
and is not intended to result in the creation or assumption by the Trustee
of
any obligations of the Depositor, the Seller or any other Person in connection
with the Mortgage Loans.
It
is
agreed and understood by the Depositor and the Trustee (and the Seller has
so
represented and recognized in the Mortgage Loan Sale Agreement) that it is
not
intended that any Mortgage Loan to be included in the Trust Fund be (i) a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a “High-Cost Home Loan” as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a “High-Cost Home
Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) a “High Cost Home Loan” as defined in the
Indiana Home Loan Practices Act effective January 1, 2005.
The
Depositor shall have the right to receive any and all loan-level information
regarding the characteristics and performance of the Mortgage Loans upon
request, and to publish, disseminate or otherwise utilize such information
in
its discretion, subject to applicable laws and regulations.
(b)
In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, or cause to be delivered to and deposited with, the
Trustee, and/or the applicable Custodian acting on the Trustee’s behalf, the
following documents or instruments with respect to each Mortgage Loan (each
a
“Mortgage File”) so transferred and assigned:
60
(i)
with
respect to each Mortgage Loan, the original Mortgage Note endorsed without
recourse in proper form to the order of the Trustee, as shown on Exhibit
B-4
hereto, or in blank (in each case, with all necessary intervening endorsements,
as applicable) or with respect to any lost Mortgage Note, a lost note affidavit
stating that the original Mortgage Note was lost, misplaced or destroyed,
together with a copy of the related Mortgage Note;
(ii)
if
applicable, the original of any guarantee, security agreement or pledge
agreement executed in connection with the Mortgage Note, assigned to the
Trustee;
(iii)
with
respect to any Mortgage Loan other than a Cooperative Loan, the original
recorded Mortgage with evidence of recording indicated thereon and the original
recorded power of attorney, with evidence of recording thereon. If, in
connection with any Mortgage Loan, the Depositor cannot deliver the Mortgage
or
power of attorney with evidence of recording thereon on or prior to the Closing
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage or power
of
attorney has been lost, the Depositor shall deliver or cause to be delivered
to
the Trustee (or the applicable Custodian), in the case of a delay due to
recording, a true copy of such Mortgage or power of attorney, pending delivery
of the original thereof, together with an Officer’s Certificate of the Depositor
certifying that the copy of such Mortgage or power of attorney delivered
to the
Trustee (or the applicable Custodian) is a true copy and that the original
of
such Mortgage or power of attorney has been forwarded to the public recording
office, or, in the case of a Mortgage or power of attorney that has been
lost, a
copy thereof (certified as provided for under the laws of the appropriate
jurisdiction) and a written Opinion of Counsel delivered to the Trustee and
the
Depositor that an original recorded Mortgage or power of attorney is not
required to enforce the Trustee’s interest in the Mortgage Loan;
(iv)
the
original of each assumption, modification or substitution agreement, if any,
relating to the Mortgage Loans, or, as to any assumption, modification or
substitution agreement which cannot be delivered on or prior to the Closing
Date
because of a delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for recordation,
a
photocopy of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer’s Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or the applicable Custodian)
is
a true copy and that the original of such agreement has been forwarded to
the
public recording office;
(v)
with
respect to each Non-MERS Mortgage Loan, an original Assignment of Mortgage,
in
form and substance acceptable for recording. The related Mortgage shall be
assigned either (A) in blank, without recourse or (B) to “Citibank, N.A., as
Trustee of the Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series
2007-11,” without recourse;
(vi)
if
applicable, such original intervening assignments of the Mortgage, notice
of
transfer or equivalent instrument (each, an “Intervening Assignment”), as may be
necessary to show a complete chain of assignment from the Transferor, or,
in the
case of an Intervening Assignment that has been lost, a written Opinion of
Counsel delivered to the Trustee and any NIMS Insurer that such original
Intervening Assignment is not required to enforce the Trustee’s interest in the
Mortgage Loan;
61
(vii)
with
respect to any Mortgage Loan other than a Cooperative Loan, the original
mortgagee title insurance policy (or, in lieu thereof, a commitment to issue
such title insurance policy with an original or certified copy of such title
insurance policy to follow as soon after the Closing Date as reasonably
practicable) or attorney’s opinion of title and abstract of title;
(viii)
if
applicable, the original Primary Mortgage Insurance Policy or certificate
or, an
electronic certification evidencing the existence of the Primary Mortgage
Insurance Policy or certificate, if private mortgage guaranty insurance is
required;
(ix)
the
original of any security agreement, chattel mortgage or equivalent instrument
executed in connection with the Mortgage or as to any security agreement,
chattel mortgage or their equivalent instrument that cannot be delivered
on or
prior to the Closing Date because of a delay caused by the public recording
office where such document has been delivered for recordation, a photocopy
of
such document, pending delivery of the original thereof, together with an
Officer’s Certificate of the Depositor certifying that the copy of such security
agreement, chattel mortgage or their equivalent instrument delivered to the
Trustee (or the applicable Custodian) is a true copy and that the original
of
such document has been forwarded to the public recording office;
(x)
with
respect to any manufactured housing contract, any related manufactured housing
sales contract, installment loan agreement or participation interest;
and
(xi)
with
respect to any Cooperative Loan, the Cooperative Loan Documents.
The
parties hereto acknowledge and agree that the form of endorsement attached
hereto as Exhibit B-4 is intended to effect the transfer to the Trustee,
for the
benefit of the Certificateholders, of the Mortgage Notes and the
Mortgages.
Notwithstanding
the above, certain of the Mortgage Files to be delivered and deposited with
Xxxxx Fargo, as custodian for the Mortgage Loans originated and serviced
by
Xxxxx Fargo, shall include only the documents or instruments referred to
in (i),
(ii), (iv) and (v) above and the other documents identified above shall be
delivered to and held by Xxxxx Fargo, as Servicer, acting on the Trustee’s
behalf. Upon the occurrence of a Document Transfer Event (and notice thereof
by
Xxxxx Fargo to the Trustee) or at the request of the Trustee, Xxxxx Fargo,
as
Servicer, as required under the related Servicing Agreements, will deliver
any
documents referred to in (iii), (vi), (vii), (viii), (ix), (x) and (xi) above
(the “Retained Mortgage Documents”) to Xxxxx Fargo, as Custodian.
(c)
(i) Assignments
of Mortgage with respect to each Non-MERS Mortgage Loan other than a Cooperative
Loan shall be recorded; provided,
however,
that
such Assignments need not be recorded if, on or prior to the Closing Date,
the
Depositor delivers, at its own expense, an Opinion of Counsel addressed to
the
Trustee (which must be Independent counsel) acceptable to the Trustee and
the
Rating Agencies, to the effect that recording in such states is not required
to
protect the Trustee’s interest in the related Non-MERS Mortgage Loans;
provided,
further,
that
notwithstanding the delivery of any Opinion of Counsel, the Master Servicer
shall cause the applicable Servicer to submit each Assignment of Mortgage
for
recording upon the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Mortgagor under the related Mortgage. Subject to the preceding
sentence, as soon as practicable after the Closing Date (but in no event
more
than three months thereafter except to the extent delays are caused by the
applicable recording office), the Master Servicer, at the expense of the
Depositor and with the cooperation of the applicable Servicer, shall cause
to be
properly recorded by each Servicer in each public recording office where
the
related Mortgages are recorded each Assignment of Mortgage referred to in
subsection (b)(v) above with respect to each Non-MERS Mortgage Loan. With
respect to each Cooperative Loan, the Master Servicer, at the expense of
the
Depositor and with the cooperation of applicable Servicer, shall cause such
Servicer to take such actions as are necessary under applicable law in order
to
perfect the interest of the Trustee in the related Mortgaged
Property.
62
(ii) With
respect to each MERS Mortgage Loan, the Master Servicer, at the expense of
the
Depositor and with the cooperation of the applicable Servicer, shall cause
the
Servicer to take such actions as are necessary to cause the Trustee to be
clearly identified as the owner of each such Mortgage Loan on the records
of
MERS for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS.
(d)
In
instances where a Title Insurance Policy is required to be delivered to the
Trustee or the applicable Custodian on behalf of the Trustee under clause
(b)(vii) above and is not so delivered, the Depositor will provide a copy
of
such Title Insurance Policy to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, as promptly as practicable after the execution and
delivery hereof, but in any case within 180 days of the Closing
Date.
(e)
For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off
Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, herewith delivers to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, an Officer’s Certificate which shall include a statement
to the effect that all amounts received in connection with such prepayment
that
are required to be deposited in the Collection Account pursuant to Section
4.01
have been so deposited. All original documents that are not delivered to
the
Trustee or the applicable Custodian on behalf of the Trustee shall be held
by
the Master Servicer or the applicable Servicer in trust for the benefit of
the
Trustee and the Certificateholders.
(f)
The
Depositor shall have the right to receive any and all loan-level information
regarding the characteristics and performance of the Mortgage Loans upon
request, and to publish, disseminate or otherwise utilize such information
in
its discretion, subject to applicable laws and regulations.
(g)
The
trust
created hereunder is hereby named “Xxxxxx XS Trust 2007-11.”
Section
2.02. Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust Fund.
63
(a)
The
Trustee, by execution and delivery hereof, acknowledges receipt by it or
by the
applicable Custodian on its behalf of the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to review thereof
by the Trustee, or by the applicable Custodian on behalf of the Trustee,
under
this Section 2.02. The Trustee, or the applicable Custodian on behalf of
the
Trustee, will execute and deliver to the Trustee, the Depositor, the Master
Servicer and any NIMS Insurer on the Closing Date an Initial Certification
in
the form annexed hereto as Exhibit B-1 (or in the form annexed to the applicable
Custodial Agreement as Exhibit B-1, as applicable).
(b)
Within
45
days after the Closing Date, the Trustee or the applicable Custodian on behalf
of the Trustee, will, for the benefit of the Holders, review each Mortgage
File
to ascertain that all required documents set forth in Section 2.01 have been
received and appear on their face to contain the requisite signatures by
or on
behalf of the respective parties thereto, and shall deliver to the Trustee, the
Depositor, the Master Servicer and any NIMS Insurer an Interim Certification
in
the form annexed hereto as Exhibit B-2 (or in the form annexed to the applicable
Custodial Agreement as Exhibit B-2, as applicable) to the effect that, as
to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan prepaid in full or any Mortgage Loan specifically identified in such
certification as not covered by such certification), (i) all of the applicable
documents specified in Section 2.01(b) are in its possession and (ii) such
documents have been reviewed by it and appear to relate to such Mortgage
Loan.
The Trustee, or the applicable Custodian on behalf of the Trustee, shall
determine whether such documents are executed and endorsed, but shall be
under
no duty or obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that the same are
valid,
binding, legally effective, properly endorsed, genuine, enforceable or
appropriate for the represented purpose or that they have actually been recorded
or are in recordable form or that they are other than what they purport to
be on
their face. Neither the Trustee nor any applicable Custodian shall have any
responsibility for verifying the genuineness or the legal effectiveness of
or
authority for any signatures of or on behalf of any party or
endorser.
(c)
If
in the
course of the review described in paragraph (b) above the Trustee or the
applicable Custodian discovers any document or documents constituting a part
of
a Mortgage File that is missing, does not appear regular on its face
(i.e.,
is
mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to
be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
(each, a “Material Defect”), the Trustee, or the applicable Custodian on behalf
of the Trustee, discovering such Material Defect shall promptly identify
the
Mortgage Loan to which such Material Defect relates in the Interim Certification
delivered to the Trustee, the Depositor and the Master Servicer. Within 90
days
of its receipt of such notice, the Transferor, or, if the Transferor does
not do
so, the Depositor shall be required to cure such Material Defect (and, in
such
event, the Depositor shall provide the Trustee with an Officer’s Certificate
confirming that such cure has been effected). If the applicable Transferor
or
the Depositor, as applicable, does not so cure such Material Defect, the
Transferor, or, if the Transferor does not do so, the Depositor, shall, if
a
loss has been incurred with respect to such Mortgage Loan that would, if
such
Mortgage Loan were not purchased from the Trust Fund, constitute a Realized
Loss, and such loss is attributable to the failure of the Depositor to cure
such
Material Defect, repurchase the related Mortgage Loan from the Trust Fund
at the
Purchase Price. A loss shall be deemed to be attributable to the failure
of the
Depositor to cure a Material Defect if, as determined by the Depositor, upon
mutual agreement with the Trustee each acting in good faith, absent such
Material Defect, such loss would not have been incurred. Within the two-year
period following the Closing Date, the Depositor may, in lieu of repurchasing
a
Mortgage Loan pursuant to this Section 2.02, substitute for such Mortgage
Loan a
Qualifying Substitute Mortgage Loan subject to the provisions of Section
2.05.
The failure of the Trustee or the applicable Custodian to give the notice
contemplated herein within 45 days after the Closing Date shall not affect
or
relieve the Depositor of its obligation to repurchase any Mortgage Loan pursuant
to this Section 2.02 or any other Section of this Agreement requiring the
repurchase of Mortgage Loans from the Trust Fund.
64
(d)
Within
180 days following the Closing Date, the Trustee, or the applicable Custodian,
shall deliver to the Trustee, the Depositor, the Master Servicer and any
NIMS
Insurer a Final Certification substantially in the form attached as Exhibit
B-3
(or in the form annexed to the applicable Custodial Agreement as Exhibit
B-3, as
applicable) evidencing the completeness of the Mortgage Files in its possession
or control, with any exceptions noted thereto.
(e)
Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Fund, the Trustee, any Custodian or the Certificateholders of any unsatisfied
duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(f)
Each
of
the parties hereto acknowledges that the applicable Custodian shall perform
the
applicable review of the Mortgage Loans and respective certifications thereof
as
provided in this Section 2.02 and the Custodial Agreement. The Trustee is
hereby
authorized and directed by the Depositor to appoint the Custodians and to
execute and deliver the Custodial Agreements.
(g)
Upon
execution of this Agreement, the Depositor hereby delivers to the Trustee
and
the Trustee acknowledges a receipt of the Mortgage Loan Sale Agreement and
each
Servicing Agreement. The Depositor hereby directs the Trustee, solely in
its
capacity as Trustee hereunder, to sign as an acknowledgement party and deliver,
concurrently with the execution and delivery of this Agreement, each Servicing
Agreement to which the Trustee is a party.
Section
2.03. Representations
and Warranties of the Depositor.
(a)
The
Depositor hereby represents and warrants to the Trustee, for the benefit
of
Certificateholders, to the Master Servicer and any NIMS Insurer as of the
Closing Date or such other date as is specified, that:
(i)
the
Depositor is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full corporate
power
and authority to own its property, to carry on its business as presently
conducted, to enter into and perform its obligations under this Agreement,
and
to create the trust pursuant hereto;
(ii)
the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions
hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Depositor or its properties or the certificate of
incorporation or bylaws of the Depositor;
65
(iii)
the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or
taken
prior to the date hereof;
(iv)
this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the Trustee and the Master Servicer
constitutes a valid and binding obligation of the Depositor enforceable against
it in accordance with its terms except as such enforceability may be subject
to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law;
(v)
there
are
no actions, suits or proceedings pending or, to the knowledge of the Depositor,
threatened or likely to be asserted against or affecting the Depositor, before
or by any court, administrative agency, arbitrator or governmental body (A)
with
respect to any of the transactions contemplated by this Agreement or (B)
with
respect to any other matter which in the judgment of the Depositor will be
determined adversely to the Depositor and will if determined adversely to
the
Depositor materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to
perform
its obligations under this Agreement; and
(vi)
immediately
prior to the transfer and assignment of the Mortgage Loans to the Trustee,
the
Depositor was the sole owner of record and holder of each Mortgage Loan,
and the
Depositor had good and marketable title thereto, and had full right to transfer
and sell each Mortgage Loan to the Trustee free and clear, subject only to
(1)
liens of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of
recording of such Mortgage acceptable to mortgage lending institutions in
the
area in which the related Mortgaged Property is located and specifically
referred to in the lender’s Title Insurance Policy or attorney’s opinion of
title and abstract of title delivered to the originator of such Mortgage
Loan,
and (3) such other matters to which like properties are commonly subject
which
do not, individually or in the aggregate, materially interfere with the benefits
of the security intended to be provided by the Mortgage, of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
each
Mortgage Loan pursuant to this Agreement.
(b)
The
representations and warranties of each Transferor with respect to the related
Mortgage Loans in the applicable Transfer Agreement, which have been assigned
to
the Trustee hereunder, were made as of the date specified in the applicable
Transfer Agreement (or underlying agreement, if such Transfer Agreement is
in
the form of an assignment of a prior agreement). To the extent that any fact,
condition or event with respect to a Mortgage Loan constitutes a breach of
both
(i) a representation or warranty of the applicable Transferor under the
applicable Transfer Agreement and (ii) a representation or warranty of the
Seller under the Mortgage Loan Sale Agreement, the only right or remedy of
the
Trustee, any Certificateholder or any NIMS Insurer hereunder (other than
a
breach by the Seller of the representations made pursuant to Sections
1.04(b)(xii), 1.04(b)(xiii), 1.04(b)(xiv), 1.04(b)(xv), 1.04(b)(xvi) and
1.04(b)(xvii) of the Mortgage Loan Sale Agreement) shall be their rights
to
enforce the obligations of the applicable Transferor under any applicable
representation or warranty made by it. Pursuant to the terms of the Mortgage
Loan Sale Agreement, the representations and warranties made by the Seller
pursuant to Sections 1.04(b)(xii), 1.04(b)(xiii), 1.04(b)(xiv), 1.04(b)(xv),
1.04(b)(xvi) and 1.04(b)(xvii) of the Mortgage Loan Sale Agreement shall
be the
direct obligations of the Seller. With the exception of the immediately
proceeding sentence, the Seller shall not have any other obligation or liability
with respect to any breach of a representation or warranty made by it with
respect to the Mortgage Loans sold by it if the fact, condition or event
constituting such breach also constitutes a breach of a representation or
warranty made by the applicable Transferor in the applicable Transfer Agreement,
without regard to whether such Transferor fulfills its contractual obligations
in respect of such representation or warranty. The Trustee further acknowledges
that the Depositor shall have no obligation or liability with respect to
any
breach of any representation or warranty with respect to the Mortgage Loans
(except as set forth in Section 2.03(a)(vi)) under any circumstances.
66
Section
2.04. Discovery
of Breach.
It
is
understood and agreed that the representations and warranties of the Depositor
(i) set forth in Section 2.03, (ii) of the Seller set forth in the Mortgage
Loan
Sale Agreement and assigned to the Depositor by the Seller under the Mortgage
Loan Sale Agreement and to the Trustee by the Depositor hereunder and (iii)
of
each Transferor and of each Servicer assigned by the Seller to the Depositor
pursuant to the Mortgage Loan Sale Agreement and assigned to the Trustee
by the
Depositor hereunder, shall each survive delivery of the Mortgage Files and
the
Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue
throughout the term of this Agreement. Upon discovery by any of the Depositor,
the Master Servicer or the Trustee of a breach of any of such representations
and warranties that materially and adversely affects the value of the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties; provided, to the extent that knowledge of such
breach with respect to any Mortgage Loan is known by any officer, director,
employee or agent of Aurora acting in any capacity other than as Master Servicer
hereunder, the Master Servicer shall not be deemed to have knowledge of any
such
breach until an officer of the Master Servicer has actual knowledge thereof.
Within 90 days of the discovery of a breach of any representation or warranty
given to the Trustee by the Depositor or given by any Transferor or the Seller
and assigned to the Trustee, the Depositor, such Transferor or the Seller,
as
applicable, shall either (a) cure such breach in all material respects, (b)
repurchase such Mortgage Loan or any property acquired in respect thereof
from
the Trustee at the Purchase Price (or in the case of a First Payment Default
Mortgage Loan, the FPD Purchase Price (excluding any FPD Premium)) or (c)
within
the two-year period following the Closing Date, substitute a Qualifying
Substitute Mortgage Loan for the affected Mortgage Loan. In the event of
discovery of a breach of any representation and warranty of any Transferor
assigned to the Trustee, the Trustee shall enforce its rights under the
applicable Transfer Agreement and the Mortgage Loan Sale Agreement for the
benefit of Certificateholders and any NIMS Insurer. As provided in the Mortgage
Loan Sale Agreement, if any Transferor substitutes a mortgage loan for a
Deleted
Mortgage Loan pursuant to the related Transfer Agreement and such substitute
mortgage loan is not a Qualifying Substitute Mortgage Loan, then pursuant
to the
terms of the Mortgage Loan Sale Agreement the Seller will, in exchange for
such
substitute mortgage loan, (i) pay to the Trust Fund the applicable Purchase
Price for the affected Mortgage Loan or (ii) within two years of the
Closing Date, substitute a Qualifying Substitute Mortgage Loan.
67
Section
2.05. Repurchase,
Purchase or Substitution of Mortgage Loans.
(a)
With
respect to any Mortgage Loan repurchased by the Depositor pursuant to this
Agreement, by the Seller pursuant to the Mortgage Loan Sale Agreement, or
by the
Transferor pursuant to the applicable Transfer Agreement, the principal portion
of the funds (including the FPD Purchase Price (excluding the FPD Premium)
in
the case of any First Payment Default Mortgage Loan) received by the Master
Servicer in respect of such repurchase of a Mortgage Loan will be considered
a
Principal Prepayment and the Purchase Price or FPD Purchase Price (excluding
any
FPD Premium) shall be deposited in the Collection Account or a Custodial
Account, as applicable. The Trustee (i) upon receipt of the full amount of
the
Purchase Price for a Deleted Mortgage Loan, (ii) upon receipt of a written
certification from the Master Servicer that it has received the full amount
of
the Purchase Price for a Deleted Mortgage Loan and has deposited such amount
in
the Collection Account or (iii) upon receipt of notification from the applicable
Custodian that it had received the Mortgage File for a Qualifying Substitute
Mortgage Loan substituted for a Deleted Mortgage Loan (and any applicable
Substitution Amount), shall release or cause to be released and reassign
to the
Depositor, the Seller or the Transferor, as applicable, the related Mortgage
File for the Deleted Mortgage Loan and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be necessary to vest in such party or
its
designee or assignee title to any Deleted Mortgage Loan released pursuant
hereto, free and clear of all security interests, liens and other encumbrances
created by this Agreement, which instruments shall be prepared by the related
Servicer and the Trustee shall have no further responsibility with respect
to
the Mortgage File relating to such Deleted Mortgage Loan. The Seller indemnifies
and holds the Trust Fund, the Master Servicer, the Trustee, the Depositor
and
each Certificateholder harmless against any and all taxes, claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, fees and expenses that the Trust Fund, the
Trustee, the Master Servicer, the Depositor, any NIMS Insurer and any
Certificateholder may sustain in connection with any actions of the Seller
relating to a repurchase of a Mortgage Loan other than in compliance with
the
terms of this Section 2.05 and the Mortgage Loan Sale Agreement, to the extent
that any such action causes an Adverse REMIC Event.
(b)
With
respect to each Qualifying Substitute Mortgage Loan to be delivered to the
Trustee (or the applicable Custodian) pursuant to the terms of this Article
II
in exchange for a Deleted Mortgage Loan: (i) the Depositor, the Transferor
or
the Seller, as applicable, must deliver to the Trustee (or the applicable
Custodian) the Mortgage File for the Qualifying Substitute Mortgage Loan
containing the documents set forth in Section 2.01(b) along with a written
certification certifying as to the delivery of such Mortgage File and containing
granting language substantially comparable to that set forth in the first
paragraph of Section 2.01(a); and (ii) the Depositor will be deemed to have
made, with respect to such Qualifying Substitute Mortgage Loan, each of the
representations and warranties made by it with respect to the related Deleted
Mortgage Loan. As soon as practicable after the delivery of any Qualifying
Substitute Mortgage Loan hereunder, the Master Servicer, at the expense of
the
Depositor and with the cooperation of the applicable Servicer, shall
(i) with respect to a Qualifying Substitute Mortgage Loan that is a
Non-MERS Mortgage Loan, cause the Assignment of Mortgage to be recorded by
the
applicable Servicer if required pursuant to Section 2.01(c), or (ii) with
respect to a Qualifying Substitute Mortgage Loan that is a MERS Mortgage
Loan,
cause to be taken such actions as are necessary to cause the Trustee to be
clearly identified as the owner of each such Mortgage Loan on the records
of
MERS if required pursuant to Section 2.01(c).
68
(c)
Notwithstanding
any other provision of this Agreement, the right to substitute Mortgage Loans
pursuant to this Article II shall be subject to the additional limitations
that
no substitution of a Qualifying Substitute Mortgage Loan for a Deleted Mortgage
Loan shall be made unless the Trustee and any NIMS Insurer has received an
Opinion of Counsel addressed to the Trustee (at the expense of the party
seeking
to make the substitution) that, under current law, such substitution will
not
cause an Adverse REMIC Event.
Section
2.06. Grant
Clause.
(a)
It
is
intended that the conveyance of the Depositor’s right, title and interest in and
to property constituting the Trust Fund pursuant to this Agreement shall
constitute, and shall be construed as, a sale of such property and not a
grant
of a security interest to secure a loan. However, if such conveyance is deemed
to be in respect of a loan, it is intended that: (1) the rights and obligations
of the parties shall be established pursuant to the terms of this Agreement;
(2)
the Depositor hereby grants to the Trustee for the benefit of the Holders
a
first priority security interest to secure repayment of an obligation in
an
amount equal to the aggregate Class Principal Amount of the Certificates
(or the
aggregate principal balance of the Pooling REMIC 1 Regular Interests) in
all of
the Depositor’s right, title and interest in, to and under, whether now owned or
hereafter acquired, the Trust Fund and the Supplemental Interest Trust and
all
proceeds of any and all property constituting the Trust Fund and the
Supplemental Interest Trust to secure payment of the Certificates (or Pooling
REMIC 1 Regular Interests) (such security interest being, to the extent of
the
assets that constitute the Supplemental Interest Trust, pari
passu
with the
security interest as provided in clause (4) below); (3) this Agreement shall
constitute a security agreement under applicable law; and (4) the Swap
Counterparty shall be deemed, during the term of such agreement and while
such
agreement is the property of the Trustee, to have a security interest in
all of
the assets that constitute the Supplemental Interest Trust, but only to the
extent of such Swap Counterparty’s right to payment under the Swap Agreement
(such security interest being pari
passu
with the
security interest as provided in clause (2) above). If such conveyance is
deemed
to be in respect of a loan and the trust created by this Agreement terminates
prior to the satisfaction of the claims of any Person holding any Certificate
or
Pooling REMIC 1 Regular Interests, the security interest created hereby shall
continue in full force and effect and the Trustee shall be deemed to be the
collateral agent for the benefit of such Person, and all proceeds shall be
distributed as herein provided.
(b)
The
Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement
were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and shall
be
maintained as such throughout the term of this Agreement. The Depositor shall,
at its own expense, make all initial filings on or about the Closing Date
and
shall forward a copy of such filing or filings to the Trustee. Without limiting
the generality of the foregoing, the Depositor shall prepare and forward
for
filing, or shall cause to be forwarded for filing, at the expense of the
Depositor, all filings necessary to maintain the effectiveness of any original
filings necessary under the relevant UCC to perfect the Trustee’s security
interest in or lien on the Mortgage Loans, including without limitation (x)
continuation statements, and (y) such other statements as may be occasioned
by
(1) any change of name of the Seller, the Depositor or the Trustee, (2) any
change of location of the jurisdiction of organization of the Seller or the
Depositor, (3) any transfer of any interest of the Seller or the Depositor
in
any Mortgage Loan or (4) any change under the relevant UCC or other applicable
laws. Neither the Seller nor the Depositor shall organize under the law of
any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of
such action to its immediate and intermediate transferee, including the Trustee.
Before effecting such change, the Seller or the Depositor proposing to change
its jurisdiction of organization shall prepare and file in the appropriate
filing office any financing statements or other statements necessary to continue
the perfection of the interests of its immediate and intermediate transferees,
including the Trustee, in the Mortgage Loans. In connection with the
transactions contemplated by this Agreement, each of the Seller and the
Depositor authorizes its immediate or intermediate transferee to file in
any
filing office any initial financing statements, any amendments to financing
statements, any continuation statements, or any other statements or filings
described in this paragraph (b).
69
ARTICLE
III
THE
CERTIFICATES
Section
3.01. The
Certificates.
(a)
The
Certificates shall be issuable in registered form only and shall be securities
governed by Article 8 of the New York Uniform Commercial Code. The Book-Entry
Certificates will be evidenced by one or more certificates, beneficial ownership
of which will be held in the dollar denominations in Certificate Principal
Amount (or Notional Amount), or in the Percentage Interests, specified herein.
Each Class of Offered Certificates and the Class M10 and Class M11 Certificates
will be issued in the minimum denominations in Certificate Principal Amount
(or
Notional Amount) specified in the Preliminary Statement hereto and in integral
multiples of $1 in excess thereof. The Class P and Class X Certificates shall
each be maintained in definitive, fully registered form in a minimum
denomination equal to 10.00% of the Percentage Interest of each such Class
and
integral multiples of 1.00% in excess thereof. Each of the Class LT-R and
Class
R Certificates shall be issued as a single Certificate and maintained in
definitive, fully registered form in a minimum denomination equal to 100%
of the
Percentage Interest of such Class. The Certificates may be issued in the
form of
typewritten certificates.
(b)
The
Certificates shall be executed by manual or facsimile signature on behalf
of the
Trustee by an authorized officer. Each Certificate shall, on original issue,
be
authenticated by the Trustee upon the order of the Depositor upon receipt
by the
Trustee (or the applicable Custodian) of the Mortgage Files described in
Section
2.01. No Certificate shall be entitled to any benefit under this Agreement,
or
be valid for any purpose, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein, executed
by an
authorized officer of the Trustee or the Authenticating Agent, if any, by
manual
signature, and such certification upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates executed
by Trustee to the Authenticating Agent for authentication and the Authenticating
Agent shall authenticate and deliver such Certificates as in this Agreement
provided and not otherwise.
70
(c)
The
Class
M10 and Class M11 Certificates offered and sold in reliance on the exemption
from registration under Rule 144A under the Securities Act shall be issued
initially in the form of one or more permanent global Certificates in
definitive, fully registered form without interest coupons with the applicable
legends set forth in Exhibit A added to the forms of such Certificates (each,
a
“Restricted Global Security”), which shall be deposited on behalf of the
subscribers for such Certificates represented thereby with the Trustee, as
custodian for The Depository Trust Company (“DTC”) and registered in the name of
a nominee of DTC, duly executed and authenticated by the Trustee as hereinafter
provided. The aggregate principal amounts of the Restricted Global Securities
may from time to time be increased or decreased by adjustments made on the
records of the Trustee or DTC or its nominee, as the case may be, as hereinafter
provided.
(d)
The
Class
M10 and Class M11 Certificates sold in offshore transactions in reliance
on
Regulation S shall be issued initially in the form of one or more permanent
global Certificates in definitive, fully registered form without interest
coupons with the applicable legends set forth in Exhibit A hereto added to
the
forms of such Certificates (each, a “Regulation S Global Security”), which shall
be deposited on behalf of the subscribers for such Certificates represented
thereby with the Trustee, as custodian for DTC and registered in the name
of a
nominee of DTC, duly executed and authenticated by the Trustee as hereinafter
provided. The aggregate principal amounts of the Regulation S Global Securities
may from time to time be increased or decreased by adjustments made on the
records of the Trustee or DTC or its nominee, as the case may be, as hereinafter
provided.
(e)
The
Class
M10 and Class M11 Certificates sold to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Securities Act shall be issued initially
in
the form of one or more Definitive Certificates.
Section
3.02. Registration.
The
Trustee is hereby appointed, and hereby accepts its appointment as, Certificate
Registrar in respect of the Certificates (and, after a Section 7.01(d) Purchase
Event, the Pooling REMIC 1 Regular Interests) and shall maintain books for
the
registration and for the transfer of Certificates (and, after a Section 7.01(d)
Purchase Event, the Pooling REMIC 1 Regular Interests) (the “Certificate
Register”). The Trustee may appoint a bank or trust company to act as
Certificate Registrar. A registration book shall be maintained for the
Certificates (and, after a Section 7.01(d) Purchase Event, the Pooling REMIC
1
Regular Interests) collectively. The Certificate Registrar may resign or
be
discharged or removed and a new successor may be appointed in accordance
with
the procedures and requirements set forth in Sections 6.06 and 6.07 hereof
with
respect to the resignation, discharge or removal of the Trustee and the
appointment of a successor Trustee. The Certificate Registrar may appoint,
by
written instrument delivered to the Holders, any NIMS Insurer and the Master
Servicer, any bank or trust company to act as co-registrar under such conditions
as the Certificate Registrar may prescribe; provided,
however,
that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
71
Upon
the
occurrence of a Section 7.01(d) Purchase Event, the Master Servicer shall
provide the Trustee with written notice of the identity of any transferee
of the
Master Servicer’s interest in the Pooling REMIC 1 Regular Interests which notice
shall contain a certification that such transferee is a permitted LTURI holder
hereunder. The Pooling REMIC 1 Regular Interests may only be transferred
in
whole and not in part to no more than one LTURI-holder at a time who is either
(1) an affiliate of the Master Servicer or (2) a trustee of a privately placed
securitization. The Trustee and the Depositor shall treat the Person in whose
name the Pooling REMIC 1 Regular Interests are registered on the books of
the
Certificate Registrar as the LTURI-holder for all purposes
hereunder.
Section
3.03. Transfer
and Exchange of Certificates.
(a)
A
Certificate (other than a Book-Entry Certificate which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the Certificate
Registrar duly endorsed or accompanied by an assignment duly executed by
such
Holder or his duly authorized attorney in such form as shall be satisfactory
to
the Certificate Registrar. Upon the transfer of any Certificate in accordance
with the preceding sentence, the Trustee shall execute, and the Trustee or
any
Authenticating Agent shall authenticate and deliver to the transferee, one
or
more new Certificates of the same Class and evidencing, in the aggregate,
the
same aggregate Certificate Principal Amount (or Notional Amount) or Percentage
Interest as the Certificate being transferred. No service charge shall be
made
to a Certificateholder for any registration of transfer of Certificates,
but the
Certificate Registrar may require payment of a sum sufficient to cover any
tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b)
A
Certificate may be exchanged by the Holder thereof for any number of new
Certificates of the same Class, in authorized denominations, representing
in the
aggregate the same Certificate Principal Amount (or Notional Amount) or
Percentage Interest as the Certificate surrendered, upon surrender of the
Certificate to be exchanged at the office of the Certificate Registrar duly
endorsed or accompanied by a written instrument of transfer duly executed
by
such Holder or his duly authorized attorney in such form as is satisfactory
to
the Certificate Registrar. Certificates delivered upon any such exchange
will
evidence the same obligations, and will be entitled to the same rights and
privileges, as the Certificates surrendered. No service charge shall be made
to
a Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange,
the
Trustee shall execute, and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
72
(c)
By
acceptance of a Restricted Certificate or a Regulation S Global Security,
whether upon original issuance or subsequent transfer, each Holder of such
a
Certificate acknowledges the restrictions on the transfer of such Certificate
set forth thereon and agrees that it will transfer such a Certificate only
as
provided herein. In addition, each Holder of a Regulation S Global Security
shall be deemed to have represented and warranted to the Trustee, the
Certificate Registrar and any of their respective successors that: (i) such
Person is not a U.S. person within the meaning of Regulation S and was, at
the
time the buy order was originated, outside the United States and (ii) such
Person understands that such Certificates have not been registered under
the
Securities Act, and that (x) until the expiration of the 40-day distribution
compliance period (within the meaning of Regulation S), no offer, sale, pledge
or other transfer of such Certificates or any interest therein shall be made
in
the United States or to or for the account or benefit of a U.S. person (each
as
defined in Regulation S), (y) if in the future it decides to offer, resell,
pledge or otherwise transfer such Certificates, such Certificates may be
offered, resold, pledged or otherwise transferred only (A) to a person which
the
seller reasonably believes is a “qualified institutional buyer” (a “QIB”) as
defined in Rule 144A under the Securities Act, that is purchasing such
Certificates for its own account or for the account of a qualified institutional
buyer to which notice is given that the transfer is being made in reliance
on
Rule 144A or (B) in an offshore transaction (as defined in Regulation S)
in
compliance with the provisions of Regulation S, in each case in compliance
with
the requirements of this Agreement; and it will notify such transferee of
the
transfer restrictions specified in this Section.
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a Restricted Certificate to a transferee that takes delivery
in
the form of a Definitive Certificate:
(i)
The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is (x) to the Depositor or the Placement Agent, an
affiliate (as defined in Rule 405 under the Securities Act) of the Depositor
or
the Placement Agent or (y) being made to a “qualified institutional buyer” (a
“QIB”) as defined in Rule 144A under the Securities Act by a transferor that has
provided the Trustee with a certificate in the form of Exhibit F hereto;
and
(ii)
The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is being made to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Securities Act, or to any Person all
of the
equity owners in which are such accredited investors, by a transferor who
furnishes to the Trustee a letter of the transferee substantially in the
form of
Exhibit G hereto.
(d)
(i) No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made to any Person or shall be effective unless the
Trustee
has received (A) a certificate substantially in the form of Exhibit H hereto
(or
Exhibit D-1, in the case of a Residual Certificate) from such transferee
or (B)
an Opinion of Counsel to the effect that the purchase and holding of such
a
Certificate will not constitute or result in prohibited transactions under
Title
I of ERISA or Section 4975 of the Code and will not subject the Trustee,
the
Master Servicer, the Depositor, any Servicer or any NIMS Insurer to any
obligation in addition to those undertaken in the Agreement; provided,
however,
that
the Trustee will not require such certificate or opinion in the event that,
as a
result of a change of law or otherwise, the Trustee receives an Opinion of
Counsel to the effect that the purchase and holding of an ERISA-Restricted
Certificate by a Plan or a Person that is purchasing or holding such a
Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under Title I of ERISA or Section 4975 of the Code.
Each
Transferee of an ERISA-Restricted Certificate that is a Book-Entry Certificate
shall be deemed to have made the representations set forth in Exhibit H.
The
preparation and delivery of the certificate and opinions referred to above
shall
not be an expense of the Trust Fund, the Trustee, the Master Servicer, any
NIMS
Insurer or the Depositor.
73
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates. The Trustee shall have no
obligation to monitor transfers of Book-Entry Certificates that are
ERISA-Restricted Certificates and shall have no liability for transfers of
such
Certificates in violation of the transfer restrictions. The Trustee shall
be
under no liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
3.03(d) or for making any payments due on such Certificate to the Holder
thereof
or taking any other action with respect to such Holder under the provisions
of
this Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements. The Trustee shall be entitled,
but
not obligated, to recover from any Holder of any ERISA-Restricted Certificate
that was in fact a Plan or a Person acting on behalf of any such Plan, any
payments made on such ERISA-Restricted Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Holder of such Certificate that is not
such
a Plan or Person acting on behalf of a Plan.
(ii) No
transfer of an ERISA-Restricted Trust Certificate shall be made prior to
the
termination of the Swap Agreement and the Cap Agreement unless the Trustee
shall
have received a representation letter from the transferee of such Certificate,
substantially in the form set forth in Exhibit H, to the effect that either
(i)
such transferee is neither a Plan nor a Person acting on behalf of any such
Plan
or using the assets of any such Plan to effect such transfer or (ii) the
acquisition and holding of the ERISA-Restricted Trust Certificate are eligible
for exemptive relief under the statutory exemption for nonfiduciary service
providers under Section 408(b)(17) of ERISA and Section 4975(d)(20) of the
Code,
Prohibited Transaction Class Exemption (“PTCE”) 84-14, XXXX 00-0, XXXX 00-00,
XXXX 95-60 or PTCE 96-23 or some other applicable exemption. Notwithstanding
anything else to the contrary herein, prior to the termination of the Swap
Agreement and the Cap Agreement, any purported transfer of an ERISA-Restricted
Trust Certificate or on behalf of a Plan without the delivery to the Trustee
of
a representation letter as described above shall be void and of no effect.
If
the ERISA-Restricted Trust Certificate is a Book-Entry Certificate prior to the
termination of the Swap Agreement and the Cap Agreement, the transferee will
be
deemed to have made a representation as provided in clause (i) or (ii) of
this
paragraph, as applicable.
If
any
ERISA-Restricted Trust Certificate, or any interest therein, is acquired
or held
in violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of an
ERISA-Restricted Trust Certificate, or interest therein, was effected in
violation of the provisions of the preceding paragraph shall indemnify to
the
extent permitted by law and hold harmless the Depositor, the Trustee, any
NIMS
Insurer and the Master Servicer from and against any and all liabilities,
claims, costs or expenses incurred by such parties as a result of such
acquisition or holding.
74
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 Trust Certificate that is in fact not permitted
by this Section 3.03(d)(ii) or for making any payments due on such Certificate
to the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the transfer was registered
by
the Trustee in accordance with the foregoing requirements.
(e)
As
a
condition of the registration of transfer or exchange of any Certificate,
the
Certificate Registrar may require the certified taxpayer identification number
of the owner of the Certificate and the payment of a sum sufficient to cover
any
tax or other governmental charge imposed in connection therewith; provided,
however,
that the
Certificate Registrar shall have no obligation to require such payment or
to
determine whether or not any such tax or charge may be applicable. No service
charge shall be made to the Certificateholder for any registration, transfer
or
exchange of a Certificate.
(f)
Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be
owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless such person is (A) not a Non-U.S. Person or (B) is
a Non-U.S. Person that holds a Residual Certificate in connection with the
conduct of a trade or business within the United States and has furnished
the
transferor and the Trustee with an effective Internal Revenue Service W-8ECI
or
successor form at the time and in the manner required by the Code (any such
person who is not covered by clause (A) or (B) above is referred to herein
as a
“Non-permitted Foreign Holder”).
Prior
to
and as a condition of the registration of any transfer, sale or other
disposition of a Residual Certificate, the proposed transferee shall deliver
to
the Trustee an affidavit in substantially the form attached hereto as Exhibit
D-1 representing and warranting, among other things, that such transferee
is
neither a Disqualified Organization, an agent or nominee acting on behalf
of a
Disqualified Organization, nor a Non-Permitted Foreign Holder (any such
transferee, a “Permitted Transferee”), and the proposed transferor shall deliver
to the Trustee an affidavit in substantially the form attached hereto as
Exhibit
D-2. In addition, the Trustee may (but shall have no obligation to) require,
prior to and as a condition of any such transfer, the delivery by the proposed
transferee of an Opinion of Counsel, addressed to the Depositor, the Master
Servicer, any NIMS Insurer and the Trustee satisfactory in form and substance
to
the Depositor, that such proposed transferee or, if the proposed transferee
is
an agent or nominee, the proposed beneficial owner, is not a Disqualified
Organization, agent or nominee thereof, or a Non-Permitted Foreign Holder.
Notwithstanding the registration in the Certificate Register of any transfer,
sale, or other disposition of a Residual Certificate to a Disqualified
Organization, an agent or nominee thereof, or Non-Permitted Foreign Holder,
such
registration shall be deemed to be of no legal force or effect whatsoever
and
such Disqualified Organization, agent or nominee thereof, or Non-Permitted
Foreign Holder shall not be deemed to be a Certificateholder for any purpose
hereunder, including, but not limited to, the receipt of distributions on
such
Residual Certificate. The Trustee shall not be under any liability to any
person
for any registration or transfer of a Residual Certificate to a Disqualified
Organization, agent or nominee thereof or Non-permitted Foreign Holder or
for
the maturity of any payments due on such Residual Certificate to the Holder
thereof or for taking any other action with respect to such Holder under
the
provisions of the Agreement, so long as the transfer was effected in accordance
with this Section 3.03(f), unless a Responsible Officer of the Trustee shall
have actual knowledge at the time of such transfer or the time of such payment
or other action that the transferee is a Disqualified Organization, or an
agent
or nominee thereof, or Non-permitted Foreign Holder. The Trustee shall be
entitled, but not obligated, to recover from any Holder of a Residual
Certificate that was a Disqualified Organization, agent or nominee thereof,
or
Non-permitted Foreign Holder at the time it became a Holder or any subsequent
time it became a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder, all payments made on such Residual Certificate
at
and after either such times (and all costs and expenses, including but not
limited to attorneys’ fees, incurred in connection therewith). Any payment (not
including any such costs and expenses) so recovered by the Trustee shall
be paid
and delivered to the last preceding Holder of such Residual
Certificate.
