MORGAN STANLEY CAPITAL I INC. Depositor WELLS FARGO BANK, NATIONAL ASSOCIATION Master Servicer and Securities Administrator and LASALLE BANK NATIONAL ASSOCIATION Trustee and Custodian POOLING AND SERVICING AGREEMENT Dated as of June 1, 2007 MORGAN...
Exhibit
99.1
EXECUTION
COPY
XXXXXX
XXXXXXX CAPITAL I INC.
Depositor
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
Master
Servicer and Securities
Administrator
and
LASALLE
BANK NATIONAL ASSOCIATION
Trustee
and
Custodian
___________________________
Dated
as
of June 1, 2007
___________________________
XXXXXX
XXXXXXX MORTGAGE LOAN TRUST 2007-10XS
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-10XS
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
3
|
|
Section
1.01. Definitions.
|
3
|
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
52
|
|
Section
2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
52
|
|
Section
2.02. Acceptance of Trust Fund by Trustee; Review of Documentation
for
Trust Fund.
|
55
|
|
Section
2.03. Representations and Warranties of the Depositor.
|
56
|
|
Section
2.04. Representations and Warranties of the Depositor and the Seller
as to
the Mortgage Loans.
|
58
|
|
Section
2.05. Representations and Warranties of the Seller; Discovery of
Breach;
Repurchase or Substitution of Mortgage Loans.
|
59
|
|
Section
2.06. Grant Clause.
|
63
|
|
Section
2.07. Depositor’s Option to Purchase Breached Mortgage
Loans.
|
64
|
|
Section
2.08. Release of Mortgage Documents for Servicing.
|
64
|
|
ARTICLE
III THE CERTIFICATES
|
65
|
|
Section
3.01. The Certificates.
|
65
|
|
Section
3.02. Registration.
|
65
|
|
Section
3.03. Transfer and Exchange of Certificates.
|
66
|
|
Section
3.04. Cancellation of Certificates.
|
69
|
|
Section
3.05. Replacement of Certificates.
|
70
|
|
Section
3.06. Persons Deemed Owners.
|
70
|
|
Section
3.07. Temporary Certificates.
|
70
|
|
Section
3.08. Appointment of Paying Agent.
|
71
|
|
Section
3.09. Book-Entry Certificates.
|
71
|
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
73
|
|
Section
4.01. Custodial Accounts; Distribution Account.
|
73
|
|
Section
4.02. Permitted Withdrawals from the Custodial Accounts and the
Distribution Account.
|
74
|
|
Section
4.03. Depositable and Exchangeable Certificates.
|
75
|
|
Section
4.04. [Reserved].
|
78
|
|
Section
4.05. Reports to Trustee and Certificateholders.
|
78
|
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
81
|
|
Section
5.01. Distributions Generally.
|
81
|
|
Section
5.02. Priorities of Distribution.
|
82
|
|
Section
5.03. Allocation of Principal Payments to Class A
Certificates.
|
86
|
|
Section
5.04. Allocation of Losses.
|
90
|
|
Section
5.05. Advances by the Master Servicer.
|
91
|
|
Section
5.06. Compensating Interest Payments.
|
91
|
|
Section
5.07. Policy Matters; Payments to the Certificate Insurer.
|
91
|
|
Section
5.08. [Reserved].
|
95
|
|
Section
5.09. Determination of Pass-Through Rates for LIBOR
Certificates.
|
95
|
|
Section
5.10 The Reserve Funds.
|
97
|
|
Section
5.11 The Corridor Contract
|
99
|
|
ARTICLE
VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS
OF
DEFAULT
|
100
|
|
Section
6.01. Duties of Trustee and the Securities Administrator.
|
100
|
|
Section
6.02. Certain Matters Affecting the Trustee and the Securities
Administrator.
|
103
|
|
Section
6.03. Trustee and Securities Administrator Not Liable for
Certificates.
|
104
|
|
Section
6.04. Trustee and the Securities Administrator May Own
Certificates.
|
105
|
|
Section
6.05. Eligibility Requirements for Trustee.
|
105
|
|
Section
6.06. Resignation and Removal of Trustee and the Securities
Administrator.
|
105
|
|
Section
6.07. Successor Trustee and Successor Securities
Administrator.
|
109
|
|
Section
6.08. Merger or Consolidation of Trustee or the Securities
Administrator.
|
110
|
|
Section
6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian.
|
110
|
|
Section
6.10. Authenticating Agents.
|
112
|
|
Section
6.11. Indemnification of the Trustee and the Securities
Administrator.
|
112
|
|
Section
6.12. Fees and Expenses of the Master Servicer, Securities Administrator,
the Trustee and the Custodian.
|
113
|
|
Section
6.13. Collection of Monies.
|
114
|
|
Section
6.14. Events of Default; Trustee To Act; Appointment of
Successor.
|
114
|
|
Section
6.15. Additional Remedies of Trustee Upon Event of
Default.