75
If
any
purported transferee shall become a registered Holder of a Residual Certificate
in violation of the provisions of this Section 3.03(f), then upon receipt
of
written notice to the Trustee or the Certificate Registrar that the registration
of transfer of such Residual Certificate was not in fact permitted by this
Section 3.03(f), the last preceding Permitted Transferee shall be restored
to
all rights as Holder thereof retroactive to the date of such registration
of
transfer of such Residual Certificate. The Trustee shall be under no liability
to any Person for any registration of transfer of a Residual Certificate
that is
in fact not permitted by this Section 3.03(f), for making any payment due
on
such Certificate to the registered Holder thereof or for taking any other
action
with respect to such Holder under the provisions of this Agreement so long
as
the transfer was registered upon receipt of the affidavit described in the
preceding paragraph of this Section 3.03(f).
(g)
Each
Holder or Certificate Owner of a Restricted Certificate,
ERISA-Restricted Certificate,
ERISA-Restricted Trust Certificate or
Residual
Certificate, or an interest therein, by such Holder’s or Owner’s acceptance
thereof, shall be deemed for all purposes to have consented to the provisions
of
this section.
(h)
Notwithstanding
any provision to the contrary herein, so long as a Global Security representing
any Class M10 or Class M11 Certificate remains outstanding and is held by
or on
behalf of DTC, transfers of a Global Security representing any such
Certificates, in whole or in part, shall only be made in accordance with
Section
3.01 and this Section 3.03(h).
(A) Subject
to clauses (B) and (C) of this Section 3.03(h), transfers of a Global Security
representing any Class M10 or Class M11 Certificate shall be limited to
transfers of such Global Security, in whole or in part, to nominees of DTC
or to
a successor of DTC or such successor’s nominee.
(B) Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited
with
or on behalf of DTC wishes at any time to exchange its interest in such
Restricted Global Security for an interest in a Regulation S Global Security,
or
to transfer its interest in such Restricted Global Security to a Person who
wishes to take delivery thereof in the form of an interest in a Regulation
S
Global Security, such holder, provided such holder is not a U.S. person,
may,
subject to the rules and procedures of DTC, exchange or cause the exchange
of
such interest for an equivalent beneficial interest in the Regulation S Global
Security. Upon receipt by the Trustee, as Certificate Registrar, of (I)
instructions from DTC directing the Trustee, as Certificate Registrar, to
be
credited a beneficial interest in a Regulation S Global Security in an amount
equal to the beneficial interest in such Restricted Global Security to be
exchanged but not less than the minimum denomination applicable to such holder’s
Certificates held through a Regulation S Global Security, (II) a written
order
given in accordance with DTC’s procedures containing information regarding the
participant account of DTC and, in the case of a transfer pursuant to and
in
accordance with Regulation S, the Euroclear or Clearstream account to be
credited with such increase and (III) a certificate in the form of Exhibit
L-1
hereto given by the holder of such beneficial interest stating that the exchange
or transfer of such interest has been made in compliance with the transfer
restrictions applicable to the Global Securities, including that the holder
is
not a U.S. person, and pursuant to and in accordance with Regulation S, the
Trustee, as Certificate Registrar, shall reduce the principal amount of the
Restricted Global Security and increase the principal amount of the Regulation
S
Global Security by the aggregate principal amount of the beneficial interest
in
the Restricted Global Security to be exchanged, and shall instruct Euroclear
or
Clearstream, as applicable, concurrently with such reduction, to credit or
cause
to be credited to the account of the Person specified in such instructions
a
beneficial interest in the Regulation S Global Security equal to the reduction
in the principal amount of the Restricted Global Security.
76
(C) Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of DTC wishes at any time to transfer its interest in such
Regulation S Global Security to a Person who wishes to take delivery thereof
in
the form of an interest in a Restricted Global Security, such holder may,
subject to the rules and procedures of DTC, exchange or cause the exchange
of
such interest for an equivalent beneficial interest in a Restricted Global
Security. Upon receipt by the Trustee, as Certificate Registrar, of (I)
instructions from DTC directing the Trustee, as Certificate Registrar, to
cause
to be credited a beneficial interest in a Restricted Global Security in an
amount equal to the beneficial interest in such Regulation S Global Security
to
be exchanged but not less than the minimum denomination applicable to such
holder’s Certificates held through a Restricted Global Security, to be
exchanged, such instructions to contain information regarding the participant
account with DTC to be credited with such increase, and (II) a certificate
in
the form of Exhibit L-2 hereto given by the holder of such beneficial interest
and stating, among other things, that the Person transferring such interest
in
such Regulation S Global Security reasonably believes that the Person acquiring
such interest in a Restricted Global Security is a QIB, is obtaining such
beneficial interest in a transaction meeting the requirements of Rule 144A
under
the Securities Act and in accordance with any applicable securities laws
of any
State of the United States or any other jurisdiction, then the Trustee, as
Certificate Registrar, will reduce the principal amount of the Regulation
S
Global Security and increase the principal amount of the Restricted Global
Security by the aggregate principal amount of the beneficial interest in
the
Regulation S Global Security to be transferred and the Trustee, as Certificate
Registrar, shall instruct DTC, concurrently with such reduction, to credit
or
cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the Restricted Global Security equal to the reduction
in the principal amount of the Regulation S Global Security.
77
(D) Other
Exchanges.
In the
event that a Global Security is exchanged for Certificates in definitive
registered form without interest coupons, pursuant to Section 3.09(c) hereof,
such Certificates may be exchanged for one another only in accordance with
such
procedures as are substantially consistent with the provisions above (including
certification requirements intended to insure that such transfers comply
with
Rule 144A, comply with Rule 501(a)(1), (2), (3) or (7) or are to non-U.S.
persons in compliance with Regulation S under the Securities Act, as the
case
may be), and as may be from time to time adopted by the Trustee.
(E) Restrictions
on U.S. Transfers.
Transfers of interests in the Regulation S Global Security to U.S. persons
(as
defined in Regulation S) shall be limited to transfers made pursuant to the
provisions of Section 3.03(h)(C).
Section
3.04. Cancellation
of Certificates.
Any
Certificate surrendered for registration of transfer or exchange shall be
cancelled and retained in accordance with the Trustee’s normal retention
policies with respect to cancelled certificates maintained by the Trustee
or the
Certificate Registrar.
Section
3.05. Replacement
of Certificates.
If
(i)
any Certificate is mutilated and is surrendered to the Trustee or any
Authenticating Agent or (ii) the Trustee or any Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee and the Authenticating
Agent
and any NIMS Insurer such security or indemnity as may be required by them
to
save each of them harmless, then, in the absence of notice to the Trustee
and
any Authenticating Agent that such destroyed, lost or stolen Certificate
has
been acquired by a bona fide purchaser, the Trustee shall execute and the
Trustee or any Authenticating Agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate,
a
new Certificate of like tenor and Certificate Principal Amount (or Notional
Amount). Upon the issuance of any new Certificate under this Section 3.05,
the
Trustee and Authenticating Agent may require the payment of a sum sufficient
to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
or the Authenticating Agent) connected therewith. Any replacement Certificate
issued pursuant to this Section 3.05 shall constitute complete and indefeasible
evidence of ownership in the applicable Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at
any
time.
Section
3.06. Persons
Deemed Owners.
Subject
to the provisions of Section 3.09 with respect to Book-Entry Certificates,
the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar, any
NIMS
Insurer and any agent of any of them may treat the Person in whose name any
Certificate is registered upon the books of the Certificate Registrar as
the
owner of such Certificate for the purpose of receiving distributions pursuant
to
Sections 5.01 and 5.02 and for all other purposes whatsoever, and neither
the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar, any
NIMS
Insurer nor any agent of any of them shall be affected by notice to the
contrary.
78
Section
3.07. Temporary
Certificates.
(a)
Pending
the preparation of definitive Certificates, upon the order of the Depositor,
the
Trustee shall execute and shall authenticate and deliver temporary Certificates
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as
the
authorized officers executing such Certificates may determine, as evidenced
by
their execution of such Certificates.
(b)
If
temporary Certificates are issued, the Depositor will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation
of
definitive Certificates, the temporary Certificates shall be exchangeable
for
definitive Certificates upon surrender of the temporary Certificates at the
office or agency of the Trustee without charge to the Holder. Upon surrender
for
cancellation of any one or more temporary Certificates, the Trustee shall
execute and authenticate and deliver in exchange therefor a like aggregate
Certificate Principal Amount (or Notional Amount) of definitive Certificates
of
the same Class in the authorized denominations. Until so exchanged, the
temporary Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Certificates of the same Class.
Section
3.08. Appointment
of Paying Agent.
(a)
The
Trustee may appoint a Paying Agent (which may be the Trustee) for the purpose
of
making distributions to Certificateholders hereunder. The Trustee shall cause
such Paying Agent (including, without duplication of any of its existing
obligations hereunder, the Trustee) to execute and deliver to the Trustee
an
instrument in which such Paying Agent shall agree with the Trustee that such
Paying Agent will hold all sums held by it for the payment to Certificateholders
in an Eligible Account in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to the Certificateholders.
All
funds remitted by the Trustee to any such Paying Agent for the purpose of
making
distributions shall be paid to Certificateholders on each Distribution Date
and
any amounts not so paid shall be returned on such Distribution Date to the
Trustee. If the Paying Agent is not the Trustee, the Trustee shall cause
to be
remitted to the Paying Agent on or before the Business Day prior to each
Distribution Date, by wire transfer in immediately available funds, the funds
to
be distributed on such Distribution Date. Any Paying Agent shall be either
a
bank or trust company or otherwise authorized under law to exercise corporate
trust powers. As of the Closing Date, the Trustee is the Paying
Agent.
(b)
Any
Paying Agent (including, without duplication of any of its existing obligations
hereunder, the Trustee) shall comply with its reporting obligations under
Regulation AB with respect to the Trust Fund in form and substance similar
to
those of the Trustee pursuant to Section 6.20, and the related assessment
of
compliance shall cover, at a minimum, the elements of the servicing criteria
applicable to the Paying Agent indicated in Exhibit O attached hereto. For
so
long as the Depositor is subject to Exchange Act reporting requirements with
respect to the Trust, the Paying Agent shall give prior written notice to
the
Sponsor, the Master Servicer, the Trustee and the Depositor of the appointment
of any Subcontractor by it and a written description (in form and substance
reasonably satisfactory to the Sponsor and the Depositor) of the role and
function of each Subcontractor utilized by the Paying Agent, as applicable,
specifying (A) the identity of each such Subcontractor and (B) which elements
of
the servicing criteria set forth under Item 1122(d) of Regulation AB will
be
addressed in assessments of compliance provided by each such Subcontractor.
In
addition, for so long as the Depositor is subject to Exchange Act reporting
requirements with respect to the Trust, the Paying Agent shall notify the
Sponsor, the Master Servicer, the Trustee and the Depositor within five (5)
calendar days of knowledge thereof (i) of any legal proceedings pending against
the Paying Agent of the type described in Item 1117 (§ 229.1117) of Regulation
AB, (ii) any merger, consolidation or sale of substantially all of the assets
of
the Paying Agent and (iii) if the Paying Agent shall become (but only to
the
extent not previously disclosed) at any time an affiliate of any of the parties
listed on Exhibit P hereto or any of their affiliates. On or before March
1st
of each
year, the Depositor shall furnish any change in the information in Exhibit
P to
the Paying Agent and the Trustee.
79
(c)
Any
Paying Agent that is not the Trustee agrees to indemnify the Depositor, the
Trustee and the Master Servicer, and each of their respective directors,
officers, employees and agents and the Trust Fund and hold each of them harmless
from and against any losses, damages, penalties, fines, forfeitures, legal
fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon the failure
by such Paying Agent to deliver any information, report or certification
when
and as required under Section 6.20 and Section 9.25(a). This indemnification
shall survive the termination of this Agreement or the termination of such
Paying Agent hereunder.
Section
3.09. Book-Entry
Certificates.
(a)
Each
Class of Book-Entry Certificates, upon original issuance, shall be issued
in the
form of one or more typewritten Certificates representing the Book-Entry
Certificates. The Book-Entry Certificates shall initially be registered on
the
Certificate Register in the name of the nominee of the Clearing Agency, and
no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner’s interest in the Book-Entry Certificates, except as provided
in Section 3.09(c). Unless Definitive Certificates have been issued to
Certificate Owners of Book-Entry Certificates pursuant to Section
3.09(c):
(i)
the
provisions of this Section 3.09 shall be in full force and effect;
(ii)
the
Depositor, the Master Servicer, the Paying Agent, the Registrar, any NIMS
Insurer and the Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Book-Entry Certificates) as
the
authorized representatives of the Certificate Owners and the Clearing Agency
shall be responsible for crediting the amount of such distributions to the
accounts of such Persons entitled thereto, in accordance with the Clearing
Agency’s normal procedures;
(iii)
to
the
extent that the provisions of this Section 3.09 conflict with any other
provisions of this Agreement, the provisions of this Section 3.09 shall control;
and
80
(iv)
the
rights of Certificate Owners shall be exercised only through the Clearing
Agency
and the Clearing Agency Participants and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial Clearing
Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b)
Whenever
notice or other communication to the Certificateholders is required under
this
Agreement, unless and until Definitive Certificates shall have been issued
to
Certificate Owners pursuant to Section 3.09(c), the Trustee shall give all
such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency.
(c)
If
(i)
(A) the Depositor advises the Trustee in writing that the Clearing Agency
is no
longer willing or able to discharge properly its responsibilities with respect
to the Book-Entry Certificates, and (B) the Trustee or the Depositor is unable
to locate a qualified successor, or (ii) after the occurrence of an Event
of Default, Certificate Owners representing beneficial interests aggregating
not
less than 50% of the Class Principal Amount (or Class Notional Amount) of
a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer’s Certificate from the Clearing Agency advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that
the
continuation of a book-entry system through the Clearing Agency is no longer
in
the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Trustee shall notify or cause the Certificate Registrar
to
notify the Clearing Agency to effect notification to all Certificate Owners,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting
the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Depositor nor the Trustee shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be protected
in
relying on, such instructions. Upon the issuance of Definitive Certificates
all
references herein to obligations imposed upon or to be performed by the Clearing
Agency shall be deemed to be imposed upon and performed by the Trustee, to
the
extent applicable, with respect to such Definitive Certificates and the Trustee
shall recognize the holders of the Definitive Certificates as Certificateholders
hereunder. None of the Seller, the Depositor, the Underwriter, the Master
Servicer or the Trustee shall have any responsibility for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Book-Entry Certificates held by the Clearing Agency or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
ARTICLE
IV
ADMINISTRATION
OF THE TRUST FUND
Section
4.01. Collection
Account.
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(a)
On
the
Closing Date, the Master Servicer shall open and shall thereafter maintain
a
segregated account held in trust (the “Collection Account”), entitled “Aurora
Loan Services LLC, as Master Servicer, in trust for the benefit of the Holders
of Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2007-11.” The
Collection Account shall relate solely to the Certificates and to the Pooling
REMIC 1 Regular Interests issued by the Trust Fund hereunder, and funds in
such
Collection Account shall not be commingled with any other monies.
(b)
The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Master Servicer shall establish
a
new Collection Account that is an Eligible Account within ten (10) days and
transfer all funds and investment property on deposit in such existing
Collection Account into such new Collection Account.
(c)
The
Master Servicer shall give to the Trustee prior written notice of the name
and
address of the depository institution at which the Collection Account is
maintained and the account number of such Collection Account. The Master
Servicer shall take such actions as are necessary to cause the depository
institution holding the Collection Account to hold such account in the name
of
the Master Servicer under this Agreement. No later than 2:00 p.m. New York
City
time on each Master Servicer Remittance Date, the entire amount on deposit
in
the Collection Account (subject to permitted withdrawals set forth in Section
4.02), other than amounts not included in the Total Distribution Amount for
such
Distribution Date, shall be remitted to the Trustee for deposit into the
Certificate Account by wire transfer in immediately available funds. The
Master
Servicer, at its option (but with prior notice to the Trustee), may choose
to
make daily remittances from the Collection Account to the Trustee for deposit
into the Certificate Account.
(d)
The
Master Servicer shall deposit or cause to be deposited into the Collection
Account, no later than two Business Days following the Closing Date, any
amounts
received with respect to the Mortgage Loans representing Scheduled Payments
on
the Mortgage Loans due after the Cut-off Date and unscheduled payments received
on or after the Cut-off Date and on or before the Closing Date. Thereafter,
the
Master Servicer shall deposit or cause to be deposited in the Collection
Account
on the earlier of the applicable Master Servicer Remittance Date and two
Business Days following receipt thereof, the following amounts received or
payments made by it (other than in respect of principal of and interest on
the
Mortgage Loans due on or before the
Cut-off Date):
(i)
all
payments on account of principal, including Principal Prepayments, any
Subsequent Recovery and any Scheduled Payment attributable to principal received
after the related Due Date, late collections, and any Prepayment Premiums,
on
the Mortgage Loans;
(ii)
all
payments on account of interest on the Mortgage Loans, including any Prepayment
Premiums, in all cases, net of the Servicing Fee with respect to each such
Mortgage Loan, but only to the extent of the amount permitted to be withdrawn
or
withheld from the Collection Account in accordance with Sections 5.04 and
9.21;
(iii)
any
unscheduled payment or other recovery with respect to a Mortgage Loan not
otherwise specified in this paragraph (d), including all Net Liquidation
Proceeds with respect to the Mortgage Loans and REO Property, and all amounts
received in connection with the operation of any REO Property, net of (x)
any
unpaid Servicing Fees with respect to such Mortgage Loans (but only to the
extent of the amount permitted to be withdrawn or withheld from the Collection
Account in accordance with Sections 5.04 and 9.21) and (y) any amounts
reimbursable to a Servicer with respect to such Mortgage Loan under the
applicable Servicing Agreement and retained by such Servicer;
82
(iv)
all
Insurance Proceeds;
(v)
all
Advances made by the Master Servicer or any Servicer pursuant to Section
5.04 or
the applicable Servicing Agreement;
(vi)
all
amounts paid by any Servicer with respect to Prepayment Interest Shortfalls;
and
(vii)
the
Purchase Price (or FPD Purchase Price (including any FPD Premium)) of any
Mortgage Loan repurchased by the Depositor, the Seller, the Master Servicer
or
any other Person, and any Substitution Amount related to any Qualifying
Substitute Mortgage Loan and any purchase price paid by the NIMS Insurer
for the
purchase of any Distressed Mortgage Loan under Section 7.04.
(e)
Funds
in
the Collection Account may be invested in Eligible Investments selected by
and
at the written direction of the Master Servicer, which shall mature not later
than one Business Day prior to the Master Servicer Remittance Date (except
that
if such Eligible Investment is an obligation of the Trustee, then such Eligible
Investment shall mature not later than such applicable Master Servicer
Remittance Date) and any such Eligible Investment shall not be sold or disposed
of prior to its maturity. All such Eligible Investments shall be made in
the
name of the Master Servicer in trust for the benefit of the Trustee and the
Holders of Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2007-11.
All income and gain realized from any Eligible Investment shall be for the
benefit of the Master Servicer and shall be subject to its withdrawal or
order
from time to time and shall not be part of the Trust Fund. The amount of
any
losses incurred in respect of any such investments shall be deposited in
such
Collection Account by the Master Servicer out of its own funds, without any
right of reimbursement therefor, immediately as realized. The foregoing
requirements for deposit in the Collection Account are exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments of interest on funds in the Collection Account and payments in the
nature of late payment charges, assumption fees, prepayment penalties with
respect to mortgages for which the Seller does not own the servicing rights,
and
other incidental fees and charges relating to the Mortgage Loans (other than
Prepayment Premiums) need not be deposited by the Master Servicer in the
Collection Account and may be retained by the Master Servicer or the applicable
Servicer as additional servicing compensation. If the Master Servicer deposits
in the Collection Account any amount not required to be deposited therein,
it
may at any time withdraw such amount from such Collection Account.
Section
4.02. Application
of Funds in the Collection Account.
The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
83
(i)
to
reimburse itself or any Servicer for Advances or Servicing Advances made
by it
or by such Servicer pursuant to Section 5.04 or the applicable Servicing
Agreement; such right to reimbursement pursuant to this subclause (i) is
limited
to amounts received on or in respect of a particular Mortgage Loan (including,
for this purpose, Liquidation Proceeds and amounts representing Insurance
Proceeds with respect to the property subject to the related Mortgage) which
represent late recoveries (net of the applicable Servicing Fee) of payments
of
principal or interest respecting which any such Advance was made, it being
understood, in the case of any such reimbursement, that the Master Servicer’s or
Servicer’s right thereto shall be prior to the rights of the
Certificateholders;
(ii)
to
reimburse itself or any Servicer, following a final liquidation of a Mortgage
Loan (except as otherwise provided in the related Servicing Agreement) for
any
previously unreimbursed Advances or Servicing Advances made by it or by such
Servicer (A) that it or such Servicer determines in good faith will not be
recoverable from amounts representing late recoveries of payments of principal
or interest respecting the particular Mortgage Loan as to which such Advance
or
Servicing Advance was made or from Liquidation Proceeds or Insurance Proceeds
with respect to such Mortgage Loan and/or (B) to the extent that such
unreimbursed Advances or Servicing Advances exceed the related Liquidation
Proceeds or Insurance Proceeds, it being understood, in the case of each
such
reimbursement, that such Master Servicer’s or Servicer’s right thereto shall be
prior to the rights of the Certificateholders;
(iii)
to
reimburse itself or any Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Sections 9.20 and 9.22(c)
or
the applicable Servicing Agreement in good faith in connection with the
restoration of damaged property and, to the extent that Liquidation Proceeds
after such reimbursement exceed the unpaid principal balance of the related
Mortgage Loan, together with accrued and unpaid interest thereon at the
applicable Mortgage Rate less the applicable Servicing Fee Rate for such
Mortgage Loan to the Due Date next succeeding the date of its receipt of
such
Liquidation Proceeds, to pay to itself out of such excess the amount of any
unpaid assumption fees, late payment charges or other Mortgagor charges on
the
related Mortgage Loan and to retain any excess remaining thereafter as
additional servicing compensation, it being understood, in the case of any
such
reimbursement or payment, that such Master Servicer’s or Servicer’s right
thereto shall be prior to the rights of the Certificateholders;
(iv)
all
Advances made by the Master Servicer, any Servicer or the Trustee pursuant
to
Section 5.04 or the applicable Servicing Agreement;
(v)
to
reimburse itself or any Servicer for expenses incurred by and recoverable
by or
reimbursable to it or any Servicer pursuant to this Agreement, including,
without limitation, Sections 9.04, 9.05, 9.06, 9.07(a), 9.16, 9.30 or 11.15
or
pursuant to the related Servicing Agreement;
(vi)
to
pay to
the Depositor or the Seller, as applicable, with respect to each Mortgage
Loan
or REO Property acquired in respect thereof that has been purchased pursuant
to
this Agreement, all amounts received thereon and not distributed on the date
on
which the related repurchase was effected, and to pay to the applicable Person
any Advances and Servicing Advances to the extent specified in the definition
of
Purchase Price (or FPD Purchase Price), any FPD Premium, if any, (in the
case of
a First Payment Default Mortgage Loan), or any amounts paid by LBH for
shortfalls in the Purchase Price for repurchases of First Payment Default
Mortgage Loans pursuant to Section 1.04(f) of the Mortgage Loan Sale Agreement
relating to the Seller paying the difference if the FPD Purchase Price is
less
than the Purchase Price;
84
(vii)
subject
to Section 5.05, to pay to itself income earned on the investment of funds
deposited in the Collection Account;
(viii)
to
make
payments to the Trustee on each Master Servicer Remittance Date for deposit
into
the Certificate Account in the amount and in the manner provided in Section
4.04;
(ix)
to
make
payment to itself, the Trustee and others pursuant to any other provision
of
this Agreement;
(x)
to
withdraw funds deposited in error in the Collection Account;
(xi)
to
clear
and terminate the Collection Account pursuant to Section 7.02;
(xii)
to
reimburse a successor master servicer (solely in its capacity as successor
master servicer), for any fee or advance occasioned by a termination of the
Master Servicer, and the assumption of such duties by the Trustee or a successor
master servicer appointed by the Trustee pursuant to Section 6.14, in each
case
to the extent not reimbursed by the terminated Master Servicer, it being
understood, in the case of any such reimbursement or payment, that the right
of
the Master Servicer or the Trustee or other successor master servicer thereto
shall be prior to the rights of the Certificateholders; and
(xiii)
to
reimburse any Servicer for such amounts as are due thereto under the applicable
Servicing Agreement and have not been retained by or paid to such Servicer,
to
the extent provided in such Servicing Agreement.
If
provided in the related Servicing Agreement, each Servicer shall be entitled
to
retain as additional servicing compensation any Prepayment Interest Excess
(to
the extent not offset by Prepayment Interest Shortfalls).
In
the
event that the Master Servicer fails on any Master Servicer Remittance Date
to
remit to the Trustee any amounts required to be so remitted to the Trustee
pursuant to subclause (viii) by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest calculated at the “prime
rate” (as published in the “Money Rates” section of The
Wall Street Journal)
on such
amounts not timely remitted for the period from and including that Master
Servicer Remittance Date to but not including the related Distribution Date.
The
Master Servicer shall only be required to pay the Trustee interest for the
actual number of days such amounts are not timely remitted (e.g., one day’s
interest, if such amounts are remitted one day after the Master Servicer
Remittance Date).
85
In
connection with withdrawals pursuant to subclauses (i), (iii), and (vi) above,
the Master Servicer’s, any Servicer’s or such other Person’s entitlement thereto
is limited to collections or other recoveries on the related Mortgage Loan.
The
Master Servicer shall therefore keep and maintain a separate accounting for
each
Mortgage Loan it master services for the purpose of justifying any withdrawal
from the Collection Account it maintains pursuant to such subclause (i),
(iii)
and (vi).
Section
4.03. Reports
to Certificateholders.
(a)
On
each
Distribution Date, the Trustee shall prepare (based solely on information
provided by the Master Servicer, the Cap Counterparty or the Swap Counterparty)
and shall make available to the Certificateholders, any NIMS Insurer, the
Cap
Counterparty and the Swap Counterparty a written report, which may be in
electronic form (the “Distribution Date Statement”) setting forth the following
information (on the basis of Mortgage Loan level information obtained from
the
Servicers).
(i)
the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Offered Certificates, other than any Class of Notional
Certificates, allocable to principal on the Mortgage Loans, including
Liquidation Proceeds and Insurance Proceeds, stating separately the amount
attributable to scheduled principal payments and unscheduled payments in
the
nature of principal;
(ii)
the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Certificates allocable to interest and the calculation
thereof;
(iii)
the
amount, if any, of any distributions to the Holders of the Class P, Class
X,
Class LT-R and Class R Certificates on such Distribution Date, stated
separately, and the aggregate amounts, if any, of distributions to the Holders
of the Class P, Class X, Class LT-R and Class R Certificates on all Distribution
Dates, stated separately;
(iv)
the
amount, if any, of distributions to the C-X Component, the S-X Component
and the
X-S Component, stated separately;
(v)
(A) the
aggregate amount of any Advances required to be made with respect to the
related
Collection Period by or on behalf of the Servicers (or the Master Servicer)
with
respect to such Distribution Date, (B) the aggregate amount of such
Advances actually made, and (C) the amount, if any, by which (A) above
exceeds (B) above;
(vi)
the
total
number of Mortgage Loans, the aggregate Scheduled Principal Balance of all
the
Mortgage Loans as of the close of business on the last day of the related
Collection Period, after giving effect to payments allocated to principal
reported under clause (i) above;
(vii)
the
Class
Principal Amount and Class Notional Amount of each Class of Certificates,
to the
extent applicable, as of such Distribution Date after giving effect to payments
allocated to principal reported under clause (i) above, separately identifying
any reduction of any of the foregoing Certificate Principal Amounts due to
Applied Loss Amounts;
86
(viii)
the
amount of any Realized Losses incurred with respect to the Mortgage Loans
(x) in
the applicable Prepayment Period and (y) in the aggregate since the Cut-off
Date;
(ix)
the
amount of any Prepayment Premiums distributed to the Class P Certificates;
(x)
the
amount of the Servicing Fees paid during the Collection Period to which such
distribution relates;
(xi)
the
number and Aggregate Loan Balance of the Mortgage Loans, as reported to the
Trustee by the Master Servicer, (a) remaining outstanding (b) Delinquent
30 to
59 days on a contractual basis, (c) Delinquent 60 to 89 days on a contractual
basis, (d) Delinquent 90 or more days on a contractual basis, (e) as to which
foreclosure proceedings have been commenced as of the close of business on
the
last Business Day of the calendar month immediately preceding the month in
which
such Distribution Date occurs, (f) in bankruptcy and (g) that are REO Properties
(the information in this item (xi) to be calculated using the OTS delinquency
method);
(xii)
the
aggregate Scheduled Principal Balance of any Mortgage Loans with respect
to
which the related Mortgaged Property became a REO Property as of the close
of
business on the last Business Day of the calendar month immediately preceding
the month in which such Distribution Date occurs;
(xiii)
with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Scheduled Principal Balance of each Deleted Mortgage Loan, and of each
Qualifying Substitute Mortgage Loan;
(xiv)
the
aggregate outstanding Carryforward Interest, Net Prepayment Interest Shortfalls,
Deferred Amounts, Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls,
if
any, for each applicable Class of Certificates, after giving effect to the
distribution made on such Distribution Date;
(xv)
the
Certificate Interest Rate applicable to such Distribution Date with respect
to
each Class of Certificates (with a notation if such Certificate Interest
Rate
reflects the application of the Senior Net Funds Cap or Subordinate Net Funds
Cap, as applicable);
(xvi)
the
Interest Remittance Amount and the Principal Remittance Amount and the Senior
Principal Distribution Amount and the Overcollateralization Release Amount
applicable to such Distribution Date;
(xvii)
if
applicable, the amount of any shortfall (i.e.,
the
difference between the aggregate amounts of principal and interest which
Certificateholders would have received if there were sufficient available
amounts in the Certificate Account and the amounts actually
distributed);
87
(xviii)
the
Overcollateralization Amount after giving effect to the distributions made
on
such Distribution Date;
(xix)
the
amount of any Overcollateralization Deficiency after giving effect to the
distributions made in such Distribution Date;
(xx)
the
level
of LIBOR, the Certificate Interest Rate of each of the Offered Certificates
for
such Distribution Date;
(xxi)
the
amount of any payments made by the Cap Counterparty to the Supplemental Interest
Trust pursuant to the Cap Agreement;
(xxii)
the
amount of any Net Swap Payment to the Supplemental Interest Trust made pursuant
to Section 5.02, any Net Swap Payment to the Swap Counterparty made pursuant
to
Section 5.02, any Swap Termination Payment to the Supplemental Interest Trust
made pursuant to Sections 5.02 and any Swap Termination Payment to the Swap
Counterparty made pursuant to Section 5.02
(xxiii)
the
amount of any FPD Premiums, if any, for such Distribution Date; and
(xxiv)
whether
a
Trigger Event is in effect for such Distribution Date.
In
addition to the information listed above, for every year in which the Depositor
is subject to Exchange Act reporting with respect to the Certificates, such
Distribution Date Statement shall also include such other information as
is
required by Form 10-D, including but not limited to, the information required
by
Item 1121 (§ 229.1121) of Regulation AB, other than those data elements
specified in Item 1121(a)(11), (12) and 14, to the extent that the Trustee
shall
have received any such information from the Depositor, the Sponsor, the Master
Servicer, the Servicers, the Custodians, the Swap Counterparty, the Cap
Counterparty or any Subservicer or Subcontractor therefor, as applicable,
no
later than four Business Days prior to the Distribution Date.
In
the
case of information furnished pursuant to subclauses (i), (ii) and (vi) above,
the amounts shall (except with respect to the Class X Certificates) be expressed
as a dollar amount per $1,000 of original principal amount of
Certificates.
On
any
Distribution Date after the occurrence of a Section 7.01(d) Purchase Event
with
respect to the Pooling REMIC 1 Regular Interests, the information required
by
subclauses (i), (ii), (iv), (v), (vii), (viii), (ix), (x), (xi), (xii), (xv)
(and in the case of the Class LT-R Certificates, subclause (iii)) shall be
provided to the Holder of the Class LT-R Certificates and the LTURI-holder
of
the Pooling REMIC 1 Regular Interests.
The
Trustee shall make such report and any additional loan level information
(and,
at its option, any additional files containing the same information in an
alternative format) provided to it by the Master Servicer available each
month
to Certificateholders, any NIMS Insurer and the Rating Agencies via the
Trustee’s internet website. The Trustee’s internet website shall initially be
located at “xxx.xx.xxxxxxxxxx.xxx”. Assistance in using the website can be
obtained by calling the Trustee’s customer service desk at (000) 000-0000. Such
parties that are unable to use the website are entitled to have a paper copy
mailed to them via first class mail by calling the customer service desk
and
indicating such or by notifying the Trustee at Citibank, N.A., 000 Xxxxxxxxx
Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Agency and Trust, Xxxxxx XS Trust 2007-11.
The Trustee shall have the right to change the way such statements are
distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Trustee shall provide timely and
adequate notification to all above parties regarding any such
changes.
88
The
foregoing information and reports shall be prepared and determined by the
Trustee based solely on Mortgage Loan data provided to the Trustee by the
Master
Servicer (in a format agreed to by the Trustee and the Master Servicer) no
later
than 2:00 p.m. New York City time four Business Days prior to the Distribution
Date, and on the information provided to the Trustee by the Swap Counterparty
and the Cap Counterparty. In preparing or furnishing the foregoing information
to the Certificateholders and any NIMS Insurer, the Trustee shall be entitled
to
rely conclusively on the accuracy of the information or data (i) regarding
the
Mortgage Loans including any First Payment Default Mortgage Loans) and the
related REO Property that has been provided to the Master Servicer by each
Servicer and to the Trustee by the Master Servicer, (ii) regarding the Swap
Agreement, that has been provided to the Trustee by the Swap Counterparty
and
(iii) regarding the Cap Agreement, that has been provided to the Trustee
by the
Cap Counterparty, and the Trustee shall not be obligated to verify, recompute,
reconcile or recalculate any such information or data. The Trustee shall
be
entitled to conclusively rely on the Mortgage Loan data provided by the Master
Servicer and shall have no liability for any errors in such Mortgage Loan
data.
The Master Servicer shall be entitled to conclusively rely on the Mortgage
Loan
data provided by each Servicer and shall have no liability for any errors
in
such Mortgage Loan data. The information and reports described in the first
paragraph of this Section 4.03(a) shall be provided to the Paying Agent (if
other than the Trustee) by the Trustee no later than 12:00 p.m. New York
City
time two Business Days prior to the Distribution Date.
(b)
Upon
the
reasonable advance written request of any Certificateholder that is a savings
and loan, bank or insurance company (which request, if received by the Trustee
shall be promptly forwarded to the Master Servicer), the Master Servicer
shall
provide, or cause to be provided, to the extent such information is available
to
the Master Servicer exercising reasonable efforts to obtain such information
(or, to the extent that such information or documentation is not required
to be
provided by a Servicer under the applicable Servicing Agreement, shall use
reasonable efforts to obtain such information and documentation from such
Servicer, and provide) to any NIMS Insurer and such Certificateholder such
reports and access to information and documentation regarding the Mortgage
Loans
as any NIMS Insurer and such Certificateholder may reasonably deem necessary
to
comply with applicable regulations of the Office of Thrift Supervision or
its
successor or other regulatory authorities with respect to the NIM Securities
or
an investment in the Certificates; provided,
however,
that the
Master Servicer shall be entitled to be reimbursed by such Certificateholder
for
the actual expenses incurred in providing such reports and access.
89
(c)
Within
90
days, or such shorter period as may be required by statute or regulation,
after
the end of each calendar year, the Trustee shall, upon written request, prepare
and make available to any NIMS Insurer and to each Person who at any time
during
the calendar year was a Certificateholder of record, and to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to any NIMS Insurer
and to
the Certificateholders pursuant to Section 4.03(a)(i) and (ii) on an annual
basis as may be required to enable such Holders to prepare their federal
income
tax returns; provided,
however,
that
this Section 4.03(c) shall not be applicable where relevant reports or summaries
are required elsewhere in this Agreement. Such information shall also include
the amount of original issue discount accrued on each Class of Certificates
and
information regarding the expenses of the Trust Fund. The Trustee shall be
deemed to have satisfied this requirement if it makes available such information
in any other format permitted by the Code. The Master Servicer shall provide
the
Trustee with such information as is necessary for the Trustee to prepare
such
reports to the extent reasonably available to the Master Servicer under this
Agreement and each Servicing Agreement (and the Trustee may rely solely upon
such information).
(d)
The
Trustee shall prepare and file with the Internal Revenue Service (“IRS”), on
behalf of the Trust Fund, an application for an employer identification number
on IRS Form SS-4 or by any other acceptable method. The Trustee shall also
file
a Form 8811 as required. The Trustee, upon receipt from the IRS of the Notice
of
Taxpayer Identification Number Assigned, shall upon request promptly forward
a
copy of such notice to the Master Servicer and the Depositor. The Trustee
shall,
to the extent reasonably available, furnish any other information that is
required by the Code and regulations thereunder to be made available to
Certificateholders. The Master Servicer, to the extent reasonably available,
shall provide the Trustee with such information as is necessary for the Trustee
to comply with the foregoing.
(e)
So
long
as not prohibited by applicable law, the Master Servicer shall provide to
the
Depositor or to any party designated by the Depositor, as promptly as
practicable upon the Depositor's request, any and all loan-level information
that the Depositor may request in any format reasonably requested by the
Depositor.
Section
4.04. Certificate
Account.
(a)
The
Trustee shall establish and maintain in its name, as trustee, a trust account
(the “Certificate Account”) entitled “Certificate Account, Citibank, N.A., as
Trustee, in trust for the benefit of the Holders of Xxxxxx XS Trust Mortgage
Pass-Through Certificates, Series 2007-11” until disbursed pursuant to the terms
of this Agreement. The Certificate Account shall be an Eligible Account and
shall be for the benefit of the Certificateholders. If the existing Certificate
Account ceases to be an Eligible Account, the Trustee shall establish a new
Certificate Account that is an Eligible Account within 20 Business Days and
transfer all funds and investment property on deposit in such existing
Certificate Account into such new Certificate Account. The Certificate Account
shall relate solely to the Certificates and to the Pooling REMIC 1 Regular
Interests issued hereunder and funds in the Certificate Account shall be
held
separate and apart from and shall not be commingled with any other monies
including, without limitation, other monies of the Trustee held under this
Agreement.
90
(b)
The
Trustee shall deposit or cause to be deposited into the Certificate Account,
on
the day on which, or, if such day is not a Business Day, the Business Day
immediately following the day on which, any monies are remitted by the Master
Servicer to the Trustee, all such amounts so remitted. The Trustee shall
make
withdrawals from the Certificate Account only for the following
purposes:
(i)
to
make
payment to itself pursuant to any provision of this Agreement, or to reimburse
itself or its agents for any amounts reimbursable
to it pursuant to Sections 6.11, 6.12 or 7.01; provided,
however,
that
any amounts in excess of the annual cap described in clause (b) of the
definition of “Interest Remittance Amount” and clause (b) of the definition of
“Principal Remittance Amount” in any Anniversary Year, other than costs
and expenses incurred by the Trustee pursuant to Sections 6.11, 6.14 and
7.01 in
connection with any transfer of servicing,
shall
not be withdrawn from the Certificate Account and paid to the Trustee and
the
Trustee’s reimbursement for such excess amounts shall be made pursuant to
Section 5.02(f)(i)(C) hereof;
(ii)
to
withdraw amounts deposited in the Certificate Account in error;
(iii)
to
pay
itself any investment income earned with respect to funds in the Certificate
Account invested in Eligible Investments as set forth below and to make payments
to itself and others pursuant to any provision of this Agreement;
(iv)
to
make
distributions to Certificateholders pursuant to Article V; and
(v)
to
clear
and terminate the Certificate Account pursuant to Section 7.02.
The
Trustee may invest, or cause to be invested, funds held in the Certificate
Account, which funds, if invested, shall be invested by the Trustee in Eligible
Investments (which may be obligations of the Trustee or its affiliates).
If
invested, all such investments must be payable on demand or mature no later
than
the next Distribution Date (except with respect to such investments in an
amount
equal to the aggregate of any Net Swap Payments and any Swap Termination
Payments payable to the Swap Counterparty, such amount to mature no later
than
the next Swap Payment Date), and shall not be sold or disposed of prior to
their
maturity. All such Eligible Investments will be made in the name of the Trustee
(in its capacity as such) or its nominee. All income and gain realized from
any
such investment for each Distribution Date shall be compensation to the Trustee
and shall be subject to its withdrawal on order from time to time. The amount
of
any losses incurred in respect of any investments made by the Trustee which
are
other than Eligible Investments shall be paid by the Trustee for deposit
in the
Certificate Account out of its own funds, without any right of reimbursement
therefor, immediately as realized. Funds held in the Certificate Account
may
also be held uninvested.
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
Section
5.01. Distributions
Generally.
91
(a)
On
each
Distribution Date, so long as the Offered Certificates are outstanding, the
Trustee (or the Paying Agent on behalf of the Trustee) shall make distributions
to the Holders in accordance with this Article V; provided,
however,
that if
a Section 7.01(d) Purchase Event has occurred with respect to any of the
Pooling
REMIC 1 Regular Interests, the distributions related to the Pooling REMIC
1
Regular Interests shall be made in accordance with Section 5.02(k). Such
distributions shall be made by wire transfer if the Certificateholder has
provided the Trustee (or the Paying Agent) with wire instructions or by check
mailed to the address of such Certificateholder as it appears in the books
of
the Trustee (or the Paying Agent) if the Certificateholder has not provided
the
Trustee (or the Paying Agent) with wire instructions in immediately available
funds to an account specified in the request and at the expense of such
Certificateholder; provided,
however,
that the
final distribution in respect of any Certificate shall be made only upon
presentation and surrender of such Certificate at the Corporate Trust Office;
provided,
further,
that the
foregoing provisions shall not apply to any Class of Certificates as long
as
such Certificate remains a Book-Entry Certificate in which case all payments
made shall be made through the Clearing Agency and its Clearing Agency
Participants. Notwithstanding such final payment of principal of any of the
Certificates, each Residual Certificate will remain outstanding until the
termination of each REMIC and the payment in full of all other amounts due
with
respect to the Residual Certificates and at such time such final payment
in
retirement of any Residual Certificate will be made only upon presentation
and
surrender of such Certificate at the applicable Corporate Trust Office. If
any
payment required to be made on the Certificates or the Pooling REMIC 1 Regular
Interests is to be made on a day that is not a Business Day, then such payment
will be made on the next succeeding Business Day.
(b)
All
distributions or allocations made with respect to Certificateholders within
each
Class on each Distribution Date shall be allocated among the outstanding
Certificates of such Class equally in proportion to their respective initial
Class Principal Amounts or Initial Class Notional Amounts (or Percentage
Interests).
(c)
The
Trustee (or the Paying Agent on behalf of the Trustee) shall make payments
to
Certificateholders and to the Swap Counterparty and any other person pursuant
to
this Article V and make deposits to the Supplemental Interest Trust and accounts
held by it hereunder based solely on the information set forth in the monthly
report furnished by the Master Servicer and/or the Swap Counterparty and/or
the
Cap Counterparty in accordance with Section 4.03(a), and shall be entitled
to
conclusively rely on such information and reports, and on the calculations
contained therein, when making distributions to Certificateholders, the Swap
Counterparty and any other party hereunder. The Trustee shall have no liability
for any errors in such reports or information, and shall not be required
to
verify, recompute, reconcile or recalculate any such information or
data.
Section
5.02. Distributions
from the Certificate Account.
(a)
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event or a Trust
Fund Termination Event, as applicable, the Trustee (or the Paying Agent on
behalf of the Trustee) shall withdraw from the Certificate Account the Total
Distribution Amount and amounts that are available for payment to the Swap
Counterparty and shall allocate such amounts to the interests issued in respect
of each REMIC and shall distribute such amounts as specified in subparagraphs
(b) through (i) of this Section 5.02; provided,
that
amounts that are available for payment to the Swap Counterparty shall be
paid on
the related Swap Payment Date.
92
(b)
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event (or, with
respect to clause (i) below, on the related Swap Payment Date), the Trustee
shall distribute the Interest Remittance Amount for such date in the following
order of priority:
(i)
for
deposit into the Swap Account, an amount equal to the lesser of (x) any Net
Swap
Payment or Swap Termination Payment (not due to a Swap Counterparty Trigger
Event) owed to the Swap Counterparty on the related Swap Payment Date and
(y)
the Interest Remittance Amount for such Distribution Date;
(ii)
concurrently, on
a
pro
rata
basis, to
the
Senior Certificates, Current Interest and any Carryforward Interest for such
Classes for such Distribution Date; provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of Current Interest and
Carryforward Interest that would otherwise be distributable thereon,
provided,
further,
that
the Trustee shall make no distributions to the Class AIO Certificates after
the
Distribution Date in April 2012;
(iii)
to
the
Offered Subordinated Certificates (other than the Class M9 Certificates),
in
accordance with the Interest Subordinate Priority, Current Interest and any
Carryforward Interest for such Classes for such Distribution Date;
and
(iv)
for
application as part of the Monthly Excess Cashflow for such Distribution
Date,
as provided in subsection (f) of this Section, any Monthly Excess Interest
for
such Distribution Date.
(c)
[Reserved].
(d)
On
each
Distribution Date or related Swap Payment Date on or prior to a Section 7.01(d)
Purchase Event, the Trustee shall distribute the Principal Distribution Amount
for such date, as follows:
(i)
On
each
Distribution Date (or with respect to clause (A) below, on the related Swap
Payment Date) (a) prior to the Stepdown Date or (b) with respect to which
a
Trigger Event is in effect, until the aggregate Certificate Principal Amount
of
the Senior Certificates (other than the Class AIO Certificates) and the
Subordinate Certificates equals the Target Amount for such Distribution Date,
the Trustee shall distribute the Principal Distribution Amount for such date,
in
the following order of priority:
(A)
for
deposit into the Swap Account, any Net Swap Payment or Swap Termination Payment
(not due to a Swap Counterparty Trigger Event) owed to the Swap Counterparty
(to
the extent not deposited previously from the Interest Remittance Amount in
accordance with Section 5.02(b)(i) above);
(B)
concurrently,
on a pro
rata
basis,
to the Senior Certificates (other than the Class AIO Certificates), based
on (x)
the aggregate Class Principal Amount of the Class A1, Class A2, Class A3
and
Class A4 Certificates and (y) the Class Principal Amount of the Class A5
Certificates, as follows:
93
(1) sequentially,
to the Class A1 and Class A2 Certificates, in that order, until the Class
Principal Amount of each such Class has been reduced to zero; and then to
the
Class A3 and Class A4 Certificates, pro
rata,
until
the Class Principal Amount of each such Class has been reduced to zero; and
(2) to
the
Class A5 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero.
(C)
to
the
Subordinate Certificates, in accordance with the Principal Subordinate Priority,
until the Class Principal Amount of each such Class has been reduced to zero;
and
(D)
for
application as part of the Monthly Excess Cashflow for such Distribution
Date,
as provided in subsection (f) of this Section, any such Principal Distribution
Amount remaining after application pursuant to clauses (A) through (C)
above.
(ii) On
each
Distribution Date (or, with respect to clause (A) below, on the related Swap
Payment Date) (a) on or after the Stepdown Date and (b) with respect to which
a
Trigger Event is not in effect, the Trustee shall distribute the Principal
Distribution Amount for such date in the following order of
priority:
(A)
for
deposit into the Swap Account, any Net Swap Payment or Swap Termination Payment
(not due to a Swap Counterparty Trigger Event) owed to the Swap Counterparty
(to
the extent not distributed previously pursuant to subsection
5.02(b)(1));
(B)
(1)
so
long as any of the Subordinate Certificates are outstanding, to the Senior
Certificates (other than the Class AIO Certificates), in accordance with
the
Senior Priority, in an amount equal to the lesser of (x) the excess, if any,
of
(a) the Principal Distribution Amount for such Distribution Date over (b)
the
amount distributed to the Supplemental Interest Trust for deposit into the
Swap
Account on such Distribution Date pursuant to clause (A) above and (y) the
Senior Principal Distribution Amount for such Distribution Date until the
Class
Principal Amount of each such Class has been reduced to zero; or (2) otherwise,
to the Senior Certificates (other than the Class AIO Certificates), in
accordance with the Senior Priority, the excess of (A) the Principal
Distribution Amount for such Distribution Date over (B) the amount distributed
to the Supplemental Interest Trust for deposit into the Swap Account with
respect to such Distribution Date pursuant to clause (A) above, in each case
until the Class Principal Amount of each such Class has been reduced to
zero;
(C)
to
the
Class M1 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
distributed to the Senior Certificates (other than the Class AIO Certificates)
and the amount paid to the Supplemental Interest Trust for deposit into the
Swap
Account on such Distribution Date pursuant to clauses (A) through (B) above,
and
(y) the M1 Principal Distribution Amount for such Distribution Date, until
the
Class Principal Amount of such Class has been reduced to zero;
94
(D)
to
the
Class M2 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
distributed to the Senior Certificates (other than the Class AIO Certificates),
the Class M1 Certificates and the amount paid to the Supplemental Interest
Trust
for deposit into the Swap Account on such Distribution Date pursuant to clauses
(A) through (C) above, and (y) the M2 Principal Distribution Amount for such
Distribution Date, until the Class Principal Amount of such Class has been
reduced to zero;
(E)
to
the
Class M3 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
distributed to the Senior Certificates (other than the Class AIO Certificates),
the Class M1 and Class M2 Certificates and the amount paid to the Supplemental
Interest Trust for deposit into the Swap Account on such Distribution Date
pursuant to clauses (A) through (D) above, and (y) the M3 Principal Distribution
Amount for such Distribution Date, until the Class Principal Amount of such
Class has been reduced to zero;
(F)
to
the
Class M4 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
distributed to the Senior Certificates (other than the Class AIO Certificates),
the Class M1, Class M2 and Class M3 Certificates and the amount paid to the
Supplemental Interest Trust for deposit into the Swap Account on such
Distribution Date pursuant to clauses (A) through (E) above, and (y) the
M4
Principal Distribution Amount for such Distribution Date, until the Class
Principal Amount of such Class has been reduced to zero;
(G)
to
the
Class M5 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
distributed to the Senior Certificates (other than the Class AIO Certificates),
the Class M1, Class M2, Class M3 and Class M4 Certificates and the amount
paid
to the Supplemental Interest Trust for deposit into the Swap Account on such
Distribution Date pursuant to clauses (A) through (F) above, and (y) the
M5
Principal Distribution Amount for such Distribution Date, until the Class
Principal Amount of such Class has been reduced to zero;
(H)
to
the
Class M6 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
distributed to the Senior Certificates (other than the Class AIO Certificates),
the Class M1, Class M2, Class M3, Class M4 and Class M5 Certificates and
the
amount paid to the Supplemental Interest Trust for deposit into the Swap
Account
on such Distribution Date pursuant to clauses (A) through (G) above, and
(y) the
M6 Principal Distribution Amount for such Distribution Date, until the Class
Principal Amount of such Class has been reduced to zero;
95
(I)
to
the
Class M7 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
distributed to the Senior Certificates (other than the Class AIO Certificates),
the Class M1, Class M2, Class M3, Class M4, Class M5 and Class M6 Certificates
and the amount paid to the Supplemental Interest Trust for deposit into the
Swap
Account on such Distribution Date pursuant to clauses (A) through (H) above,
and
(y) the M7 Principal Distribution Amount for such Distribution Date, until
the
Class Principal Amount of such Class has been reduced to zero;
(J)
to
the
Class M8 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
distributed to the Senior Certificates (other than the Class AIO Certificates),
the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6 and Class
M7
Certificates and the amount paid to the Supplemental Interest Trust for deposit
into the Swap Account on such Distribution Date pursuant to clauses (A) through
(I) above, and (y) the M8 Principal Distribution Amount for such Distribution
Date, until the Class Principal Amount of such Class has been reduced to
zero;
(K)
to
the
Class M9 Certificates, an amount equal to the lesser of (x) the excess, if
any, of (a) the Principal Distribution Amount for such Distribution Date
over (b) the amount distributed to the Senior Certificates (other than the
Class AIO Certificates) and the Class M1, Class M2, Class M3, Class M4, Class
M5, Class M6, Class M7 and Class M8 Certificates and the amount paid to the
Supplemental Interest Trust for deposit into the Interest Rate Swap Account
pursuant to clauses (A) through (J) above, and (y) the M9 Principal
Distribution Amount for such Distribution Date, until the Class Principal
Amount
of such class has been reduced to zero;
(L)
to
the
Class M10 Certificates, an amount equal to the lesser of (x) the excess, if
any, of (a) the Principal Distribution Amount for such Distribution Date
over (b) the amount distributed to the Senior Certificates (other than the
Class AIO Certificates) and the Class M1, Class M2, Class M3, Class M4, Class
M5, Class M6, Class M7, Class M8 and Class M9 Certificates and the amount
paid
to the Supplemental Interest Trust for deposit into the Interest Rate Swap
Account pursuant to clauses (A) through (K) above, and (y) the M10
Principal Distribution Amount for such Distribution Date, until the Class
Principal Amount of such class has been reduced to zero;
(M)
to
the
Class M11 Certificates, an amount equal to the lesser of (x) the excess, if
any, of (a) the Principal Distribution Amount for such Distribution Date
over (b) the amount distributed to the Senior Certificates (other than the
Class AIO Certificates) and the Class M1, Class M2, Class M3, Class M4, Class
M5, Class M6, Class M7, Class M8, Class M9 and Class M10 Certificates and
the
amount paid to the Supplemental Interest Trust for deposit into the Interest
Rate Swap Account pursuant to clauses (A) through (L) above, and
(y) the M11 Principal Distribution Amount for such Distribution Date, until
the Class Principal Amount of such class has been reduced to zero;
and
96
(N)
for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in subsection (f) of this Section, any Principal Distribution Amount
remaining after application pursuant to clauses (A) through (M) above.
(e)
[Reserved].
(f)
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event, the Trustee
shall distribute the Monthly Excess Cashflow for such Distribution Date,
after
making all distributions pursuant to Sections 5.02(g) and 5.02(h) below,
in the
following order of priority:
(i)
(A) concurrently,
on a pro
rata
basis,
based on amounts due, to the Senior Certificates, Current Interest and any
Carryforward Interest for such Classes for such Distribution Date, to the
extent
unpaid pursuant to Sections 5.02(b)(ii), 5.02(g)(i) and 5.02(h)(iii);
provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of Current Interest and
Carryforward Interest that would otherwise be distributable
thereon;
(B) to
the
Offered Subordinate Certificates (other than the Class M9 Certificates),
in
accordance with the Interest Subordinate Priority, any Current Interest and
Carryforward Interest for such Classes for such Distribution Date, to the
extent
not paid pursuant to Sections 5.02(b)(iii);
(C) to
the
Trustee, to pay previously unreimbursed extraordinary costs, liabilities,
and
expenses;
(ii)
for
each
Distribution Date occurring (a) before the Stepdown Date or (b) on or after
the
Stepdown Date but for which a Trigger Event is in effect, after giving effect
to
previous principal distributions on such Distribution Date pursuant to Sections
5.02(d), 5.02(g)(ii) and 5.02(h)(v), then until the aggregate Certificate
Principal Amount of the Offered Certificates and the Class M10 and Class
M11
Certificates equals the Target Amount, in the following order of
priority:
(A)
to
each
class of Senior Certificates (other than the Class AIO Certificates), in
accordance with the Senior Priority, in reduction of their respective Class
Principal Amounts, until the Class Principal Amount of each such Class has
been
reduced to zero; and
(B)
to
the
Subordinate Certificates, in accordance with the Principal Subordinate Priority,
in reduction of their Class Principal Amounts, until the Class Principal
Amount
of each such Class has been reduced to zero;
(iii)
for
each
Distribution Date occurring on or after the Stepdown Date and for which a
Trigger Event is not in effect, after giving effect to previous principal
distributions on such Distribution Date pursuant to Sections 5.02(d),
5.02(g)(ii) and 5.02(h)(v), in the following order of priority:
97
(A)
to
each
class of Senior Certificates (other than the Class AIO Certificates), in
accordance with the Senior Priority, in reduction of their respective Class
Principal Amounts, until the aggregate Class Principal Amount of such Classes,
after giving effect to distributions on such Distribution Date, equals the
Senior Target Amount;
(B)
to
the
Class M1 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates (other than the
Class AIO Certificates) and the Class M1 Certificates, after giving effect
to
distributions on such Distribution Date, equals the M1 Target
Amount;
(C)
to
the
Class M2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates (other than the
Class AIO Certificates) and the Class M1 and Class M2 Certificates, after
giving
effect to distributions on such Distribution Date, equals the M2 Target Amount;
(D)
to
the
Class M3 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates (other than the
Class AIO Certificates) and the Class M1, Class M2 and Class M3 Certificates,
after giving effect to distributions on such Distribution Date, equals the
M3
Target Amount;
(E)
to
the
Class M4 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class
(other
than the Class AIO Certificates) M1, Class M2, Class M3 and Class M4
Certificates, after giving effect to distributions on such Distribution Date,
equals the M4 Target Amount;
(F)
to
the
Class M5 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates (other than the
Class AIO Certificates) and the Class M1, Class M2, Class M3, Class M4 and
Class
M5 Certificates, after giving effect to distributions on such Distribution
Date,
equals the M5 Target Amount;
(G)
to
the
Class M6 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates (other than the
Class AIO Certificates) and the Class M1, Class M2, Class M3, Class M4, Class
M5
and Class M6 Certificates, after giving effect to distributions on such
Distribution Date, equals the M6 Target Amount;
(H)
to
the
Class M7 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates (other than the
Class AIO Certificates) and the Class M1, Class M2, Class M3, Class M4, Class
M5, Class M6 and Class M7 Certificates, after giving effect to distributions
on
such Distribution Date, equals the M7 Target Amount;
98
(I)
to
the
Class M8 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates (other than the
Class AIO Certificates) and the Class M1, Class M2, Class M3, Class M4, Class
M5, Class M6, Class M7 and Class M8 Certificates, after giving effect to
distributions on such Distribution Date, equals the M8 Target Amount;
(J)
to
the
Class M9 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates (other than the
Class AIO Certificates) and the Class M1, Class M2, Class M3, Class M4, Class
M5, Class M6, Class M7, Class M8 and Class M9 Certificates, after giving
effect
to distributions on such Distribution Date, equals the M9 Target
Amount;
(K)
to
the
Class M10 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates (other than the
Class AIO Certificates) and the Class M1, Class M2, Class M3, Class M4, Class
M5, Class M6, Class M7, Class M8, Class M9 and Class M10 Certificates, after
giving effect to distributions on such Distribution Date, equals the M10
Target
Amount; and
(L)
to
the
Class M11 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates (other than the
Class AIO Certificates) and the Class M1, Class M2, Class M3, Class M4, Class
M5, Class M6, Class M7, Class M8, Class M9, Class M10 and Class M11
Certificates, after giving effect to distributions on such Distribution Date,
equals the M11 Target Amount; and
(iv)
to
the
Basis Risk Reserve Fund, an amount equal to the Basis Risk Payment with respect
to the Offered Certificates (other than the Class AIO Certificates and the
Class
M9 Certificates), and then from the Basis Risk Reserve Fund, in the following
order of priority:
(A)
(1)
first, pro
rata,
to the
Senior Certificates (other than the Class AIO Certificates), the amount of
any
Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls for each such Class
and
such Distribution Date, in proportion to the amount of such shortfalls; and
(2)
second, to the Offered Subordinate Certificates (other than the Class M9
Certificates), in accordance with the Interest Subordinate Priority, the
amount
of any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls for each such
Class and such Distribution Date, but solely after application of amounts
distributed first,
from
the Cap Account pursuant to Section 5.02(g)(iv) below, and second,
from
the Swap Account pursuant to Section 5.02(h)(iv) and (vi) below;
and
(B)
to
the
X-S Component of the Class X Certificates, any amounts remaining in the Basis
Risk Reserve Fund in excess of the Required Reserve Fund Amount for such
Distribution Date, after satisfying priority (iv)(A) above for that Distribution
Date;
99
(v)
pro
rata,
in
proportion to their respective Deferred Amounts (and any interest accrued
on
such Deferred Amounts), after giving effect to distributions described above
on
such Distribution Date, to the Senior Certificates (other than the Class
AIO
Certificates), any applicable Deferred Amount and any interest accrued on
such
Deferred Amount for each such Class and such Distribution Date;
(vi)
to
the
Subordinate Certificates, in accordance with the Principal Subordinate Priority,
any Deferred Amounts for each such Class and such Distribution
Date;
(vii)
on
the
earlier of (a) the Distribution Date occurring in May 2012 (or the next
occurring Distribution Date on which sufficient funds are available in the
Certificate Account) and (b) the final Distribution Date, to the Class P
Certificates, $100 in payment of the Class P Principal Amount;
(viii)
to
the
X-S Component of the Class X Certificates, the Class X Distributable Amount
(less any Basis Risk Payment for such Distribution Date) for such Distribution
Date;
(ix)
to
the
Supplemental Interest Trust, for distribution pursuant to clause 5.02(h)(ix),
any Swap Termination Payment due to a Swap Counterparty Trigger Event owed
to
the Swap Counterparty pursuant to the Swap Agreement; and
(x)
to
the
Class LT-R Certificate, any amount remaining on such date after application
pursuant to clauses (i) through (ix) above to the extent attributable to
Pooling
REMIC 1, and otherwise to the Class R Certificate;
(g)
On
each
Distribution Date, the Trustee shall distribute the Cap Amount from the Cap
Account for such date as follows (except in the case of Section 5.02(g)(iv)
below, where such payments will be applied pursuant to and in the priority
set
forth in Section 5.02(f)(iv)(A)(1) above):
(i)
concurrently,
to the Senior Certificates (other than the Class AIO Certificates), on a
pro
rata
basis,
Current Interest and any Carryforward Interest for each such Class for such
Distribution Date, to the extent unpaid after distributions pursuant to Section
5.02(b)(ii) above (any shortfall in Current Interest and Carryforward Interest
shall be allocated among such Classes in proportion to the amount of Current
Interest and Carryforward Interest that would otherwise be distributable
thereon);
(ii)
to
the
Senior Certificates (other than the Class AIO Certificates), any amount
necessary to maintain the applicable target amount specified in Sections
5.02(f)(ii) and (iii) above, as applicable, for such Distribution Date, for
application pursuant to the priorities set forth in such Sections; provided,
however,
that
the sum of all such amounts distributed pursuant to this Section 5.02(g)(ii)
and
all amounts distributed pursuant to Sections 5.02(g)(iv) and Sections 5.02(h)(v)
and (vii) shall not exceed the aggregate amount of cumulative Realized Losses
incurred from the Cut-off Date through the last day of the related Collection
Period, less any amounts previously distributed pursuant to this Section
5.02(g)(ii) and Sections 5.02(g)(iv), together with any amounts previously
distributed pursuant to Sections 5.02(h)(v) and (vii);
100
(iii)
concurrently,
to the Senior Certificates (other than the Class AIO Certificates), pro
rata,
any
Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls, for each such Class
and
for such Distribution Date, but solely to the extent not paid after application
of amounts distributed under Section 5.02(h)(iv);
(iv)
to
the
Senior Certificates (other than the Class AIO Certificates), pro
rata,
any
Deferred Amount (and any interest accrued on such Deferred Amounts at the
related Certificate Interest Rate) for each such Class and such Distribution
Date; provided,
however,
that
the sum of all such amounts distributed pursuant to this Section 5.02(g)(iv)
and
all amounts distributed pursuant to Sections 5.02(g)(ii) and Sections 5.02(h)(v)
and (vii) shall not exceed the aggregate amount of cumulative Realized Losses
incurred from the Cut-off Date through the last day of the related Collection
Period, less any amounts previously distributed pursuant to this Section
5.02(g)(iv) and Sections 5.02(g)(ii), together with any amounts previously
distributed pursuant to Sections 5.02(h)(v) and (vii);
(v)
to
the
Cap Termination Receipts Account for application to the purchase of a
replacement cap agreement pursuant to Section 5.09(b);
(vi)
to
the
C-X Component of the Class X Certificates, any remaining Cap Amounts;
and
(vii)
on
the
first Distribution Date on which the Class Principal Amount of each Class
of
Certificates has been reduced to zero, to the C-X Component of the Class
X
Certificates, all amounts remaining in the Cap Account.
(h)
On
each
Distribution Date (or, with respect to clauses (i), (ii) and (ix) below,
on the
related Swap Payment Date), the Trustee shall distribute the Swap Amount
from
the Swap Account for such date, after making all distributions under Section
5.02(g) above (except in the case of Section 5.02(h)(iv) below, where such
payments will be applied pursuant to and in the priority set forth in Section
5.02(f)(iv)(A)(1) above):
(i)
to
the
Swap Counterparty, any Net Swap Payment (not due to a Swap Counterparty Trigger
Event) owed to the Swap Counterparty pursuant to the Swap Agreement for such
Distribution Date to the extent unpaid from the Interest Remittance Amount
and
the Principal Distribution Amount for such Distribution Date;
(ii)
to
the
Swap Counterparty, any unpaid Swap Termination Payment not due to a Swap
Counterparty Trigger Event owed to the Swap Counterparty pursuant to the
Swap
Agreement to the extent unpaid from the Interest Remittance Amount and from
the
Principal Distribution Amount for such Distribution Date;
(iii)
to
the
Senior Certificates (other than the Class AIO Certificates), Current
Interest and any Carryforward Interest for each such Class and such Distribution
Date, pro
rata,
based
on amounts due, to the extent unpaid pursuant to Section 5.02(b)(ii) above
and
Section 5.02(g)(i) above;
101
(iv)
the
Available Basis Risk Amount, prior to making distributions pursuant to Section
5.02(f)(iv) above, in the following order of priority:
(A)
concurrently,
to the Senior Certificates (other than the Class AIO Certificates), the amount
of any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls for each such
Class and such Distribution Date pro
rata
in
proportion to the amount of such shortfalls;
(B)
if
applicable, to the Termination Receipts Account for application to the purchase
of a replacement swap agreement pursuant to Section 5.09; and
(C)
to
the
S-X Component of the Class X Certificates, any amounts remaining;
(v)
to
the
Senior Certificates (other than the Class AIO Certificates), any amount
necessary to maintain the applicable target amount specified in Sections
5.02(f)(ii) and (iii), as applicable, for such Distribution Date, for
application pursuant to the priorities set forth in such clauses, after giving
effect to distributions pursuant to Section 5.02(g)(ii) above;
provided, however,
that
the sum of all such amounts distributed pursuant to this Section 5.02(h)(v)
and
all amounts distributed pursuant to Sections 5.02(h)(vii) and Sections
5.02(g)(ii) and (iv) shall not exceed the aggregate amount of cumulative
Realized Losses incurred from the Cut-off Date through the last day of the
related Collection Period, less any amounts previously distributed pursuant
to
this Section 5.02(h)(v) and Sections 5.02(h)(vii), together with any amounts
previously distributed pursuant to Sections 5.02(g)(ii) and (iv);
(vi)
concurrently
to the Senior Certificates (other than the Class AIO Certificates), pro
rata, based
on
the amount of any remaining Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls, any remaining Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls, to the extent unpaid after application of amounts distributed
pursuant to Section 5.02(h)(iv) above and Section 5.02(g)(iii) above for
each
such Class and for such Distribution Date;
(vii)
concurrently,
to the Senior Certificates (other than the Class AIO Certificates), in
accordance with the Senior Priority, any Deferred Amount for each such Class
and
Distribution Date (and any interest accrued on such Deferred Amounts at the
related Certificate Interest Rate), for application pursuant to the priority
set
forth in Section 5.02(f)(v), to the extent unpaid after distributions pursuant
to Section 5.02(g)(iv) above; provided,
however,
that
the sum of all such amounts distributed pursuant to this Section 5.02(h)(vii)
and all amounts distributed pursuant to Sections 5.02(h)(v) and Sections
5.02(g)(ii) and (iv) shall not exceed the aggregate amount of cumulative
Realized Losses incurred from the Cut-off Date through the last day of the
related Collection Period, less any amounts previously distributed pursuant
to
this Section 5.02(h)(vii) and Sections 5.02(h)(v), together with any amounts
previously distributed pursuant to Sections 5.02(g)(ii) and (iv);
102
(viii)
if
applicable, to the Termination Receipts Account for application to the purchase
of a replacement swap agreement pursuant to Section 5.09;
(ix)
to
the
Swap Counterparty, any unpaid Swap Termination Payment due to a Swap
Counterparty Trigger Event owed to the Swap Counterparty pursuant to the
Swap
Agreement; and
(x)
to
the
S-X Component of the X Certificates, any remaining Swap Amount; and
(xi)
on
the
first Distribution Date on which the Class Principal Amount of each Class
of
Certificates has been reduced to zero, to the S-X Component of the Class
X
Certificates, all amounts remaining in the Swap Account.
(i)
[Reserved].
(j)
On
each
Distribution Date, an amount equal to the aggregate of all Prepayment Premiums
collected with respect to the Mortgage Loans during the preceding Prepayment
Period shall be distributed to the Holders of the Class P
Certificates.
(k)
On
each
Distribution Date occurring after a Section 7.01(d) Purchase Event but on
or
prior to a Trust Fund Termination Event, the Trustee (or the Paying Agent
on
behalf of the Trustee), shall withdraw from the Certificate Account the related
Total Distribution Amount (to the extent such amount is on deposit in the
Certificate Account) and shall allocate such amount to the interests issued
in
respect of the Pooling REMIC 1 Regular Interests created pursuant to this
Agreement and shall distribute such Total Distribution Amount first,
to the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee, second,
to the
LTURI-holder, any remaining related Total Distribution Amount to the extent
payable on the Pooling REMIC 1 Regular Interests as provided in the Preliminary
Statement, and third, to the Class LT-R Certificates any remaining
amounts.
(l)
On
each
Swap Payment Date occurring after a Section 7.01(d) Purchase Event but on
or
prior to a Trust Fund Termination Event, the Trustee shall distribute the
Swap
Amount for such date first,
to the
Swap Counterparty to pay any Net Swap Payment owed to the Swap Counterparty
pursuant to the Swap Agreement for such Swap Payment Date; second,
to the
Swap Counterparty, to pay any Swap Termination Payment owed to the Swap
Counterparty pursuant to the Swap Agreement for such Swap Payment Date,
third,
if
applicable, to the Swap Termination Receipts Account, for application to
the
purchase of a replacement swap agreement pursuant to Section 5.09(a); and
fourth,
any
remaining amount of Swap Amount, to the LTURI-holder.
(m)
On
each
Distribution Date occurring after a Section 7.01(d) Purchase Event but on
or
prior to a Trust Fund Termination Event, the Trustee shall distribute any
amounts received from the Cap Counterparty under the Cap Agreement for such
Distribution Date first,
to the
Cap Termination Receipts Account, for application to the purchase of a
replacement cap agreement pursuant to Section 5.09(b); and second,
any
remaining amount from the Cap Counterparty under the Cap Agreement, to the
LTURI-holder.
103
Section
5.03. Allocation
of Losses.
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event, the Class
Principal Amounts of the Offered Certificates shall be reduced by the amount
of
any Applied Loss Amount for such date, in the following order of
priority:
(i)
to
the
Class M11 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(ii)
to
the
Class M10 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(iii)
to
the
Class M9 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(iv)
to
the
Class M8 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(v)
to
the
Class M7 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(vi)
to
the
Class M6 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(vii)
to
the
Class M5 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(viii)
to
the
Class M4 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero; and
(ix)
to
the
Class M3 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(x)
to
the
Class M2 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero
(xi)
to
the
Class M1 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero; and
(xii)
to
the
extent of any Applied Loss Amounts, to the Senior Certificates (other than
the
Class AIO Certificates), pro
rata,
based
on their respective Class Principal Amounts, until their respective Class
Principal Amounts are reduced to zero; provided,
however,
that
any Applied Loss Amounts otherwise allocable to the Class A1, Class A2, Class
A3
and Class A4 Certificates will be applied in reduction of the Class Principal
Amount of the Class A5 Certificates, until the Class Principal Amount of
the
Class A5 Certificates has been reduced to zero, before reducing the Class
Principal Amount of the Class A1, Class A2, Class A3 and Class A4 Certificates,
pro
rata; provided, further, that
any
Applied Loss Amounts otherwise allocable to the Class A3 Certificates will
be
applied in reduction of the Class Principal Amount of the Class A4 Certificates,
until the Class Principal Amount of the Class A4 Certificates has been reduced
to zero, before reducing the Class Principal Amount of the Class A3
Certificates.
104
Section
5.04. Advances
by Master Servicer, Servicers and Trustee.
(a)
Subject
to Section 9.07, Advances shall be made in respect of each Determination
Date as
provided herein. If, on any Determination Date, any Servicer determines that
any
Scheduled Payments due during the related Collection Period (other than Balloon
Payments) have not been received, such Servicer shall advance such amount
on the
Deposit Date immediately following such Determination Date to the extent
provided in the applicable Servicing Agreement. If any Servicer fails to
remit
Advances required to be made under the applicable Servicing Agreement, the
Master Servicer shall itself make, or shall cause the successor servicer
to
make, such Advance on the Master Servicer Remittance Date immediately following
such Determination Date; provided,
however,
that
required Advances remitted by the Servicer or the Master Servicer may be
reduced
by an amount, if any, to be set forth in an Officer’s Certificate to be
delivered to the Trustee on such Determination Date, which if advanced the
Master Servicer or the applicable Servicer has determined would not be
recoverable from amounts received with respect to such Mortgage Loan, including
late payments, Liquidation Proceeds, Insurance Proceeds or otherwise. If
the
Master Servicer determines that an Advance is required, it shall on the Master
Servicer Remittance Date immediately following such Determination Date either
(i) remit to the Trustee from its own funds (or funds advanced by the applicable
Servicer) for deposit in the Certificate Account immediately available funds
in
an amount equal to such Advance, (ii) cause to be made an appropriate entry
in
the records of the Collection Account that funds in such account being held
for
future distribution or withdrawal have been, as permitted by this Section
5.04,
used by the Master Servicer to make such Advance, and remit such immediately
available funds to the Trustee for deposit in the Certificate Account or
(iii)
make Advances in the form of any combination of clauses (i) and (ii) aggregating
the amount of such Advance. Any funds being held in the Collection Account
for
future distribution to Certificateholders and so used shall be replaced by
the
Master Servicer from its own funds by remittance to the Trustee for deposit
in
the Certificate Account on or before any future Master Servicer Remittance
Date
to the extent that funds in the Certificate Account on such Master Servicer
Remittance Date shall be less than payments to Certificateholders required
to be
made on the related Distribution Date. The Master Servicer and each Servicer
shall be entitled to be reimbursed from the Collection Account for all Advances
made by it as provided in Section 4.02. Notwithstanding anything to the contrary
herein, in the event the Master Servicer determines in its reasonable judgment
that an Advance is non-recoverable, the Master Servicer shall be under no
obligation to make such Advance. The Trustee shall be entitled to conclusively
rely upon any determination by the Master Servicer that an Advance, if made,
would constitute a non-recoverable Advance.
(b)
Notwithstanding
anything herein to the contrary, in the event that the Master Servicer or
any
Servicer fails for any reason to make an Advance required to be made pursuant
to
this Section 5.04 on or before the Master Servicer Remittance Date, the Trustee,
in its capacity as successor master servicer pursuant to Section 6.14, shall,
on
or before the related Distribution Date, deposit in the Certificate Account
an
amount equal to the excess of (a) Advances required to be made by the Master
Servicer or the Servicers that would have been deposited in such Certificate
Account over (b) the amount of any Advance made by the Master Servicer or
any
Servicer with respect to such Distribution Date; provided,
however,
that
the Trustee shall be required to make such Advance only if it is not prohibited
by law from doing so and it has determined that such Advance would be
recoverable from amounts to be received with respect to such Mortgage Loan,
including late payments, Liquidation Proceeds, Insurance Proceeds, or otherwise.
The Trustee shall be entitled to be reimbursed from the Collection Account
and/or the Certificate Account for Advances made by it pursuant to this Section
5.04 as if it were the Master Servicer. Notwithstanding anything herein to
the
contrary, in no event shall the Trustee (in its capacity as Trustee, successor
servicer or successor master servicer) be required for any reason to make
an
Advance with respect to any Balloon Payment.
105
Section
5.05. Compensating
Interest Payments.
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicers. Any Compensating Interest Payments made
by
the Servicers shall be a component of the Interest Remittance Amount.
Notwithstanding anything herein to the contrary, in no event shall the Trustee
(in its capacity as Trustee or successor master servicer) be required for
any
reason to make Compensating Interest Payments.
Section
5.06. Basis
Risk Reserve Fund.
(a)
On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the holders of the LIBOR Certificates, the Basis Risk Reserve
Fund, into which LBH shall initially deposit $1,000. The Basis Risk Reserve
Fund
shall be an Eligible Account, and funds on deposit therein shall be held
separate and apart from, and shall not be commingled with, any other moneys,
including, without limitation, other moneys of the Trustee held pursuant
to this
Agreement. If the existing Basis Risk Reserve Fund ceases to be an Eligible
Account, the Trustee shall establish a new Basis Risk Reserve Fund that is
an
Eligible Account within 20 Business Days and transfer all funds and investment
property on deposit in such existing Certificate Account into such new
Certificate Account.
(b)
On
each
Distribution Date the Trustee shall distribute in the order of priority and
to
the extent specified in Section 5.02(f)(iv) of this Agreement any amounts
then
on deposit in the Basis Risk Reserve Fund, including any earnings thereon.
On
any Distribution Date, any amounts that the Trustee is not required to
distribute from the Basis Risk Reserve Fund pursuant to Section 5.02(f)(iv)
of
this Agreement shall remain on deposit in the Basis Risk Reserve
Fund.
(c)
Funds
in
the Basis Risk Reserve Fund shall be invested in Eligible Investments. The
Class
X Certificates shall evidence ownership of the Basis Risk Reserve Fund for
federal income tax purposes and LBH on behalf of the Holders thereof shall
direct the Trustee, in writing, as to investment of amounts on deposit therein.
LBH shall be liable for any losses incurred on such investments. In the absence
of written instructions from LBH as to investment of funds on deposit in
the
Basis Risk Reserve Fund, such funds shall remain uninvested. The Basis Risk
Reserve Fund will be terminated after the earlier of (A) a Section 7.01(d)
Purchase Event or (B) a Trust Fund Termination Event and any funds remaining
in
such fund upon such termination shall be released to the X-S Component of
the
Class X Certificates.
106
Section
5.07. Supplemental
Interest Trust; Swap and Cap Accounts.
(a)
A
separate trust is hereby established (the “Supplemental Interest Trust”), the
corpus of which shall be held by the Trustee, in trust, for the benefit of
the
holders of the LIBOR Certificates. The Trustee, as trustee of the Supplemental
Interest Trust, shall establish an account (the “Swap Account”), into which LBH
shall initially deposit $1,000 on the Closing Date. 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.
If the
existing Swap Account ceases to be an Eligible Account, the Trustee shall
establish a new Swap Account that is an Eligible Account within 20 Business
Days
and transfer all funds and investment property on deposit in such existing
Swap
Account into such new Swap Account.
(b)
In
addition, the Trustee, as trustee of the Supplemental Interest Trust, shall
establish an account (the “Cap Account”), into which LBH shall initially deposit
$1,000. The Cap Account shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled
with,
any other monies, including, without limitation, other monies of the Trustee
held pursuant to this Agreement. If the existing Cap Account ceases to be
an
Eligible Account, the Trustee shall establish a new Cap Account that is an
Eligible Account within 20 Business Days and transfer all funds and investment
property on deposit in such existing Cap Account into such new Cap
Account.
(c)
In
addition, the Trustee, on behalf of the Supplemental Interest Trust, shall
establish an account (the “Collateral Account”), into which funds shall be
deposited pursuant to Section 5.07(h). The Collateral Account shall be an
Eligible Account, and funds on deposit therein shall be held separate and
apart
from, and shall not be commingled with, any other monies, including, without
limitation, other monies of the Trustee held pursuant to this Agreement.
If the
existing Collateral Account ceases to be an Eligible Account, the Trustee
shall
establish a new Collateral Account that is an Eligible Account within 20
Business Days and transfer all funds and investment property on deposit in
such
existing Collateral Account into such new Collateral Account.
(d)
The
Trustee shall deposit into the Swap Account any Net Swap Payment required
pursuant to Sections 5.02(b), (d), and (h), any Swap Termination Payment
required pursuant to Sections 5.02(b), (d), (f) and (h), any amounts received
from the Swap Counterparty under the Swap Agreement, and shall distribute
from
the Swap Account any Net Swap Payment required pursuant to Section 5.02(h)(i)
or
5.02(l), as applicable, or Swap Termination Payment required pursuant to
Sections 5.02(h)(ii), Section 5.02(h)(ix) or Section 5.02(l), as
applicable.
(e)
The
Trustee shall deposit into the Cap Account any amounts received from the
Cap
Counterparty under the Cap Agreement.
(f)
Funds
in
the Swap Account shall be invested in Eligible Investments. Any earnings
on such
amounts shall be distributed on each Distribution Date pursuant to Section
5.02(h) or 5.02(l), as applicable. The Class X Certificates shall evidence
ownership of the Swap Account for federal income tax purposes and the Holder
thereof shall direct the Trustee, in writing, as to investment of amounts
on
deposit therein. The Class X Certificateholders shall be liable for any losses
incurred on such investments. In the absence of written instructions from
the
Class X Certificateholders as to investment of funds on deposit in the Swap
Account, such funds shall remain uninvested. Any amounts on deposit in the
Swap
Account in excess of the Swap Amount on any Distribution Date shall be held
for
distribution pursuant to Section 5.02(h) or 5.02(l), as applicable, on the
following Distribution Date.
107
(g)
Funds
in
the Cap Account shall be invested in Eligible Investments. Any earnings on
such
amounts shall be distributed on each Distribution Date pursuant to Section
5.02(g) or 5.02(m), as applicable. The Class X Certificates shall evidence
ownership of the Cap Account for federal income tax purposes and the Holder
thereof shall direct the Trustee, in writing, as to investment of amounts
on
deposit therein. The Class X Certificateholders shall be liable for any losses
incurred on such investments. In the absence of written instructions from
the
Class X Certificateholders as to investment of funds on deposit in the Cap
Account, such funds shall remain uninvested. Any amounts on deposit in the
Cap
Account in excess of the Cap Amount on any Distribution Date shall be held
for
distribution pursuant to Section 5.02(g) or 5.02(m), as applicable, on the
following Distribution Date.
(h)
Funds
required to be held pursuant to the Credit Support Annex shall be deposited
into
the Collateral Account. Funds posted by the Swap Counterparty (or its credit
support provider) in the Collateral Account shall be invested in Eligible
Investments as directed by the Swap Counterparty (or its credit support
provider). Any interest earnings on such amounts shall be remitted to the
Swap
Counterparty (or its credit support provider) pursuant to the terms of the
Credit Support Annex. The Trustee shall not be liable for any losses incurred
on
such investments. In the absence of prior written instructions from the Swap
Counterparty (or its credit support provider) as to investment of funds on
deposit in the Collateral Account, such funds shall remain uninvested. On
the
first Distribution Date immediately following any Swap Payment Date as to
which
a shortfall exists with respect to a Net Swap Payment or a Swap Termination
Payment owed by the Swap Counterparty as a result of its failure to make
payments pursuant to the Swap Agreement, amounts necessary to cover such
shortfall shall be removed from the Collateral Account, remitted to the Swap
Account and distributed as all or a portion of such Net Swap Payment or Swap
Termination Payment pursuant to Section 5.02(h) or Section 5.02(l), as
applicable. On any Distribution Date as to which a shortfall exists with
respect
to the Cap Amount owed by the Cap Counterparty as a result of its failure
to
make payments pursuant to the Cap Agreement, amounts necessary to cover such
shortfall shall be removed from the Collateral Account, remitted to the Cap
Account and distributed as all or a portion of such Cap Amount pursuant to
Section 5.02(g). Any amounts on deposit in the Collateral Account required
to be
returned to the Swap Counterparty (or its credit support provider), as
applicable, as a result of (i) the termination of the Swap Agreement, (ii)
the
procurement of a guarantor, (iii) the reinstatement of required ratings or
(iv)
otherwise pursuant to the Swap Agreement, shall be released directly to the
Swap
Counterparty pursuant to the terms of the Credit Support Annex.
(i)
Upon
termination of the Trust Fund, any amounts remaining in the Swap Account
shall
be distributed pursuant to the priorities set forth in Section 5.02(h) or
5.02(l), as applicable.
(j)
Upon
termination of the Trust Fund, any amounts remaining in the Interest Rate
Cap
Account shall be distributed pursuant to the priorities set forth in Section
5.02(g) or Section 5.02(m), as applicable
108
(k)
Upon
termination of the Trust Fund, any amounts remaining in the Collateral Account
shall be distributed as required pursuant to the terms of Credit Support
Annex.
(l)
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 until the
date
when either (a) there is more than one holder of the Class X Certificates
or (b)
any Class of Certificates in addition to the Class X Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust
for
federal income tax purposes. The Trustee shall not be responsible for any
entity
level tax reporting for the Supplemental Interest Trust.
(m)
To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Trustee, any obligation of the Trustee under the Supplemental
Interest Trust related to the Swap Agreement or the Cap Agreement, as
applicable, shall be deemed to be an obligation of the Supplemental Interest
Trust.
(n)
In
the
event that either the Swap Counterparty or the Cap Counterparty fails to
perform
any of its obligations under the Swap Agreement or the Cap Agreement,
respectively (including, without limitation, its obligations to make any
payment
or transfer collateral), or breaches any of its representations and warranties
under the Swap Agreement or the Cap Agreement, as applicable, or in the event
that an Event of Default, Termination Event, or Additional Termination Event
occurs (as such terms are defined in the Swap Agreement or the Cap Agreement,
as
applicable), the Trustee on behalf of the Supplemental Interest Trust, shall
(upon a Responsible Officer of the Trustee receiving written notice or having
actual knowledge of the occurrence thereof), no later than the next Business
Day
following such failure, breach or occurrence, of which the Trustee has actual
knowledge, notify the Swap Counterparty or Cap Counterparty, as applicable,
and
give any notice of such failure and make any demand for payment pursuant
to the
Swap Agreement or Cap Agreement, as applicable. In the event that the Swap
Counterparty’s obligations under the Swap Agreement or the Cap Counterparty’s
obligations under the Cap Agreement are at any time guaranteed by a third
party,
then to the extent that the Swap Counterparty or the Cap Counterparty fails
to
make any payment or delivery required under terms of the Swap Agreement or
the
Cap Agreement, as applicable, the Trustee, on behalf of the Supplemental
Interest Trust, shall (upon a Responsible Officer of the Trustee receiving
written notice or having actual knowledge of the occurrence thereof), no
later
than the next Business Day following such failure, demand that such guarantor
make any and all payments then required to be made by the applicable guarantor.
Section
5.08. Rights
of Swap Counterparty.
The
Swap
Counterparty shall be deemed a third-party beneficiary of this Agreement
to the
same extent as if it were a party hereto and shall have the right, upon
designation of an “Early Termination Date” (as defined in the Swap Agreement),
to enforce its rights under this Agreement, which rights include but are
not
limited to the obligation of the Trustee (A) to deposit any Net Swap Payment
required pursuant to Sections 5.02(b), (d) and (h), and any Swap Termination
Payment required pursuant to Sections 5.02(b), (d), (f) and (h) into the
Swap
Account and to pay any Net Swap Payment required pursuant to Section 5.02(h)(i)
or 5.02(l), as applicable, or Swap Termination Payment required pursuant
to
Sections 5.02(h)(ii), Section 5.02(h)(ix) and Section 5.02(l), as applicable,
to
the Swap Counterparty and (C) to establish and maintain the Swap Account,
to
make such deposits thereto, investments therein and distributions therefrom
as
are required pursuant to Section 5.07. For the protection and enforcement
of the
provisions of this Section the Swap Counterparty shall be entitled to such
relief as can be given either at law or in equity.