|
119
|
|
Section
6.16. Waiver of Defaults.
|
119
|
|
Section
6.17. Notification to Holders.
|
119
|
|
Section
6.18. Directions by Certificateholders and Duties of Trustee During
Event
of Default.
|
119
|
|
Section
6.19. Action Upon Certain Failures of the Master Servicer and Upon
Event
of Default.
|
120
|
|
Section
6.20. Preparation of Tax Returns and Other Reports.
|
120
|
|
Section
6.21. Certain Matters Regarding any Custodian Appointed
Hereunder.
|
121
|
|
ARTICLE
VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST
FUND
|
124
|
|
Section
7.01. Purchase of Mortgage Loans; Termination of Trust Fund Upon
Purchase
or Liquidation of All Mortgage Loans.
|
124
|
|
Section
7.02. Procedure Upon Redemption of Trust Fund.
|
125
|
|
Section
7.03. Additional Trust Fund Termination Requirements.
|
126
|
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
127
|
ii
|
Section
8.01. Limitation on Rights of Holders.
|
127
|
|
Section
8.02. Access to List of Holders.
|
128
|
|
Section
8.03. Acts of Holders of Certificates.
|
129
|
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER
SERVICER
|
130
|
|
Section
9.01. Duties of the Master Servicer; Enforcement of Servicers’ and Master
Servicer’s Obligations.
|
130
|
|
Section
9.02. Assumption of Master Servicing by Trustee.
|
132
|
|
Section
9.03. Representations and Warranties of the Master
Servicer.
|
133
|
|
Section
9.04. Compensation to the Master Servicer.
|
135
|
|
Section
9.05. Merger or Consolidation.
|
135
|
|
Section
9.06. Resignation of Master Servicer and Securities
Administrator.
|
136
|
|
Section
9.07. Assignment or Delegation of Duties by the Master Servicer
and
Securities Administrator.
|
136
|
|
Section
9.08. Limitation on Liability of the Master Servicer and
Others.
|
137
|
|
Section
9.09. Indemnification; Third-Party Claims.
|
137
|
|
Section
9.10. Eligibility Requirements for Securities
Administrator.
|
138
|
|
Section
9.11. Annual Statement as to Compliance.
|
139
|
|
ARTICLE
X REMIC ADMINISTRATION
|
139
|
|
Section
10.01. REMIC Administration.
|
139
|
|
Section
10.02. Prohibited Transactions and Activities.
|
142
|
|
Section
10.03. Indemnification with Respect to Prohibited Transactions
or Loss of
REMIC Status.
|
143
|
|
Section
10.04. REO Property.
|
143
|
|
Section
10.05. Fidelity.
|
144
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
144
|
|
Section
11.01. Binding Nature of Agreement; Assignment.
|
144
|
|
Section
11.02. Entire Agreement.
|
144
|
|
Section
11.03. Amendment.
|
144
|
|
Section
11.04. Voting Rights.
|
146
|
|
Section
11.05. Provision of Information.
|
146
|
|
Section
11.06. Governing Law.
|
147
|
|
Section
11.07. Notices.
|
147
|
|
Section
11.08. Severability of Provisions.
|
147
|
|
Section
11.09. Indulgences; No Waivers.
|
147
|
|
Section
11.10. Headings Not To Affect Interpretation.
|
148
|
|
Section
11.11. Benefits of Agreement.
|
148
|
|
Section
11.12. Special Notices to the Rating Agencies and Certificate
Insurer.
|
148
|
|
Section
11.13. Conflicts.
|
149
|
|
Section
11.14. Counterparts.
|
149
|
|
Section
11.15. No Petitions.
|
149
|
iii
|
Section
11.16. Indemnification by Trust.
|
149
|
|
ARTICLE
XII CERTAIN MATTERS REGARDING THE CERTIFICATE INSURER
|
149
|
|
Section
12.01. Rights of the Certificate Insurer to Exercise Rights of
Holders of
Class A-1-W and Class A-3-W Certificates.
|
150
|
|
Section
12.02. [Reserved]
|
150
|
|
Section
12.03. Effect of Payments by the Certificate Insurer;
Subrogation.
|
150
|
|
Section
12.04. Notices and Information to the Certificate Insurer.
|
150
|
|
Section
12.05. Trustee to Hold Certificate Policy.
|
151
|
|
Section
12.06. Class A-1-W and Class A-3-W Premium Payments.
|
151
|
|
Section
12.07. Certificate Insurer as Third Party Beneficiary.
|
151
|
|
ARTICLE
XIII EXCHANGE ACT REPORTING
|
151
|
|
Section
13.01. Filing Obligations.
|
151
|
|
Section
13.02. Form 10-D Reporting.
|
153
|
|
Section
13.03. Form 8-K Reporting.
|
154
|
|
Section
13.04. Form 10-K Reporting.
|
155
|
|
Section
13.05. Xxxxxxxx-Xxxxx Certification.
|
157
|
|
Section
13.06. Reports on Assessment of Compliance and
Attestation.
|
157
|
|
Section
13.07. Use of Subcontractors.
|
159
|
|
Section
13.08. Indemnification by the Master Servicer and the Securities
Administrator.