109
Section
5.09. Termination
Receipts.
(a)
In
the
event of an “Early Termination Event” as defined under the Swap Agreement, (i)
any Swap Termination Payment made by the Swap Counterparty to the Supplemental
Interest Trust and paid pursuant to Section 5.02(h)(x) or Section 5.02(l)
(“Termination Receipts”) will be deposited in a segregated non-interest bearing
account which shall be an Eligible Account established by the Trustee (the
“Swap
Termination Receipts Account”) and (ii) any amounts received from a replacement
Swap Counterparty (“Swap Replacement Receipts”) will be deposited in a
segregated non-interest bearing account which shall be an Eligible Account
established by the Trustee (the “Swap Replacement Receipts Account”). Solely
upon written direction of the Depositor, the Trustee shall invest, or cause
to
be invested, funds held in the Swap Termination Receipts Account and the
Swap
Replacement Receipts Account in time deposits of the Trustee as permitted
by
clause (ii) of the definition of Eligible Investments or as otherwise directed
in writing by a majority of the Certificateholders. All such investments
must be
payable on demand or mature on a Distribution Date or such other date as
directed by the Certificateholders. If no such direction is given by the
Depositor, such funds shall remain uninvested. All such Eligible Investments
will be made in the name of the Trustee, as trustee of the Supplemental Interest
Trust (in its capacity as such) or its nominee. All income and gain realized
from any such investment shall be deposited in the Swap Termination Receipts
Account or the Swap Replacement Receipts Account, as applicable, and all
losses,
if any, shall be borne by the related account.
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Swap Agreement(s)
or
procure a replacement guarantor, if applicable, and the Trustee shall promptly,
at the written direction of, and with the assistance and cooperation of the
Depositor, use amounts on deposit in the Swap Termination Receipts Account,
if
necessary, to enter into replacement Swap Agreement(s) or to execute any
other
agreements with respect to such replacement guarantor, if applicable, which
shall be executed and delivered by the Trustee on behalf of the Supplemental
Interest Trust upon receipt of written confirmation from each Rating Agency
(if
required pursuant to the terms of the Swap Agreement) that such replacement
Swap
Agreement(s) will not result in the reduction or withdrawal of the rating
of any
outstanding Class of Senior Certificates (other than the Class AIO Certificates)
with respect to which it is a Rating Agency.
Amounts
on deposit in the Swap Replacement Receipts Account shall be held for the
benefit of the related Swap Counterparty and paid to such Swap Counterparty
if
the Supplemental Interest Trust is required to make a payment to such Swap
Counterparty following an event of default or termination event with respect
to
the Supplemental Interest Trust under the related Swap Agreement. Any amounts
not so applied shall, following the termination or expiration of such Swap
Agreement, be paid to the S-X Component of the Class X
Certificates.
(b)
In
the
event of an “Early Termination Event” as defined under the Cap Agreement, (i)
any Cap Termination Payment made by the Cap Counterparty to the Supplemental
Interest Trust and paid pursuant to Section 5.02(g)(v) (“Cap Termination
Receipts”) will be deposited in a segregated non-interest bearing account which
shall be an Eligible Account established by the Trustee (the “Cap Termination
Receipts Account”) and (ii) any amounts received from a replacement Cap
Counterparty (“Cap Replacement Receipts”) will be deposited in a segregated
non-interest bearing account which shall be an Eligible Account established
by
the Trustee (the “Cap Replacement Receipts Account”). Solely upon written
direction of the Depositor, the Trustee shall invest, or cause to be invested,
funds held in the Cap Termination Receipts Account and the Cap Replacement
Receipts Account in time deposits of the Trustee as permitted by clause (ii)
of
the definition of Eligible Investments or as otherwise directed in writing
by a
majority of the Certificateholders. All such investments must be payable
on
demand or mature on a Distribution Date or such other date as directed by
the
Certificateholders. If no such direction is given by the Depositor, such
funds
shall remain uninvested. All such Eligible Investments will be made in the
name
of the Trustee, as trustee of the Supplemental Interest Trust (in its capacity
as such) or its nominee. All income and gain realized from any such investment
shall be deposited in the Cap Termination Receipts Account or the Cap
Replacement Receipts Account, as applicable, and all losses, if any, shall
be
borne by the related account.
110
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Cap Agreement(s)
or
procure a replacement guarantor, if applicable, and the Trustee shall promptly,
at the written direction of, and with the assistance and cooperation of the
Depositor, use amounts on deposit in the Cap Termination Receipts Account,
if
necessary, to enter into replacement Cap Agreement(s) or to execute any other
agreements with respect to such replacement guarantor, if applicable, which
shall be executed and delivered by the Trustee on behalf of the Supplemental
Interest Trust upon receipt of written confirmation from each Rating Agency
(if
required pursuant to the terms of the Cap Agreement) that such replacement
Cap
Agreement(s) will not result in the reduction or withdrawal of the rating
of any
outstanding Class of Certificates with respect to which it is a Rating Agency.
Amounts
on deposit in the Cap Replacement Receipts Account shall be held for the
benefit
of the related Cap Counterparty and paid to such Cap Counterparty if the
Supplemental Interest Trust is required to make a payment to such Cap
Counterparty following an event of default or termination event with respect
to
the Supplemental Interest Trust under the related Cap Agreement. Any amounts
not
so applied shall, following the termination or expiration of such Cap Agreement,
be paid to the C-X Component of the Class X Certificates.
ARTICLE
VI
CONCERNING
THE TRUSTEE EVENTS OF DEFAULT
Section
6.01. Duties
of Trustee and Paying Agent.
(a)
The
Trustee, except during the continuance of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge, undertakes
to
perform such duties and only such duties as are specifically set forth in
this
Agreement. Any permissive right of the Trustee provided for in this Agreement
shall not be construed as a duty of the Trustee. If an Event of Default (of
which a Responsible Officer of the Trustee shall have actual knowledge) has
occurred and has not otherwise been cured or waived, the Trustee shall exercise
such of the rights and powers vested in it by this Agreement and use the
same
degree of care and skill in their exercise as a prudent Person would exercise
or
use under the circumstances in the conduct of such Person’s own
affairs
111
(b)
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee
which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they are in the form required
by this Agreement; provided,
however,
that
the Trustee shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer, any Servicer, the Swap Counterparty
or the Cap Counterparty to the Trustee pursuant to this Agreement, and shall
not
be required to recalculate or verify any numerical information furnished
to the
Trustee pursuant to this Agreement. Subject to the immediately preceding
sentence, if any such resolution, certificate, statement, opinion, report,
document, order or other instrument is found not to conform on its face to
the
form required by this Agreement in any material manner the Trustee shall
notify
the Person providing such resolutions, certificates, statements, opinions,
reports, documents, order or other instrument of the non-conformity, and
if the
failure to provide such resolution, certificate, statement, opinion, report,
document, order or other instrument would constitute an Event of Default
under
this Agreement, the Trustee will provide notice thereof to the
Certificateholders and any NIMS Insurer and will, at the expense of the Trust
Fund, which expense shall be reasonable given the scope and nature of the
required action, take such further action as directed by the Certificateholders
and any NIMS Insurer.
(c)
The
Trustee shall not have any liability arising out of or in connection with
this
Agreement, except for its negligence or willful misconduct. Notwithstanding
anything in this Agreement to the contrary, the Trustee shall not be liable
for
special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits). No provision of this Agreement
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided,
however,
that:
(i) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction or with the consent of Holders of Certificates as provided in Section
6.18 hereof;
(ii) For
all
purposes under this Agreement, the Trustee shall not be deemed to have notice
of
(A) any Event of Default (other than resulting from a failure by the Master
Servicer (i) to remit funds (or to make Advances) or (ii) to furnish information
to the Trustee when required to do so) or (B) (i) any breach of the Swap
Counterparty’s or Cap Counterparty’s representations and warranties under the
Swap Agreeement or the Cap Agreement, as applicable, or (ii) an Event of
Default, Terminiation Event or Additional Termination Event (as defined in
the
Swap Agreement and the Cap Agreement) unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event
which
is in fact such a default is received by the Trustee at the Corporate Trust
Office, and such notice references the Holders and this Agreement;
112
(iii) No
provision of this Agreement shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers,
if it
shall have reasonable grounds for believing that repayment of such funds
or
adequate indemnity against such risk or liability is not reasonably assured
to
it; and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Depositor or the Master Servicer under
this
Agreement; and
(iv) The
Trustee shall not be responsible for any act or omission of the Master Servicer,
any Servicer, the Depositor, the Swap Counterparty, the Cap Counterparty,
the
Seller or any Custodian.
(d)
The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered to or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided,
however,
that
the Trustee shall promptly remit to the Master Servicer upon receipt any
such
complaint, claim, demand, notice or other document (i) which is delivered
to the
Corporate Trust Office of the Trustee and makes reference to this series
of
Certifificates or this Agreement, (ii) of which a Responsible Officer has
actual
knowledge, and (iii) which contains information sufficient to permit the
Trustee
to make a determination that the real property to which such document relates
is
a Mortgaged Property.
(e)
The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of any NIMS Insurer or the Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests aggregating
not less than 25% as to the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred upon the Trustee under this Agreement.
(f)
The
Trustee shall not be required to perform services under this Agreement, or
to
expend or risk its own funds or otherwise incur financial liability for the
performance of any of its duties hereunder or the exercise of any of its
rights
or powers if there is reasonable ground for believing that the timely payment
of
its fees and expenses or the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it, and none
of the
provisions contained in this Agreement shall in any event require the Trustee
to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer or any Servicer under this Agreement or
any
Servicing Agreement except during such time, if any, as the Trustee shall
be the
successor to, and be vested with the rights, duties, powers and privileges
of,
the Master Servicer in accordance with the terms of this Agreement.
(g)
The
Trustee shall not be held liable by reason of any insufficiency in the
Collection Account, the Basis Risk Reserve Fund, the Cap Account, the Swap
Account or the Collateral Account resulting from any investment loss on any
Eligible Investment included therein (except to the extent that the Trustee
is
the obligor and has defaulted thereon).
(h)
Except
as
otherwise provided herein, the Trustee shall not have any duty (A) to record,
file or deposit this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or
to maintain or ensure the maintenance of any such recording or filing or
depositing or any rerecording, refiling or redepositing of any such statement
or
agreement, (B) to procure or maintain any insurance, (C) to pay or discharge
any
tax, assessment, or other governmental charge or any lien or encumbrance
of any
kind owing with respect to, assessed or levied against, any part of the Trust
Fund or the Supplemental Interest Trust other than from funds available in
the
Collection Account or the Certificate Account, or (D) to confirm or verify
the
contents of any reports or certificates of the Master Servicer, any Servicer,
the Cap Counterparty, the Swap Counterparty or the Depositor delivered to
the
Trustee pursuant to this Agreement believed by the Trustee to be genuine
and to
have been signed or presented by the proper party or parties.
113
(i)
The
Trustee shall not be liable in its individual capacity for an error of judgment
made in good faith by a Responsible Officer or any other officer of the Trustee
unless it shall be proved that the Trustee was negligent in ascertaining
the
pertinent facts.
(j)
Notwithstanding
anything in this Agreement to the contrary, neither the Trustee nor the Paying
Agent shall be liable for special, indirect or consequential losses or damages
of any kind whatsoever (including, but not limited to, lost profits), even
if
the Trustee or the Paying Agent, as applicable, has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(k)
On
or
before March 15 of each calendar year for so long as the Depositor is subject
to
Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-11, beginning
in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall
deliver to the Sponsor, the Master Servicer and the Depositor a report regarding
its assessment of compliance with the Servicing Criteria applicable to such
party, as identified on Exhibit O hereto, as of and for the period ending
the
end of the fiscal year ending no later than December 31 of the year prior
to the
year of delivery of the report. Each such report shall include (a) a statement
of the party’s responsibility for assessing compliance with the Servicing
Criteria applicable to such party, (b) a statement that such party used the
criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess
compliance with the applicable Servicing Criteria, (c) disclosure of any
material instance of noncompliance identified by such party and (d) a statement
that a registered public accounting firm has issued an attestation report
on
such party’s assessment of compliance with the applicable Servicing Criteria,
which report shall be delivered by the Trustee as provided in Section 6.01(l).
In the event that the Trustee and the Paying Agent are the same party, the
Relevant Servicing Criteria of the Paying Agent shall be included in the
Trustee’s report.. In addition, on or before March 15th of each calendar year
for so long as the Depositor is subject to Exchange Act reporting requirements
for the Xxxxxx XS Trust 2007-11, beginning in March 2008, the Trustee and Paying
Agent (if other than the Trustee) shall, at their own expense, furnish or
cause
to be furnished to the Sponsor and the Depositor an assessment of compliance
and
accountant’s attestation of any Subservicer or Subcontractor with respect to the
Trustee or Paying Agent, as applicable.
(l)
On
or
before March 15th of each calendar year for so long as the Depositor is subject
to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-11,
beginning in March 2008, the Trustee and Paying Agent (if other than the
Trustee) shall, at their own expense, cause a registered public accounting
firm
(who may also render other services to Trustee or Paying Agent), which is
a
member of the American Institute of Certified Public Accountants, to furnish
to
the Sponsor, the Master Servicer and the Depositor a report to the effect
that
(A) such firm attests to, and reports on, the assessment made by such asserting
party pursuant to Section 6.01(k) above, where it has obtained a representation
regarding certain matters from the management of such party, which report
shall
be made in accordance with standards for attestation engagements issued or
adopted by the PCAOB. In the event that the Trustee and the Paying Agent
are the
same party, the attestation report caused to be furnished by the Trustee
shall
also address the Relevant Servicing Criteria for the Paying Agent. In addition,
on or before March 15th
of each
calendar year in which the Depositor is required to file reports with respect
to
the Trust Fund in accordance with the Exchange Act and the rules and regulations
of the Commission, beginning March 15, 2008, the Trustee shall at its own
expense, furnish to the Sponsor, the Depositor and the Master Servicer an
accountant’s attestation of any Subservicer or Subcontractor with respect to the
Trustee.
114
(m)
The
Trustee shall give prompt written notice to the Sponsor, the Master Servicer
and
the Depositor of the appointment of any Subcontractor by it and a written
description (in form and substance satisfactory to the Sponsor and the
Depositor) of the role and function of each Subcontractor utilized by the
Trustee, specifying (A) the identity of each such Subcontractor and (B) which
elements of the servicing criteria set forth under Item 1122(d) of Regulation
AB
will be addressed in assessments of compliance and accountant’s attestations
provided by each such Subcontractor.
(n)
For
as
long as the Depositor is subject to Exchange Act reporting with respect to
the
Trust Fund, the Trustee and the Paying Agent (if other than the Trustee)
shall
notify the Depositor, the Master Servicer and the Sponsor within three (3)
Business Days of the related Distribution Date (i) of any legal proceedings
pending against the Trustee of the type described in Item 1117 (§ 229.1117) of
Regulation AB and (ii) if the Trustee shall become (but only to the extent
not
previously disclosed) at any time an affiliate of any of the parties listed
on
Exhibit P hereto, together with a description thereof. On or before March
1st of
each year, the Depositor shall distribute the information in Exhibit P to
the
Trustee.
(o)
The
Trustee agrees to indemnify the Depositor and the Master Servicer, and their
respective directors, officers, employees and agents and the Trust Fund and
hold
each of them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other
costs, fees and expenses that any of them may sustain arising out of or based
upon any failure by the Trustee to comply with the provisions of Subsections
6.01(k), (m) and (n) above; provided,
however,
that in
no event shall the Trustee be liable for any special, consequential, indirect
or
punitive damages pursuant to this Section 6.01(o), even if advised of the
possibility of such damages.
(p)
The
Paying Agent and Certificate Registrar shall have the same rights, protections,
immunities and indemnities as are afforded to the Trustee pursuant to this
Article VI.
Section
6.02. Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 6.01:
(i) The
Trustee may request and may rely upon, and shall be protected in acting or
refraining from acting upon any resolution, Officer’s Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper
party or parties;
115
(ii) The
Trustee may consult with counsel and any advice of its counsel or Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and
in
accordance with such advice or Opinion of Counsel;
(iii) The
Trustee shall not be personally liable for any action taken, suffered or
omitted
by it in good faith and reasonably believed by it to be authorized or within
the
discretion or rights or powers conferred upon it by this Agreement;
(iv) Unless
an
Event of Default shall have occurred and be continuing, the Trustee shall
not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document (provided
the
same appears regular on its face), unless requested in writing to do so by
any
NIMS Insurer or the Holders of at least a majority in Class Principal Amount
(or
Percentage Interest) of each Class of Certificates or, if such Classes have
been
retired pursuant to a Section 7.01(d) Purchase Event, the LTURI-holder;
provided,
however,
that, if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses from any NIMS Insurer or the Certificateholders, as
applicable, as a condition to proceeding. The reasonable expense thereof
shall
be paid by the party requesting such investigation and if not reimbursed
by the
requesting party shall be reimbursed to the Trustee by the Trust
Fund;
(v) The
Trustee may execute any of the trusts or powers hereunder or perform any
duties
hereunder either directly or by or through agents, custodians or attorneys,
which agents, custodians or attorneys shall have any and all of the rights,
powers, duties and obligations of the Trustee conferred on them by such
appointment, provided that the Trustee shall continue to be responsible for
its
duties and obligations hereunder to the extent provided herein, and provided
further that the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care
by
the Trustee;
(vi) The
Trustee shall not be under any obligation to exercise any of the trusts or
powers vested in it by this Agreement or to institute, conduct or defend
any
litigation hereunder or in relation hereto, in each case at the request,
order
or direction of any of the Certificateholders or any NIMS Insurer pursuant
to
the provisions of this Agreement, unless such Certificateholders or any NIMS
Insurer shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein
or
thereby;
116
(vii) The
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable
for
other than its negligence or willful misconduct in the performance of such
act;
and
(viii) The
Trustee shall not be required to give any bond or surety in respect of the
execution of the Trust Fund or Supplemental Interest Trust created hereby
or the
powers granted hereunder.
Section
6.03. Trustee
Not Liable for Certificates.
The
Trustee makes no representations as to the validity or sufficiency of this
Agreement, the Cap Agreement, the Swap Agreement, any Custodial Agreement,
any
Servicing Agreement or of the Certificates (other than the certificate of
authentication on the Certificates), the Pooling REMIC 1 Regular Interests
or of
any Mortgage Loan, or related document save that the Trustee represents that,
assuming due execution and delivery by the other parties hereto, this Agreement
has been duly authorized, executed and delivered by it and constitutes its
valid
and binding obligation, enforceable against it in accordance with its terms
except that such enforceability may be subject to (A) applicable bankruptcy
and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law.
The
Trustee shall not be accountable for the use or application by the Depositor
of
funds paid to the Depositor in consideration of the assignment of the Mortgage
Loans to the Trust Fund by the Depositor or for the use or application of
any
funds deposited into the Collection Account, the Certificate Account, any
Escrow
Account or any other fund or account maintained with respect to the
Certificates. The Trustee shall not be responsible for the legality or validity
of this Agreement, any Custodial Agreement, any Servicing Agreement, the
Cap
Agreement or the Swap Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates or the Pooling REMIC 1 Regular
Interests issued or intended to be issued hereunder. Except as otherwise
provided herein, the Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or
lien
granted to it hereunder or to record this Agreement.
Section
6.04. Trustee
May Own Certificates.
The
Trustee and any Affiliate or agent of the Trustee in its individual or any
other
capacity may become the owner or pledgee of Certificates or the Pooling REMIC
1
Regular Interests and may transact banking and trust business with the other
parties hereto and their Affiliates with the same rights it would have if
it
were not Trustee or such agent.
Section
6.05. Eligibility
Requirements for Trustee.
The
Trustee hereunder shall at all times be (i) an institution whose accounts
are
insured by the FDIC, (ii) a corporation or national banking association,
organized and doing business under the laws of any State or the United States
of
America, authorized under such laws to exercise corporate trust powers, having
a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority and (iii) not an
Affiliate of the Master Servicer or any Servicer. In addition, the Trustee
shall
have a minimum short term debt rating of at least “A-1” from S&P. If such
corporation or national banking association publishes reports of condition
at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section,
the
combined capital and surplus of such corporation or national banking association
shall be deemed to be its combined capital and surplus as set forth in its
most
recent report of condition so published. In case at any time the Trustee
shall
cease to be eligible in accordance with provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section
6.06.
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Section
6.06. Resignation
and Removal of Trustee.
(a)
The
Trustee may at any time resign and be discharged from the trust hereby created
by giving written notice thereof to the Depositor, any NIMS Insurer, the
Swap
Counterparty, the Cap Counterparty and the Master Servicer. Upon receiving
such
notice of resignation, the Depositor will promptly appoint a successor trustee
acceptable to any NIMS Insurer by written instrument, one copy of which
instrument shall be delivered to the resigning Trustee, one copy to the
successor trustee and one copy to each of the Master Servicer, the Swap
Counterparty, the Cap Counterparty and any NIMS Insurer. If no successor
trustee
shall have been so appointed and shall have accepted appointment within 30
days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b)
If
at any
time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.05 and shall fail to resign after written request
therefor by the Depositor or any NIMS Insurer, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee of its property shall be appointed, or any public officer
shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, (iii) the Trustee
shall
fail to observe or perform in any material respect any of the covenants or
agreements of the Trustee contained in this Agreement, (iv) a tax is imposed
or
threatened with respect to the Trust Fund by any state in which the Trustee
or
the Trust Fund held by the Trustee is located, (v) the continued use of the
Trustee would result in a downgrading of the rating by any Rating Agency
of any
Class of Certificates with a rating or (vi) the Trustee shall fail to deliver
the information or reports required pursuant to Section 6.01(k) through (n)
hereto, then the Depositor, any NIMS Insurer or the Master Servicer shall
remove
the Trustee and the Depositor shall appoint a successor trustee acceptable
to
any NIMS Insurer and the Master Servicer by written instrument, one copy
of
which instrument shall be delivered to the Trustee so removed, one copy each
to
the successor trustee and one copy to the Master Servicer, the Swap
Counterparty, the Cap Counterparty and any NIMS Insurer; provided,
however,
that if
the Trustee is removed for the failure to provide the accountant’s attestation
pursuant to Section 6.01(l) of this Agreement, the Trustee shall reimburse
the
Depositor for reasonable out-of pocket costs incurred by the Depositor in
providing for a successor Trustee.
(c)
The
Holders of more than 50% of the Class Principal Amount (or Percentage Interest)
of each Class of Certificates (or any NIMS Insurer in the event of failure
of
the Trustee to perform its obligations hereunder) may at any time upon 30
days’
written notice to the Trustee and the Depositor remove the Trustee by such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized (or by any NIMS Insurer), one copy of which instrument shall be
delivered to the Depositor, one copy to the Trustee and one copy to each
of the
Master Servicer, the Swap Counterparty, the Cap Counterparty and any NIMS
Insurer; the Depositor shall thereupon appoint a successor trustee in accordance
with this Section mutually acceptable to the Depositor and the Master Servicer
and any NIMS Insurer.
118
(d)
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall become effective
upon
(i) the payment of all unpaid amounts owed to the Trustee and (ii) the
acceptance of appointment by the successor trustee as provided in Section
6.07.
Section
6.07. Successor
Trustee.
(a)
Any
successor trustee appointed as provided in Section 6.06 shall execute,
acknowledge and deliver to the Depositor, the Swap Counterparty, the Cap
Counterparty, the Master Servicer and any NIMS Insurer and to its predecessor
trustee (i) an instrument accepting such appointment hereunder and (ii) if
such
successor trustee is appointed at any time during the period that a Form
10-K is
being filed with respect to the Trust in accordance with the Exchange Act
and
the rules and regulations of the Commission, the certification required pursuant
to the first sentence of Section 6.01(k) indicating which Servicing Criteria
are
applicable to such successor trustee, and thereupon the resignation or removal
of the predecessor trustee shall become effective and such successor trustee
without any further act, deed or conveyance, shall become fully vested with
all
the rights, powers, duties and obligations of its predecessor hereunder,
with
like effect as if originally named as trustee herein. The predecessor trustee
(or its custodian) shall deliver to the successor trustee (or assign to the
Trustee its interest under each Custodial Agreement, to the extent permitted
thereunder) all Mortgage Files and documents and statements related to each
Mortgage File held by it hereunder, and shall duly assign, transfer, deliver
and
pay over to the successor trustee the entire Trust Fund, together with all
necessary instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer and such of the records or copies
thereof maintained by the predecessor trustee in the administration hereof
as
may be requested by the successor trustee and shall thereupon be discharged
from
all duties and responsibilities under this Agreement. In addition, the Master
Servicer and the predecessor trustee shall execute and deliver such other
instruments and do such other things as may reasonably be required to more
fully
and certainly vest and confirm in the successor trustee all such rights,
powers,
duties and obligations.
(b)
No
successor trustee shall accept appointment as provided in this Section unless
at
the time of such appointment such successor trustee shall be eligible under
the
provisions of Section 6.05.
(c)
Upon
acceptance of appointment by a successor trustee as provided in this Section,
the predecessor trustee shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register and to any Rating Agency. The expenses of such mailing
shall be borne by the predecessor trustee.
119
(d)
Upon
the
resignation or removal of the Trustee pursuant to this Section 6.07, the
Trustee
shall deliver the amounts held in its possession for the benefit of the
Certificateholders to the successor trustee upon the appointment of such
successor trustee.
Section
6.08. Merger
or Consolidation of Trustee.
Any
Person into which the Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons succeeding
to the corporate trust business of the Trustee shall be the successor to
the
Trustee hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided that such Person shall be eligible under the
provisions of Section 6.05. Unless and until a Form 15 suspension notice
shall
have been filed, as
a condition to the succession to the Trustee under this Agreement by any
Person
(i) into which the Trustee may be merged or consolidated, or (ii) which may
be
appointed as a successor to the Trustee, the Trustee shall notify the Sponsor,
the Master Servicer and the Depositor, at least 15 calendar days prior to
the
effective date of such succession or appointment, of such succession or
appointment and shall furnish to the Sponsor, the Master Servicer and the
Depositor in writing and in form and substance reasonably satisfactory to
the
Sponsor, the Master Servicer and the Depositor, all information reasonably
necessary for the Trustee to accurately and timely report, pursuant to Section
6.20, the event under Item 6.02 of Form 8-K pursuant to the Exchange Act
(if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
Section
6.09. Appointment
of Co-Trustee, Separate Trustee or Custodian.
(a)
Notwithstanding
any other provisions hereof, at any time, the Trustee, the Depositor or the
Certificateholders evidencing more than 50% of the Class Principal Amount
(or
Percentage Interest) of every Class of Certificates shall have the power
from
time to time to appoint one or more Persons, approved by the Trustee and
any
NIMS Insurer, to act either as co-trustees jointly with the Trustee, or as
separate trustees, or as custodians, for the purpose of holding title to,
foreclosing or otherwise taking action with respect to any Mortgage Loan
outside
the state where the Trustee has its principal place of business where such
separate trustee or co-trustee is necessary or advisable (or the Trustee
has
been advised by the Master Servicer that such separate trustee or co-trustee
is
necessary or advisable) under the laws of any state in which a property securing
a Mortgage Loan is located or for the purpose of otherwise conforming to
any
legal requirement, restriction or condition in any state in which a property
securing a Mortgage Loan is located or in any state in which any portion
of the
Trust Fund is located. The separate trustees, co-trustees, or custodians
so
appointed shall be trustees or custodians for the benefit of all the
Certificateholders and shall have such powers, rights and remedies as shall
be
specified in the instrument of appointment; provided,
however,
that no
such appointment shall, or shall be deemed to, constitute the appointee an
agent
of the Trustee. The obligation of the Trustee (acting as successor master
servicer) to make an Advance pursuant to Section 5.04 and 6.14 hereof shall
not
be affected or assigned by the appointment of a co-trustee. The Trustee shall
not be responsible for any action or omission of any separate trustee,
co-trustee or custodian. Notwithstanding the foregoing, at any time during
the
period that a Form 10-K is being filed with respect to the Trust in accordance
with the Exchange Act and the rules and regulations of the Commission, no
such
co-custodian or co-trustee shall be vested with any powers, rights and remedies
under this Agreement unless such party has agreed to comply with all Regulation
AB requirements set forth under this Agreement or the related Custodial
Agreement, as applicable.
120
(b)
Every
separate trustee, co-trustee, and custodian shall, to the extent permitted
by
law, be appointed and act subject to the following provisions and
conditions:
(i) all
powers, duties, obligations and rights conferred upon the Trustee in respect
of
the receipt, custody and payment of moneys shall be exercised solely by the
Trustee;
(ii) all
other
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee, co-trustee, or custodian jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed the Trustee shall be incompetent or unqualified to perform
such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust Fund or any portion thereof in
any
such jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no
trustee or custodian hereunder shall be personally liable by reason of any
act
or omission of any other trustee or custodian hereunder; and
(iv) the
Trustee or the Certificateholders evidencing more than 50% of the Aggregate
Voting Interests of the Certificates may at any time accept the resignation
of
or remove any separate trustee, co-trustee or custodian, so appointed by
it or
them, if such resignation or removal does not violate the other terms of
this
Agreement.
(c)
Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee,
co-trustee or custodian shall refer to this Agreement and the conditions
of this
Article VI. Each separate trustee and co-trustee, upon its acceptance of
the
trusts conferred, shall be vested with the estates or property specified
in its
instrument of appointment, either jointly with the Trustee or separately,
as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct
of, affecting the liability of, or affording protection to, the Trustee.
Every
such instrument shall be filed with the Trustee and a copy given to the Master
Servicer and any NIMS Insurer.
(d)
Any
separate trustee, co-trustee or custodian may, at any time, constitute the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this
Agreement on its behalf and in its name. If any separate trustee, co-trustee
or
custodian shall die, become incapable of acting, resign or be removed, all
of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
121
(e)
No
separate trustee, co-trustee or custodian hereunder shall be required to
meet
the terms of eligibility as a successor trustee under Section 6.05 hereunder
and
no notice to Certificateholders of the appointment shall be required under
Section 6.07 hereof.
(f)
The
Trustee agrees to instruct the co-trustees, if any, to the extent necessary
to
fulfill the Trustee’s obligations hereunder.
(g)
The
Trustee shall pay the reasonable compensation of the co-trustees (which
compensation shall not reduce any compensation payable to the Trustee ) and,
if
paid by the Trustee, shall be a reimbursable expense pursuant to Section
6.12.
(h)
Notwithstanding
the foregoing, for so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Trustee
shall
not utilize any Subcontractor for the performance of its duties hereunder
if
such Subcontractor would be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB without (a) giving notice to the Seller,
the Master Servicer, the Sponsor and the Depositor and (b) requiring any
such
Subcontractor to provide to the Trustee an assessment report as provided
in
Section 9.25(a) and an attestation report as provided in Section 9.25(b),
which
reports the Trustee shall include in its assessment and attestation reports.
The
Trustee shall indemnify the Sponsor, the Depositor and the Master Servicer
and
any director, officer, employee or agent of each of the Sponsor, the Depositor
and the Master Servicer and hold them harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal
fees and related costs, judgments, and any other costs, fees and expenses
that
any of them may sustain arising out of or based upon the failure by the Trustee
(i) to give notice of the engagement of any Subcontractor or (ii) to require
any
Subcontractor to provide the Trustee an assessment of compliance as provided
in
Section 9.25(a) and an attestation report as provided in Section 9.25(b).
This
indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the Trustee.
Section
6.10. Authenticating
Agents.
(a)
The
Trustee may appoint one or more Authenticating Agents which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. Wherever
reference is made in this Agreement to the authentication of Certificates
by the
Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by
an Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America
or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or
examination by federal or state authorities and acceptable to any NIMS
Insurer.
(b)
Any
Person into which any Authenticating Agent may be merged or converted or
with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which any Authenticating Agent shall be a
party,
or any Person succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent without the execution
or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
122
(c)
Any
Authenticating Agent may at any time resign by giving at least 30 days’ advance
written notice of resignation to the Trustee, any NIMS Insurer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, any NIMS Insurer and the Depositor. Upon receiving
a
notice of resignation or upon such a termination, or in case at any time
any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Depositor and any NIMS Insurer and shall mail notice of such appointment
to all
Holders of Certificates. Any successor Authenticating Agent upon acceptance
of
its appointment hereunder shall become vested with all the rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect
as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10.
No
Authenticating Agent shall have responsibility or liability for any action
taken
by it as such at the direction of the Trustee. Any Authenticating Agent shall
be
entitled to reasonable compensation for its services and, if paid by the
Trustee, it shall be a reimbursable expense pursuant to Section
6.12.
Section
6.11. Indemnification
of Trustee.
The
Trustee, including in its individual capacity, and its respective directors,
officers, employees and agents shall be entitled to indemnification from
the
Trust Fund for any loss, liability or expense incurred in connection with
any
legal proceeding or incurred without negligence or willful misconduct on
their
part, arising out of, or in connection with, the acceptance or administration
of
the trusts created hereunder or in connection with the performance of their
duties hereunder or under the Swap Agreement, the Cap Agreement, the Mortgage
Loan Sale Agreement, any Transfer Agreement, any Servicing Agreement or any
Custodial Agreement, including any applicable fees and expenses payable pursuant
to Section 6.12 and the costs and expenses of defending themselves against
any
claim in connection with the exercise or performance of any of their powers
or
duties hereunder, provided that:
(i) with
respect to any such claim, the Trustee shall have given the Depositor, the
Master Servicer, any NIMS Insurer and the Holders written notice thereof
promptly after the Trustee shall have knowledge thereof; provided that failure
of the Trustee to provide such written notice shall not relieve the Trust
Fund
of the obligation to indemnify the Trustee under this Section 6.11;
(ii) while
maintaining control over its own defense, the Trustee shall cooperate and
consult fully with the Depositor, the Master Servicer and any NIMS Insurer
in
preparing such defense; and
(iii) notwithstanding
anything to the contrary in this Section 6.11, the Trust Fund shall not be
liable for settlement of any such claim by the Trustee entered into without
the
prior consent of the Depositor, the Master Servicer and any NIMS Insurer,
which
consent shall not be unreasonably withheld.
The
Trustee shall be further indemnified by the Seller for and held harmless
against, any loss, liability or expense arising out of, or in connection
with,
the provisions set forth in the fourth paragraph of Section 2.01(a) hereof,
including, without limitation, all costs, liabilities and expenses (including
reasonable legal fees and expenses) of investigating and defending itself
against any claim, action or proceeding, pending or threatened, relating
to the
provisions of such paragraph.
123
The
provisions of this Section 6.11 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
Section
6.12. Fees
and Expenses of Trustee and Custodians.
The
Trustee shall be entitled to (i) receive, and is authorized to pay itself,
the
amount of income or gain earned from investment of or other earnings on funds
in
the Certificate Account and (ii) reimbursement of all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with
this Agreement (including fees and expenses of its counsel and all persons
not
regularly in its employment and any amounts described in Section 10.01 to
which
the Trustee is entitled as provided therein), except for expenses, disbursements
and advances that either (i) do not constitute “unanticipated expenses” within
the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii) or (ii) arise
from its negligence, bad faith or willful misconduct. The Trustee shall be
entitled to reimbursement of its reasonable expenses and disbursements incurred
or made in connection with a Section 7.01(d) Purchase Event in accordance
with
Section 4.04(b). Each Custodian shall receive compensation and indemnification
amounts or payment of its expenses under the related Custodial Agreement
as
provided therein; provided that, to the extent required under Section 6 or
Section 20 of the Custodial Agreement, the Trustee is hereby authorized to
pay
such compensation or indemnification amounts from amounts on deposit in the
Certificate Account prior to any distributions to Certificateholders pursuant
to
Section 5.02 hereof.
Section
6.13. Collection
of Monies.
Except
as
otherwise expressly provided in this Agreement, the Trustee may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee pursuant to this Agreement. The Trustee
shall hold all such money and property received by it as part of the Trust
Fund
and shall distribute it as provided in this Agreement. If the Trustee shall
not
have timely received amounts to be remitted with respect to the Mortgage
Loans
from the Master Servicer, the Trustee shall request the Master Servicer to
make
such distribution as promptly as practicable or legally permitted. If the
Trustee shall subsequently receive any such amounts, it may withdraw such
request.
Section
6.14. Events
of Default; Trustee To Act; Appointment of Successor.
(a)
The
occurrence of any one or more of the following events shall constitute an
“Event
of Default”:
(i)
Any
failure by the Master Servicer to furnish to the Trustee the Mortgage Loan
data
sufficient to prepare the reports described in Section 4.03(a) which continues
unremedied for a period of two (2) Business Days after the date upon which
written notice of such failure shall have been given to such Master Servicer
by
the Trustee or to such Master Servicer and the Trustee by the Holders of
not
less than 25% of the Class Principal Amount or Class Notional Amount of each
Class of Certificates affected thereby; or
124
(ii)
Any
failure by the Master Servicer to duly perform, within the required time
period
and without notice, its obligations to provide any certifications required
pursuant to Sections 9.25 and 9.26; or
(iii)
Except
with respect to those items listed in clause (ii) above, any failure by the
Master Servicer to duly perform, within the required time period, without
notice
or grace period, its obligations to provide any information, data or materials
required to be provided hereunder pursuant to Sections 9.23 and 9.29(b),
including any items required to be included in any Exchange Act report;
or
(iv)
Any
failure on the part of the Master Servicer duly to observe or perform in
any
material respect any other of the covenants or agreements on the part of
the
Master Servicer contained in this Agreement which continues unremedied for
a
period of 30 days (or 15 days, in the case of failure to maintain any Insurance
Policy required to be maintained pursuant to this Agreement) after the date
on
which written notice of such failure, requiring the same to be remedied,
shall
have been given to the Master Servicer by the Trustee or to the Master Servicer
and the Trustee by the Holders of not less than 25% of the Class Principal
Amount (or Class Notional Amount) of each Class of Certificates affected
thereby
or by any NIMS Insurer; or
(v)
A
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer, and such decree or order shall
have
remained in force undischarged or unstayed for a period of 60 days or any
Rating
Agency reduces or withdraws or threatens to reduce or withdraw the rating
of the
Certificates because of the financial condition or loan servicing capability
of
such Master Servicer; or
(vi)
The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities, voluntary liquidation or similar proceedings of or relating
to the
Master Servicer or of or relating to all or substantially all of its property;
or
(vii)
The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its
creditors or voluntarily suspend payment of its obligations; or
(viii)
The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall
permit
another entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a successor servicer as specified in Section
9.27
hereof; or
125
(ix)
If
a
representation or warranty set forth in Section 9.14 hereof shall prove to
be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Certificateholders, and the circumstance or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 30 days after the date on
which
written notice of such incorrect representation or warranty shall have been
given to the Master Servicer by the Trustee or to the Master Servicer and
the
Trustee by the Holders of more than 50% of the Aggregate Voting Interests
of the
Certificates or by any NIMS Insurer; or
(x)
A
sale or
pledge of any of the rights of the Master Servicer hereunder or an assignment
of
this Agreement by the Master Servicer or a delegation of the rights or duties
of
the Master Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the Trustee,
any
NIMS Insurer and Certificateholders holding more than 50% of the Aggregate
Voting Interests of the Certificates; or
(xi)
The
Master Servicer has notice or actual knowledge that any Servicer at any time
is
not either a Xxxxxx Xxx- or Xxxxxxx Mac- approved Seller/Servicer, and the
Master Servicer has not terminated the rights and obligations of such Servicer
under the applicable Servicing Agreement and replaced such Servicer with
a
Xxxxxx Mae- or Xxxxxxx Mac-approved servicer within 60 days of the date the
Master Servicer receives such notice or actual knowledge; or
(xii)
After
receipt of notice from the Trustee or any NIMS Insurer, any failure of the
Master Servicer to remit to the Trustee any payment required to be made to
the
Trustee for the benefit of Certificateholders under the terms of this Agreement,
including any Advance, on any Master Servicer Remittance Date, which failure
continues unremedied for a period of one Business Day (but in no event later
than 12:00 p.m. New York City time on the related Distribution Date) after
the
date upon which such written notice of such failure shall have been given
to the
Master Servicer by the Trustee.
If
an
Event of Default described in clauses (i) through (xi) of this Section 6.14
shall occur, then, in each and every case, subject to applicable law, so
long as
any such Event of Default shall not have been remedied within any period
of time
prescribed by this Section, the Trustee, by notice in writing to the Master
Servicer may, and shall, if so directed by Certificateholders evidencing
more
than 50% of the Class Principal Amount (or Class Notional Amount) of each
Class
of Certificates, terminate all of the rights and obligations of the Master
Servicer hereunder and in and to the Mortgage Loans and the proceeds thereof.
If
an Event of Default described in clause (xii) of this Section 6.14 shall
occur,
then, in each and every case, subject to applicable law, so long as such
Event
of Default shall not have been remedied within the time period prescribed
by
clause (xii) of this Section 6.14, the Trustee, by notice in writing to the
Master Servicer, shall promptly terminate all the rights and obligations
of the
Master Servicer hereunder and in and to the Mortgage Loans and the proceeds
thereof. On or after the receipt by the Master Servicer of such written notice,
all authority and power of the Master Servicer, and only in its capacity
as
Master Servicer under this Agreement, whether with respect to the Mortgage
Loans
or otherwise, shall pass to and be vested in the Trustee and pursuant to
and
under the terms of this Agreement; provided,
however,
the
parties acknowledge that notwithstanding the preceding sentence, there may
be a
transition period, not to exceed 90 days, in order to effect the transfer
of the
Master Servicer’s obligations to the Trustee; and provided,
further,
that
the obligation to make Advances by the Trustee in its capacity as successor
master servicer shall be effective upon the Trustee providing notice of the
termination to the Master Servicer pursuant to this Section 6.14. The Trustee
is
hereby authorized and empowered to execute and deliver, on behalf of the
defaulting Master Servicer as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents or otherwise. The defaulting Master
Servicer agrees to cooperate with the Trustee in effecting the termination
of
the defaulting Master Servicer’s responsibilities and rights hereunder as Master
Servicer including, without limitation, notifying Servicers of the assignment
of
the master servicing function and providing the Trustee or its designee all
documents and records in electronic or other form reasonably requested by
it to
enable the Trustee or its designee to assume the defaulting Master Servicer’s
functions hereunder and the transfer to the Trustee or its designee for
administration by it of all amounts which shall at the time be or should
have
been deposited by the defaulting Master Servicer in the Collection Account
maintained by such defaulting Master Servicer and any other account or fund
maintained with respect to the Certificates or thereafter received with respect
to the Mortgage Loans. The Master Servicer being terminated as a result of
an
Event of Default (or the Trust Fund, if the Master Servicer is unable to
fulfill
its obligations hereunder) shall bear all costs of a master servicing transfer,
including but not limited to those of the Trustee reasonably allocable to
specific employees and overhead, legal fees and expenses, accounting and
financial consulting fees and expenses, and costs of amending the Agreement,
if
necessary.
126
The
Trustee shall be entitled to be reimbursed from the Master Servicer (or by
the
Trust Fund, if the Master Servicer is unable to fulfill its obligations
hereunder) for all costs associated with the transfer of servicing from the
predecessor Master Servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all servicing data and
the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the master servicing
data or otherwise to enable the Trustee to master service the Mortgage Loans
properly and effectively. If the terminated Master Servicer does not pay
such
reimbursement within thirty (30) days of its receipt of an invoice therefor,
such reimbursement shall be an expense of the Trust Fund and the Trustee
shall
be entitled to withdraw such reimbursement from amounts on deposit in the
Certificate Account pursuant to Section 4.04(b); provided that the terminated
Master Servicer shall reimburse the Trust Fund for any such expense incurred
by
the Trust Fund; and provided,
further,
that the
Trustee shall decide whether and to what extent it is in the best interest
of
the Certificateholders to pursue any remedy against any party obligated to
make
such reimbursement.
Notwithstanding
the termination of its activities as Master Servicer, each terminated Master
Servicer shall continue to be entitled to reimbursement to the extent provided
in Section 4.02 to the extent such reimbursement relates to the period prior
to
such Master Servicer’s termination.