|
160
|
|
Section
13.09. Indemnification by the Custodian.
|
161
|
|
EXHIBIT
S-1
|
1
|
|
EXHIBIT
S-2
|
2
|
iv
ATTACHMENTS
|
Exhibit
A
|
Forms
of Certificates
|
|
Exhibit
B
|
Form
of Residual Certificate Transfer Affidavit (Transferee)
|
|
Exhibit
C
|
Form
of Residual Certificate Transfer Affidavit (Transferor)
|
|
Exhibit
D
|
Form
of Class A-1-W and Class A-3-W Policy
|
|
Exhibit
E
|
List
of Purchase and Servicing Agreements
|
|
Exhibit
F
|
Corridor
Contract Confirmation
|
|
Exhibit
G
|
Assignment
and Notice of Transfer with respect to each Additional Collateral
Mortgage
Loan
|
|
Exhibit
H
|
Form
of Rule 144A Transfer Certificate
|
|
Exhibit
I
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
|
Exhibit
J
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
K
|
Form
of Letter of Representations with the Depository Trust
Company
|
|
Exhibit
L-1
|
Form
of Initial Custodian Certification
|
|
Exhibit
L-2
|
Form
of Final Custodian Certification
|
|
Exhibit
M
|
Assignment
and Notice of Transfer with respect to each Additional Collateral
Mortgage
Loan
|
|
Exhibit
N
|
Additional
Disclosure Required Under Regulation AB
|
|
Exhibit
O
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
|
Exhibit
P
|
Additional
Disclosure Notification
|
|
Exhibit
Q
|
Glossary
of Terms for Standard & Poor’s LEVELS® Version 5.7 File
Format
|
|
Exhibit
R
|
Form
of Lost Note Affidavit
|
|
Exhibit
S-1
|
Form
of Exchange Letter (Depositable Certificates for Exchangeable
Certificates)
|
|
Exhibit
S-2
|
Form
of Exchange Letter (Exchangeable Certificates for Depositable
Certificates)
|
|
Schedule
A
|
Mortgage
Loan Schedule
|
|
Schedule
B
|
Principal
Balances Schedule
|
|
Schedule
C
|
Available
Exchanges of Depositable Certificates for Exchangeable
Certificates
|
v
This
POOLING AND SERVICING AGREEMENT, dated as of June 1, 2007 (the “Agreement”), by
and among XXXXXX XXXXXXX CAPITAL I INC., a Delaware corporation, as depositor
(the “Depositor”), LASALLE BANK NATIONAL ASSOCIATION, a national banking
association, as trustee (the “Trustee”), and as the custodian (the “Custodian”)
and XXXXX FARGO BANK, NATIONAL ASSOCIATION, in its separate capacities as master
servicer (the “Master Servicer”), as securities administrator (the “Securities
Administrator”) and, in its capacity as Securities Administrator, as auction
administrator (the “Auction Administrator”) and acknowledged by XXXXXX XXXXXXX
MORTGAGE CAPITAL HOLDINGS LLC, a New York limited liability company, as seller
(the “Seller”), for purposes of Section 2.05.
WITNESSETH
THAT
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates. As provided herein, the Trustee, for federal
income tax purposes, shall treat the Trust Fund as consisting of a
trust (the “ES Trust”) beneath which are two real estate mortgage investment
conduits (or in the alternative, “REMIC 1” and the “Master REMIC”) and the
Securities Administrator, on behalf of the Trustee, shall make all elections
as necessary for such
treatment. REMIC 1 will consist of the Mortgage Loans, excluding any
rights of the Trust Fund in respect of the Additional Collateral, the Corridor
Contract and the assets held in the Reserve Funds. REMIC 1 will issue
uncertificated REMIC regular interests (the “REMIC 1 Regular
Interests”). The REMIC 1 Regular Interests will represent the
“regular interests” in REMIC 1, and the Class R1 Interest will represent the
single Class of “residual interest” in REMIC 1.
The
Trustee will hold the REMIC 1 Regular Interests for the benefit of the Master
REMIC. The Master REMIC will consist of the REMIC 1 Interests and
will be evidenced by the Master REMIC Interests (other than the Class R2
Interests), which will constitute the regular interests in the Master REMIC
and
the Class R2 Interest, which will represent the single Class of “residual
interest” in the Master REMIC. The “latest possible maturity date”
for federal income tax purposes of all regular and residual interests created
hereunder will be the Latest Possible Maturity Date.
The
ES
Trust shall hold all Master REMIC regular interests, and shall issue the
Certificates. Each Certificate, other than the Class A-R Certificate,
will represent ownership of one or more of the Master REMIC regular interests
held by the ES Trust. For federal income tax purposes the Trustee
shall treat the ES Trust as a Grantor Trust and shall treat each Holder of
an ES
Trust Certificate as the owner of the individual, underlying assets represented
by such ES Trust Certificate. In addition, to the fullest extent
possible, ownership of an ES Trust Certificate shall be treated as direct
ownership of the individual, underlying assets represented by such ES Trust
Certificate for federal income tax reporting purposes.