127
If
any
Event of Default shall occur of which a Responsible Officer of the Trustee
has
actual knowledge, the Trustee, shall promptly notify any NIMS Insurer, the
Swap
Counterparty, the Cap Counterparty, any NIMS Insurer and each Rating Agency
of
the nature and extent of such Event of Default. The Trustee shall immediately
give written notice to the Master Servicer upon the Master Servicer’s failure to
remit funds to the Trustee on the Master Servicer Remittance Date.
(b)
Within
90
days of the time the Master Servicer receives a notice of termination from
the
Trustee pursuant to Section 6.14(a) or the Trustee receives the resignation
of
the Master Servicer evidenced by an Opinion of Counsel pursuant to Section
9.28,
the Trustee, unless another master servicer shall have been appointed, shall
be
the successor in all respects to the Master Servicer in its capacity as such
under this Agreement and the transactions set forth or provided for herein
and
shall have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on
the
Master Servicer hereunder, including the obligation to make Advances;
provided,
however,
that
any failure to perform such duties or responsibilities caused by the Master
Servicer’s failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In addition, the Trustee
shall
have no responsibility for any act or omission of the Master Servicer prior
to
the issuance of any notice of termination and within a period of time not
to
exceed 90 days after the issuance of written notice of termination pursuant
to
Section 6.14(a) or Section 9.28 or for any breach of representation or warranty
by such predecessor Master Servicer. The Trustee shall have no liability
relating to the representations and warranties of the Master Servicer set
forth
in Section 9.14. In the Trustee’s capacity as such successor, the Trustee shall
have the same limitations on liability herein granted to the Master Servicer.
As
compensation therefor, the Trustee shall be entitled to receive all compensation
payable to the Master Servicer under this Agreement, including the Master
Servicing Fee.
(c)
Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so act,
or
shall, if it is unable to so act, petition a court of competent jurisdiction
to
appoint, or appoint on its own behalf any established housing and home finance
institution servicer, master servicer, servicing or mortgage servicing
institution having a net worth of not less than $15,000,000 and meeting such
other standards for a successor master servicer as are set forth in this
Agreement, as the successor to such Master Servicer in the assumption of
all of
the responsibilities, duties or liabilities of the Master Servicer hereunder.
Such successor master servicer shall have no responsibility for any act or
omission of the Master Servicer prior to such successor’s assumption of the
Master Servicer’s rights and obligations hereunder and such successor master
servicer shall also have no liability relating to the representations and
warranties of the Master Servicer set forth in Section 9.14. Any entity
designated by the Trustee as a successor master servicer may be an Affiliate
of
the Trustee; provided,
however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer, the Trustee in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Trust Fund for such Affiliate’s actions and omissions in performing its
duties hereunder. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor
out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted to the Master Servicer
hereunder. The Trustee and such successor shall take such actions, consistent
with this Agreement, as shall be necessary to effectuate any such succession
and
may make other arrangements with respect to the servicing to be conducted
hereunder which are not inconsistent herewith. The Master Servicer shall
cooperate with the Trustee and any successor master servicer in effecting
the
termination of the Master Servicer’s responsibilities and rights hereunder
including, without limitation, notifying Mortgagors of the assignment of
the
master servicing functions and providing the Trustee and successor master
servicer, as applicable, all documents and records in electronic or other
form
reasonably requested by it to enable it to assume the Master Servicer’s
functions hereunder and the transfer to the Trustee or such successor master
servicer, as applicable, all amounts which shall at the time be or should
have
been deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or the Pooling
REMIC
1 Regular Interests or thereafter be received with respect to the Mortgage
Loans. Neither the Trustee nor any other successor master servicer shall
be
deemed to be in default hereunder by reason of any failure to make, or any
delay
in making, any distribution hereunder or any portion thereof caused by (i)
the
failure of the Master Servicer to deliver, or any delay in delivering, cash,
documents or records to it, (ii) the failure of the Master Servicer to cooperate
as required by this Agreement, (iii) the failure of the Master Servicer to
deliver the Mortgage Loan data to the Trustee as required by this Agreement
or
(iv) restrictions imposed by any regulatory authority having jurisdiction
over
the Master Servicer.
128
Section
6.15. Additional
Remedies of Trustee Upon Event of Default.
During
the continuance of any Event of Default, so long as such Event of Default
shall
not have been remedied, the Trustee, in addition to the rights specified
in
Section 6.14, shall have the right, in its own name and as trustee of an
express
trust, to take all actions now or hereafter existing at law, in equity or
by
statute to enforce its rights and remedies and to protect the interests,
and
enforce the rights and remedies, of any NIMS Insurer and the Certificateholders
(including the institution and prosecution of all judicial, administrative
and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy
provided for by this Agreement shall be exclusive of any other remedy, and
each
and every remedy shall be cumulative and in addition to any other remedy,
and no
delay or omission to exercise any right or remedy shall impair any such right
or
remedy or shall be deemed to be a waiver of any Event of Default.
Section
6.16. Waiver
of Defaults.
More
than
50% of the Aggregate Voting Interests of Certificateholders (with the consent
of
any NIMS Insurer) may waive any default or Event of Default by the Master
Servicer in the performance of its obligations hereunder, except that a default
in the making of any required deposit to the Certificate Account that would
result in a failure of the Trustee to make any required payment of principal
of
or interest on the Certificates may only be waived with the consent of 100%
of
the affected Certificateholders and with the consent of any NIMS Insurer.
Upon
any such waiver of a past default, such default shall cease to exist, and
any
Event of Default arising therefrom shall be deemed to have been remedied
for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
Section
6.17. Notification
to Holders.
129
Upon
termination of the Master Servicer or appointment of a successor to the Master
Servicer, in each case as provided herein, the Trustee shall promptly mail
notice thereof by first class mail to the Certificateholders at their respective
addresses appearing on the Certificate Register, any NIMS Insurer, the Cap
Counterparty and the Swap Counterparty. The Trustee shall also, within 45
days
after the occurrence of any Event of Default known to a Responsible Officer
of
the Trustee, give written notice thereof to any NIMS Insurer and the
Certificateholders, unless such Event of Default shall have been cured or
waived
prior to the issuance of such notice and within such 45-day period.
Section
6.18. Directions
by Certificateholders and Duties of Trustee During Event of
Default.
Subject
to the provisions of Section 8.01 hereof, during the continuance of any Event
of
Default, Holders of Certificates evidencing not less than 25% of the Class
Principal Amount (or Percentage Interest) of each Class of Certificates affected
thereby may, with the consent of any NIMS Insurer, direct the time, method
and
place of conducting any proceeding for any remedy available to the Trustee,
or
exercising any trust or power conferred upon the Trustee, under this Agreement;
provided,
however,
that the
Trustee shall be under no obligation to pursue any such remedy, or to exercise
any of the trusts or powers vested in it by this Agreement (including, without
limitation, (i) the conducting or defending of any administrative action
or
litigation hereunder or in relation hereto and (ii) the terminating of the
Master Servicer or any successor master servicer from its rights and duties
as
master servicer hereunder) at the request, order or direction of any of the
Certificateholders, or any NIMS Insurer, unless such Certificateholders,
or any
NIMS Insurer, shall have offered to the Trustee reasonable security or indemnity
against the cost, expenses and liabilities which may be incurred therein
or
thereby; and, provided further, that, subject to the provisions of Section
8.01,
the Trustee shall have the right to decline to follow any such direction
if the
Trustee, in accordance with an Opinion of Counsel, determines that the action
or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith
determines that the action or proceeding so directed would involve it in
personal liability for which it is not indemnified to its satisfaction or
be
unjustly prejudicial to the non-assenting Certificateholders.
Section
6.19. Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
In
the
event that a Responsible Officer of the Trustee shall have actual knowledge
of
any action or inaction of the Master Servicer that would become an Event
of
Default upon the Master Servicer’s failure to remedy the same after notice, the
Trustee shall give notice thereof to the Master Servicer, any NIMS Insurer,
the
Cap Counterparty and the Swap Counterparty. For all purposes of this Agreement,
in the absence of actual knowledge by a Responsible Officer of the Trustee,
the
Trustee shall not be deemed to have knowledge of any failure of the Master
Servicer or any other Event of Default unless notified in writing by the
Depositor, the Master Servicer, the Swap Counterparty or the
Certificateholders.
Section
6.20. Preparation
of Tax Returns and Reports to the Commission.
130
(a)
The
Trustee shall prepare or cause to be prepared on behalf of the Trust Fund,
based
upon information calculated in accordance with this Agreement pursuant to
instructions given by the Depositor, and the Trustee shall file federal tax
returns, all in accordance with Article X hereof. The Trustee shall prepare
and
file required state income tax returns and such other returns as may be required
by applicable law relating to the Trust Fund, and, if required by state law,
and
shall file any other documents to the extent required by applicable state
tax
law (to the extent such documents are in the Trustee’s possession). The Trustee
shall forward copies to the Depositor of all such returns and Form 1099
supplemental tax information and such other information within the control
of
the Trustee as the Depositor may reasonably request in writing, and shall
distribute to each Certificateholder such forms and furnish such information
within the control of the Trustee as are required by the Code and the REMIC
Provisions to be furnished to them, and will prepare and distribute to
Certificateholders Form 1099 (supplemental tax information) (or otherwise
furnish information within the control of the Trustee) to the extent required
by
applicable law. The Master Servicer shall indemnify the Trustee for any
liability of or assessment against the Trustee resulting from any error in
any
of such tax or information returns directly resulting from errors in the
information provided by such Master Servicer.
(b)
The
Trustee shall prepare and file with the Internal Revenue Service (“IRS”), on
behalf of each REMIC created hereby, an application on IRS Form SS-4. The
Trustee, upon receipt from the IRS of the Notice of Taxpayer Identification
Number Assigned for each REMIC, shall promptly forward copies of such notices
to
the Master Servicer, the Trustee and the Depositor. The Trustee will file
an IRS
Form 8811. The Trustee shall have no obligation to verify the information
in any
form 8811 or form SS-4 filings.
(c)
The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, within 15 days (or, if applicable, within such shorter
period of time as is required under the rules of the Commission as in effect
from time to time (the “Rules”)) following each Distribution Date, the Trustee
shall, in accordance with industry standards and the Rules, prepare and file
with the Commission via the Electronic Data Gathering and Retrieval System
(“XXXXX”) the reports listed in subsections (d) through (f) of this Section 6.20
in respect of the Trust Fund as and to the extent required under the Exchange
Act each of which reports and any amendment thereof shall be signed by the
Exchange Act Signing Party.
(d)
Reports
Filed on Form 10-D.
(i) Within
15
days following each Distribution Date (or such later date as may be permissible
due to an extension of the filing deadline under the Exchange Act), the Trustee
will prepare and file a distribution report on Form 10-D (the “Distribution
Report”) with respect to the Trust Fund, which Distribution Report shall include
(A) a copy of the Distribution Date Statement prepared by the Trustee in
respect
of the related Distribution Date detailing all applicable data elements
specified in Item 1121(a) of Regulation AB, other than those data elements
specified in Item 1121(a)(11), (12) and (14) and; provided, that, the Trustee
shall have received from the Depositor, the Sponsor, the Master Servicer,
any
Servicer, any Custodian, any Cap Counterparty, any Swap Counterparty or any
Subservicer or Subcontractor therefor, no later than three Business Days
after
the related Distribution Date, the following additional information, data,
and
materials, in a form suitable for conversion to the format required for filing
with the Commission via XXXXX, required to be included in the Distribution
Report on Form 10-D for such Distribution Date:
131
(A)
Item
1 -
Distribution and Pool Performance Information (each of the data elements
specified in Item 1121(a)(11), (12) and (14) of Regulation AB);
(B)
Item
2 -
Legal Proceedings (information required by Item 1117 of Regulation
AB);
(C)
Item
3 -
Sale of Securities and Use of Proceeds (information required by Item 2 of
Part
II of Form 10-Q);
(D)
Item
4 -
Defaults Upon Senior Securities (information required by Item 3 of Part II
of
Form 10-Q);
(E)
Item
5 -
Submission of Matters to a Vote of Security Holders (information required
by
Item 4 of Part II of Form 10-Q);
(F)
Item
6 -
Significant Obligors of Pool Assets (information required by Item 1112(b)
of
Regulation AB);
(G)
Item
7 -
Significant Enhancement Provider Information (information required by Items
1114(b)(2) and 1115(b) of Regulation AB);
(H)
Item
8 -
Other Information (all other information required to be disclosed on Form
8-K
during the period covered by the report and not yet reported); and
(I)
Item
9 -
Exhibits (all exhibits required to be filed by Form 10-D and Item 601 of
Regulation S-K other than the Distribution Date Statement to be provided
by the
Trustee).
Any
disclosure in addition to the Distribution Date Statement that is required
to be
included on Form 10-D (“Additional
Form 10-D Disclosure”)
shall
be reported by the parties set forth on Exhibit Q to the Depositor and the
Trustee and directed and approved by the Depositor pursuant to the following
paragraph, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure to
the
extent that such information is required to be provided by a party other
than
the Trustee, except as set forth in the next paragraph.
(ii) After
preparing the Form 10-D, the Trustee shall forward electronically a draft
copy
of the Form 10-D to the Exchange Act Signing Party for review and approval.
If
the Master Servicer is the Exchange Act Signing Party and the Form 10-D includes
Additional Form 10-D Disclosure, then the Form 10-D shall also be electronically
distributed to the Depositor for review and approval. No later than two Business
Days prior to the 15th
calendar
day after the related Distribution Date, a duly authorized officer of the
Exchange Act Signing Party shall sign the Form 10-D and return an electronic
or
fax copy of such signed Form 10-D (with an original executed hard copy to
follow
by overnight mail) to the Trustee. If a Form 10-D cannot be filed on time
or if
a previously filed Form 10-D needs to be amended, the Trustee will follow
the
procedures set forth in subsection (g)(ii) of this Section 6.20. Promptly
(but
no later than one Business Day) after filing with the Commission, the Trustee
will make available on its internet website a final executed copy of each
Form
10-D filed by the Trustee. Each party to this Agreement acknowledges that
the
performance by the Trustee of its duties under this Section 6.20(d) related
to
the timely preparation and filing of Form 10-D is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under this Section 6.20(d). The Trustee shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 10-D, where such failure results from
the
Trustee’s inability or failure to obtain or receive, on a timely basis, any
information from any other party hereto needed to prepare or file such Form
10-D, not resulting from its own negligence, bad faith or willful misconduct.
The Trustee shall not be responsible (1) for the content of any of the
information provided pursuant to clauses (d)(i)(A) - (I) above (unless such
item
is provided by and specific to the Trustee or its Subcontractor, in which
case
the Trustee will be responsible for the content of such information;
provided
that
such information is not revised without the prior consent of the
Trustee),
(2)
for determining whether any such information is required to be included in
any
Form 10-D (unless such information is specific to the Trustee, in which case
the
Trustee shall be responsible for making such a determination), (3) for
reformatting any information that is not in a form suitable for conversion
to
the format required for filing with the Commission via XXXXX so that it is
able
to be filed on XXXXX or (4) for the failure to include any information if
it is
not provided to the Trustee on a timely basis (unless such item is specific
to
the Trustee, in which case the Trustee will be responsible for the failure
to
include such information, unless
such information is not included in the final Form 10-D without the consent
of
the Trustee).
132
The
Trustee has no duty under this Agreement to monitor or enforce the performance
by the parties listed on Exhibit Q of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-D
Disclosure information. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-D Disclosure on Form 10-D pursuant to this
Section 6.20(d).
(iii) Form
10-D
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of filing of each annual
report on Form 10-K with respect to the Trust Fund, the Depositor shall be
deemed to represent to the Trustee that as of such date, the Depositor has
filed
all such required reports during the preceding 12 months and that is has
been
subject to such filing requirements for the past 90 days. The Depositor hereby
directs the Trustee to check “yes” with respect to both clauses (1) and (2)
above. The Depositor shall notify the Trustee in writing, no later than the
fifth calendar day after the related Distribution Date with respect to the
filing of a report on Form 10-D, if the answer to either of clause (1) or
clause
(2) above is “no.” The Trustee shall be entitled to rely on such direction in
preparing and/or filing any such Form 10-D.
133
(e)
Reports
Filed on Form 10-K.
(i) On
or
prior to the 90th
day
after the end of each fiscal year of the Trust Fund or such earlier date
as may
be required by the Exchange Act (the “10-K Filing Deadline”) (it being
understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2008, and, unless and until a Form 15 Suspension
Notification shall have been filed, the Trustee shall prepare and file (but
will
not execute) a Form 10-K in respect of the Trust Fund, which shall include
the
certification required pursuant to Rule 13a-14 under the Exchange Act (the
“Form
10-K Certification”) signed by an appropriate party or parties (which Form 10-K
Certification the Trustee shall not be required to prepare or sign) and such
other information as is required by the Rules; provided,
that,
the Trustee shall have received from the Depositor, each Servicer, each
Custodian, each Additional Servicer, any Servicing Function Participant and
the
Master Servicer (each, a “Reporting Servicer”), no later than March 15th of each
calendar year prior to the filing deadline for such Annual Report, all
information, data, assessments of compliance, accountant’s attestations and
exhibits required to be provided or filed with such Annual Report including
information, data, assessments of compliance, accountant’s attestations and
exhibits required to be provided in connection with the following Items and
other filing requirements of Form 10-K:
(A) Item
9B -
Other Information (information required to be reported on Form 8-K in the
fourth
quarter but not reported);
(B) Item
15 -
Exhibits and Financial Statement Schedules (including all exhibits required
to
be filed pursuant to Item 601 of Regulation S-K under the Exchange Act other
than the certification specified in Item 601(b)(31)(ii) of Regulation S-K
and
the Assessment of Compliance, Attestation Report, and Compliance Statement
specified in Item 601(b)(33), (34) and (35) of Regulation S-K with respect
to
those Servicing Criteria as to which the Trustee is the Item 1122 Responsible
Party);
(C) Significant
Obligor Financial Information (Item 1112(b) of Regulation AB);
(D) Significant
Enhancement Provider Financial Information (Items 1114(b)(2) and 1115(b)
of
Regulation AB);
(E) Legal
Proceedings (Item 1117 of Regulation AB);
(F) Affiliations
and Certain Relationships and Related; Transactions (Item 1119 of Regulation
AB);
(G) Compliance
with Applicable Servicing Criteria (Item 1122 of Regulation AB);
and
(H) Servicer
Compliance Statement (Item 1123 of Regulation AB).
134
Any
disclosure or information listed in (A) through (H) above that is required
to be
included on Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be reported by the parties set forth on Exhibit R to the Depositor and the
Trustee and directed and approved by the Depositor pursuant to the following
paragraph, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure to
the
extent that such information is required to be provided by a party other
than
the Trustee, except as set forth in the next paragraph.
(ii) After
preparing the Form 10-K, the Trustee shall forward electronically a draft
copy
of the Form 10-K to the Exchange
Act Signing Party for review and approval. If the Master
Servicer is
the
Exchange Act Signing Party and the Form 10-K includes Additional Form 10-K
Disclosure, then the Form 10-K shall also be electronically distributed to
the
Depositor for review and approval. No later than the close of business New
York
City time on the 4th Business Day prior to the 10-K Filing Deadline, a senior
officer of the Exchange
Act Signing Party
shall sign the Form 10-K and return an electronic or fax copy of such signed
Form 10-K (with an original executed hard copy to follow by overnight mail)
to
the Trustee.
If a
Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be
amended, the Trustee will follow the procedures set forth in subsection (g)
of
this Section 6.20. Promptly (but no later than one Business Day) after filing
with the Commission, the Trustee will make available on its internet website
a
final executed copy of each Form 10-K filed by the Trustee. The parties to
this
Agreement acknowledge that the performance by the Trustee of its duties under
this Section 6.20(e) related to the timely preparation and filing of Form
10-K
is contingent upon such parties (and any Additional Servicer or Servicing
Function Participant) strictly observing all applicable deadlines in the
performance of their duties under this Section 6.20(e), Section 9.25(a),
Section
9.25(b) and Section 9.26. The Trustee shall have no liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 10-K, where such failure results
from the Trustee’s inability or failure to obtain or receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-K, not resulting from its own negligence,
bad
faith or willful misconduct. The Trustee shall not be responsible (1) for
the
content of any of the information provided pursuant to clauses (e)(i)(A)
- (H)
above (unless such item is provided by and specific to the Trustee or its
Subcontractor, in which case the Trustee will be responsible for the content
of
such information; provided
that
such information is not revised without the prior consent of the
Trustee),
(2)
for determining whether any such information is required to be included in
any
Form 10-K (unless such information is specific to the Trustee, in which case
the
Trustee shall be responsible for making such a determination), (3) for
reformatting any information that is not in a form suitable for conversion
to
the format required for filing with the Commission via XXXXX so that it is
able
to be filed on XXXXX or (4) for the failure to include any information if
it is
not provided to the Trustee on a timely basis (unless such item is specific
to
the Trustee, in which case the Trustee will be responsible for the failure
to
include such information, unless
such information is not included in the final Form 10-K without the consent
of
the Trustee).
135
The
Trustee has no duty under this Agreement to monitor or enforce the performance
by the parties listed on Exhibit R of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-K
Disclosure information. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph.
(iii) Unless
a
Form 15 Suspension Notification with respect to the Trust Fund has been filed,
if so requested, on or prior to March 15th
of each
year, beginning in March 2008, the Trustee shall sign a certification in
the
form attached hereto as Exhibit M (the “Back-up Certification”) for the benefit
of the Exchange Act Signing Party and the Person who signs the Form 10-K
Certification (the “Certifying Party”) regarding certain aspects of such Form
10-K Certification, upon which the Exchange Act Signing Party and the Certifying
Party can reasonably rely (provided,
however,
that the
Trustee shall not be required to undertake an analysis of, and shall have
no
responsibility for, any financial information, the accountant’s report,
certification or other materials contained therein, except for those
computations prepared by the Trustee and reflected in the distribution report).
Nothing in this Section 6.20(i) shall relieve the Trustee of its responsibility
for the matters as to which it is certifying in the form attached hereto
as
Exhibit M.
(iv) Form
10-K
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby directs the
Trustee to check “yes” with respect to both clauses (1) and (2) above. The
Depositor shall notify the Trustee in writing, no later than the 15th calendar
day of March in any year in which the Trust is subject to the reporting
requirements of the Exchange Act, if the answer to either of clause (1) or
clause (2) above is “no.” The Trustee shall be entitled to rely on such
direction in preparing and/or filing any such Form 10-K.
(v) Each
person (including their officers or directors) that signs any Form 10-K
Certification shall be entitled to indemnification from the Trust Fund for
any
liability or expense incurred by it in connection with such certification,
other
than any liability or expense attributable to such Person’s own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal
of such
Person.
(f)
Reports
Filed on Form 8-K.
(i) Within
four Business Days after the occurrence of an event requiring disclosure
on Form
8-K (each such event, a “Reportable Event”), at the written direction and
expense of the Depositor, the Trustee shall prepare and file Current Reports
on
Form 8-K in respect of the Trust Fund, as required by the Exchange Act;
provided,
that,
the Depositor shall have timely notified the Trustee of an item reportable
on a
Current Report on Form 8-K and shall have delivered to the Trustee no later
than
two Business Days prior to the filing deadline for such Current Report, all
information, data, and exhibits required to be provided or filed with such
Current Report, including, particularly, information, data and exhibits,
in a
form suitable for conversion to the format required for filing with the
Commission via XXXXX, required to be provided in connection with the following
Items of Form 8-K:
136
(A) Item
1.01
- Entry into a Material Definitive Agreement;
(B) Item
1.02
- Termination of a Material Definitive Agreement;
(C) Item
1.03
- Bankruptcy or Receivership;
(D) Item
2.04
- Triggering Events that Accelerate or Increase a Direct Financial Obligation
or
an Obligation under an Off-Balance Sheet Arrangement;
(E) Item
3.03
- Material Modification to Rights of Security Holders;
(F) Item
5.03
- Amendments of Articles of Incorporation or Bylaws; Change of Fiscal
Year
(G) Item
6.02
- Change in Servicer or Trustee;
(H) Item
6.03
- Change in Credit Enhancement or Other External Support;
(I) Item
6.04
- Failure to Make a Required Distribution; and
(J) Item
6.05
- Securities Act Updating Disclosure.
Any
disclosure or information related to a Reportable Event or that is otherwise
required to be included on Form 8-K other than the initial Form 8-K
(“Form
8-K Disclosure Information”)
shall
be reported by the parties set forth on Exhibit S to the Depositor and the
Trustee and directed and approved by the Depositor pursuant to the following
paragraph, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Form 8-K Disclosure Information or
any
Form 8-K to the extent that such information is required to be provided by
a
party other than the Trustee, except as set forth in the next paragraph.
(ii) After
preparing the Form 8-K, the Trustee shall forward electronically, no later
than
Noon New York City time on the 3rd
Business
Day after the Reportable Event, a draft copy of the Form 8-K to the Exchange
Act
Signing Party for review and approval. If the Master Servicer is the Exchange
Act Signing Party, then the Form 8-K shall also be electronically distributed
to
the Depositor for review and approval. No later than 1 p.m. New York City
time
on the 4th
Business
Day after the Reportable Event, a duly authorized officer of the Exchange
Act
Signing Party shall sign the Form 8-K and return an electronic or fax copy
of
such signed Form 8-K (with an original executed hard copy to follow by overnight
mail) to the Trustee. If a Form 8-K cannot be filed on time or if a previously
filed Form 8-K needs to be amended, the Trustee will follow the procedures
set
forth in subsection (g) of this Section 6.20. Promptly (but no later than
one
Business Day) after filing with the Commission, the Trustee will make available
on its internet website a final executed copy of each Form 8-K filed by the
Trustee. The parties to this Agreement acknowledge that the performance by
the
Trustee of its duties under this Section 6.20(f) related to the timely
preparation and filing of Form 8-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Section 6.20(f). The Trustee shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare
and/or timely file such Form 8-K, where such failure results from the Trustee’s
inability or failure to obtain or receive, on a timely basis, any information
from any other party hereto needed to prepare or file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct. The Trustee
shall not be responsible (1) for the content of any of the information provided
pursuant to clauses (f)(i)(A) - (J) above (unless such item is provided by
and
specific to the Trustee or its Subcontractor, in which case the Trustee will
be
responsible for the content of such information; provided
that
such information is not revised without the prior consent of the
Trustee),
(2)
for determining what information is required to be filed on a Form 8-K in
connection with the transactions contemplated by this Agreement (unless such
information is specific to the Trustee, in which case the Trustee will be
responsible for making such a determination, unless
such information is not included in the final Form 8-K without the consent
of
the Trustee),
(3)
for reformatting any information that is not in a form suitable for conversion
to the format required for filing with the Commission via XXXXX so that it
is
able to be filed on XXXXX or (4) for any late filing of a Form 8-K in the
event
that it does not receive all information, data, signatures and exhibits required
to be provided or filed on or prior to the second Business Day prior to the
applicable filing deadline. The Trustee has no duty under this Agreement
to
monitor or enforce the performance by the parties listed on Exhibit S of
their
duties under this paragraph or proactively solicit or procure from such parties
any Additional Form 10-K Disclosure information. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by
the
Trustee in connection with including any Form 8-K Disclosure Information
on Form
8-K pursuant to this paragraph.
137
(g)
Delisting;
Amendments; Late Filings.
(i) Prior
to
January 30 of the first year in which the Trustee is able to do so under
applicable law, unless otherwise directed by the Depositor in writing, the
Trustee shall prepare and file a Form 15 relating to the automatic suspension
of
reporting in respect of the Trust Fund under the Exchange Act. The Paying
Agent
is entitled to assume that a Form 15 will be filed for such year unless the
Trustee notifies the Paying Agent that a Form 15 will not be filed.
(ii) In
the
event that the Trustee becomes aware that it will be unable to timely file
with
the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement or for any other reason, the Trustee will
immediately notify the Depositor. In the case of Form 10-D and 10-K, the
parties
to this Agreement and each Servicer will cooperate to prepare and file a
Form
12b-25 and a Form 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25
of
the Exchange Act. In the case of Form 8-K, the Trustee will, upon receipt
of all
required Form 8-K Disclosure Information and upon the approval and direction
of
the Depositor, include such disclosure information on the next Form 10-D.
In the
event that any previously filed Form 8-K, 10-D or 10-K needs to be amended,
the
Trustee will notify the Depositor and any applicable party affected thereby
and
such parties will cooperate to prepare any necessary Form 8-K/A, 10-D/A or
10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K
shall be signed by a senior officer or a duly authorized representative,
as
applicable, of the Exchange Act Signing Party. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this
Section
6.20(g) related to the timely preparation and filing of Form 15, a Form 12b-25
or any amendment to Form 8-K, 10-D or 10-K is contingent upon each such party
performing its duties under this Section. The Trustee shall have no liability
for any loss, expense, damage or claim arising out of or with respect to
any
failure to properly prepare and/or timely file any such Form 15, Form 12b-25
or
any amendments to Forms 8-K, 10-D or 10-K, where such failure results from
the
Trustee’s inability or failure to obtain or receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or
10-K,
not resulting from its own negligence, bad faith or willful
misconduct.
138
(h)
The
Trustee, with the prior consent of the Depositor, may include in any Exchange
Act report all relevant information, data, and exhibits as the Trustee may
receive in connection with such report irrespective of any provision that
may
permit the exclusion of such material. For example, the Trustee, with the
prior
consent of the Depositor, may file all Assessments of Compliance, Attestation
Reports and Compliance Statements timely received from any Item 1122 Responsible
Party irrespective of any applicable minimum pool asset percentage requirement
for disclosure related to such Item 1122 Responsible Party.
(i)
Any
party
that signs any Exchange Act report that the Trustee is required to file shall
provide to the Trustee prompt notice of the execution of such Exchange Act
report along with the name and contact information for the person signing
such
report and shall promptly deliver to the Trustee the original executed signature
page for such report. In addition, each of the parties agrees to provide
to the
Trustee such additional information related to such party as the Trustee
may
reasonably request, including evidence of the authorization of the person
signing any certification or statement, financial information and reports,
and
such other information related to such party or its performance
hereunder.
(j)
The
Depositor and the Master Servicer, by mutual agreement, shall determine which
of
the Depositor or the Master Servicer shall be the initial Exchange Act Signing
Party. Upon such determination, the Depositor shall timely notify the Trustee,
and such notice shall provide contact information for the Exchange Act Signing
Party. If the Depositor and Master Servicer, at any time, mutually agree
to
change the identity of the Exchange Act Signing Party, the Depositor shall
provide timely notice to the Trustee of any such change. Any notice delivered
pursuant to this Section 6.20 may be by fax notwithstanding the notice
provisions of Section 11.07.
Section
6.21. Compliance
with Regulation AB.
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.01
and
6.20 of this Agreement is to facilitate compliance by the Sponsor, the Master
Servicer, the Depositor and the Trustee with the provisions of Regulation
AB, as
such may be amended or clarified from time to time. Therefore, each of the
parties agrees that (a) the obligations of the parties hereunder shall be
interpreted in such a manner as to accomplish compliance with Regulation
AB, (b)
the parties’ obligations hereunder will be supplemented and modified as
necessary to be consistent with any such amendments, interpretive advice
or
guidance from the Commission, convention or consensus among active participants
in the asset-backed securities markets, or otherwise in respect of the
requirements of Regulation AB and (c) the parties shall comply with reasonable
requests made by the Sponsor, the Master Servicer, the Depositor or the Trustee
for delivery of additional or different information, to the extent such
information is available or reasonably attainable, as the Sponsor, the Master
Servicer, the Depositor or the Trustee may determine in good faith is necessary
to comply with the provisions of Regulation AB.
139
Section
6.22. No
Merger.
The
Xxxxxx XS Trust 2007-11 shall not to be merged or consolidated with any other
entity, except as a result of a final judicial determination.
ARTICLE
VII
PURCHASE
OF MORTGAGE LOANS AND
TERMINATION
OF THE TRUST FUND
Section
7.01. Purchase
of Mortgage Loans; Termination of the Trust Fund Upon Purchase or Liquidation
of
Mortgage Loans; Purchase of the Pooling REMIC 1 Regular Interests.
(a)
The
respective obligations and responsibilities of the Trustee and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders and the Swap Counterparty as set forth in
Section
7.02, the obligation of the Master Servicer to make a final remittance to
the
Trustee pursuant to Section 4.01, and the obligations of the Master Servicer
to
the Trustee pursuant to Sections 9.10 and 9.14) with respect to the Mortgage
Loans shall terminate on the earliest of (i) the final payment or other
liquidation of the last Mortgage Loan remaining in the Mortgage Pool and
the
disposition of all related REO Property, (ii) the latest to occur of the
sale of
the property held by the Trust Fund in accordance with Section 7.01(b) and
(iii)
the Latest Possible Maturity Date (each, a “Trust Fund Termination Event”);
provided,
however,
that in
no event shall the Trust Fund created hereby continue beyond the expiration
of
21 years from the death of the last survivor of the descendants of Xxxxxx
X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James’s,
living on the date hereof. Upon the occurrence of a Trust Fund Termination
Event, each REMIC shall be terminated in a manner that shall qualify as a
“qualified liquidation” under the REMIC Provisions as evidenced by an Opinion of
Counsel provided to the Trustee at the expense of the Trust Fund.
(b)
On
any
Distribution Date occurring on or after the Initial Optional Termination
Date,
the Master Servicer or the LTURI-holder, as applicable, with the prior written
consent of any NIMS Insurer and the Seller (which consent shall not be
unreasonably withheld) has the option to purchase the Mortgage Loans and
any
related REO Property for the Pool Purchase Price upon written direction to
the
Trustee (delivered no later than 30 days prior to the anticipated sale date);
provided,
however,
if
there are any NIM Securities outstanding, the Master Servicer may only exercise
its option after receiving the prior written consent of the holders of such
NIM
Securities and, if such consent is given, the Pool Purchase Price shall also
include an amount equal to the sum of (1) any accrued interest on the NIM
Securities, (2) the unpaid principal balance of any such NIM Securities and
(3)
any other reimbursable expenses owed by the issuer of the NIM Securities
(the
“NIM Redemption Amount”). Upon exercise of such option, the property of the
Trust Fund shall be sold to the Master Servicer for the Pool Purchase Price.
The
Master Servicer, each Servicer (or the Trustee, if applicable) shall be
reimbursed from the Pool Purchase Price for any Mortgage Loan or related
REO
Property for any Advances made or other amounts advanced with respect to
the
Mortgage Loans that are reimbursable to the Master Servicer or the Trustee
under
this Agreement or the related Servicing Agreement, together with any accrued
and
unpaid compensation and any other amounts due to the Master Servicer hereunder
or the Servicers thereunder, and the Trustee shall be entitled to be reimbursed
from the Pool Purchase Price for any related amounts owed to the Trustee
under
Section 6.11 and Section 6.12 hereof. If the Master Servicer fails to exercise
such option, the NIMS Insurer will have the right to cause the Master Servicer
to exercise such option, to the extent provided in the insurance agreement
related to the NIM Securities among the Master Servicer, the Trustee and
the
NIMS Insurer, so long as such NIMS Insurer is insuring the NIM Securities
or is
owed any amounts in connection with such guaranty of the NIM Securities.
If the
NIMS Insurer directs the Master Servicer to exercise its right to cause the
Trust Fund to sell its property as described above, then (i) the Master Servicer
shall cause the Trust Fund to sell its property as described above, (ii)
the
NIMS Insurer shall remit the Pool Purchase Price in immediately available
funds
to the Master Servicer at least three Business Days prior to the applicable
Distribution Date and, upon receipt of such funds from the NIMS Insurer,
the
Master Servicer shall promptly deposit such funds in the Collection Account
and
(iii) the Trustee shall transfer the property of the Trust Fund to the NIMS
Insurer. The NIMS Insurer shall be obligated to reimburse the Master Servicer
and the Trustee for their reasonable out-of-pocket expenses incurred in
connection with its sale of the property at the direction of the NIMS Insurer
and shall indemnify and hold harmless the Master Servicer and the Trustee
for
any losses, liabilities or expenses resulting from any claims directly resulting
from or relating to the Master Servicer’s or Trustee’s sale of the property at
the direction of the NIMS Insurer, except to the extent such losses, liabilities
or expenses arise out of or result from the Master Servicer’s or Trustee’s, as
the case may be, negligence, bad faith or willful misconduct.
140
(c)
[Reserved].
(d)
On
any
Distribution Date occurring on or after the Initial Optional Termination
Date,
and provided there are no NIM Securities outstanding, the Master Servicer,
with
the prior written consent of the Seller, which consent shall not be unreasonably
withheld, has the option to purchase all of the Pooling REMIC 1 Regular
Interests.
Upon
exercise of such option, the Pooling REMIC 1 Regular Interests shall be sold
to
the Master Servicer at a price (the “Pooling REMIC 1 Regular Interests Purchase
Price”) equal to the sum of (i) 100% of the unpaid principal balance of each
Mortgage Loan on the day of such purchase plus interest accrued thereon at
the
applicable Mortgage Rate with respect to any such Mortgage Loan to the Due
Date
in the Collection Period immediately preceding the related Distribution Date
to
the date of such repurchase and (ii) the fair market value of any REO Property
and any other property held by any REMIC, such fair market value to be
determined by an independent appraiser or appraisers mutually agreed upon
by the
Master Servicer, any NIMS Insurer and the Trustee (reduced, in the case of
REO
Property, by (1) reasonably anticipated disposition costs and (2) any amount
by
which the fair market value as so reduced exceeds the outstanding principal
balance of the related Mortgage Loan plus interest accrued thereon at the
applicable Net Mortgage Rate to the date of such purchase). If the Master
Servicer elects to exercise such option, each REMIC created pursuant to this
Agreement (other than Pooling REMIC 1) shall be terminated in such a manner
so
that the termination of each such REMIC shall qualify as a “qualified
liquidation” under the REMIC Provisions and the Pooling REMIC 1 Regular
Interests and the Class LT-R Certificates will evidence the entire beneficial
interest in the property of the Trust Fund. Following a purchase of the Pooling
REMIC 1 Regular Interests pursuant to this subsection, the Trust Fund (and
Pooling REMIC 1) will remain outstanding and final payment on the Certificates
(other than the Class LT-R Certificates) will be made in accordance with
Section
7.03(a)(iii) and 5.02.
141
The
Trust
Fund will terminate upon the occurrence of a Trust Fund Termination Event,
in
accordance with Section 7.01(a).
Section
7.02. Procedure
Upon Termination of Trust Fund or Purchase of Pooling REMIC 1 Regular
Interests.
(a)
Notice
of
any Trust Fund Termination Event and notice of the purchase of the Pooling
REMIC
1 Regular Interests, specifying the Distribution Date upon which the final
distribution to the Certificates (other than the Class LT-R Certificates,
in the
case of a purchase of the Pooling REMIC 1 Regular Interests) shall be made,
shall be given promptly by the Trustee by first class mail to Certificateholders
mailed no later than 5 Business Days after the Trustee has received notice
from
the Master Servicer of its election to cause (x) sale of all of the property
of
the Trust Fund pursuant to Section 7.01(b), (y) the purchase of the Pooling
REMIC 1 Regular Interests pursuant to Section 7.01(d), or (z) upon the final
payment or other liquidation of the last Mortgage Loan or REO Property in
the
Trust Fund. In the case of a Trust Fund Termination Event, the Trustee shall
also give notice to the Master Servicer and the Certificate Registrar at
the
time notice is given to the Holders.
In
the
case of a Trust Fund Termination Event, such notice shall specify (A) the
Distribution Date upon which final distribution on the related Certificates,
Pooling REMIC 1 Regular Interests of all amounts required to be distributed
to
Certificateholders pursuant to Section 5.02 will be made upon presentation
and
surrender of the Certificates at the Corporate Trust Office, and (B) that
the
Record Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the Certificates
at the office or agency of the Trustee therein specified. Upon any such Trust
Fund Termination Event, the duties of the Certificate Registrar with respect
to
the Certificates or Pooling REMIC 1 Regular Interests shall terminate and
the
Trustee shall terminate or request the Master Servicer to terminate, the
Collection Account it maintains, the Certificate Account and any other account
or fund maintained with respect to the Certificates or Pooling REMIC 1 Regular
Interests, subject to the Trustee’s obligation hereunder to hold all amounts
payable to Certificateholders in trust without interest pending such payment.
142
In
the
case of a purchase of the Pooling REMIC 1 Regular Interests, such notice
shall
specify (A) the Distribution Date upon which final distribution on the
Certificates (other than the Class LT-R Certificates) of all amounts required
to
be distributed to Certificateholders pursuant to Section 5.02 (other than
any
distributions to the Class LT-R Certificates in respect of Pooling REMIC
1) will
be made upon presentation and surrender of the Certificates (other than the
Class LT-R Certificates) at the Corporate Trust Office, and (B) that the
Record
Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the Certificates
(other than the Class LT-R Certificates) at the office or agency of the Trustee
therein specified. Upon any such purchase of the Pooling REMIC 1 Regular
Interest, the duties of the Certificate Registrar with respect to the related
Certificates shall terminate but the Trustee shall not terminate or request
the
Master Servicer to terminate, the Collection Account it maintains, the
Certificate Account and any other account or fund maintained with respect
to the
related Certificates, subject to the Trustee’s obligation hereunder to hold all
amounts payable to Certificateholders in trust without interest pending such
payment. For all Distribution Dates following the Distribution Date on which
the
Master Servicer purchases the Pooling REMIC 1 Regular Interests, all amounts
that would be distributed on the related Certificates (other than the Class
LT-R
Certificate, and exclusive of amounts payable from any fund that is treated
as
an Excluded Trust Asset) absent such purchase shall be payable to the applicable
LTURI-holder.
(b)
In
the
event that all of the Holders do not surrender their Certificates for
cancellation within three months after the time specified in the above-mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within one year after the
second
notice any Certificates shall not have been surrendered for cancellation,
the
Trustee may take appropriate steps to contact the remaining Certificateholders
concerning surrender of such Certificates, and the cost thereof shall be
paid
out of the amounts distributable to such Holders. If within two years after
the
second notice any Certificates shall not have been surrendered for cancellation,
the Trustee shall, subject to applicable state law relating to escheatment,
hold
all amounts distributable to such Holders for the benefit of such Holders.
No
interest shall accrue on any amount held by the Trustee and not distributed
to a
Certificateholder due to such Certificateholder’s failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with
this Section.
(c)
Any
reasonable expenses incurred by the Trustee in connection with any Trust
Fund
Termination Event or any purchase of the Pooling REMIC 1 Regular Interests
shall
be reimbursed from proceeds received from such termination or
purchase.
Section
7.03. Additional
Requirements for any Trust Fund Termination Event or Purchase of the Pooling
REMIC 1 Regular Interests.
(a)
Any
termination of the Trust Fund pursuant to Section 7.01(a) or any termination
of
a REMIC pursuant to Section 7.01(d) shall be effected in accordance with
the
following additional requirements, unless the Trustee seeks (at the request
of
the party exercising the option to purchase all of the Mortgage Loans or
Pooling
REMIC 1 Regular Interests, pursuant to Section 7.01(b) or Section 7.01(d),
respectively), and subsequently receives, an Opinion of Counsel (at the expense
of such requesting party), addressed to the Trustee and any NIMS Insurer
to the
effect that the failure to comply with the requirements of this Section 7.03
will not result in an Adverse REMIC Event:
143
(i)
Within
89
days prior to the time of the making of the final payment on the Certificates
(other than the Class LT-R Certificates, in the case of a purchase of the
Pooling REMIC 1 Regular Interests, upon notification by the Master Servicer,
any
NIMS Insurer or an Affiliate of the Seller that it intends to exercise its
option to cause the termination of the Trust Fund or purchase the Pooling
REMIC
1 Regular Interests, the Trustee shall adopt a plan of complete liquidation
on
behalf of each REMIC (other than Pooling REMIC 1, in the case of a purchase
of
the Pooling REMIC 1 Regular Interests), meeting the requirements of a qualified
liquidation under the REMIC Provisions;
(ii)
Any
sale
of the assets of the Trust Fund or the Pooling REMIC 1 Regular Interests
pursuant to Section 7.02 shall be a sale for cash and shall occur at or after
the time of adoption of such a plan of complete liquidation and prior to
the
time of making of the final payment on the Certificates (other than the Class
LT-R Certificates, in the case of a purchase of the Pooling REMIC 1 Regular
Interests);
(iii)
On
the
date specified for final payment of the Certificates (other than the Class
LT-R
Certificates, in the case of a purchase of the Pooling REMIC 1 Regular
Interests, the Trustee shall make final distributions of principal and interest
on such Certificates in accordance with Section 5.02. In the case of a Trust
Fund Termination Event, and, after payment of, or provision for any outstanding
expenses, the Trustee shall distribute or credit, or cause to be distributed
or
credited, to the Holders of the Residual Certificates all cash on hand after
such final payment (other than cash retained to meet claims), and the Trust
Fund
(and each REMIC) shall terminate at that time; and
(iv)
In
no
event may the final payment on the Certificates or the final distribution
or
credit to the Holders of the Residual Certificates in respect of the residual
interest in any liquidated REMIC be made after the 89th day from the date
on
which the plan of complete liquidation for such REMIC is adopted.