REMIC
1
The
REMIC
1 Interests, each of which (except for the Class R1 Interests) is hereby
designated as a REMIC regular interest for federal income tax purposes, will
have the principal balances, Pass-Through Rates and Corresponding Master REMIC
Interests as set forth in the following table:
|
REMIC
1
Interest
|
Initial
Principal
Balance
|
Interest
Rate
|
Corresponding
Master REMIC
Interests
|
|
1-A-1-1
|
(1)
|
(2)
|
Class
MR-A-1-1
|
|
1-A-1-2
|
(1)
|
(2)
|
Class
MR-A-1-2
|
|
1-A-1-3
|
(1)
|
(2)
|
Class
MR-A-1-3
|
|
1-A-1-4
|
(1)
|
(2)
|
Class
MR-A-1-4
|
|
1-A-1-W
|
(1)
|
(2)
|
Class
MR-A-1-W
|
|
1-A-2
|
(1)
|
(2)
|
Class
MR-A-2
|
|
1-A-3-W
|
(1)
|
(2)
|
Class
MR-A-3-W
|
|
1-A-4
|
(1)
|
(2)
|
Class
MR-A-4-1
|
|
1-M-1
|
(1)
|
(2)
|
Class
MR-M-1
|
|
1-M-2
|
(1)
|
(2)
|
Class
MR-M-2
|
|
1-M-3
|
(1)
|
(2)
|
Class
MR-M-3
|
|
1-M-4
|
(1)
|
(2)
|
Class
MR-M-4
|
|
1-M-5
|
(1)
|
(2)
|
Class
MR-M-5
|
|
1-M-6
|
(1)
|
(2)
|
Class
MR-M-6
|
|
1-B-1
|
(1)
|
(2)
|
Class
MR-B-1
|
|
1-B-2
|
(1)
|
(2)
|
Class
MR-B-2
|
|
1-B-3
|
(1)
|
(2)
|
Class
MR-B-3
|
|
1-OC
|
(1)
|
(2)
|
Class
MR-OC
|
|
1-L-IO
|
(3)
|
(3)
|
Class
MR-L-IO
|
|
1-P
|
$1,000
|
(4)
|
Class MR-P
|
|
1-$100
|
$100(1)
|
7.117%
|
Class A-R
|
|
R1
|
(5)
|
N/A(5)
|
N/A
|
_______________
|
(1)
|
For
each Distribution Date, following the allocation of scheduled principal,
prepayments and Realized Losses, each such Class of Interests will
have a
principal balance equal to the principal balance in respect of the
Corresponding Class of Master REMIC
Interests.
|
|
(2)
|
The
interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this REMIC Interest is a per annum rate
equal
to the Net WAC Pass-Through Rate minus the pass through rate in respect
of
the Class 1-LIO Interests.
|
|
(3)
|
The
Class 1-LIO Interests will have notional balances equal to the principal
balance of the Mortgage Loans. The Class 1-LIO Interest will have
pass
through rates equal to the product of: (a) .01% and (b) $10,000 divided
by
the principal balance of the Mortgage
Loans.
|
2
|
(4)
|
The
Class 1-P Interest will not be entitled to any interest, but will
be
entitled to 100% of any prepayment premiums paid on the Mortgage
Loans.
|
|
(4)
|
The
R1 Interest is the sole Class of residual interest in REMIC
1. It pays no interest or
principal.
|
The
Master
REMIC
The
Master REMIC Interests, each of which (except for the Class R2 Interests) is
hereby designated as a REMIC regular interest for federal income tax purposes,
will have the principal balances and Pass-Through Rates as set forth in the
following table:
|
Master
REMIC Interest
|
Initial
Principal Balance
|
Pass-Through
Rate
(per
annum)
|
|
Class
MR-A-1-1
|
$60,061,667.00
|
(1)
|
|
Class
MR-A-1-2
|
$30,030,
833.00
|
(1)
|
|
Class
MR-A-1-3
|
$82,092,500.00
|
(1)
|
|
Class
MR-A-1-4
|
$8,000,000.00
|
(1)
|
|
Class
MR-A-1-5
|
$60,061,667.00(2)
|
(1)
|
|
Class
MR-A-1-6
|
$30,030,
933.00(2)
|
(1)
|
|
Class
MR-A-1-7
|
$82,092,500.00(2)
|
(1)
|
|
Class
MR-A-1-8
|
$8,000,000.00(2)
|
(1)
|
|
Class
MR-A-1-9
|
$60,061,667.00(2)
|
(1)
|
|
Class
MR-A-1-10
|
$30,030,
933.00(2)
|
(1)
|
|
Class
MR-A-1-11
|
$82,092,500.00(2)
|
(1)
|
|
Class
MR-A-1-12
|
$8,000,000.00(2)
|
(1)
|
|
Class
MR-A-1-W
|
$8,000,000.00
|
(2)
|
|
Class
MR-A-2-1
|
$51,159,000.00
|
(3)
|
|
Class
MR-A-2-2
|
$51,159,000.00
|
(3)
|
|
Class
MR-A-2-3
|
$51,159,000.00
|
(3)
|
|
Class
MR-A-3-W
|
$52,151,000.00
|
(4)
|
|
Class
MR-A-4-1
|
$230,006,000.00
|
(5)
|
|
Class
MR-A-4-2
|
$230,006,000.00
|
(5)
|
|
Class
MR-A-4-3
|
$230,006,000.00
|
(5)
|
|
Class
MR-A-4-4
|
$230,006,000.00
|
(5)
|
|
Class
MR-A-4-5
|
$230,006,000.00
|
(5)
|
|
Class
MR-A-4-6
|
$230,006,000.00
|
(5)
|
|
Class
MR-M-1
|
$8,640,000.00
|
(6)
|
|
Class
MR-M-2
|
$4,460,000.00
|
(7)
|
|
Class
MR-M-3
|
$3,623,000.00
|
(8)
|
|
Class
MR-M-4
|
$2,230,000.00
|
(9)
|
|
Class
MR-M-5
|
$1,951,000.00
|
(10)
|
|
Class
MR-M-6
|
$1,951,000.00
|
(11)
|
|
Class
MR-B-1
|
$1,951,000.00
|
(12)
|
|
Class
MR-B-2
|
$1,952,000.00
|
(13)
|
|
Class
MR-B-3
|
$2,787,000.00
|
(14)
|
3
|
Class
MR-P
|
$1,000.00
|
(15)
|
|
Class
MR-L-IO
|
(16)
|
(16)
|
|
Class
MR-OC
|
(17)
|
(17)
|
|
Class
A-R
|
$100.00(18)
|
6.69690%
|
__________________________________________
|
(1)
|
The
Pass-Through Rate for the Class XX-X-0-0, XX-X-0-0, XX-X-0-0, and
MR-A-1-4
Interests for the Interest Accrual Period related to any Distribution
Date
will be a per annum rate equal to the lesser of (i) 5.50000% and
(ii) the
Net WAC Pass-Through Rate in respect of the Class A-1
Certificates. The Pass-Through Rate for the Class XX-X-0-0,
XX-X-0-0, XX-X-0-0, and MR-A-1-8 Interests for the Interest Accrual
Period
related to any Distribution Date will be a per annum rate equal to
the
excess of: (i) the lesser of (a) 5.75000% and (b) the Net WAC Pass-Through
Rate in respect of the Class A-1 Certificates, over (ii)
5.50000%. The Pass-Through Rate for the Class XX-X-0-0,
XX-X-0-00, XX-X-0-00, and MR-A-1-12 Interests for the Interest Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the excess of: (i) the lesser of (a) 6.00000% and (b) the Net WAC
Pass-Through Rate in respect of the Class A-1 Certificates, over
(ii)
5.75000%. On each Distribution Date, scheduled principal,
prepayments and Realized Losses that reduce the principal balance
of the
Class A-1 Certificates will be allocated pro rata between the Class
XX-X-0-0, XX-X-0-0, XX-X-0-0, and MR-A-1-4 Interests. The Class
MR-A-1-5 and MR-A-1-9 Interests will have notional balances equal
to the
principal balance of the Class MR-A-1-1 Interests. The Class
MR-A-1-6 and MR-A-1-10 Interests will have notional balances equal
to the
principal balance of the Class MR-A-1-2 Interests. The Class
MR-A-1-7 and MR-A-1-11 Interests will have notional balances equal
to the
principal balance of the Class MR-A-1-3 Interests. The Class
MR-A-1-8 and MR-A-1-12 Interests will have notional balances equal
to the
principal balance of the Class MR-A-1-4
Interests.
|
|
(2)
|
The
Pass-Through Rate for the Class MR-A-1-W Interests for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the lesser of (i) 6.00000% and (ii) the related Net WAC
Pass-Through Rate. For each Distribution Date, following the
allocation of scheduled principal, prepayments and Realized Losses,
the
Class MR-A-1-W Interests will have a principal balance equal to that
of
the Class A-1-W Certificates.
|
|
(3)
|
The
Pass-Through Rate for the Class MR-A-2-1 Interests for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the lesser of (i) 5.75000% and (ii) the Net WAC Pass-Through
Rate
in respect of the Class A-2 Certificates. The Pass-Through Rate
for the Class MR-A-2-2 Interests for the Interest Accrual Period
related
to any Distribution Date will be a per annum rate equal to the excess
of:
(i) the lesser of (a) 6.00000% and (b) the Net WAC Pass-Through Rate
in
respect of the Class A-1 Certificates, over (ii) 5.75000%. The
Pass-Through Rate for the Class MR-A-2-3 Interests for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the excess of: (i) the lesser of (a) 6.25000% and (b) the
Net WAC
Pass-Through Rate in respect of the Class A-1 Certificates, over
(ii)
6.00000%. For each Distribution Date, following the allocation
of scheduled principal, prepayments and Realized Losses, the Class
MR-A-2-1 Interests will have a principal balance equal
to
|
4
|
|
that
of the Class A-2 Certificates. The Class MR-A-2-2 and MR-A-2-3
Interests will have notional balances equal to the principal balance
of
the Class MR-A-2-1 Interests.