(b)
By
its
acceptance of a Residual Certificate, each Holder thereof hereby agrees to
accept the plan of complete liquidation prepared by the Depositor and adopted
by
the Trustee under this Section and to take such other action in connection
therewith as may be reasonably requested by the Master Servicer or any
Servicer.
(c)
In
connection with the termination of the Trust Fund or a Section 7.01(d) Purchase
Event, the Trustee may request an Opinion of Counsel addressed to the Trustee
(at the expense of the Depositor) to the effect that all the requirements
of a
qualified liquidation under the REMIC Provisions have been met.
Section
7.04. Optional
Purchase Right of NIMS Insurer.
144
The
NIMS
Insurer may purchase any Distressed Mortgage Loan for a purchase price equal
to
the outstanding principal balance of such Mortgage Loan, plus accrued interest
thereon to the date of repurchase plus any unreimbursed Advances, Servicing
Advances, Servicing Fees or Trustee Fees and any unreimbursed expenses of
the
Trustee allocable to such Distressed Mortgage Loan. Any such purchase shall
be
accomplished by the NIMS Insurer’s remittance of the purchase price for the
Distressed Mortgage Loan to the Master Servicer for deposit into the Collection
Account. The NIMS Insurer shall not use any procedure in selecting Distressed
Mortgage Loans to be purchase which would be materially adverse to the
Certificateholders.
ARTICLE
VIII
RIGHTS
OF
CERTIFICATEHOLDERS
Section
8.01. Limitation
on Rights of Holders.
(a)
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of this Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any
of
them. Except as otherwise expressly provided herein, no Certificateholder,
solely by virtue of its status as a Certificateholder, shall have any right
to
vote or in any manner otherwise control the Master Servicer or the operation
and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time
as
partners or members of an association, nor shall any Certificateholder be
under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(b)
No
Certificateholder, solely by virtue of its status as Certificateholder, shall
have any right by virtue or by availing of any provision of this Agreement
to
institute any suit, action or proceeding in equity or at law upon or under
or
with respect to this Agreement, unless such Holder previously shall have
given
to the Trustee a written notice of an Event of Default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
evidencing not less than 25% of the Class Principal Amount or Class Notional
Amount, as applicable, (or Percentage Interest) of Certificates of each Class
affected thereby shall, with the prior written consent of any NIMS Insurer,
have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to
the
Trustee such reasonable indemnity as it may require against the cost, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for sixty
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding
and
no direction inconsistent with such written request has been given to the
Trustee during such sixty-day period by such Certificateholders or any NIMS
Insurer; it being understood and intended, and being expressly covenanted
by
each Certificateholder with every other Certificateholder, any NIMS Insurer
and
the Trustee, that no one or more Holders of Certificates shall have any right
in
any manner whatever by virtue or by availing of any provision of this Agreement
to affect, disturb or prejudice the rights of the Holders of any other of
such
Certificates or the rights of any NIMS Insurer, or to obtain or seek to obtain
priority over or preference to any other such Holder or any NIMS Insurer,
or to
enforce any right under this Agreement, except in the manner herein provided
and
for the benefit of all Certificateholders. For the protection and enforcement
of
the provisions of this Section, each and every Certificateholder, any NIMS
Insurer and the Trustee shall be entitled to such relief as can be given
either
at law or in equity.
145
Section
8.02. Access
to List of Holders.
(a)
If
the
Trustee is not acting as Certificate Registrar, the Certificate Registrar
will
furnish or cause to be furnished to the Trustee and any NIMS Insurer, within
fifteen days after receipt by the Certificate Registrar of a request by the
Trustee or any NIMS Insurer in writing, a list, in such form as the Trustee
may
reasonably require, of the names and addresses of the Certificateholders
of each
Class as of the most recent Record Date.
(b)
If
any
NIMS Insurer or three or more Holders or Certificate Owners (hereinafter
referred to as “Applicants”) apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates
and
is accompanied by a copy of the communication which such Applicants propose
to
transmit, then the Trustee shall, within five Business Days after the receipt
of
such application, afford such Applicants reasonable access during the normal
business hours of the Trustee to the most recent list of Certificateholders
held
by the Trustee or shall, as an alternative, send, at the Applicants’ expense,
the written communication proffered by the Applicants to all Certificateholders
at their addresses as they appear in the Certificate Register.
(c)
Every
Holder or Certificate Owner, if the Holder is a Clearing Agency, by receiving
and holding a Certificate, agrees with the Depositor, the Master Servicer,
any
NIMS Insurer, the Certificate Registrar and the Trustee, that none of the
Depositor, the Master Servicer, any NIMS Insurer, the Certificate Registrar,
the
Paying Agent or the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section
8.03. Acts
of Holders of Certificates.
(a)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced
by
one or more instruments of substantially similar tenor signed by such Holders
in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or
instruments are delivered to the Trustee, the Certificate Registrar and the
Paying Agent and, where expressly required herein, to the Master Servicer.
Such
instrument or instruments (as the action embodies therein and evidenced thereby)
are herein sometimes referred to as an “Act” of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of
a
writing appointing any such agents shall be sufficient for any purpose of
this
Agreement and conclusive in favor of the Trustee and the Master Servicer,
if
made in the manner provided in this Section. Each of the Trustee and the
Master
Servicer shall promptly notify the others of receipt of any such instrument
by
it, and shall promptly forward a copy of such instrument to the
others.
146
(b)
The
fact
and date of the execution by any Person of any such instrument or writing
may be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
or
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by
an
officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of
any
such instrument or writing, or the authority of the individual executing
the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c)
The
ownership of Certificates or Pooling REMIC 1 Regular Interests (whether or
not
such Certificates or Pooling REMIC 1 Regular Interests shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Trustee) shall be proved by the Certificate Register,
and
none of the Trustee, the Master Servicer, the Paying Agent or the Depositor
shall be affected by any notice to the contrary.
(d)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Certificate or Pooling REMIC 1 Regular Interests
shall bind every future Holder of the same Certificate or Pooling REMIC 1
Regular Interests and the Holder of every Certificate or Pooling REMIC 1
Regular
Interests issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered
to
be done by the Trustee or the Master Servicer in reliance thereon, whether
or
not notation of such action is made upon such Certificate or Pooling REMIC
1
Regular Interests.
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
BY
THE MASTER SERVICER
Section
9.01. Duties
of the Master Servicer.
The
Certificateholders, by their purchase and acceptance of the Certificates
or
Pooling REMIC 1 Regular Interests, appoint Aurora Loan Services LLC, as Master
Servicer. For and on behalf of the Depositor, the Trustee and the
Certificateholders, the Master Servicer shall master service the Mortgage
Loans
in accordance with the provisions of this Agreement and the provisions of
each
Servicing Agreement.
Section
9.02. Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
(a)
The
Master Servicer, at its expense, shall maintain in effect a Master Servicer
Fidelity Bond and a Master Servicer Errors and Omissions Insurance Policy,
affording coverage with respect to all directors, officers, employees and
other
Persons acting on such Master Servicer’s behalf, and covering errors and
omissions in the performance of the Master Servicer’s obligations hereunder. The
Master Servicer Errors and Omissions Insurance Policy and the Master Servicer
Fidelity Bond shall be in such form and amount that would be consistent with
coverage customarily maintained by master servicers of mortgage loans similar
to
the Mortgage Loans and the Master Servicer shall provide the Trustee and
any
NIMS Insurer upon request, with a copy of such policy and fidelity bond.
The
Master Servicer shall (i) require each Servicer to maintain an Errors and
Omissions Insurance Policy and a Servicer Fidelity Bond in accordance with
the
provisions of the applicable Servicing Agreement, (ii) cause each Servicer
to
provide to the Master Servicer certificates evidencing that such policy and
bond
is in effect and to furnish to the Master Servicer any notice of cancellation,
non-renewal or modification of the policy or bond received by it, as and
to the
extent provided in the applicable Servicing Agreement, and (iii) furnish
copies
of such policies and of the certificates and notices referred to in clause
(ii)
to the Trustee upon request.
147
(b)
The
Master Servicer shall promptly report to the Trustee and any NIMS Insurer
any
material changes that may occur in the Master Servicer Fidelity Bond or the
Master Servicer Errors and Omissions Insurance Policy and shall furnish to
the
Trustee and any NIMS Insurer, on request, certificates evidencing that such
bond
and insurance policy are in full force and effect. The Master Servicer shall
promptly report to the Trustee and any NIMS Insurer all cases of embezzlement
or
fraud, if such events involve funds relating to the Mortgage Loans. The total
losses, regardless of whether claims are filed with the applicable insurer
or
surety, shall be disclosed in such reports together with the amount of such
losses covered by insurance. If a bond or insurance claim report is filed
with
any of such bonding companies or insurers, the Master Servicer shall promptly
furnish a copy of such report to the Trustee and any NIMS Insurer. Any amounts
relating to the Mortgage Loans collected by the Master Servicer under any
such
bond or policy shall be promptly remitted by the Master Servicer to the Trustee
for deposit into the Certificate Account. Any amounts relating to the Mortgage
Loans collected by the applicable Servicer under any such bond or policy
shall
be remitted to the Master Servicer to the extent provided in the applicable
Servicing Agreement.
Section
9.03. Master
Servicer’s Financial Statements and Related Information.
For
each
year this Agreement is in effect, the Master Servicer shall submit to the
Trustee, each Rating Agency and the Depositor a copy of the annual audited
financial statements of its parent on or prior to March 31st of each year
commencing on March 31, 2008. Such financial statements shall include
comparative balance sheets, income statements, statement of changes in
shareholder's equity, statements of cash flows, a consolidating schedule
showing
consolidated subsidiaries and any related notes required pursuant to generally
accepted accounting principles, certified by a nationally recognized firm
of
Independent Accountants to the effect that such financial statements were
examined and prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding
year.
Section
9.04. Power
to Act; Procedures.
(a)
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, and each Servicer shall have full power and authority (to
the
extent provided in the applicable Servicing Agreement) to do any and all
things
that it may deem necessary or desirable in connection with the servicing
and
administration of the Mortgage Loans, including but not
148
limited
to the power and authority (i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages, (iii)
to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions
of
this Agreement and the applicable Servicing Agreement, as applicable; provided
that the Master Servicer shall not take, or knowingly permit any Servicer
to
take, any action that is inconsistent with or prejudices the interests of
the
Trust Fund or the Certificateholders in any Mortgage Loan or the rights and
interests of the Depositor, the Trustee and the Certificateholders under
this
Agreement. The Master Servicer further is authorized and empowered by the
Trustee, on behalf of the Certificateholders and the Trustee, in its own
name or
in the name of any Servicer (to the extent permitted in the related Servicing
Agreement), when the Master Servicer or a Servicer, as the case may be, believes
it is appropriate in its best judgment to register any Mortgage Loan with
MERS,
or cause the removal from the registration of any Mortgage Loan on the MERS
system, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment
and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successor and assigns. The Master Servicer shall represent and protect the
interests of the Trust Fund in the same manner as it protects its own interests
in mortgage loans in its own portfolio in any claim, proceeding or litigation
regarding a Mortgage Loan and shall not make or knowingly permit any Servicer
to
make any modification, waiver or amendment of any term of any Mortgage Loan
that
would cause an Adverse REMIC Event. Without limiting the generality of the
foregoing, the Master Servicer in its own name or in the name of a Servicer,
and
each Servicer, to the extent such authority is delegated to such Servicer
under
the applicable Servicing Agreement, is hereby authorized and empowered by
the
Trustee when the Master Servicer or such Servicer, as the case may be, believes
it appropriate in its best judgment and in accordance with Accepted Servicing
Practices and the applicable Servicing Agreement, to execute and deliver,
on
behalf of itself and the Certificateholders, the Trustee or any of them,
any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. The Trustee shall execute,
upon request, any powers of attorney furnished to it by the Master Servicer
empowering the Master Servicer or any Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release
or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property,
and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with the applicable Servicing
Agreement and this Agreement, and the Trustee shall execute and deliver such
other documents, as the Master Servicer may request, necessary or appropriate
to
enable the Master Servicer to master service or administer the Mortgage Loans
and carry out its duties hereunder and to allow such Servicer to service
the
Mortgage Loans, in each case in accordance with Accepted Servicing Practices
(and the Trustee shall have no liability for misuse of any such powers of
attorney by the Master Servicer or any Servicer). If the Master Servicer
or the
Trustee has been advised that it is likely that the laws of the state in
which
action is to be taken prohibit such action if taken in the name of the Trustee
or that the Trustee would be adversely affected under the “doing business” or
tax laws of such state if such action is taken in its name, then upon request
of
the Trustee the Master Servicer shall join with the Trustee in the appointment
of a co-trustee pursuant to Section 6.09 hereof. In no event shall
149
the
Master Servicer, without the Trustee’s written consent: (i) initiate any action,
suit or proceeding solely under the Trustee’s name without indicating the Master
Servicer in its applicable, representative capacity, so long as the
jurisdictional and procedural rules will allow for this insertion to occur,
(ii)
initiate any action, suit or proceeding not directly relating to the servicing
of a Mortgage Loan (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor or the Transferor for
breaches of representations and warranties) solely under the Trustee’s name,
(iii) engage counsel to represent the Trustee in any action, suit or proceeding
not directly relating to the servicing of a Mortgage Loan (including but
not
limited to actions, suits or proceedings against Certificateholders, or against
the Depositor or the Transferor for breaches of representations and warranties),
or (iv) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any action with the intent to cause,
and that actually causes, the Trustee to be registered to do business in
any
state. The Master Servicer shall indemnify the Trustee for any and all costs,
liabilities and expenses incurred by the Trustee in connection with the
negligent or willful misuse of such powers of attorney by the Master Servicer.
In the performance of its duties hereunder, the Master Servicer shall be
an
independent contractor and shall not, except in those instances where it
is
taking action in the name of the Trustee on behalf of the Trust Fund, be
deemed
to be the agent of the Trustee.
(b)
In
master
servicing and administering the Mortgage Loans, the Master Servicer shall
employ
procedures, and shall exercise the same care that it customarily employs
and
exercises master servicing and administering loans for its own account, giving
due consideration to Accepted Servicing Practices where such practices do
not
conflict with this Agreement. Consistent with the foregoing, the Master Servicer
may, and may permit any Servicer to, in its discretion (i) waive any late
payment charge (but not any Prepayment Premium, except as set forth below)
and,
except as set forth below (ii) extend the due dates for payments due on a
Mortgage Note; provided,
however,
that
the maturity of any Mortgage Loan shall not be extended past the Final Scheduled
Distribution Date of the Certificates (other than the Class AIO Certificates,
which is February 2047. In the event of any such modification, the Master
Servicer shall calculate the Scheduled Payment for such Mortgage Loan based
on
the modified terms of the Mortgage Loan and shall only be required to make
Advances pursuant to Section 5.04 to the extent of the new Scheduled
Payment. Notwithstanding anything to the contrary in this Agreement, the
Master
Servicer shall not make or knowingly permit any modification, waiver or
amendment of any material term of any Mortgage Loan, unless: (1) such Mortgage
Loan is in default or default by the related Mortgagor is, in the reasonable
judgment of the Master Servicer or the related Servicer, reasonably foreseeable,
(2) in the case of a waiver of a Prepayment Premium, (a) such Mortgage Loan
is
in default or default by the related Mortgagor is, in the reasonable judgment
of
the Master Servicer or the related Servicer, reasonably foreseeable and such
waiver would maximize recovery of total proceeds taking into account the
value
of such Prepayment Premium and the related Mortgage Loan and (b) if the
prepayment is not the result of a refinance by the related Servicer or any
of
its affiliates, (i) the collection of the Prepayment Premium would be in
violation of applicable law or (ii) the collection of such Prepayment Premium
would be considered “predatory” pursuant to written guidance published or issued
by any applicable federal, state or local regulatory authority acting in
its
official capacity and having jurisdiction over such matters and (3) such
modification, waiver or amendment would not result in an Adverse REMIC
Event.
150
Section
9.05. Enforcement
of Servicer’s and Master Servicer’s Obligations.
(a)
Each
Servicing Agreement requires the applicable Servicer, respectively, to service
the Mortgage Loans in accordance with the provisions thereof. References
in this
Agreement to actions taken or to be taken by the Master Servicer include
actions
taken or to be taken by a Servicer on behalf of the Master Servicer. Any
fees
and other amounts payable to a Servicer shall be deducted from amounts remitted
to the Master Servicer by such Servicer to the extent permitted by the
applicable Servicing Agreement and shall not be an obligation of the Trust
Fund,
the Trustee or the Master Servicer.
(b)
The
Master Servicer shall not be required to (i) take any action with respect
to the
servicing of any Mortgage Loan that the related Servicer is not required
to take
under the related Servicing Agreement and (ii) cause a Servicer to take any
action or refrain from taking any action if the related Servicing Agreement
does
not require the Servicer to take such action or refrain from taking such
action;
in both cases notwithstanding any provision of this Agreement that requires
the
Master Servicer to take such action or cause the Servicer to take such
action.
(c)
The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall use its reasonable best efforts to enforce the obligations of each
Servicer under the related Servicing Agreement, and shall, upon obtaining
actual
knowledge of the failure of a Servicer to perform its obligations in accordance
therewith, to the extent that such non-performance of such obligations would
have a material adverse effect on a Mortgage Loan, the Trust Fund or the
Certificateholders, terminate the rights and obligations of such Servicer
thereunder and either act as servicer of the related Mortgage Loans or cause
the
other parties hereto to enter into a Servicing Agreement (and such parties
hereby agree to execute and deliver any such successor Servicing Agreement),
with a successor Servicer. Such enforcement, including, without limitation,
the
legal prosecution of claims, termination of Servicing Agreements and the
pursuit
of other appropriate remedies, shall be in such form and carried out to such
an
extent and at such time as the Master Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans.
The
Master Servicer shall pay the costs of such enforcement at its own expense,
and
shall be reimbursed therefor initially (i) from a general recovery resulting
from such enforcement only to the extent, if any, that such recovery exceeds
all
amounts due in respect of the related Mortgage Loans, (ii) from a specific
recovery of costs, expenses or attorneys’ fees against the party against whom
such enforcement is directed, and then, (iii) to the extent that such amounts
are insufficient to reimburse the Master Servicer for the costs of such
enforcement, from the Collection Account.
(d)
The
Master Servicer shall be entitled to conclusively rely on any certifications
or
other information provided by the Servicers under the terms of the applicable
Servicing Agreement, in its preparation of any certifications, notifications,
filings or reports, in accordance with the terms hereof or as may be required
by
applicable law or regulation.
Section
9.06. Collection
of Taxes, Assessments and Similar Items.
(a)
To
the
extent provided in the applicable Servicing Agreement, the Master Servicer
shall
cause each Servicer to establish and maintain one or more custodial accounts
at
a depository institution (which may be a depository institution with which
the
Master Servicer or any Servicer establishes accounts in the ordinary course
of
its servicing activities), the accounts of which are insured to the maximum
extent permitted by the FDIC (each, an “Escrow Account”) and to deposit therein
any collections of amounts received with respect to amounts due for taxes,
assessments, water rates, standard hazard insurance policy premiums, Payaheads,
if applicable, or any comparable items for the account of the Mortgagors.
Withdrawals from any Escrow Account may be made (to the extent amounts have
been
escrowed for such purpose) only in accordance with the applicable Servicing
Agreement. Each Servicer shall be entitled to all investment income not required
to be paid to Mortgagors on any Escrow Account maintained by such Servicer.
The
Master Servicer shall make (or cause to be made) to the extent provided in
the
applicable Servicing Agreement advances to the extent necessary in order
to
effect timely payment of taxes, water rates, assessments, standard hazard
insurance policy premiums or comparable items in connection with the related
Mortgage Loan (to the extent that the Mortgagor is required, but fails, to
pay
such items), provided that it or the applicable Servicer has determined that
the
funds so advanced are recoverable from escrow payments, reimbursement pursuant
to Section 4.02 or otherwise.
151
(b)
Costs
incurred by the Master Servicer or by any Servicer in effecting the timely
payment of taxes and assessments on the properties subject to the Mortgage
Loans
may be added to the amount owing under the related Mortgage Note where the
terms
of the Mortgage Note so permit; provided,
however,
that
the addition of any such cost shall not be taken into account for purposes
of
calculating the distributions to be made to Certificateholders. Such costs,
to
the extent that they are unanticipated, extraordinary costs, and not ordinary
or
routine costs shall be recoverable as a Servicing Advance by the Master Servicer
pursuant to Section 4.02.
Section
9.07. Termination
of Servicing Agreements; Successor Servicers.
(a)
The
Master Servicer shall be entitled to terminate the rights and obligations
of any
Servicer under the applicable Servicing Agreement in accordance with the
terms
and conditions of such Servicing Agreement and without any limitation by
virtue
of this Agreement; provided,
however,
that in
the event of termination of any Servicing Agreement by the Master Servicer
or
the related Servicer, the Master Servicer shall either act as Servicer of
the
related Mortgage Loans or provide for the servicing of the Mortgage Loans
by a
successor servicer to be appointed as provided in the applicable Servicing
Agreement.
The
parties acknowledge that notwithstanding the preceding sentence, there may
be a
transition period, not to exceed 90 days, in order to effect the transfer
of
servicing to a successor Servicer. The Master Servicer shall be entitled
to be
reimbursed from each Servicer (or by the Trust Fund, if the Servicer is unable
to fulfill its obligations hereunder) for all costs associated with the transfer
of servicing from the predecessor servicer, including without limitation,
any
costs or expenses associated with the complete transfer of all servicing
data
and the completion, correction or manipulation of such servicing data, as
may be
required by the Master Servicer to correct any errors or insufficiencies
in the
servicing data or otherwise to enable the Master Servicer to service the
Mortgage Loans properly and effectively.
(b)
If
the
Master Servicer acts as a successor servicer, it will not assume liability
for
the representations and warranties of the Servicer, if any, that it replaces.
The Master Servicer shall use reasonable efforts to have the successor servicer
assume liability for the representations and warranties made by the terminated
Servicer in the related Servicing Agreement, and in the event of any such
assumption by the successor servicer, the Trustee or the Master Servicer,
as
applicable, may, in the exercise of its business judgment, release the
terminated Servicer from liability for such representations and
warranties.
152
(c)
If
the
Master Servicer acts as a successor servicer, it will have the same obligations
to made Advances as the Servicer under the related Servicing Agreement and
to
reimburse itself for unreimbursed Advances if required by the Servicing
Agreement but will have no obligation to make an Advance if it determines
in its
reasonable judgment that such Advance is non-recoverable. To the extent that
the
Master Servicer is unable to find a successor servicer that is willing to
service the Mortgage Loans for the Servicing Fee because of the obligation
of
the Servicer to make Advances regardless of whether such Advance is recoverable,
the applicable Servicing Agreement may be amended to provide that the successor
servicer shall have no obligation to make an Advance if it determines in
its
reasonable judgment that such Advance is non-recoverable and provides an
Officer’s Certificate to such effect to the Master Servicer and the Trustee and
any NIMS Insurer.
Section
9.08. Master
Servicer Liable for Enforcement.
Notwithstanding
any Servicing Agreement, the Master Servicer shall remain obligated and liable
to the Trustee, any NIMS Insurer and the Certificateholders in accordance
with
the provisions of this Agreement, to the extent of its obligations hereunder,
without diminution of such obligation or liability by virtue of such Servicing
Agreements. The Master Servicer shall use commercially reasonable efforts
to
ensure that the Mortgage Loans are serviced in accordance with the provisions
of
this Agreement and shall use commercially reasonable efforts to enforce the
provisions of each Servicing Agreement for the benefit of the Certificateholders
and any NIMS Insurer. The Master Servicer shall be entitled to enter into
any
agreement with any Servicer for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. Except as expressly set forth herein, the Master Servicer
shall
have no liability for the acts or omissions of any Servicer in the performance
by such Servicer of its obligations under the related Servicing
Agreement.
Section
9.09. No
Contractual Relationship Between Any Servicer and Trustee or
Depositor.
Any
Servicing Agreement that may be entered into and any other transactions or
services relating to the Mortgage Loans involving any Servicer in its capacity
as such and not as an originator shall be deemed to be between such Servicer,
the Seller, the NIMS Insurer, the Master Servicer, and the Trustee and the
Depositor shall not be deemed parties thereto and shall have no obligations,
duties or liabilities with respect to such Servicer except as set forth in
Section 9.10 hereof, but shall have rights thereunder as third party
beneficiaries. It is furthermore understood and agreed by the parties hereto
that the obligations of any Servicer are set forth in their entirety in such
Servicer’s related Servicing Agreement and such Servicer has no obligations
under and is not otherwise bound by the terms of this Agreement.
Section
9.10. Assumption
of Servicing Agreement by Trustee.
(a)
In
the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Event of Default under this Agreement), after
a
period not to exceed ninety days after the issuance of any notice of termination
pursuant to Section 6.14 or Section 9.28, as applicable, the Trustee shall,
in
accordance with Section 6.14, thereupon assume all of the rights and obligations
of such Master Servicer hereunder and under each Servicing Agreement entered
into with respect to the Mortgage Loans. The Trustee, its designee or any
successor master servicer appointed by the Trustee shall be deemed to have
assumed all of the Master Servicer’s interest herein and therein to the same
extent as if such Servicing Agreement had been assigned to the assuming party,
except that the Master Servicer shall not thereby be relieved of any liability
or obligations of the Master Servicer under such Servicing Agreement accruing
prior to its replacement as Master Servicer, and shall be liable to the Trustee
and any NIMS Insurer, and hereby agrees to indemnify and hold harmless the
Trustee and any NIMS Insurer from and against all costs, damages, expenses
and
liabilities (including reasonable attorneys’ fees) incurred by the Trustee or
any NIMS Insurer as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee’s (or other successor master
servicer’s) assumption (but not its performance, except to the extent that costs
or liability of the Trustee (or other successor master servicer’s) are created
or increased as a result of negligent or wrongful acts or omissions of the
Master Servicer prior to its replacement as Master Servicer) of the Master
Servicer’s obligations, duties or responsibilities thereunder; provided that the
Master Servicer shall not indemnify or hold harmless the Trustee against
negligent or willful misconduct of the Trustee.
153
(b)
The
Master Servicer that has been terminated shall, upon request of the Trustee
but
at the expense of such Master Servicer, deliver to the assuming party all
documents and records relating to each Servicing Agreement and the related
Mortgage Loans and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer
of
each Servicing Agreement to the assuming party.
Section
9.11. Due-on-Sale
Clauses; Assumption Agreements; Easements.
(a)
To
the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, and to the extent that the
Master
Servicer has knowledge of the conveyance of a Mortgaged Property, the Master
Servicer shall cause the related Servicer to enforce such clauses in accordance
with the applicable Servicing Agreement. If applicable law prohibits the
enforcement of a due-on-sale clause or such clause is otherwise not enforced
in
accordance with the applicable Servicing Agreement, and, as a consequence,
a
Mortgage Loan is assumed, the original Mortgagor may be released from liability
in accordance with the applicable Servicing Agreement.
(b)
The
Master Servicer or the related Servicer, as the case may be, shall be entitled
to approve a request from a Mortgagor for the granting of an easement thereon
in
favor of another Person or any alteration or demolition of the related Mortgaged
Property if it has determined, exercising its good faith business judgment
in
the same manner as it would if it were the owner of the related Mortgage
Loan,
that the security for, and the timely and full collectibility of, such Mortgage
Loan would not be materially adversely affected thereby. Any fee collected
by
the Master Servicer or the related Servicer for processing such a request
will
be retained by the Master Servicer or such Servicer as additional servicing
compensation.
Section
9.12. Release
of Mortgage Files.
154
(a)
Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or (ii) the receipt
by the Master Servicer of a notification that payment in full has been or
will
be escrowed in a manner customary for such purposes, the Master Servicer
shall,
or shall cause the applicable Servicer to, promptly notify the Trustee (or
the
applicable Custodian) by a certification (which certification shall include
a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Collection Account maintained
by the Master Servicer pursuant to Section 4.01 hereof have been or will
be so
deposited) of a Servicing Officer and shall request (on the form attached
hereto
as Exhibit C or on the form attached to the related Custodial Agreement)
the
Trustee or the applicable Custodian, to deliver to the applicable Servicer
the
related Mortgage File; provided,
however,
that in
lieu of sending a hard copy certification of a Servicing Officer, the Master
Servicer may, or may cause, the Servicer to, deliver the request for release
in
a mutually agreeable electronic format, and to the extent that such a request,
on its face, originates from a Servicing Officer, no original signature shall
be
required. Upon receipt of such certification and request, the Trustee or
the
applicable Custodian (with the consent, and at the direction of the Trustee),
shall promptly release the related Mortgage File to the applicable Servicer
and
neither the Trustee nor the applicable Custodian shall have any further
responsibility with regard to such Mortgage File. Upon any such payment in
full,
the Master Servicer is authorized, and each Servicer, to the extent such
authority is provided for under the applicable Servicing Agreement, is
authorized, to give, as agent for the Trustee, as the mortgagee under the
Mortgage that secured the Mortgage Loan, an instrument of satisfaction (or
assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment,
as the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed
that no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Collection
Account.
(b)
From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, the Trustee shall execute such documents as shall be prepared
and
furnished to the Trustee by the Master Servicer, or by a Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution
of
any such proceedings. The Trustee or the applicable Custodian, shall, upon
request of the Master Servicer, or of a Servicer, and delivery to the Trustee
or
the applicable Custodian, of a request for release of documents and a receipt
signed by a Servicing Officer substantially in the form of Exhibit C, release
the related Mortgage File held in its possession or control to the Master
Servicer (or the applicable Servicer). Such trust receipt shall obligate
the
Master Servicer or Servicer to return the Mortgage File to the Trustee or
the
applicable Custodian, as applicable, when the need therefor by the Master
Servicer or Servicer no longer exists unless (i) the Mortgage Loan shall
be
liquidated, in which case, upon receipt of a certificate of a Servicing Officer
similar to that hereinabove specified, the trust receipt shall be released
by
the Trustee or the applicable Custodian, as applicable, to the Master Servicer
(or the applicable Servicer) or (ii) the Mortgage File has been delivered
directly or through a Servicer to an attorney, or to a public trustee or
other
public official as required by law, for purposes of initiating or pursuing
legal
action or other proceedings for the foreclosure of the Mortgaged Property
either
judicially or non-judicially, and the Master Servicer has delivered directly
or
through a Servicer to the Trustee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage
File
or such document was delivered and the purpose of such delivery.
155
Section
9.13. Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
(a)
The
Master Servicer shall transmit, or shall cause the applicable Servicer to
transmit, to the Trustee such documents and instruments coming into the
possession of the Master Servicer or such Servicer from time to time as are
required by the terms hereof or of the applicable Servicing Agreement to
be
delivered to the Trustee or the applicable Custodian. Any funds received
by the
Master Servicer or by a Servicer in respect of any Mortgage Loan or which
otherwise are collected by the Master Servicer or a Servicer as Liquidation
Proceeds or Insurance Proceeds in respect of any Mortgage Loan shall be held
for
the benefit of the Trustee and the Certificateholders subject to the Master
Servicer’s right to retain or withdraw from the Collection Account the Master
Servicing Fee and other amounts provided in this Agreement and to the right
of
each Servicer to retain its Servicing Fee and other amounts as provided in
the
related Servicing Agreement. The Master Servicer shall, and shall (to the
extent
provided in the applicable Servicing Agreement) cause each Servicer to, provide
access to information and documentation regarding the Mortgage Loans to the
Trustee, its respective agents and accountants at any time upon reasonable
request and during normal business hours, and to Certificateholders that
are
savings and loan associations, banks or insurance companies, the Office of
Thrift Supervision, the FDIC and the supervisory agents and examiners of
such
Office and Corporation or examiners of any other federal or state banking
or
insurance regulatory authority if so required by applicable regulations of
the
Office of Thrift Supervision or other regulatory authority, such access to
be
afforded without charge but only upon reasonable request in writing and during
normal business hours at the offices of the Master Servicer designated by
it. In
fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information.
(b)
All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, or any Servicer, in respect of any Mortgage Loans, whether
from
the collection of principal and interest payments or from Liquidation Proceeds
or Insurance Proceeds, shall be held by the Master Servicer, or by any Servicer,
for and on behalf of the Trustee and the Certificateholders and shall be
and
remain the sole and exclusive property of the Trustee; provided,
however,
that
the Master Servicer and each Servicer shall be entitled to setoff against,
and
deduct from, any such funds any amounts that are properly due and payable
to the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement and shall be authorized to remit such funds to the Trustee
in accordance with this Agreement.
(c)
The
Master Servicer hereby acknowledges that concurrently with the execution
of this
Agreement, the Trustee shall own or, to the extent that a court of competent
jurisdiction shall deem the conveyance of the Mortgage Loans from the Seller
to
the Depositor not to constitute a sale, the Trustee shall have a security
interest in the Mortgage Loans and in all Mortgage Files representing such
Mortgage Loans and in all funds and investment property now or hereafter
held
by, or under the control of, a Servicer or the Master Servicer that are
collected by any Servicer or the Master Servicer in connection with the Mortgage
Loans, whether as scheduled installments of principal and interest or as
full or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which a Servicer
is entitled under the applicable Servicing Agreement, or the Master Servicer
or
the Depositor is entitled to hereunder); and the Master Servicer agrees that
so
long as the Mortgage Loans are assigned to and held by the Trustee or any
Custodian, all documents or instruments constituting part of the Mortgage
Files,
and such funds relating to the Mortgage Loans which come into the possession
or
custody of, or which are subject to the control of, the Master Servicer or
any
Servicer shall be held by the Master Servicer or such Servicer for and on
behalf
of the Trustee as the Trustee’s agent and bailee for purposes of perfecting the
Trustee’s security interest therein as provided by the applicable Uniform
Commercial Code or other applicable laws.
156
(d)
The
Master Servicer agrees that it shall not, and shall not authorize any Servicer
to, create, incur or subject any Mortgage Loans, or any funds that are deposited
in any Custodial Account, Escrow Account or the Collection Account, or any
funds
that otherwise are or may become due or payable to the Trustee, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
Section
9.14. Representations
and Warranties of the Master Servicer.
(a)
The
Master Servicer hereby represents and warrants to the Depositor, any NIMS
Insurer and the Trustee, for the benefit of the Certificateholders, as of
the
Closing Date that:
(i) it
is
validly existing and in good standing as a limited liability company under
the
laws of the State of Delaware, and as Master Servicer has full power and
authority to transact any and all business contemplated by this Agreement
and to
execute, deliver and comply with its obligations under the terms of this
Agreement, the execution, delivery and performance of which have been duly
authorized by all necessary company action on the part of the Master
Servicer;
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A)
violate
the Master Servicer’s certificate of formation or limited liability company
agreement, (B) violate any law or regulation or any administrative decree
or
order to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or
result in the breach of, any material contract, agreement or other instrument
to
which the Master Servicer is a party or by which it is bound or to which
any of
its assets are subject, which violation, default or breach would materially
and
adversely affect the Master Servicer’s ability to perform its obligations under
this Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery
hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms
hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv) the
Master Servicer is not in default with respect to any order or decree of
any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially
and
adversely affect its performance hereunder;
157
(v) the
Master Servicer is not a party to or bound by any agreement or instrument
or
subject to any certificate of formation or limited liability company agreement
provision, bylaw or any other company restriction or any judgment, order,
writ,
injunction, decree, law or regulation that may materially and adversely affect
its ability as Master Servicer to perform its obligations under this Agreement
or that requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations under
this Agreement;
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering
into
this Agreement or performing its obligations under this Agreement;
(vii) the
Master Servicer, or an affiliate thereof the primary business of which is
the
servicing of conventional residential mortgage loans, is a Xxxxxx Xxx- or
Xxxxxxx Mac-approved seller/servicer;
(viii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer;
(x) the
Master Servicer has obtained an Errors and Omissions Insurance Policy and
a
Fidelity Bond in accordance with Section 9.02 each of which is in full force
and
effect, and each of which provides at least such coverage as is required
hereunder; and
(xi) the
information about the Master Servicer under the heading “The Master Servicer” in
the Offering Document relating to the Master Servicer does not include an
untrue
statement of a material fact and does not omit to state a material fact,
with
respect to the statements made, necessary in order to make the statements
in
light of the circumstances under which they were made not
misleading.
(b)
It
is
understood and agreed that the representations and warranties set forth in
this
Section 9.14 shall survive the execution and delivery of this Agreement.
The
Master Servicer shall indemnify the Depositor, any NIMS Insurer and the Trustee
and hold them harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Master Servicer’s representations and warranties
contained in Section 9.14(a). It is understood and agreed that the enforcement
of the obligation of the Master Servicer set forth in this Section to indemnify
the Depositor and the Trustee as provided in this Section constitutes the
sole
remedy (other than as set forth in Section 6.14) of the Depositor, any NIMS
Insurer and the Trustee, respecting a breach of the foregoing representations
and warranties. Such indemnification shall survive any termination of the
Master
Servicer as Master Servicer hereunder, and any termination of this
Agreement.
158
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by any of the Depositor, the Master Servicer or
the
Trustee or notice thereof by any one of such parties to the other parties.
(c)
It
is
understood and agreed that the representations and warranties of the Depositor
set forth in Sections 2.03(a)(i) through (vi) shall survive the execution
and
delivery of this Agreement. The Depositor shall indemnify the Master Servicer
and hold it harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Depositor’s representations and warranties
contained in Sections 2.03(a)(i) through (vi) hereof. It is understood and
agreed that the enforcement of the obligation of the Depositor set forth
in this
Section to indemnify the Master Servicer as provided in this Section constitutes
the sole remedy hereunder of the Master Servicer respecting a breach by the
Depositor of the representations and warranties in Sections 2.03(a)(i) through
(vi) hereof.
(d)
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by either the Depositor, the Master Servicer, the
Trustee or any NIMS Insurer or notice thereof by any one of such parties
to the
other parties. Notwithstanding anything in this Agreement to the contrary,
the
Master Servicer shall not be liable for special, indirect or consequential
losses or damages of any kind whatsoever (including, but not limited to,
lost
profits).
Section
9.15. Opinion.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered
to the
Depositor, the Seller, the Trustee and any NIMS Insurer one or more Opinions
of
Counsel, dated the Closing Date, in form and substance reasonably satisfactory
to the Depositor and Xxxxxx Brothers Inc., as to the due authorization,
execution and delivery of this Agreement by the Master Servicer and the
enforceability thereof.
Section
9.16. Standard
Hazard and Flood Insurance Policies.
For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall
maintain, or cause to be maintained by each Servicer, standard fire and casualty
insurance and, where applicable, flood insurance, all in accordance with
the
provisions of this Agreement and the related Servicing Agreement, as applicable.
It is understood and agreed that such insurance shall be with insurers meeting
the eligibility requirements set forth in the applicable Servicing Agreement
and
that no earthquake or other additional insurance is to be required of any
Mortgagor or to be maintained on property acquired in respect of a defaulted
loan, other than pursuant to such applicable laws and regulations as shall
at
any time be in force and as shall require such additional
insurance.
159
Pursuant
to Section 4.01, any amounts collected by the Master Servicer, or by any
Servicer, under any insurance policies maintained pursuant to this Section
9.16
or any Servicing Agreement (other than amounts to be applied to the restoration
or repair of the property subject to the related Mortgage or released to
the
Mortgagor in accordance with the applicable Servicing Agreement) shall be
deposited into the Collection Account, subject to withdrawal pursuant to
Section
4.02. Any cost incurred by the Master Servicer or any Servicer in maintaining
any such insurance if the Mortgagor defaults in its obligation to do so shall
be
added to the amount owing under the Mortgage Loan where the terms of the
Mortgage Loan so permit; provided,
however,
that the
addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders and shall
be
recoverable by the Master Servicer or such Servicer pursuant to Section
4.02.
Section
9.17. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall cause each Servicer (to the extent provided in the
applicable Servicing Agreement) to, prepare and present on behalf of the
Trustee
and the Certificateholders all claims under the Insurance Policies with respect
to the Mortgage Loans, and take such actions (including the negotiation,
settlement, compromise or enforcement of the insured’s claim) as shall be
necessary to realize recovery under such policies. Any proceeds disbursed
to the
Master Servicer (or disbursed to a Servicer and remitted to the Master Servicer)
in respect of such policies or bonds shall be promptly deposited in the
Collection Account or the Custodial Account upon receipt, except that any
amounts realized that are to be applied to the repair or restoration of the
related Mortgaged Property or related to the related Mortgagor in accordance
with the Master Servicer’s or related Servicer’s normal servicing procedures
need not be so deposited (or remitted).
Section
9.18. Maintenance
of the Primary Mortgage Insurance Policies.
(a)
The
Master Servicer shall not take, or knowingly permit any Servicer (consistent
with the applicable Servicing Agreement) to take, any action that would result
in noncoverage under any applicable Primary Mortgage Insurance Policy of
any
loss which, but for the actions of such Master Servicer or such Servicer,
would
have been covered thereunder. To the extent that coverage is available, the
Master Servicer shall use its best reasonable efforts to keep in force and
effect, or to cause each Servicer to keep in force and effect (to the extent
that the Mortgage Loan requires the Mortgagor to maintain such insurance),
primary mortgage insurance applicable to each Mortgage Loan in accordance
with
the provisions of this Agreement and the related Servicing Agreement, as
applicable. The Master Servicer shall not, and shall not knowingly permit
any
Servicer to, cancel or refuse to renew any such Primary Mortgage Insurance
Policy that is in effect at the date of the initial issuance of the Certificates
and is required to be kept in force hereunder except in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable.
(b)
The
Master Servicer agrees, to the extent provided in each Servicing Agreement,
to
cause each Servicer to present, on behalf of the Trustee and the
Certificateholders, claims to the insurer under any Primary Mortgage Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Mortgage Insurance Policies
respecting defaulted Mortgage Loans. Pursuant to Section 4.01, any amounts
collected by the Master Servicer or any Servicer under any Primary Mortgage
Insurance Policies shall be deposited in the Collection Account, subject
to
withdrawal pursuant to Section 4.02.
160
Section
9.19. Trustee
To Retain Possession of Certain Insurance Policies and
Documents.
The
Trustee (or the applicable Custodian on behalf of the Trustee) shall retain
possession and custody of the originals of the Primary Mortgage Insurance
Policies or certificate of insurance if applicable and any certificates of
renewal as to the foregoing as may be issued from time to time as contemplated
by this Agreement. Until all amounts distributable in respect of the
Certificates have been distributed in full and the Master Servicer otherwise
has
fulfilled its obligations under this Agreement, the Trustee (or the applicable
Custodian) shall also retain possession and custody of each Mortgage File
in
accordance with and subject to the terms and conditions of this Agreement.
The
Master Servicer shall promptly deliver or cause each Servicer to deliver
to the
Trustee (or the applicable Custodian), upon the execution or receipt thereof
the
originals of the Primary Mortgage Insurance Policies and any certificates
of
renewal thereof, and such other documents or instruments that constitute
portions of the Mortgage File that come into the possession of the Master
Servicer or any Servicer from time to time.