|
|
(4)
|
The
Pass-Through Rate for the Class MR-A-3-W Interests for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the lesser of (i) 6.25000% and (ii) the Net WAC Pass-Through
Rate
in respect of the Class A-3-W Certificates. For each
Distribution Date, following the allocation of scheduled principal,
prepayments and Realized Losses, the Class MR-A-3-W Interests will
have a
principal balance equal to that of the Class A-3-W
Certificates.
|
|
(5)
|
The
Pass-Through Rate for the Class A-4-1 Interests for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) one-month LIBOR + 0.59000%, subject to a maximum
rate of
6.00000% and (ii) the Net WAC Pass-Through Rate. The Pass-Through
Rate for
the Class A-4-2 Interests for the Interest Accrual Period related
to any
Distribution Date will be a per annum rate equal to the excess
of: (a) the
lesser of (i) 6.25000% and (ii) the Net WAC Pass-Through Rate,
over (b)
one-month LIBOR + 0.59000%, subject to a minimum rate of 6.00000%.
The
Pass-Through Rate for the Class A-4-3 Interests for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the excess of: (a) the lesser of (i) one-month LIBOR + 0.60000%,
subject
to a maximum rate of 6.00000% and (ii) the Net WAC Pass-Through
Rate, over
(b) the lesser of (i) one-month LIBOR + 0.59000%, subject to a
maximum
rate of 6.00000% and (ii) the Net WAC Pass-Through Rate. The Pass-Through
Rate for the Class A-4-4 Interests for the Interest Accrual Period
related
to any Distribution Date will be a per annum rate equal to the
excess of:
(a) the lesser of (i) one-month LIBOR + 0.60000%, subject to a
minimum
rate of 6.00000% and (ii) the Net WAC Pass-Through Rate, over (b)
the
lesser of (i) one-month LIBOR + 0.59000%, subject to a minimum
rate of
6.00000% and (ii) the Net WAC Pass-Through Rate. The Pass-Through
Rate for
the Class A-4-5 Interests for the Interest Accrual Period related
to any
Distribution Date will be a per annum rate equal to the excess
of (i) the
lesser of (a) 5.66000% and (b) the Net WAC Pass-Through Rate minus
6.00000% over (ii) one-month LIBOR. The Pass-Through Rate for the
Class
A-4-6 Interests for the Interest Accrual Period related to any
Distribution Date will be a per annum rate equal to the excess
of (i) the
lesser of (a) 5.66000% and (b) the Net WAC minus .600000% over
(ii)
one-month LIBOR, in each case subject to a minimum rate of 6.00000%.
The
Class XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0 Interests
will have
notional balances equal to the principal balance of the Class MR-A-4-1
Interests.
|
|
(6)
|
The
Pass-Through Rate for the Class MR-M-1 Interests for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 0.400%, (ii) the Net WAC Pass-Through Rate in respect
of the
Class M-1 Certificates and (iii) 11.00000%. For each
Distribution Date, following the allocation of scheduled principal,
prepayments and Realized Losses, the Class MR-M-1 Interests will
have a
principal balance equal to that of the Class M-1
Certificates.
|
|
(7)
|
The
Pass-Through Rate for the Class MR-M-2 Interests for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date
|
5
|
|
will
be a per annum rate equal to the least of (i) LIBOR + 0.450%, (ii)
the Net
WAC Pass-Through Rate in respect of the Class M-2 Certificates and
(iii)
11.00000%. For each Distribution Date, following the allocation
of scheduled principal, prepayments and Realized Losses, the Class
MR-M-2
Interests will have a principal balance equal to that of the Class
M-2
Certificates.
|
|
(8)
|
The
Pass-Through Rate for the Class MR-M-3 Interests for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 0.550%, (ii) the Net WAC Pass-Through Rate in
respect of the Class M-3 Certificates and (iii) 11.00000%. For
each Distribution Date, following the allocation of scheduled principal,
prepayments and Realized Losses, the Class MR-M-3 Interests will
have a
principal balance equal to that of the Class M-3
Certificates.
|
|
(9)
|
The
Pass-Through Rate for the Class MR-M-4 Interests for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 1.000%, (ii) the Net WAC Pass-Through Rate in respect
of the
Class M-4 Certificates and (iii) 11.00000%. For each
Distribution Date, following the allocation of scheduled principal,
prepayments and Realized Losses, the Class MR-M-4 Interests will
have a
principal balance equal to that of the Class M-4
Certificates.
|
|
(10)
|
The
Pass-Through Rate for the Class MR-M-5 Interests for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the
least of
(i) LIBOR + 1.500%, (ii) the Net WAC Pass-Through Rate in respect
of the
Class M-5 Certificates and (iii) 11.00000%. For each
Distribution Date, following the allocation of scheduled principal,
prepayments and Realized Losses, the Class MR-M-5 Interests will
have a
principal balance equal to that of the Class M-5
Certificates.
|
|
(11)
|
The
Pass-Through Rate for the Class MR-M-6 Interests for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the
least of
(i) LIBOR + 1.750%, (ii) the Net WAC Pass-Through Rate in respect
of the
Class M-6 Certificates and (iii) 11.00000%. For each
Distribution Date, following the allocation of scheduled principal,
prepayments and Realized Losses, the Class MR-M-6 Interests will
have a
principal balance equal to that of the Class M-6
Certificates.
|
|
(12)
|
The
Pass-Through Rate for the Class MR-B-1 Interests for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the
least of
(i) LIBOR + 2.2500%, (ii) the Net WAC Pass-Through Rate in respect
of the
Class B-1 Certificates and (iii) 11.00000%. For each Distribution
Date,
following the allocation of scheduled principal, prepayments
and Realized
Losses, the Class MR-B-1 Interests will have a principal balance
equal to
that of the Class B-1 Certificates.
|
6
|
(13)
|
The
Pass-Through Rate for the Class MR-B-2 Interests for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the
least of
(i) LIBOR + 2.2500%, (ii) the Net WAC Pass-Through Rate in respect
of the
Class B-2 Certificates and (iii) 11.00000%. For each Distribution
Date,
following the allocation of scheduled principal, prepayments and
Realized
Losses, the Class MR-B-2 Interests will have a principal balance
equal to
that of the Class B-2 Certificates.
|
|
(14)
|
The
Pass-Through Rate for the Class MR-B-3 Interests for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 2.2500%, (ii) the Net WAC Pass-Through Rate in respect
of the
Class B-3 Certificates and (iii) 11.00000%. For each
Distribution Date, following the allocation of scheduled principal,
prepayments and Realized Losses, the Class MR-B-3 Interests will
have a
principal balance equal to that of the Class B-3
Certificates.
|
|
(15)
|
The
Class MR-P Interests will not be entitled to any interest, but will
be
entitled to 100% of any prepayment premiums paid on the Mortgage
Loans. For the federal income tax purposes, the Class MR-P
Interests will be entitled to 100% of the monies distributed in respect
of
the Class 1-P Interest.
|
|
(16)
|
The
Class MR-L-IO Interest will have A notional balances and pass through
rate
equal to those in respect of the Class 1-LIO
Interests.
|
|
(17)
|
For
each Interest Accrual Period and for all federal income tax purposes,
the
Class MR-OC Interests will represent two classes of regular interests
issued by the Master REMIC, (i) a class that has a principal balance
equal
to the Overcollateralized Amount as of the Closing Date and bears
interests at the Net WAC Pass-Through Rate and (ii) a regular interest
that accrues a specified portion of the interest on the REMIC 1 Interests
(other than the Class 1-P, Class 1-$100, Class 1-OC and Class R-1
Interests) equal to the excess of the Net WAC Pass-Through Rate over
the
weighted average interest rate of the REMIC 1 Regular Interests (other
than the Class 1-P and Class R-1 Interests), with each such Class
(other
than the Class 1-A-1, 1-A-2 and 1-A-4 Interests) subject to a cap
equal to
the Pass-Through Rate of the corresponding Master REMIC Class, the
1-A-1
and 1-A-2 Interests subject to caps equal to the Pass-through Rate
for the
Class A-1 and Class A-2 Certificates, respectively, and the 1-A-4
Interests subject to a cap equal to
6.26%.
|
|
(18)
|
The
Class A-R Certificates represent the sole Class of residual interest
in
each REMIC.