Section
9.20. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall use its reasonable best efforts to, or to cause each
Servicer to, foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Mortgage Loans as
come
into and continue in default and as to which no satisfactory arrangements
can be
made for collection of delinquent payments, all in accordance with the
applicable Servicing Agreement. Alternatively, the Master Servicer may take,
or
authorize any Servicer to take, other actions in respect of a defaulted Mortgage
Loan, which may include (i) accepting a short sale (a payoff of the
Mortgage Loan for an amount less than the total amount contractually owed
in
order to facilitate a sale of the Mortgaged Property by the Mortgagor) or
permitting a short refinancing (a payoff of the Mortgage Loan for an amount
less
than the total amount contractually owed in order to facilitate refinancing
transactions by the Mortgagor not involving a sale of the Mortgaged Property),
(ii) arranging for a repayment plan or (iii) agreeing to a
modification in accordance with Section 9.04. In connection with such
foreclosure or other conversion or action, the Master Servicer shall, consistent
with Section 9.18, follow such practices and procedures as it shall reasonably
determine to be in the best interests of the Trust Fund and the
Certificateholders and which shall be consistent with its customary practices
in
performing its general mortgage servicing activities; provided that the Master
Servicer shall not be liable in any respect hereunder if the Master Servicer
is
acting in connection with any such foreclosure or other conversion or action
in
a manner that is consistent with the provisions of this Agreement. Neither
the
Master Servicer, nor any Servicer, shall be required to expend its own funds
or
incur other reimbursable charges in connection with any foreclosure, or
attempted foreclosure which is not completed, or toward the correction of
any
default on a related senior mortgage loan, or towards the restoration of
any
property unless it shall determine (i) that such restoration and/or
foreclosure will increase the proceeds of liquidation of the Mortgage Loan
to
the Certificateholders after reimbursement to itself for such expenses or
charges and (ii) that such expenses and charges will be recoverable to it
through Liquidation Proceeds or Insurance Proceeds (as provided in Section
4.02).
161
Section
9.21. Compensation
to the Master Servicer.
The
Master Servicer shall be entitled to withdraw from the Collection Account,
subject to Section 5.05, the Master Servicing Fee to the extent permitted
by
Section 4.02. Servicing compensation in the form of assumption fees, if any,
late payment charges, as collected, if any, or otherwise (but not including
any
Prepayment Premium) shall be retained by the Master Servicer (or the applicable
Servicer) and shall not be deposited in the Collection Account. If the Master
Servicer does not retain or withdraw the Master Servicing Fee from the
Collection Account as provided herein, the Master Servicer shall be entitled
to
direct the Trustee to pay the Master Servicing Fee to such Master Servicer
by
withdrawal from the Certificate Account to the extent that payments have
been
received with respect to the applicable Mortgage Loan. The Master Servicer
shall
be required to pay all expenses incurred by it in connection with its activities
hereunder and shall not be entitled to reimbursement therefor except as provided
in this Agreement. Pursuant to Section 4.01(e), all income and gain realized
from any investment of funds in the Collection Account shall be for the benefit
of the Master Servicer as additional compensation. The provisions of this
Section 9.21 are subject to the provisions of Section 6.14.
Section
9.22. REO
Property.
(a)
In
the
event the Trust Fund acquires ownership of any REO Property in respect of
any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall use its reasonable best efforts to sell, or cause the applicable Servicer,
to the extent provided in the applicable Servicing Agreement any REO Property
as
expeditiously as possible and in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable, but in all
events
within the time period, and subject to the conditions set forth in Article
X
hereof. Pursuant to its efforts to sell such REO Property, the Master Servicer
shall protect and conserve, or cause the applicable Servicer to protect and
conserve, such REO Property in the manner and to such extent required by
the
applicable Servicing Agreement, subject to Article X hereof.
(b)
The
Master Servicer shall deposit or cause to be deposited all funds collected
and
received by it, or recovered from any Servicer, in connection with the operation
of any REO Property in the Collection Account.
(c)
The
Master Servicer and each Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Master Servicing
Fees or Servicing Fees from Liquidation Proceeds received in connection with
the
final disposition of such REO Property; provided, that (without limitation
of
any other right of reimbursement that the Master Servicer or any Servicer
shall
have hereunder) any such unreimbursed Advances as well as any unpaid Net
Master
Servicing Fees or Servicing Fees may be reimbursed or paid, as the case may
be,
prior to final disposition, out of any net rental income or other net amounts
derived from such REO Property.
162
(d)
The
Liquidation Proceeds from the final disposition of the REO Property, net
of any
payment to the Master Servicer and the applicable Servicer as provided above,
shall be deposited in the Collection Account on or prior to the Determination
Date in the month following receipt thereof and be remitted by wire transfer
in
immediately available funds to the Trustee for deposit into the Certificate
Account on the next succeeding Master Servicer Remittance Date.
Section
9.23. Notice
to the Sponsor, the Depositor and the Trustee.
(a)
The
Master Servicer shall promptly notify the Trustee, the Sponsor and the Depositor
(i) of any legal proceedings pending against the Master Servicer of the type
described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Master
Servicer shall become (but only to the extent not previously disclosed to
the
Master Servicer and the Depositor) at any time an affiliate of any of the
parties listed on Exhibit V to this Agreement. On or before March 1st of
each
year, the Depositor shall distribute the information in Exhibit V hereto
to the
Master Servicer.
(b)
Not
later
than four Business Days prior to the Distribution Date of each month, the
Master
Servicer shall provide to the Trustee, the Sponsor and the Depositor notice
of
the occurrence of any material modifications, extensions or waivers of terms,
fees, penalties or payments relating to the Mortgage Loans during the related
Collection Period or that have cumulatively become material over time (Item
1121(a)(11) of Regulation AB) along with all information, data, and materials
related thereto as may be required to be included in the related Distribution
Report on Form 10-D. The parties to this Agreement acknowledge that the
performance by the Master Servicer of its duties under this Section 9.23(b)
related to the timely preparation and delivery of such information is contingent
upon each applicable Servicer strictly observing all requirements and deadlines
in the performance of their duties under their related Servicing Agreements.
The
Master Servicer shall have no liability for any loss, expense, damage or
claim
arising out of or with respect to any failure to properly prepare and/or
timely
deliver all such information where such failure results from the Master
Servicer’s inability or failure to obtain or receive, on a timely basis, any
information from the Servicer needed to prepare or deliver such information,
which failure does not result from the Master Servicer’s own negligence, bad
faith or willful misconduct.
Section
9.24. Reports
to the Trustee.
(a)
Not
later
than 30 days after each Distribution Date, the Master Servicer shall, upon
request, forward to the Trustee a statement, deemed to have been certified
by a
Servicing Officer, setting forth the status of the Collection Account maintained
by the Master Servicer as of the close of business on the related Distribution
Date, indicating that all distributions required by this Agreement to be
made by
the Master Servicer have been made (or if any required distribution has not
been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from the Collection Account maintained by the Master
Servicer. Copies of such statement shall be provided by the Master Servicer,
upon request, to the Depositor, Attention: Contract Finance, and to any
Certificateholders (or by the Trustee at the Master Servicer’s expense if the
Master Servicer shall fail to provide such copies to the Certificateholders
(unless (i) the Master Servicer shall have failed to provide the Trustee
with
such statement or (ii) the Trustee shall be unaware of the Master Servicer’s
failure to provide such statement)).
163
(b)
Not
later
than two Business Days following each Distribution Date, the Master Servicer
shall deliver to one Person designated by the Depositor, in a format consistent
with other electronic loan level reporting supplied by the Master Servicer
in
connection with similar transactions, “loan level” information with respect to
the Mortgage Loans as of the related Determination Date, to the extent that
such
information has been provided to the Master Servicer by the Servicers or
by the
Depositor.
(c)
All
information, reports and statements prepared by the Master Servicer under
this
Agreement shall be based upon information supplied to the Master Servicer
by the
Servicer without independent verification thereof and the Master Servicer
shall
be entitled to rely on such information.
Section
9.25. Assessment
of Compliance and Attestation Reports.
(a)
Assessment
of Compliance
(i) By
March
15 of each year, commencing in March 2008, the Master Servicer, at its own
expense, shall furnish, and shall cause any Servicing Function Participant
engaged by it to furnish, at its own expense, to the Sponsor, the Depositor,
the
Master Servicer and the Trustee, a report on an assessment of compliance
with
the Relevant Servicing Criteria (as identified on Exhibit O) that contains
(A) a
statement by such party of its responsibility for assessing compliance with
the
Relevant Servicing Criteria, (B) a statement that such party used the Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
party’s assessment of compliance with the Relevant Servicing Criteria as of and
for the fiscal year covered by the Form 10-K required to be filed pursuant
to
Section 6.20(e), including, if there has been any material instance of
noncompliance with the Relevant Servicing Criteria, a discussion of each
such
failure and the nature and status thereof, and (D) a statement that a registered
public accounting firm has issued an attestation report on such party’s
assessment of compliance with the Relevant Servicing Criteria as of and for
such
period.
(ii) When
the
Master Servicer (or any Servicing Function Participant engaged by the Master
Servicer) submits its assessments to the Trustee and Depositor, such parties
will also at such time include the assessment (and attestation pursuant to
subsection (b) of this Section 9.25) of each Servicing Function Participant
engaged by it and shall indicate to the Depositor and Trustee what Relevant
Servicing Criteria will be addressed in any such reports prepared by any
such
Servicing Function Participant.
(iii) Promptly
after receipt of each such report on assessment of compliance, the Exchange
Act
Signing Party shall confirm that the assessments, taken as a whole, address
all
of the Servicing Criteria and taken individually address the Relevant Servicing
Criteria (and disclose the inapplicability of the Servicing Criteria not
determined to be
Relevant
Criteria) for
each
party as set forth on Exhibit O and on any similar exhibit set forth in each
Servicing Agreement in respect of each Servicer, and each Custodial Agreement
in
respect of each Custodian, and, where the Master Servicer is the Exchange
Act
Signing Party, shall notify the Depositor of any exceptions.
164
(b)
Attestation
Reports
(i) By
March
15 of each year in which the Depositor is required to file reports with respect
to the Trust Fund in accordance with the Exchange Act and the rules and
regulations of the Commission, commencing in March 2008, the Master Servicer,
at
its own expense, shall cause, and shall cause any Servicing Function Participant
engaged by it to cause, at its own expense, a registered public accounting
firm
(which may also render other services to the Master Servicer) that is a member
of the American Institute of Certified Public Accountants to furnish a report
to
the Sponsor, the Depositor, the Master Servicer and the Trustee, to the effect
that (A) it has obtained a representation regarding certain matters from
the
management of such party, which includes an assertion that such party has
complied with the Relevant Servicing Criteria, and (B) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the PCAOB, it is expressing an opinion as
to
whether such party’s compliance with the Relevant Servicing Criteria was fairly
stated in all material respects, or it cannot express an overall opinion
regarding such party’s assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Such report must be available for general use
and
not contain restricted use language.
(ii) Promptly
after receipt of such report from the Master Servicer or any Servicing Function
Participant engaged by such party, the Exchange Act Signing Party shall confirm
that each assessment submitted pursuant subsection (a) of this Section 9.25
is
coupled with an attestation meeting the requirements of this Section and
notify
the Depositor of any exceptions.
(c)
The
Master Servicer’s obligation to provide assessments of compliance and
attestations under this Section 9.25 shall terminate upon the filing of a
Form
15 suspension notice on behalf of the Trust Fund.
|
Section
9.26.
|
Annual
Statement of Compliance with Applicable Servicing Criteria .
|
(a)
The
Master Servicer shall deliver (and the Master Servicer shall cause any
Additional Servicer engaged by it to deliver) to the Sponsor, the Depositor
and
the Trustee on or before March 15 of each year, commencing in March 2008,
an
Officer’s Certificate stating, as to the signer thereof, that (A) a review of
such party’s activities during the preceding calendar year or portion thereof
and of such party’s performance under this Agreement, or such other applicable
agreement in the case of an Additional Servicer, has been made under such
officer’s supervision and (B) to the best of such officer’s knowledge, based on
such review, such party has fulfilled all its obligations under this Agreement,
or such other applicable agreement in the case of an Additional Servicer,
in all
material respects throughout such year or portion thereof, or, if there has
been
a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status thereof.
165
(b)
Copies
of
such statements shall be provided to any Certificateholder upon request,
by the
Master Servicer or by the Trustee at the Master Servicer’s expense if the Master
Servicer failed to provide such copies (unless (i) the Master Servicer shall
have failed to provide the Trustee with such statement or (ii) the Trustee
shall
be unaware of the Master Servicer’s failure to provide such
statement).
(c)
The
Master Servicer shall give prompt written notice to the Trustee, the Sponsor
and
the Depositor of the appointment of any Subcontractor by it and a written
description (in form and substance satisfactory to the Trustee, the Sponsor
and
the Depositor) of the role and function of each Subcontractor utilized by
the
Master Servicer, specifying (A) the identity of each such Subcontractor and
(B)
which elements of the Servicing Criteria set forth under Item 1122(d) of
Regulation AB will be addressed in assessments of compliance provided by
each
such Subcontractor.
(d)
The
Master Servicer shall notify the Trustee, the Depositor and the Sponsor within
five (5) days of knowledge thereof (i) of any legal proceedings pending against
the Master Servicer of the type described in Item 1117 (§ 229.1117) of
Regulation AB and (ii) if the Master Servicer shall become (but only to the
extent not previously disclosed) at any time an affiliate of any of the parties
listed on Exhibit P to this Agreement. On or before March 1st of each year,
the
Depositor shall distribute the information in Exhibit P to the Master
Servicer.
Section
9.27. Merger
or Consolidation.
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor
to the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to
the
contrary notwithstanding; provided,
however,
that the
successor or resulting Person to the Master Servicer shall be a Person that
shall be qualified and approved to service mortgage loans for Xxxxxx Xxx
or
Xxxxxxx Mac and shall have a net worth of not less than
$15,000,000.
Section
9.28. Resignation
of Master Servicer.
Except
as
otherwise provided in Sections 9.27, 9.28 and 9.29 hereof, the Master Servicer
shall not resign from the obligations and duties hereby imposed on it unless
it
or the Trustee determines that the Master Servicer’s duties hereunder are no
longer permissible under applicable law or are in material conflict by reason
of
applicable law with any other activities carried on by it and cannot be cured.
Any such determination permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee and any NIMS Insurer. No such resignation shall
become
effective until a period of time not to exceed 90 days after the Trustee
receives written notice thereof from the Master Servicer and until the Trustee
shall have assumed, or a successor master servicer acceptable to the NIMS
Insurer and the Trustee shall have been appointed by the Trustee and until
such
successor shall have assumed, the Master Servicer’s responsibilities and
obligations under this Agreement. Notice of such resignation shall be given
promptly by the Master Servicer and the Depositor to the Trustee and any
NIMS
Insurer.
166
Section
9.29. Assignment
or Delegation of Duties by the Master Servicer.
Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any Subservicer, Subcontractor
or other Person to perform any of the duties, covenants or obligations to
be
performed by the Master Servicer hereunder; provided,
however,
that the
Master Servicer shall have the right without the prior written consent of
the
Trustee, any NIMS Insurer or the Depositor to delegate or assign to or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to
perform and carry out any duties, covenants or obligations to be performed
and
carried out by the Master Servicer hereunder. In no case, however, shall
any
such delegation, subcontracting or assignment to an Affiliate of the Master
Servicer relieve the Master Servicer of any liability hereunder. Notice of
such
permitted assignment, and the name of any such affiliated Subcontractor or
Subservicer shall be given promptly by the Master Servicer to the Depositor,
the
Trustee and any NIMS Insurer. If, pursuant to any provision hereof, the duties
of the Master Servicer are transferred to a successor master servicer, the
entire amount of the Master Servicing Fees and other compensation payable
to the
Master Servicer pursuant hereto, including amounts payable to or permitted
to be
retained or withdrawn by the Master Servicer pursuant to Section 9.21 hereof,
shall thereafter be payable to such successor master servicer.
Notwithstanding
the foregoing, for so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Master Servicer
shall not utilize any Subcontractor for the performance of its duties hereunder
if such Subcontractor would be “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB without (a) giving notice to the
Trustee and the Depositor and (b) requiring any such Subcontractor to provide
to
the Master Servicer assessment report as provided in Section 9.25(a) and
an
attestation report as provided for in Section 9.25(b), which reports the
Master
Servicer shall include in its attestation and assessment reports.
Section
9.30. Limitation
on Liability of the Master Servicer and Others.
(a)
The
Master Servicer undertakes to perform such duties and only such duties as
are
specifically set forth in this Agreement.
(b)
No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure to
act or
its own willful misconduct; provided,
however,
that
the duties and obligations of the Master Servicer shall be determined solely
by
the express provisions of this Agreement, the Master Servicer shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement; no implied covenants or obligations
shall be read into this Agreement against the Master Servicer and, in absence
of
bad faith on the part of the Master Servicer, the Master Servicer may
conclusively rely, as to the truth of the statements and the correctness
of the
opinions expressed therein, upon any certificates or opinions furnished to
the
Master Servicer and conforming to the requirements of this
Agreement.
(c)
None
of
the Master Servicer, the Seller or the Depositor or any of the directors,
officers, employees or agents of any of them shall be under any liability
to the
Trustee or the Certificateholders for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for
errors
in judgment; provided,
however,
that
this provision shall not protect the Master Servicer, the Seller or the
Depositor or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by reason of reckless disregard for its obligations
and duties under this Agreement. The Master Servicer, the Seller and the
Depositor and any director, officer, employee or agent of any of them shall
be
entitled to indemnification by the Trust Fund and will be held harmless against
any loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates other than any loss, liability
or
expense incurred by reason of willful misfeasance, bad faith or negligence
in
the performance of his or its duties hereunder or by reason of reckless
disregard of his or its obligations and duties hereunder. The Master Servicer,
the Seller and the Depositor and any director, officer, employee or agent
of any
of them may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Master Servicer shall be under no obligation to appear in, prosecute
or
defend any legal action that is not incidental to its duties to master service
the Mortgage Loans in accordance with this Agreement and that in its opinion
may
involve it in any expenses or liability; provided,
however,
that
the Master Servicer may in its sole discretion undertake any such action
that it
may deem necessary or desirable in respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and
any
liability resulting therefrom shall be expenses, costs and liabilities of
the
Trust Fund and the Master Servicer shall be entitled to be reimbursed therefor
out of the Collection Account it maintains as provided by Section
4.02.
167
Section
9.31. Indemnification;
Third-Party Claims.
The
Master Servicer agrees to indemnify the Depositor, the Sponsor, any NIMS
Insurer
and the Trustee, and their respective officers, directors, agents and
affiliates, and hold each of them harmless against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Sponsor, any NIMS Insurer or the Trustee may sustain arising out of or
based
upon (a) any material breach by the Master Servicer of any if its obligations
hereunder, including particularly its obligations to provide any reports
under
Section 9.25(a), Section 9.25(b) or Section 9.26 or any information, data
or
materials required to be included in any Exchange Act report ,
provided,
however,
that in
no event shall the Master Servicer be liable for any special, consequential,
indirect or punitive damages pursuant to this Section 9.31, even if advised
of
the possibility of such damages,
(b) any material misstatement or omission in any information, data or materials
provided by the Master Servicer, or (c) the negligence, bad faith or willful
misconduct of the Master Servicer in connection with its performance hereunder.
The Depositor, the Sponsor, any NIMS Insurer and the Trustee shall immediately
notify the Master Servicer if a claim is made by a third party with respect
to
this Agreement or the Mortgage Loans entitling the Depositor, the Sponsor,
any
NIMS Insurer or the Trustee to indemnification hereunder, whereupon the Master
Servicer shall assume the defense of any such claim and pay all expenses
in
connection therewith, including counsel fees, and promptly pay, discharge
and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim.
This
indemnification shall survive the termination of this Agreement or the
termination of the Master Servicer as a party to this Agreement.
168
ARTICLE
X
REMIC
ADMINISTRATION
Section
10.01. REMIC
Administration.
(a)
REMIC
elections as set forth in the Preliminary Statement shall be made on Forms
1066
or other appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. The regular interests and residual interest in each REMIC shall be
as
designated in the Preliminary Statement. For purposes of such designations,
the
interest rate of any regular interest that is computed by taking into account
the weighted average of the Net Mortgage Rates of the Mortgage Loans shall
be
reduced by the amount of any expense paid by the Trust to the extent that
(i)
such expense was not taken into account in computing the Net Mortgage Rate
of
any Mortgage Loan, (ii) such expense does not constitute an “unanticipated
expense” of a REMIC within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii), (iii) such expense does not relate to an Excluded Trust
Asset and (iv) the amount of such expense was not taken into account in
computing the interest rate of a more junior Class of regular
interests.
(b)
The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of Section 860G(a)(9) of the Code. The latest possible maturity date
for
purposes of Treasury Regulation 1.860G-1(a)(4) will be the Latest Possible
Maturity Date.
(c)
The
Trustee shall represent the Trust Fund in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto. The Trustee shall pay any and all tax related
expenses (not including taxes) of each REMIC, including but not limited to
any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to such REMIC that involve the Internal
Revenue Service or state tax authorities, but only to the extent that (i)
such
expenses are ordinary or routine expenses, including expenses of a routine
audit
but not expenses of litigation (except as described in (ii)); or (ii) such
expenses or liabilities (including taxes and penalties) are attributable
to the
negligence or willful misconduct of the Trustee in fulfilling its duties
hereunder (including its duties as tax return preparer). The Trustee shall
be
entitled to reimbursement of expenses to the extent provided in clause (i)
above
from the Certificate Account; provided,
however,
the
Trustee shall not be entitled to reimbursement for expenses incurred in
connection with the preparation of tax returns and other reports as required
by
Section 6.20 and this Section.
(d)
The
Trustee shall prepare, the Trustee shall sign, and the Trustee will file,
all of
each REMIC’s federal and applicable state tax and information returns as such
REMIC’s direct representative. As used herein, applicable state tax and
information returns shall mean returns as may be required by the laws of
any
state the applicability of which to the Trust Fund shall have been confirmed
to
the Trustee in writing either by the delivery to the Trustee of an Opinion
of
Counsel to such effect, or by delivery to the Trustee of a written notification
to such effect by the taxing authority of such state. The expenses of preparing
and filing such returns shall be borne by the Trustee.
169
(e)
The
Trustee or its designee shall perform on behalf of each REMIC all reporting
and
other tax compliance duties that are the responsibility of such REMIC under
the
Code, the REMIC Provisions, or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority. Among its other duties,
if required by the Code, the REMIC Provisions, or other such guidance, the
Trustee shall provide (i) to the Treasury or other governmental authority
such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any disqualified person or organization
pursuant to Treasury Regulation 1.860E-2(a)(5) and any person designated
in
Section 860E(e)(3) of the Code and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC
Provisions.
The
Trustee shall be entitled to receive reasonable compensation from the Trust
Fund
for the performance of its duties under this subsection (e); provided,
however,
that
such compensation shall not exceed $5,000 per year; provided, further, that,
after a Section 7.01(d) Purchase Event, any expenses incurred by the Trustee
in
connection with such Section 7.01(d) Purchase Event shall be reimbursed to
the
Trustee, regardless of the limitation set forth above, in accordance with
Section 4.04(b).
(f)
The
Trustee, the Master Servicer and the Holders of Certificates shall take any
action, within their respective control and scope of their duties, or cause
any
REMIC to take any action necessary to create or maintain the status of any
REMIC
as a REMIC under the REMIC Provisions and shall assist each other as necessary
to create or maintain such status. Neither the Trustee, the Master Servicer
nor
the Holder of any Residual Certificate shall knowingly take any action, within
their respective control, cause any REMIC to take any action or fail to take
(or
fail to cause to be taken) any action, within their respective control and
scope
of their duties, that, under the REMIC Provisions, if taken or not taken,
as the
case may be, could result in an Adverse REMIC Event unless the Trustee, any
NIMS
Insurer and the Master Servicer have received an Opinion of Counsel (at the
expense of the party seeking to take such action) to the effect that the
contemplated action will not result in an Adverse REMIC Event. In addition,
prior to taking any action with respect to any REMIC or the assets therein,
or
causing any REMIC to take any action, which is not expressly permitted under
the
terms of this Agreement, any Holder of a Residual Certificate will consult
with
the Trustee, the Master Servicer, any NIMS Insurer or their respective
designees, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any REMIC, and no such Person
shall
take any such action or cause any REMIC to take any such action as to which
the
Trustee or the Master Servicer or any NIMS Insurer has advised it in writing
that an Adverse REMIC Event could occur.
(g)
Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
the related REMIC by federal or state governmental authorities. To the extent
that such taxes are not paid by a Residual Certificateholder, the Trustee
shall
pay any remaining REMIC taxes out of current or future amounts otherwise
distributable to the Holder of the Residual Certificate in any such REMIC
or, if
no such amounts are available, out of other amounts held in the Certificate
Account, and shall reduce amounts otherwise payable to holders of regular
interests in any such REMIC, as the case may be.
170
(h)
The
Trustee shall, for federal income tax purposes, maintain books and records
with
respect to each REMIC on a calendar year and on an accrual basis.
(i)
No
additional contributions of assets shall be made to any REMIC, except as
expressly provided in this Agreement.
(j)
Neither
the Trustee nor the Master Servicer shall enter into any arrangement by which
any REMIC will receive a fee or other compensation for services.
(k)
Upon
the
request of any Rating Agency, the Trustee shall deliver an Officer’s Certificate
stating, without regard to any actions taken by any party other than the
Trustee, the Trustee’s compliance with provisions of this Section
10.01.
(l)
The
Trustee shall treat each of the Basis Risk Reserve Fund, the Cap Account
and the
Swap Account as an outside reserve fund within the meaning of Treasury
Regulation 1.860G-2(h) that is owned by the Holder of the Class X Certificates
and that is not an asset of any REMIC. The Trustee shall treat each Certificate
(other than the Class X, Class LT-R, Class R and Class P Certificates) as
representing not only ownership of regular interests in a REMIC, but also
ownership of an interest in a notional principal contract entered into with
the
Class X Certificateholders. The rights of the Holders of the LIBOR Certificates
to receive Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls shall be
treated as rights in such notional principal contract. Pursuant to each such
notional principal contract, all beneficial owners of the LIBOR Certificates
shall be treated as having agreed to pay, on each Distribution Date, to the
beneficial owners of the Class X Certificates an aggregate amount equal to
the
excess, if any, of (i) the amount payable on such Distribution Date on the
interest in the Upper Tier REMIC corresponding to such Class of Certificates
over (ii) the amount payable on such Class of Certificates on such Distribution
Date (such excess, a “Class I Shortfall”). A Class I Shortfall payable from
interest collections shall be allocated to each Class of Certificates to
the
extent that interest accrued on such Class for the related Accrual Period
at the
Certificate Interest Rate for a Class, computed by substituting “REMIC Net Funds
Cap” for “the Senior Net Funds Cap” or “the Subordinate Net Funds Cap”, as
applicable, in the definition thereof, exceeds the amount of interest accrued
for the related Accrual Period based on the applicable Net Funds Cap, and
a
Class I Shortfall payable from principal collections shall be allocated to
the
most subordinate Class of Certificates with an outstanding principal balance
to
the extent of such balance. However, any payment from the Certificates of
a
Class I Shortfall shall be treated for tax purposes as having been received
by
the beneficial owners of such Certificates in respect of their Interests
in the
Upper Tier REMIC 1 and as having been paid by such beneficial owners to the
Supplemental Interest Trust pursuant to the notional principal contract.
For tax
purposes, the notional principal contract shall be deemed to have a value
in
favor of the Certificates entitled to receive Basis Risk Shortfalls and Unpaid
Basis Risk Shortfalls of $26,000 as of the Closing Date.
(m)
[Reserved]
(n)
Notwithstanding
the priority and sources of payments set forth in Article V hereof or otherwise,
the Trustee shall account for all distributions on the Certificates as set
forth
in this Section 10.01. In no event shall any payments of Basis Risk Shortfalls
or Unpaid Basis Risk Shortfalls provided for in this Section 10.01 be treated
as
payments with respect to a “regular interest” in a REMIC within the meaning of
Code Section 860G(a)(1).
171
Section
10.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Master Servicer or the Trustee shall sell, dispose of,
or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust
Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, nor acquire any
assets for any REMIC, nor sell or dispose of any investments in the Certificate
Account for gain, nor accept any contributions to any REMIC after the Closing
Date, unless the Trustee and any NIMS Insurer have received an Opinion of
Counsel (at the expense of the party causing such sale, disposition, or
substitution) that such disposition, acquisition, substitution, or acceptance
will not (a) result in an Adverse REMIC Event, (b) affect the distribution
of
interest or principal on the Certificates, or (c) result in the encumbrance
of
the assets transferred or assigned to the Trust Fund (except pursuant to
the
provisions of this Agreement).
Section
10.03. Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
Upon
the
occurrence of an Adverse REMIC Event due to the negligent performance by
the
Trustee of its duties and obligations set forth herein, the Trustee shall
indemnify the Holder of the related Residual Certificate or the Trust Fund,
as
applicable, against any and all losses, claims, damages, liabilities or expenses
(“Losses”) resulting from such negligence; provided,
however,
that the
Trustee shall not be liable for any such Losses attributable to the action
or
inaction of the Master Servicer, the Depositor, the Class X Certificateholder
or
the Holder of a Residual Certificate, as applicable, nor for any such Losses
resulting from misinformation provided by the Holder of such Residual
Certificate on which the Trustee has relied. The foregoing shall not be deemed
to limit or restrict the rights and remedies of the Holder of such Residual
Certificate now or hereafter existing at law or in equity. Notwithstanding
the
foregoing, however, in no event shall the Trustee have any liability pursuant
to
this Section 10.03 (1) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement or any Servicing Agreement, (2)
for
any Losses other than arising out of a negligent performance by the Trustee
of
its duties and obligations set forth herein, and (3) for any special or
consequential damages to Certificateholders (in addition to payment of principal
and interest on the Certificates) even if the Trustee has been advised of
such
loss or damage and regardless of the form of action. In addition, the Trustee
shall not have any liability for the actions or failure to act of any other
party hereto.
Section
10.04. REO
Property.
(a)
Notwithstanding
any other provision of this Agreement, the Master Servicer, acting on behalf
of
the Trustee hereunder, shall not, except to the extent provided in the
applicable Servicing Agreement, knowingly permit any Servicer to, rent, lease,
or otherwise earn income on behalf of any REMIC with respect to any REO Property
which might cause an Adverse REMIC Event unless the Master Servicer and any
NIMS
Insurer has advised, or has caused the applicable Servicer to advise, the
Trustee in writing to the effect that, under the REMIC Provisions, such action
would not result in an Adverse REMIC Event.
172
(b)
The
Master Servicer shall cause the applicable Servicer (to the extent provided
in
its Servicing Agreement) to make reasonable efforts to sell any REO Property
for
its fair market value. In any event, however, the Master Servicer shall,
or
shall cause the applicable Servicer (to the extent provided in its Servicing
Agreement) to, dispose of any REO Property within three years of its acquisition
by the Trust Fund unless the Master Servicer has received a grant of extension
from the Internal Revenue Service to the effect that, under the REMIC
Provisions, the REMIC may hold REO Property for a longer period without causing
an Adverse REMIC Event. If the Master Servicer has received such an extension,
then the Master Servicer, acting on the Trustee’s behalf hereunder, shall, or
shall cause the applicable Servicer to, continue to attempt to sell the REO
Property for its fair market value for such period longer than three years
as
such extension permits (the “Extended Period”). If the Master Servicer has not
received such an extension and the Master Servicer or the applicable Servicer,
acting on behalf of the Trustee hereunder, is unable to sell the REO Property
within 33 months after its acquisition by the Trust Fund or if the Master
Servicer has received such an extension, and the Master Servicer or the
applicable Servicer is unable to sell the REO Property within the period
ending
three months before the close of the Extended Period, the Master Servicer
shall
cause the applicable Servicer, before the end of the three year period or
the
Extended Period, as applicable, to (i) purchase such REO Property at a price
equal to the REO Property’s fair market value or (ii) auction the REO Property
to the highest bidder (which may be the applicable Servicer) in an auction
reasonably designed to produce a fair price prior to the expiration of the
three-year period or the Extended Period, as the case may be.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01. Binding
Nature of Agreement; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section
11.02. Entire
Agreement.
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any
course
of performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section
11.03. Amendment.
(a)
On
or
prior to a Section 7.01(d) Purchase Event, this Agreement may be amended
from
time to time by the Depositor, the Master Servicer and the Trustee, with
the
consent of any NIMS Insurer, but without consent of the Swap Counterparty
(except to the extent that the rights or obligations of the Swap Counterparty
hereunder or under the Swap Agreement, respectively, are affected thereby
or the
ability of the Trustee on behalf of the Supplemental Interest Trust and the
Trust Fund to perform fully and timely its obligations under the Swap Agreement
is adversely affected, in which case prior written consent of the Swap
Counterparty is required) and without notice to or the consent of any of
the
Holders, (i) to cure any ambiguity, (ii) to cause the provisions herein to
conform to or be consistent with or in furtherance of the statements made
with
respect to the Certificates, the Trust Fund or this Agreement in any Offering
Document, or to correct or supplement any provision herein which may be
inconsistent with any other provisions herein or with the provisions of any
Servicing Agreement, (iii) to make any other provisions with respect to matters
or questions arising under this Agreement or (iv) to add, delete, or amend
any
provisions to the extent necessary or desirable to comply with any requirements
imposed by the Code and the REMIC Provisions as evidenced by an Opinion of
Counsel. No such amendment effected pursuant to the preceding sentence shall,
as
evidenced by an Opinion of Counsel, result in an Adverse REMIC Event, nor
shall
such amendment effected pursuant to clause (iii) of such sentence adversely
affect in any material respect the interests of any Holder. Prior to entering
into any amendment without the consent of Holders pursuant to this paragraph,
the Trustee, any NIMS Insurer and the Swap Counterparty shall be provided
with
an Opinion of Counsel addressed to the Trustee, any NIMS Insurer and the
Swap
Counterparty (at the expense of the party requesting such amendment) to the
effect that such amendment is permitted under this Section. Any such amendment
shall be deemed not to adversely affect in any material respect any Holder,
if
the Trustee receives written confirmation from each Rating Agency that such
amendment will not cause such Rating Agency to reduce the then current rating
assigned to the Certificates.
173
(b)
On
or
prior to a Section 7.01(d) Purchase Event, this Agreement may also be amended
from time to time by the Depositor, the Master Servicer, and the Trustee,
with
the consent of any NIMS Insurer, but without consent of the Swap Counterparty
(except to the extent that the rights or obligations of the Swap Counterparty
hereunder or under the Swap Agreement, respectively, are affected thereby
or the
ability of the Trustee on behalf of the Supplemental Interest Trust and the
Trust Fund to perform fully and timely its obligations under the Swap Agreement
is adversely affected, in which case prior written consent of the Swap
Counterparty is required) with the consent of the Holders of not less than
66-2/3% of the Class Principal Amount (or Percentage Interest) of each Class
of
Certificates affected thereby for the purpose of adding any provisions to
or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Holders; provided,
however,
that no
such amendment shall be made unless the Trustee, the Swap Counterparty and
any
NIMS Insurer receives an Opinion of Counsel addressed to the Trustee, the
Swap
Counterparty and any NIMS Insurer, at the expense of the party requesting
the
change, that such change will not cause an Adverse REMIC Event and is permitted
hereunder; and provided further, that no such amendment may (i) reduce in
any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate, without the
consent of the Holder of such Certificate or (ii) reduce the aforesaid
percentages of Class Principal Amount or Class Notional Amount, as applicable
(or Percentage Interest) of Certificates of each Class, the Holders of which
are
required to consent to any such amendment without the consent of the Holders
of
100% of the Class Principal Amount or Class Notional Amount, as applicable
(or
Percentage Interest) of each Class of Certificates affected thereby. For
purposes of this paragraph, references to “Holder” or “Holders” shall be deemed
to include, in the case of any Class of Book-Entry Certificates, the related
Certificate Owners.
174
(c)
After
a
Section 7.01(d) Purchase Event but on or prior to a Trust Fund Termination
Event, this Agreement may be amended from time to time by the Depositor,
the
Master Servicer, the LTURI-holder and the Trustee but without the consent
of the
Swap Counterparty (except to the extent that the rights or obligations of
the
Swap Counterparty hereunder or under the Swap Agreement, respectively, are
affected thereby or the ability of the Trustee on behalf of the Supplemental
Interest Trust and the Trust Fund to perform fully and timely its obligations
under the Swap Agreement is adversely affected, in which case prior written
consent of the Swap Counterparty is required). Prior to entering into any
amendment without the consent of Holders pursuant to this paragraph, the
Trustee, the Swap Party and any NIMS Insurer shall be provided with an Opinion
of Counsel addressed to the Trustee, the Swap Counterparty and any NIMS Insurer
(at the expense of the party requesting such amendment) to the effect that
such
amendment is permitted under this Section and will not result in an Adverse
REMIC Event.
(d)
Promptly
after the execution of any such amendment, the Trustee shall furnish written
notification of the substance of such amendment to each Holder, the Depositor,
the Swap Counterparty, any NIMS Insurer and to the Rating Agencies.
(e)
It
shall
not be necessary for the consent of Holders under this Section 11.03 to approve
the particular form of any proposed amendment, but it shall be sufficient
if
such consent shall approve the substance thereof. The manner of obtaining
such
consents and of evidencing the authorization of the execution thereof by
Holders
shall be subject to such reasonable regulations as the Trustee may
prescribe.
(f)
Notwithstanding
anything to the contrary in any Servicing Agreement, the Trustee shall not
consent to any amendment of any Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in this Section with respect
to
amendment of this Agreement and (ii) except for a Permitted Servicing Amendment,
any such amendment pursuant to Section 11.03(a)(iii) shall not be materially
inconsistent with the provisions of such Servicing Agreement.
(g)
Notwithstanding
anything to the contrary in this Section 11.03, this Agreement may be amended
from time to time by the Depositor, the Master Servicer and the Trustee to
the
extent necessary, in the judgment of the Depositor and its counsel, to comply
with the Rules.
Section
11.04. Voting
Rights.
Except
to
the extent that the consent of all affected Certificateholders is required
pursuant to this Agreement, with respect to any provision of this Agreement
requiring the consent of Certificateholders representing specified percentages
of aggregate outstanding Certificate Principal Amount or Class Notional Amount,
as applicable (or Percentage Interest), Certificates owned by the Depositor,
the
Master Servicer, the Trustee, any Servicer or Affiliates thereof are not
to be
counted so long as such Certificates are owned by the Depositor, the Master
Servicer, the Trustee, any Servicer or any Affiliate thereof.
175
Section
11.05. Provision
of Information.
(a)
For
so
long as any of the Certificates of any Series or Class are “restricted
securities” within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Master Servicer and the Trustee agree to cooperate with each
other to provide to any Certificateholders, and to any prospective purchaser
of
Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder
or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee
in
providing such information shall be reimbursed by the Depositor.
(b)
The
Trustee shall make available to any person to whom a Prospectus was delivered,
upon the request of such person specifying the document or documents requested,
(i) a copy (excluding exhibits) of any report on Form 8-K, Form 10-D or Form
10-K filed with the Commission pursuant to Section 6.20(c) and (ii) a copy
of
any other document incorporated by reference in the Prospectus (to the extent
that the Trustee has such documents in its possession or such documents are
reasonably obtainable by the Trustee). Any reasonable out-of-pocket expenses
incurred by the Trustee in providing copies of such documents shall be
reimbursed by the Depositor.
(c)
On
each
Distribution Date, the Trustee shall make available on its website or otherwise
deliver to the Depositor a copy of the report delivered to Certificateholders
pursuant to Section 4.03.
Section
11.06. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
11.07. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when received by (a) in the case of the
Depositor, Structured Asset Securities Corporation, 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance, LXS 2007-11,
(b) in the case of the Seller, Xxxxxx Brothers Holdings Inc., 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance,
LXS
2007-11, (c) in the case of the Trustee, the applicable Corporate Trust
Office, (d) in the case of the Master Servicer, Aurora Loan Services LLC,
00000 Xxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000; Attention: Master
Servicing, LXS 2007-11, (e) in the case of the Swap Counterparty, at the
address
therefore set forth in the Swap Agreement, and (f) in the case of the Cap
Counterparty, at the address therefore set forth in the Cap Agreement, or
as to
each party, such other address as may hereafter be furnished by such party
to
the other parties in writing. All demands, notices and communications to
a party
hereunder shall be in writing and shall be deemed to have been duly given
when
delivered to such party at the relevant address, facsimile number or electronic
mail address set forth above or at such other address, facsimile number or
electronic mail address as such party may designate from time to time by
written
notice in accordance with this Section 11.07.
176
Section
11.08. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in
no way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
Section
11.09. Indulgences;
No Waivers.
Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or
privilege with respect to any occurrence be construed as a waiver of such
right,
remedy, power or privilege with respect to any other occurrence. No waiver
shall
be effective unless it is in writing and is signed by the party asserted
to have
granted such waiver.
Section
11.10. Headings
Not To Affect Interpretation.
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
Section
11.11. Benefits
of Agreement.
The
Depositor shall promptly notify the Custodians, the Master Servicer and the
Trustee in writing of the issuance of any Class of NIM Securities issued
by a
NIMS Insurer and the identity of such NIMS Insurer. Thereafter, the NIMS
Insurer
shall be deemed a third-party beneficiary of this Agreement to the same extent
as if it were a party hereto, and shall be subject to and have the right
to
enforce the provisions of this Agreement so long as the NIM Securities remaining
outstanding or the NIMS Insurer is owed amounts in respect of its guarantee
of
payment of such NIM Securities. Nothing in this Agreement or in the
Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder, the Swap Counterparty
and its successors and assignees under the Swap Agreement, the NIMS Insurer,
the
Holders, any benefit or any legal or equitable right, power, remedy or claim
under this Agreement, except to the extent specified in Section
11.15.
Section
11.12. Special
Notices to the Rating Agencies and any NIMS Insurer.
(a)
The
Depositor shall give prompt notice to the Rating Agencies and any NIMS Insurer
of the occurrence of any of the following events of which it has
notice:
(i) any
amendment to this Agreement pursuant to Section 11.03;
177
(ii) any
Assignment by the Master Servicer of its rights hereunder or delegation of
its
duties hereunder;
(iii) the
occurrence of any Event of Default described in Section 6.14;
(iv) any
notice of termination given to the Master Servicer pursuant to Section 6.14
and
any resignation of the Master Servicer hereunder;
(v) the
appointment of any successor to any Master Servicer pursuant to Section
6.14;
(vi) the
making of a final payment pursuant to Section 7.02; and
(vii) any
termination of the rights and obligations of any Servicer under the applicable
Servicing Agreement.
(b)
All
notices to the Rating Agencies provided for this Section shall be in writing
and
sent by first class mail, telecopy or overnight courier, as
follows:
If
to
Moody’s, to:
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
If
to
S&P, to:
Standard
& Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
(c)
The
Trustee shall provide or make available to the Rating Agencies reports prepared
pursuant to Section 4.03. In addition, the Trustee shall, at the expense
of the
Trust Fund, make available to each Rating Agency such information as such
Rating
Agency may reasonably request regarding the Certificates or the Trust Fund,
to
the extent that such information is reasonably available to the
Trustee.
Section
11.13. Conflicts.
To
the
extent that the terms of this Agreement conflict with the terms of any Servicing
Agreement, the related Servicing Agreement shall govern unless such provisions
shall adversely affect the Trustee or the Trust Fund.
178
Section
11.14. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one
and the
same instrument.
Section
11.15. Transfer
of Servicing.
The
Seller agrees that it shall provide written notice to the Master Servicer,
the
Swap Counterparty, any NIMS Insurer and the Trustee thirty days prior to
any
proposed transfer or assignment by the Seller of its rights under the Servicing
Agreement or of the servicing thereunder from time to time with respect to
any
Mortgage Loan or group of Mortgage Loans, or delegation of its rights or
duties
thereunder or any portion thereof to any other Person other than the initial
Servicer under such Servicing Agreement; provided,
however,
that the
Seller shall not be required to provide prior notice of (i) any transfer
of
servicing that occurs within three months following the Closing Date to an
entity that is a Servicer on the Closing Date or (ii) any assignment of any
servicing rights from the Seller to an affiliate of the Seller. In addition,
the
ability of the Seller to transfer or assign its rights and delegate its duties
under the Servicing Agreement or to transfer the servicing thereunder, from
time
to time with respect to any Mortgage Loan or group of Mortgage Loans, to
a
successor servicer shall be subject to the following conditions:
(i) Satisfaction
of the conditions to such transfer as set forth in the applicable Servicing
Agreement including, without limitation, receipt of written consent of any
NIMS
Insurer and the Master Servicer (such consent not to be unreasonably withheld)
to such transfer;
(ii) Such
successor servicer must be qualified to service loans for Xxxxxx Xxx or Xxxxxxx
Mac, and must be a member in good standing of MERS;
(iii) Such
successor servicer must satisfy the seller/servicer eligibility standards
in the
Servicing Agreement, exclusive of any experience in mortgage loan origination
and must be reasonably acceptable to the Master Servicer, whose approval
shall
not be unreasonably withheld;
(iv) Such
successor servicer must execute and deliver to the Trustee and the Master
Servicer an agreement, in form and substance reasonably satisfactory to the
Trustee and the Master Servicer, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each covenant
and
condition to be performed and observed by the applicable Servicer under the
applicable Servicing Agreement or, in the case of a transfer of servicing
to a
party that is already a Servicer pursuant to this Agreement, an agreement
to add
the related Mortgage Loans to the Servicing Agreement already in effect with
such Servicer;
(v) If
the
successor servicer is not a Servicer of Mortgage Loans at the time of the
transfer, there must be delivered to the Trustee and the Master Servicer
a
letter from each Rating Agency to the effect that such transfer of servicing
will not result in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates; and
179
(vi) The
Seller shall, at its cost and expense, take such steps, or cause the
transferring Servicer to take such steps, as may be necessary or appropriate
to
effectuate and evidence the transfer of the servicing of the specified Mortgage
Loans to such successor or replacement servicer, including, but not limited
to,
the following: (A) to the extent required by the terms of the Mortgage Loans
and
by applicable federal and state laws and regulations, the Seller shall cause
the
prior Servicer to timely mail to each obligor under a Mortgage Loan any required
notices or disclosures describing the transfer of servicing of the Mortgage
Loans to the successor or replacement servicer; (B) prior to the effective
date
of such transfer of servicing, the Seller shall cause the prior Servicer
to
transmit to any related insurer notification of such transfer of servicing;
(C)
on or prior to the effective date of such transfer of servicing, the Seller
shall cause the prior Servicer to deliver to the successor or replacement
servicer all Mortgage Loan Documents and any related records or materials;
(D)
on or prior to the effective date of such transfer of servicing, the Seller
shall cause the prior Servicer to transfer to the successor or replacement
servicer, or, if such transfer occurs after a Servicer Remittance Date but
before the next succeeding Master Servicer Remittance Date, to the Trustee,
all
funds held by the prior Servicer in respect of the Mortgage Loans; (E) on
or
prior to the effective date of such transfer of servicing, the Seller shall
cause the prior Servicer to, after the effective date of the transfer of
servicing to the successor or replacement servicer, continue to forward to
such
successor or replacement servicer, within one Business Day of receipt, the
amount of any payments or other recoveries received by the prior Servicer,
and
to notify the successor or replacement servicer of the source and proper
application of each such payment or recovery; and (F) the Seller shall cause
the
prior Servicer to, after the effective date of transfer of servicing to the
successor or replacement servicer, continue to cooperate with the successor
or
replacement servicer to facilitate such transfer in such manner and to such
extent as the successor or replacement servicer may reasonably request.
Notwithstanding the foregoing, the prior Servicer shall be obligated to perform
the items listed above to the extent provided in the Servicing
Agreement.
[SIGNATURES
TO FOLLOW]
180
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto
by their respective officers hereunto duly authorized as of the day and year
first above written.
STRUCTURED
ASSET SECURITIES
CORPORATION,
as Depositor
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
AURORA
LOAN SERVICES LLC, as Master Servicer
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
CITIBANK,
N.A.,
as
Trustee
By:
/s/
Xxxxx Xxxxxxxxxx
Name:
Xxxxx Xxxxxxxxxx
Title:
Vice President
Solely
for purposes of Section 6.11 and 11.15,
accepted
and agreed to by:
XXXXXX
BROTHERS HOLDINGS INC.
By:
/s/
Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
EXHIBIT
A
FORMS
OF CERTIFICATES
X-0
XXXXXXX
X-0
FORM
OF
INITIAL CERTIFICATION
Date
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Agency and Trust - Xxxxxx XS Trust 2007-11
Aurora
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2007-11
|
Re:
|
Trust
Agreement dated as of June 1, 2007 (the “Trust
Agreement”),
|
by
and
among Structured Asset Securities Corporation, as Depositor,
Aurora
Loan Services LLC, as Master Servicer and Citibank, N.A., as Trustee
with respect to Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2007-11
with respect to Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2007-11
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Trust Agreement, subject to review
of the
contents thereof, the undersigned, as Custodian, hereby certifies that it
has
received the documents listed in Section 2.01(b) of the Trust Agreement for
each
Mortgage File pertaining to each Mortgage Loan listed on Schedule A, to the
Trust Agreement, subject to any exceptions noted on Schedule I
hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have
the
respective meanings assigned to them in the Trust Agreement. This Certificate
is
subject in all respects to the terms of Section 2.02 of the Trust Agreement
and
the Trust Agreement sections cross-referenced therein.
[Custodian]
By:_____________________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
INTERIM CERTIFICATION
Date
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Agency and Trust - Xxxxxx XS Trust 2007-11
Aurora
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2007-11
|
Re:
|
Trust
Agreement dated as of June 1, 2007 (the “Trust
Agreement”),
|
by
and
among Structured Asset Securities Corporation, as Depositor,
Aurora
Loan Services LLC, as Master Servicer and Citibank, N.A., as Trustee
with
respect to Xxxxxx XS Trust Mortgage Pass-Through Certificates,
Series 2007-11
Ladies
and Gentlemen:
In
accordance with Section 2.02(b) of the Trust Agreement, the undersigned,
as
Custodian, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on Schedule
I
hereto) it (or its custodian) has received the applicable documents listed
in
Section 2.01(b) of the Trust Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed in Section 2.01(b) of the Trust
Agreement and has determined that each such document appears regular on its
face
and appears to relate to the Mortgage Loan identified in such
document.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement including, but not limited to, Section
2.02(b).
[Custodian]
By:______________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
FINAL CERTIFICATION
Date
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Agency and Trust - Xxxxxx XS Trust 2007-11
Aurora
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2007-11
|
Re:
|
Trust
Agreement dated as of June 1, 2007 (the “Trust
Agreement”),
|
by
and
among Structured Asset Securities Corporation, as Depositor,
Aurora
Loan Services LLC, as Master Servicer and Citibank, N.A., as Trustee
with
respect to Xxxxxx XS Trust Mortgage Pass-Through Certificates,
Series 2007-11
Ladies
and Gentlemen:
In
accordance with Section 2.02(d) of the Trust Agreement, the undersigned,
as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on Schedule I hereto) it (or its custodian) has received the
applicable documents listed in Section 2.01(b) of the Trust
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified in
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed in Section 2.01(b) of the Trust
Agreement and has determined that each such document appears to be complete
and,
based on an examination of such documents, the information set forth in items
(i) through (vi) of the Mortgage Loan Schedule is correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement.
[Custodian]
By:_____________________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF ENDORSEMENT
Pay
to the order of
Citibank, N.A., as trustee (the “Trustee”), under a Trust Agreement dated as of
June 1, 2007, among Structured Asset Securities Corporation, as depositor,
Aurora Loan Services LLC, as master servicer, and the Trustee, relating to
Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2007-11,
without recourse.
__________________________________
[current
signatory on note]
By:
_______________________________
Name:
Title:
Name:
Title:
B-4-1
EXHIBIT
C
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
Date
[Addressed
to Trustee
or,
if
applicable, Custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Trust Agreement dated as of June 1, 2007 by and among Structured
Asset
Securities Corporation, as Depositor, Citibank, N.A., as Trustee, and Aurora
Loan Services LLC, as Master Servicer (the “Trust Agreement”), the undersigned
Servicer hereby requests a release of the Mortgage File held by you as Trustee
with respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The Servicer hereby certifies that all amounts received
in
connection with the loan have been or will be credited to the Certificate
Account pursuant to the Trust Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The Servicer hereby certifies that a Qualifying Substitute
Mortgage Loan has been assigned and delivered to you along with the related
Mortgage File pursuant to the Trust Agreement.)
4. Mortgage
Loan repurchased. (The [Servicer] [Master Servicer] hereby certifies that
the
Purchase Price (or FPD Purchase Price (in the case of a First Payment Default
Mortgage Loan)) has been credited to the Certificate Account or Collection
Account, as applicable, pursuant to the Trust Agreement.)
5. Other.
(Describe)
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Trust Agreement and
will be
returned to you within ten (10) days of our receipt of the Mortgage File,
except
if the Mortgage Loan has been paid in full, or repurchased or substituted
for a
Qualifying Substitute Mortgage Loan (in which case the Mortgage File will
be
retained by us permanently) and except if the Mortgage Loan is being foreclosed
(in which case the Mortgage File will be returned when no longer required
by us
for such purpose).
C-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Trust
Agreement.
____________________________________
[Name of Servicer]
By:
__________________________________
Name:
Title: Servicing Officer
Name:
Title: Servicing Officer
C-2
EXHIBIT
D-1
FORM
OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
|
1.
|
That
he [she] is [title of officer] ________________________ of [name
of
Purchaser] _________________________________________ (the “Purchaser”), a
_______________________ [description of type of entity] duly organized
and
existing under the laws of the [State of __________] [United States],
on
behalf of which he [she] makes this
affidavit.
|
|
2.
|
That
the Purchaser’s Taxpayer Identification Number is
[ ].
|
|
3.
|
That
the Purchaser is not a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the
“Code”) and will not be a “disqualified organization” as of [date of
transfer], and that the Purchaser is not acquiring a Residual Certificate
(as defined in the Agreement) for the account of, or as agent (including
a
broker, nominee, or other middleman) for, any person or entity
from which
it has not received an affidavit substantially in the form of this
affidavit. For these purposes, a “disqualified organization” means the
United States, any state or political subdivision thereof, any
foreign
government, any international organization, any agency or instrumentality
of any of the foregoing (other than an instrumentality if all of
its
activities are subject to tax and a majority of its board of directors
is
not selected by such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to persons
in
rural areas as described in Code Section 1381(a)(2)(C), any “electing
large partnership” within the meaning of Section 775 of the Code, or any
organization (other than a farmers’ cooperative described in Code Section
521) that is exempt from federal income tax unless such organization
is
subject to the tax on unrelated business income imposed by Code
Section
511.
|
|
4.
|
That
the Purchaser either (x) is not, and on __________________ [date
of
transfer] will not be, an employee benefit plan or other retirement
arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Code
(collectively, a “Plan”) or a person acting on behalf of any such Plan or
investing the assets of any such Plan to acquire a Residual Certificate;
(y) if the Residual Certificate has been the subject of an
ERISA-Qualifying Underwriting, is an insurance company that is
purchasing
the Residual Certificate with funds contained in an “insurance company
general account” as defined in Section V(e) of Prohibited Transaction
Class Exemption (“PTCE”) 95-60 and the purchase and holding of the
Certificate are covered under Sections I and III of PTCE 95-60;
or (z)
herewith delivers to the Trustee an opinion of counsel (a “Benefit Plan
Opinion”) satisfactory to the Trustee, and upon which the Trustee, the
Master Servicer, any NIMS Insurer and the Depositor shall be entitled
to
rely, to the effect that the purchase or holding of such Residual
Certificate by the Investor will not result in any non-exempt prohibited
transactions under Title I of ERISA or Section 4975 of the Code
and will
not subject the Trustee, the Master Servicer, any NIMS Insurer
or the
Depositor to any obligation in addition to those undertaken by
such
entities in the Trust Agreement, which opinion of counsel shall
not be an
expense of the Trust Fund or any of the above
parties.
|
D-1-1
|
5.
|
That
the Purchaser hereby acknowledges that under the terms of the Trust
Agreement (the “Agreement”) by and among Structured Asset Securities
Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer,
and Citibank,
N.A.,
as Trustee, dated as of June 1, 2007, relating to Xxxxxx XS Trust
Mortgage
Pass-Through Certificates, Series 2007-11, no transfer of the Residual
Certificates shall be permitted to be made to any person unless
the
Depositor and Trustee have received a certificate from such transferee
containing the representations in paragraphs 3 and 4
hereof.
|
|
6.
|
That
the Purchaser does not hold REMIC residual securities as nominee
to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a “Book-Entry
Nominee”).
|
|
7.
|
That
the Purchaser does not have the intention to impede the assessment
or
collection of any federal, state or local taxes legally required
to be
paid with respect to such Residual
Certificate.
|
|
8.
|
That
the Purchaser will not transfer a Residual Certificate to any person
or
entity (i) as to which the Purchaser has actual knowledge that
the
requirements set forth in paragraph 3, paragraph 6 or paragraph
10 hereof
are not satisfied or that the Purchaser has reason to believe does
not
satisfy the requirements set forth in paragraph 7 hereof, and (ii)
without
obtaining from the prospective Purchaser an affidavit substantially
in
this form and providing to the Trustee a written statement substantially
in the form of Exhibit D-2 to the
Agreement.
|
|
9.
|
That
the Purchaser understands that, as the holder of a Residual Certificate,
the Purchaser may incur tax liabilities in excess of any cash flows
generated by the interest and that it intends to pay taxes associated
with
holding such Residual Certificate as they become
due.
|
|
10.
|
That
the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person
that holds a Residual Certificate in connection with the conduct
of a
trade or business within the United States and has furnished the
transferor and the Trustee with an effective Internal Revenue Service
Form
W-8ECI
(Certificate of Foreign Person’s Claim for Exemption From Withholding on
Income Effectively Connected With the Conduct of a Trade or Business
in
the United States)
or successor form at the time and in the manner required by the
Code or
(iii) is a Non-U.S. Person that has delivered to both the transferor
and
the Trustee an opinion of a nationally recognized tax counsel to
the
effect that the transfer of such Residual Certificate to it is
in
accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of a Residual Certificate
will not be disregarded for federal income tax purposes. “Non-U.S. Person”
means an individual, corporation, partnership or other person other
than
(i) a citizen or resident of the United States; (ii) a corporation,
partnership or other entity created or organized in or under the
laws of
the United States or any state thereof, including for this purpose,
the
District of Columbia; (iii) an estate that is subject to U.S. federal
income tax regardless of the source of its income; (iv) a trust
if a court
within the United States is able to exercise primary supervision
over the
administration of the trust and one or more United States trustees
have
authority to control all substantial decisions of the trust; and,
(v) to the extent provided in Treasury regulations, certain trusts
in
existence on August 20, 1996 that are treated as United States
persons
prior to such date and elect to continue to be treated as United
States
persons.
|
D-1-2
|
11.
|
That
the Purchaser agrees to such amendments of the Trust Agreement
as may be
required to further effectuate the restrictions on transfer of
any
Residual Certificate to such a “disqualified organization,” an agent
thereof, a Book-Entry Nominee, or a person that does not satisfy
the
requirements of paragraph 7 and paragraph 10
hereof.
|
|
12.
|
That
the Purchaser consents to the designation of the Trustee as its
agent to
act as “tax matters person” of the Trust Fund pursuant to the Trust
Agreement.
|
IN
WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________, 20__.
_________________________________
[name
of Purchaser]
By:
______________________________
Name:
Title:
Name:
Title:
D-1-3
Personally
appeared before me the above-named [name of officer] ________________, known
or
proved to me to be the same person who executed the foregoing instrument
and to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and
the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________, 20__.
NOTARY
PUBLIC
__________________________________
COUNTY
OF_____________________
STATE
OF______________________
My
commission expires the _____ day of __________, 20__.
X-0-0
XXXXXXX
X-0
RESIDUAL
CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
____________________________
Date
Re: Xxxxxx
XS Trust Mortgage Pass-Through Certificates, Series 2007-11
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with
respect to a Residual Certificate. In addition, the Transferor has conducted
a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to
pay
its debts as they become due.
Very
truly yours,
_______________________________
Name:
Title:
D-2-1
EXHIBIT
E
LIST
OF SERVICING AGREEMENTS
|
1.
|
Servicing
Agreement dated as of June 1, 2007, between Xxxxxx Brothers Holdings
Inc.,
as seller, and Aurora Loan Services LLC, in its dual capacities
of
servicer and master servicer, and acknowledged by Citibank, N.A.,
as
trustee.
|
|
2.
|
Securitization
Servicing Agreement dated as of June 1, 2007, between Xxxxxx Brothers
Holdings Inc., as seller, and Midwest Loan Services, Inc., as servicer,
and acknowledged by Aurora Loan Services LLC, as master servicer,
and
Citibank, N.A., as trustee.
|
|
3.
|
Reconstituted
Servicing Agreement dated as of June 1, 2007, between Xxxxxx Brothers
Holdings Inc., as seller, and GreenPoint Mortgage Funding, Inc.,
as
servicer, and acknowledged by Aurora Loan Services LLC, as master
servicer, and Citibank, N.A., as
trustee.
|
|
4.
|
Reconstituted
Servicing Agreement dated as of June 1, 2007, between Xxxxxx Brothers
Holdings Inc., as seller, and IndyMac Bank, F.S.B., as servicer,
and
acknowledged by Aurora Loan Services LLC, as master servicer, and
Citibank, N.A., as trustee.
|
|
5.
|
Reconstituted
Servicing Agreement dated as of June 1, 2007, between Xxxxxx Brothers
Holdings Inc., as seller, and National City Mortgage Co., as servicer,
and
acknowledged by Aurora Loan Services LLC, as master servicer, and
Citibank, N.A., as trustee.
|
|
6.
|
Reconstituted
Servicing Agreement dated as of June 1, 2007, between Xxxxxx Brothers
Holdings Inc., as seller, and PHH Mortgage Corporation, as servicer,
and
acknowledged by Aurora Loan Services LLC, as master servicer, and
Citibank, N.A., as trustee.
|
|
7.
|
Reconstituted
Servicing Agreement dated as of June 1, 2007, between Xxxxxx Brothers
Holdings Inc., as seller, and Washington Mutual Bank, as servicer,
and
acknowledged by Aurora Loan Services LLC, as master servicer, and
Citibank, N.A., as trustee.
|
|
8.
|
Reconstituted
Servicing Agreement dated as of June 1, 2007, between Xxxxxx Brothers
Holdings Inc., as seller, and Xxxxx Fargo Bank, N.A., as servicer,
and
acknowledged by Aurora Loan Services LLC, as master servicer, and
Citibank, N.A., as trustee.
|
|
9.
|
Transfer
Notice dated as of June 1, 2007, between Xxxxxx Brothers Holdings
Inc., as
seller, and Colonial Savings, F.A., as
servicer.
|
E-1
EXHIBIT
F
FORM
OF RULE 144A TRANSFER CERTIFICATE
|
Re:
|
Xxxxxx
XS Trust
|
Mortgage
Pass-Through Certificates
Series
2007-11
Reference
is hereby made to the Trust Agreement dated as of June 1, 2007 (the “Trust
Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
Aurora Loan Services LLC, as Master Servicer, and Citibank, N.A., as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Trust Agreement.
This
letter relates to $__________ initial Certificate Balance of Class
Certificates which are held in the form of Definitive Certificates registered
in
the name of
(the
“Transferor”). The Transferor has requested a transfer of such Definitive
Certificates for Definitive Certificates of such Class registered in the
name of
[insert name of transferee].
In
connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred
in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser
that the Transferor reasonably believes is a “qualified institutional buyer”
within the meaning of Rule 144A purchasing for its own account or for the
account of a “qualified institutional buyer,” which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction.
This
certificate and the statements contained herein are made for your benefit
and
the benefit of the Depositor.
_____________________________________
[Name
of Transferor]
By:
__________________________________
Name:
Title:
Name:
Title:
Dated:
___________, ____
F-1
EXHIBIT
G
FORM
OF PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTOR
Date
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount
of
Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2007-11 (the
“Privately Offered Certificates”) of the Structured Asset Securities Corporation
(the “Depositor”), we confirm that:
|
(1)
|
We
understand that the Privately Offered Certificates have not been,
and will
not be, registered under the Securities Act of 1933, as amended
(the
“Securities Act”), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of
any
accounts for which we are acting as hereinafter stated, that if
we should
sell any Privately Offered Certificates within two years of the
later of
the date of original issuance of the Privately Offered Certificates
or the
last day on which such Privately Offered Certificates are owned
by the
Depositor or any affiliate of the Depositor we will do so only
(A) to the
Depositor, (B) to “qualified institutional buyers” (within the meaning of
Rule 144A under the Securities Act) in accordance with Rule 144A
under the
Securities Act (“QIBs”), (C) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act, or (D) to an institutional
“accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act that is not a QIB
(an
“Institutional Accredited Investor”) which, prior to such transfer,
delivers to the Trustee under the Trust Agreement dated as of June
1, 2007
(the “Trust Agreement”) by and among the Depositor, Aurora Loan Services
LLC, as Master Servicer, and Citibank, N.A., as Trustee (the “Trustee”), a
signed letter in the form of this letter; and we further agree,
in the
capacities stated above, to provide to any person purchasing any
of the
Privately Offered Certificates from us a notice advising such purchaser
that resales of the Privately Offered Certificates are restricted
as
stated herein.
|
|
(2)
|
We
understand that, in connection with any proposed resale of any
Privately
Offered Certificates to an Institutional Accredited Investor, we
will be
required to furnish to the Trustee and the Depositor a certification
from
such transferee in the form hereof to confirm that the proposed
sale is
being made pursuant to an exemption from, or in a transaction not
subject
to, the registration requirements of the Securities Act. We further
understand that the Privately Offered Certificates purchased by
us will
bear a legend to the foregoing
effect.
|
|
(3)
|
We
are acquiring the Privately Offered Certificates for investment
purposes
and not with a view to, or for offer or sale in connection with,
any
distribution in violation of the Securities Act. We have such knowledge
and experience in financial and business matters as to be capable
of
evaluating the merits and risks of our investment in the Privately
Offered
Certificates, and we and any account for which we are acting are
each able
to bear the economic risk of such
investment.
|
G-1
|
(4)
|
We
are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account
or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment
discretion.
|
|
(5)
|
We
have received such information as we deem necessary in order to
make our
investment decision.
|
|
(6)
|
If
we are acquiring ERISA-Restricted Certificates, we understand that
in
accordance with ERISA, the Code and the Exemption, no Plan and
no person
acting on behalf of such a Plan may acquire such Certificate except
in
accordance with Section 3.03(d) of the Trust
Agreement.
|
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Trust Agreement.
You
and the Depositor are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceeding or official inquiry with respect to
the
matters covered hereby.
Very
truly yours,
______________________________
[Purchaser]
By:
_______________________________
Name:
Title:
Name:
Title:
G-2
EXHIBIT
H
FORM
OF ERISA TRANSFER AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of (the “Investor”), a [corporation
duly organized] and existing under the laws of __________, on behalf of which
he
makes this affidavit.
2. In
the case of an ERISA-Restricted Certificate, the
Investor either (x) is not, and on ___________ [date of transfer] will not
be,
an employee benefit plan or other retirement arrangement subject to Section
406
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”)
(collectively, a “Plan”) or a person acting on behalf of any such Plan or
investing the assets of any such Plan to acquire a Certificate; (y) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, is
an
insurance company that is purchasing the Certificate with funds contained
in an
“insurance company general account” as defined in Section V(e) of Prohibited
Transaction Class Exemption (“PTCE”) 95-60 and the purchase and holding of the
Certificate are covered under Sections I and III of PTCE 95-60; or (z) herewith
delivers to the Trustee an opinion of counsel (a “Benefit Plan Opinion”)
satisfactory to the Trustee, and upon which the Trustee, the Master Servicer,
any NIMS Insurer and the Depositor shall be entitled to rely, to the effect
that
the purchase or holding of such Certificate by the Investor will not result
in
any non-exempt prohibited transactions under Title I of ERISA or Section
4975 of
the Code and will not subject the Trustee, the Master Servicer, any NIMS
Insurer
or the Depositor to any obligation in addition to those undertaken by such
entities in the Trust Agreement, which opinion of counsel shall not be an
expense of the Trust Fund or the above parties.
3. In
the
case of an ERISA-Restricted Trust Certificate, prior to the termination of
the
Swap Agreement and the Cap Agreement, either (i) the Investor is neither
a Plan
nor a person acting on behalf of any such Plan or using the assets of any
such
Plan to effect such transfer or (ii) the acquisition and holding of the
ERISA-Restricted Trust Certificate are eligible for exemptive relief under
the
statutory exemption for nonfiduciary service providers under Section 408(b)(17)
of ERISA and Section 4975(d)(20) of the Code, XXXX 00-00, XXXX 00-0, XXXX
91-38,
PTCE 95-60 or PTCE 96-23 or some other applicable exemption.
4. The
Investor hereby acknowledges that under the terms of the Trust Agreement
(the
“Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
Aurora Loan Services LLC, as Master Servicer, and Citibank, N.A., as Trustee,
dated as of June 1, 2007, regarding Xxxxxx XS Trust Mortgage Pass-Through
Certificates, Series 2007-11, no transfer of the ERISA-Restricted Certificates
or the ERISA-Restricted Trust Certificates shall be permitted to be made
to any
person unless the Trustee has received a certificate from such transferee
in the
form hereof.
H-1
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________, 20___.
_________________________________
[Investor]
By:
______________________________
Name:
Title:
Name:
Title:
ATTEST:
_________________________________
|
STATE
OF
|
)
|
|
)
ss:
|
|
|
COUNTY
OF
|
)
|
Subscribed
and sworn before me this _____ day of _________ 20___.
______________________________
NOTARY
PUBLIC
My
commission expires the
_____
day of __________, 20___.
H-2
EXHIBIT
I
[RESERVED]
I-1
EXHIBIT
J
[RESERVED]
J-1
EXHIBIT
K
CUSTODIAL
AGREEMENTS
|
1.
|
Custodial
Agreement dated and effective as of June 1, 2007, by and between
Deutsche
Bank National Trust Company, as custodian, and Citibank, N.A.,
as trustee,
and acknowledged by Structured Asset Securities Corporation, as
depositor,
and Aurora Loan Services LLC, in its dual capacities as servicer
and
master servicer.
|
|
2.
|
Custodial
Agreement dated and effective as of June 1, 2007, by and between
LaSalle
Bank National Association, as custodian, and Citibank, N.A., as
trustee,
and acknowledged by Structured Asset Securities Corporation, as
depositor,
and Aurora Loan Services LLC, in its dual capacities as servicer
and
master servicer.
|
|
3.
|
Custodial
Agreement dated and effective as of June 1, 2007, by and between
U.S. Bank
National Association, as custodian, and Citibank, N.A., as trustee,
and
acknowledged by Structured Asset Securities Corporation, as depositor,
and
Aurora Loan Services LLC, in its dual capacities as servicer and
master
servicer.
|
|
4.
|
Custodial
Agreement dated and effective as of June 1, 2007, by and between
Xxxxx
Fargo Bank, N.A., as custodian, and Citibank, N.A., as trustee,
and
acknowledged by Structured Asset Securities Corporation, as depositor,
and
Aurora Loan Services LLC, in its dual capacities as servicer and
master
servicer.
|
K-1
EXHIBIT
L-1
FORM
OF
TRANSFER CERTIFICATE
FOR
TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(B)
of the
Agreement)
|
Re:
|
Xxxxxx
XS Trust 2007-11
|
Mortgage
Pass-Through Certificates Series 2007-11
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as
Master
Servicer, and Citibank, N.A., as Trustee, dated as of June 1, 2007. Capitalized
terms used but not defined herein shall have the meanings given to them in
the
Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Restricted
Global
Security with DTC in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Regulation S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions set
forth in the Agreement and the Securities and in accordance with Rule 904
of
Regulation S, and that:
a. the
offer
of the Securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United
States
or the Transferor and any person acting on its behalf reasonably believed
that
the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended;
and
e.
the
transferee is not a U.S. person (as defined in Regulation S).
L-1-1
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or
legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation
S.
_______________________________
[Name
of
Transferor]
By:
________________________________
Name:
Title:
Name:
Title:
Date:______________________,
______
X-0-0
XXXXXXX
X-0
FORM
OF
TRANSFER CERTIFICATE FOR TRANSFER
FROM
REGULATION S GLOBAL SECURITY
TO
RESTRICTED GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(C)
of
the
Agreement)
|
Re:
|
Xxxxxx
XS Trust 2007-11
|
Mortgage
Pass-Through Certificates Series 2007-11
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as
Master
Servicer, and Citibank, N.A., as Trustee, dated as of June 1, 2007. Capitalized
terms used but not defined herein shall have the meanings given to them in
the
Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Regulations
S
Global Security in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Agreement and the Securities
and (ii) Rule 144A under the United States Securities Act of 1933, as amended,
to a transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any such
account is a qualified institutional buyer within the meaning of Rule 144A,
in a
transaction meeting the requirements of Rule 144A and in accordance with
any
applicable securities laws of any state of the United States or any other
jurisdiction.
[Name
of
Transferor]
By:
Name:
Title:
Date:
_______________________,
__________
L-2-1
EXHIBIT
M
FORM
OF BACK-UP CERTIFICATION TO BE PROVIDED TO
THE
DEPOSITOR AND/OR THE MASTER SERVICER BY THE TRUSTEE
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2007-11
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
|
Re:
|
Xxxxxx
XS Trust
|
Mortgage
Pass-Through Certificates, Series 2007-11
Reference
is made to the Trust
Agreement dated as of June 1, 2007 (the “Trust Agreement”), by and among
Citibank, N.A., (the “Trustee”), Aurora Loan Services LLC, as master servicer
(the “Master Servicer”), and Structured Asset Securities Corporation, as
depositor (the “Depositor”). The Trustee
hereby certifies to the Depositor and the Master Servicer, and their respective
officers, directors and affiliates, and with the knowledge and intent that
they
will rely upon this certification, that:
|
(i)
|
The
Trustee has reviewed the annual report on Form 10-K for the fiscal
year [
], and all reports on Form 10-D containing distribution reports
filed in
respect of periods included in the year covered by that annual
report,
relating to the above-referenced
trust;
|
|
(ii)
|
Based
solely upon the information provided to us pursuant to Sections
6.20(d)
and 6.20(e) and the information provided by us pursuant to Sections
6.20(d) and 6.20(e), the information set forth in the reports referenced
in (i) above does not contain any untrue statement of material
fact;
and
|
|
(iii)
|
Based
on my knowledge, the distribution information required to be provided
by
the Trustee under the Trust Agreement, together with the information
specific to and required to be provided by the Trustee pursuant
to
Sections 6.20(d) and 6.20(e) is included in these
reports.
|
Date:
Citibank,
N.A., as Trustee
By: ____________________________
Name: __________________________
Title: ___________________________
___________________________
___________________________
M-1
EXHIBIT
N-1
SWAP
AGREEMENT
SCHEDULE
A to
the
Confirmation dated as of June 29, 2007,
Re:
Reference Number 1612070
Amortization
Schedule, subject
to adjustment in accordance with the Modified Following Business Day
Convention
|
Period
Date from
and
Including
|
Period
Date to and
Excluding:
|
Notional
Amount
(USD)
|
Fixed
Rate
|
|
7/25/2007
|
8/27/2007
|
439,811,607
|
5.434
|
|
8/27/2007
|
9/25/2007
|
424,221,592
|
5.450
|
|
9/25/2007
|
10/25/2007
|
409,183,698
|
5.435
|
|
10/25/2007
|
11/26/2007
|
394,678,387
|
5.423
|
|
11/26/2007
|
12/26/2007
|
380,686,812
|
5.413
|
|
12/26/2007
|
1/25/2008
|
367,190,790
|
5.411
|
|
1/25/2008
|
2/25/2008
|
354,069,064
|
5.398
|
|
2/25/2008
|
3/25/2008
|
341,515,813
|
5.386
|
|
3/25/2008
|
4/25/2008
|
329,407,211
|
5.363
|
|
4/25/2008
|
5/27/2008
|
317,727,520
|
5.348
|
|
5/27/2008
|
6/25/2008
|
306,461,559
|
5.333
|
|
6/25/2008
|
7/25/2008
|
272,856,632
|
5.314
|
|
7/25/2008
|
8/25/2008
|
261,431,384
|
5.308
|
|
8/25/2008
|
9/25/2008
|
250,484,214
|
5.302
|
|
9/25/2008
|
10/27/2008
|
239,995,129
|
5.309
|
|
10/27/2008
|
11/25/2008
|
229,944,973
|
5.312
|
|
11/25/2008
|
12/26/2008
|
220,315,388
|
5.316
|
|
12/26/2008
|
1/26/2009
|
210,744,514
|
5.321
|
|
1/26/2009
|
2/25/2009
|
201,918,558
|
5.327
|
|
2/25/2009
|
3/25/2009
|
193,041,965
|
5.332
|
|
3/25/2009
|
4/27/2009
|
184,957,012
|
5.337
|
|
4/27/2009
|
5/26/2009
|
177,166,453
|
5.346
|
|
5/26/2009
|
6/25/2009
|
169,511,491
|
5.355
|
|
6/25/2009
|
7/27/2009
|
136,470,641
|
5.368
|
|
7/27/2009
|
8/25/2009
|
129,809,593
|
5.379
|
|
8/25/2009
|
9/25/2009
|
123,473,493
|
5.389
|
|
9/25/2009
|
10/26/2009
|
117,385,150
|
5.400
|
|
10/26/2009
|
11/25/2009
|
111,531,152
|
5.411
|
|
11/25/2009
|
12/28/2009
|
105,996,882
|
5.421
|
|
12/28/2009
|
1/25/2010
|
100,792,593
|
5.432
|
|
1/25/2010
|
2/25/2010
|
95,475,807
|
5.442
|
|
2/25/2010
|
3/25/2010
|
90,741,546
|
5.452
|
|
3/25/2010
|
4/26/2010
|
85,952,229
|
5.462
|
|
4/26/2010
|
5/25/2010
|
81,568,442
|
5.472
|
|
5/25/2010
|
6/25/2010
|
77,463,305
|
5.482
|
|
6/25/2010
|
7/26/2010
|
73,598,779
|
5.493
|
|
7/26/2010
|
8/25/2010
|
70,005,093
|
5.506
|
|
8/25/2010
|
9/27/2010
|
66,586,778
|
5.519
|
|
9/27/2010
|
10/25/2010
|
63,335,279
|
5.530
|
|
10/25/2010
|
11/26/2010
|
60,242,461
|
5.540
|
|
11/26/2010
|
12/27/2010
|
57,300,583
|
5.550
|
|
12/27/2010
|
1/25/2011
|
54,502,282
|
5.558
|
|
1/25/2011
|
2/25/2011
|
51,840,555
|
5.566
|
|
2/25/2011
|
3/25/2011
|
49,308,741
|
5.572
|
|
3/25/2011
|
4/25/2011
|
46,900,501
|
5.578
|
N-1-1
|
Period
Date from
and
Including
|
Period
Date to and
Excluding:
|
Notional
Amount
(USD)
|
Fixed
Rate
|
|
4/25/2011
|
5/25/2011
|
44,609,807
|
5.583
|
|
5/25/2011
|
6/27/2011
|
42,384,637
|
5.587
|
|
6/27/2011
|
7/25/2011
|
40,314,361
|
5.592
|
|
7/25/2011
|
8/25/2011
|
38,345,145
|
5.599
|
|
8/25/2011
|
9/26/2011
|
36,472,058
|
5.606
|
|
9/26/2011
|
10/25/2011
|
34,508,052
|
5.613
|
|
10/25/2011
|
11/25/2011
|
32,775,030
|
5.619
|
|
11/25/2011
|
12/27/2011
|
31,173,818
|
5.626
|
|
12/27/2011
|
1/25/2012
|
29,632,006
|
5.633
|
|
1/25/2012
|
2/27/2012
|
28,184,243
|
5.640
|
|
2/27/2012
|
3/26/2012
|
26,792,489
|
5.647
|
|
3/26/2012
|
4/25/2012
|
25,107,481
|
5.654
|
|
4/25/2012
|
5/25/2012
|
20,738,679
|
5.661
|
|
5/25/2012
|
6/25/2012
|
10,988,575
|
5.668
|
|
06/25/2012
|
Thereafter
|
0
|
0.000
|
N-1-2
EXHIBIT
N-2
CAP
AGREEMENT
SCHEDULE
A to
the
Confirmation dated as of June 29, 2007,
Re:
Reference Number 1612075
Amortization
Schedule, subject
to adjustment in accordance with the Modified Following Business Day
Convention
|
Period
Date from
and
Including
|
Period
Date to and
Excluding:
|
Notional
Amount
(USD)
|
|
6/25/2008
|
7/25/2008
|
22,738,053
|
|
7/25/2008
|
8/25/2008
|
23,681,387
|
|
8/25/2008
|
9/25/2008
|
24,517,975
|
|
9/25/2008
|
10/27/2008
|
25,254,668
|
|
10/27/2008
|
11/25/2008
|
25,897,942
|
|
11/25/2008
|
12/26/2008
|
26,453,923
|
|
12/26/2008
|
1/26/2009
|
26,884,484
|
|
1/26/2009
|
2/25/2009
|
27,282,299
|
|
2/25/2009
|
3/25/2009
|
27,549,433
|
|
3/25/2009
|
4/27/2009
|
27,810,094
|
|
4/27/2009
|
5/26/2009
|
28,002,678
|
|
5/26/2009
|
6/25/2009
|
28,106,516
|
|
6/25/2009
|
7/27/2009
|
54,137,114
|
|
7/27/2009
|
8/25/2009
|
54,036,333
|
|
8/25/2009
|
9/25/2009
|
53,850,232
|
|
9/25/2009
|
10/26/2009
|
53,558,180
|
|
10/26/2009
|
11/25/2009
|
53,164,100
|
|
11/25/2009
|
12/28/2009
|
52,720,273
|
|
12/28/2009
|
1/25/2010
|
52,247,523
|
|
1/25/2010
|
2/25/2010
|
51,423,796
|
|
2/25/2010
|
3/25/2010
|
50,193,816
|
|
3/25/2010
|
4/26/2010
|
49,194,617
|
|
4/26/2010
|
5/25/2010
|
47,960,438
|
|
5/25/2010
|
6/25/2010
|
46,613,141
|
|
6/25/2010
|
7/26/2010
|
45,185,913
|
|
7/26/2010
|
8/25/2010
|
47,167,901
|
|
8/25/2010
|
9/27/2010
|
46,427,101
|
|
9/27/2010
|
10/25/2010
|
45,666,944
|
|
10/25/2010
|
11/26/2010
|
44,890,346
|
|
11/26/2010
|
12/27/2010
|
44,100,008
|
|
12/27/2010
|
1/25/2011
|
43,298,431
|
|
1/25/2011
|
2/25/2011
|
42,487,932
|
|
2/25/2011
|
3/25/2011
|
41,670,650
|
|
3/25/2011
|
4/25/2011
|
40,848,561
|
|
4/25/2011
|
5/25/2011
|
40,023,485
|
|
5/25/2011
|
6/27/2011
|
39,154,338
|
|
6/27/2011
|
7/25/2011
|
38,329,070
|
|
7/25/2011
|
8/25/2011
|
37,505,442
|
|
8/25/2011
|
9/26/2011
|
36,684,745
|
|
9/26/2011
|
10/25/2011
|
35,679,611
|
|
10/25/2011
|
11/25/2011
|
34,822,265
|
|
11/25/2011
|
12/27/2011
|
34,022,356
|
|
12/27/2011
|
1/25/2012
|
33,208,410
|
|
1/25/2012
|
2/27/2012
|
32,423,801
|
|
2/27/2012
|
3/26/2012
|
31,630,374
|
N-2-1
|
Period
Date from
and
Including
|
Period
Date to and
Excluding:
|
Notional
Amount
(USD)
|
|
3/26/2012
|
4/25/2012
|
30,408,602
|
|
4/25/2012
|
5/25/2012
|
25,760,217
|
|
5/25/2012
|
6/25/2012
|
13,994,669
|
|
06/25/2012
|
Thereafter
|
0
|
N-2-2
EXHIBIT
O
FORM
OF
CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT OF COMPLIANCE
Where
there are multiple checks for criteria the attesting party will identify
in
their management assertion that they are attesting only to the portion
of the
distribution chain they are responsible for in the related transaction
agreements. Capitalized terms used herein but not defined herein shall
have the
meanings assigned to them in the Trust Agreement dated as of June 1, 2007
(the
“Agreement”), by and among Citibank, N.A. (the “Trustee”), Aurora Loan Services
LLC, as master servicer (the “Master Servicer”), and Structured Asset Securities
Corporation, as depositor (the “Depositor”) with respect to Xxxxxx XS Trust
Mortgage Pass-Through Certificates, Series 2007-11.
|
Regulation
AB
Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the
Trustee
if
acting as
Paying
Agent)
|
Trustee
|
Master
Servicer
|
|
General Servicing
Considerations
|
||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
X
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
||
|
Cash Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two
business days
following receipt, or such other number of days specified in
the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
X-0
|
Xxxxxxxxxx
XX
Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the
Trustee
if
acting as
Paying
Agent)
|
Trustee
|
Master
Servicer
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction agreements.
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
|
X
|
X
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
X
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
X
|
X
|
|
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the Servicer.
|
X
|
X
|
O-2
|
Regulation
AB
Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the
Trustee
if
acting as
Paying
Agent)
|
Trustee
|
Master
Servicer
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
|
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related pool asset documents.
|
|
||
|
1122(d)(4)(ii)
|
Mortgage
loans and related documents are safeguarded as required by the
transaction
agreements
|
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
X
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the
related pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
|
|||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
|||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage
loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
X-0
|
Xxxxxxxxxx
XX
Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the
Trustee
if
acting as
Paying
Agent)
|
Trustee
|
Master
Servicer
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or unemployment).
|
|||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related pool asset documents.
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related mortgage loans, or such
other number
of days specified in the transaction agreements.
|
|||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
|
|
X-0
|
Xxxxxxxxxx
XX
Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the
Trustee
if
acting as
Paying
Agent)
|
Trustee
|
Master
Servicer
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
X*
|
_____________
*Only
with respect to Swap Agreement.
O-5
EXHIBIT
P
TRANSACTION
PARTIES
Sponsor
and Seller: Xxxxxx Brothers Holdings Inc.
Depositor:
Structured Asset Securities Corporation
Trustee:
Citibank, N.A.
Securities
Administrator: None
Master
Servicer: Aurora Loan Services LLC
Swap
Counterparty: Swiss Re Financial Products Corporation
Cap
Counterparty: Swiss Re Financial Products Corporation
Servicer(s):
Aurora Loan Services LLC
Originator(s):
Xxxxxx Brothers Bank, FSB
Custodian(s):
U.S. Bank National Association, LaSalle Bank National Association, Deutsche
Bank
National Trust Company and Xxxxx Fargo Bank, N.A.
P-1
EXHIBIT
Q
Additional
Form 10-D Disclosure
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the Monthly Statement
|
Master
Servicer
Servicer
Trustee
(but only to the extent set forth in the Trust
Agreement)
|
|
Any
information required by 1121 which is NOT included on the Monthly
Statement
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Master
Servicer and Depositor
|
|
▪
Sponsor (Seller)
|
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
Depositor
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
Trustee
|
Q-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Depositor
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
|
Depositor
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Trustee
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
Q-2
EXHIBIT
R
Additional
Form 10-K Disclosure
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Depositor
|
|
Regulation
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-K if updated information
is required pursuant to the Item.
|
|
|
Regulation
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-K if updated information
is required pursuant to the Item.
|
Depositor
|
|
Regulation
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-K if updated information
is required pursuant to the Item.
|
|
|
Regulation
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
R-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer and Depositor
|
|
▪
Sponsor (Seller)
|
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Regulation
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand,
and (b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
R-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction
or the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two
years and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
R-3
EXHIBIT
S
Form
8-K
Disclosure Information
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the
time of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
S-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Depositor/
Servicer
|
|
Regulation
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Regulation
AB disclosure about any new Trustee is also required.
|
Successor Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor
|
S-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Regulation
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Regulation AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Regulation FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
S-3
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[On
file
with XxXxx Xxxxxx LLP]
Schedule
A
SCHEDULE
B
FIRST
PAYMENT DEFAULT MORTGAGE LOAN SCHEDULE
[On
file
with XxXxx Xxxxxx LLP]
Schedule
B