|
7
The
ES
Trust
The
following table sets forth characteristics of the ES Trust Certificates (except
for the Class A-R Certificates, which are not ES Trust Certificates), together
with the minimum denominations and integral multiples in excess thereof in
which
such Classes shall be issuable (except that one Certificate of each Class of
Certificates may be issued in a different amount and, in addition, one Residual
Certificate representing the Tax Matters Person Certificate may be issued in
a
different amount):
|
Class
Designation
|
Initial
Class Principal Balance
|
Pass-Through
Rate
(per
annum)
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Classes
of Master REMIC Interests Represented(1)
|
|
Class
A-1
|
$180,185,000.00
|
(2)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0,
XX-X-0-0, XX-X-0-0, XX-X-0-00, XX-X-0-00, XX-X-0-00
|
|
Class
A-1-W
|
$8,000,000.00
|
(3)
|
$25,000.00
|
$1,000.00
|
Class
MR-A-1-W
|
|
Class
A-2
|
$51,159,000.00
|
(4)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0, XX-X-0-0
|
|
Class
A-3-W
|
$52,151,000.00
|
(5)
|
$25,000.00
|
$1,000.00
|
Class
MR-A-3-W
|
|
Class
A-4
|
$230,006,000.00
|
(6)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0
|
|
Class
A-5
|
(7)
|
(8)
|
$25,000.00(9)
|
$1,000.00(9)
|
Classes
XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0
|
|
Class
A-6
|
$230,006,000.00
|
(10)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0
|
|
Class
A-7
|
(7)
|
(11)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0
|
|
Class
A-8
|
$230,006,000.00
|
(12)
|
$25,000.00
|
$1,000.00
|
Class
XX-X-0-0, XX-X-0-0
|
|
Class
A-9
|
(7)
|
(13)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0
|
|
Class
A-10
|
$180,185,000.00
|
(14)
|
$25,000.00
|
$1,000.00
|
Classes
MR-A-1-1, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0,
XX-X-0-0
|
|
Class
A-11
|
(7)
|
(15)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-00, XX-X-0-00, XX-X-0-00
|
|
Class
A-12
|
$80,185,000.00
|
(16)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0
|
|
Class
A-13
|
(7)
|
(17)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0,
|
8
|
Class
Designation
|
Initial
Class Principal Balance
|
Pass-Through
Rate
(per
annum)
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Classes
of Master REMIC Interests Represented(1)
|
| XX-X-0-00, XX-X-0-00, XX-X-0-00 | |||||
|
Class
A-14
|
$51,159,000.00
|
(18)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0
|
|
Class
A-15
|
(7)
|
(19)
|
$25,000.00
|
$1,000.00
|
Class
MR-A-2-3
|
|
Class
A-16
|
$51,159,000.00
|
(20)
|
$25,000.00
|
$1,000.00
|
Class
MR-A-2-1
|
|
Class
A-17
|
(7)
|
(21)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0
|
|
Class
A-18
|
$172,185,000.00
|
(22)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0,
MR-A-1-10, MR-A-1-11
|
|
Class
A-19
|
$8,000,000.00
|
(23)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0, XX-X-0-00
|
|
Class
A-20
|
$90,092,500.00
|
(24)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0
|
|
Class
A-21
|
$90,092,500.00
|
(25)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-00, XX-X-0-00,
XX-X-0-00
|
|
Class
A-22
|
$60,061,667.00
|
(26)
|
$25,000.00
|
$1,000.00
|
Classes
MR-A-1-1
|
|
Class
A-23
|
$120,123,333.00
|
(27)
|
$25,000.00
|
$1,000.00
|
Classes
XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0, XX-X-0-0,
XX-X-0-0, XX-X-0-00, XX-X-0-00, XX-X-0-00
|
|
Class A-R
(28)
|
$100.00
|
6.63867%
|
(29)
|
(29)
|
Class MR-$100
(28)
|
|
Class
M-1
|
$8,640,000.00
|
(30)
|
$25,000.00
|
$1,000.00
|
Class
MR-M-1
|
|
Class
M-2
|
$4,460,000.00
|
(31)
|
$25,000.00
|
$1,000.00
|
Class
MR-M-2
|
|
Class
M-3
|
$3,623,000.00
|
(32)
|
$25,000.00
|
$1,000.00
|
Class
MR-M-3
|
|
Class
M-4
|
$2,230,000.00
|
(33)
|
$25,000.00
|
$1,000.00
|
Class
MR-M-4
|
|
Class
M-5
|
$1,951,000.00
|
(34)
|
$25,000.00
|
$1,000.00
|
Class
MR-M-5
|
|
Class
M-6
|
$1,951,000.00
|
(35)
|
$25,000.00
|
$1,000.00
|
Class
MR-M-6
|
|
Class
B-1
|
$1,951,000.00
|
(36)
|
$25,000.00
|
$1,000.00
|
Class
MR-B-1
|
|
Class
B-2
|
$1,952,000.00
|
(37)
|
$25,000.00
|
$1,000.00
|
Class
MR-B-2
|
|
Class
B-3
|
$2,787,000.00
|
(38)
|
$25,000.00
|
$1,000.00
|
Class
MR-B-3
|
|
Class
P
|
$1,000.00
|
(39)
|
$1,000.00
|
N/A
|
Class
MR-P
|
|
Class
L-IO
|
(7)
|
0.01%
|
(40)
|
(40)
|
Class
MR-L-IO
|
|
Class
OC
|
(41)
|
(41)
|
(42)
|
(42)
|
Class
MR-OC
|
__________________________________________
|
(1)
|
For
federal income tax purposes, each Class of Certificates will be entitled
to receive distributions of interest and principal and will be allocated
Realized Losses in the same
|
9
|
|
proportions
as their corresponding classes of Master REMIC Interests enumerated
in the
column titled “Classes of Master REMIC Interests
Represented”.
|
|
(2)
|
The
Pass-through Rate for the Class A-1 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 6.00000% and (ii) the related Net WAC Pass-Through
Rate.
The Pass-Through Rate for the Class A-1 Certificates for the first
Interest Accrual Period will be a per annum rate of
6.00000%.
|
|
(3)
|
The
Pass-Through Rate for the Class A-1-W Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the lesser of (i) 6.00000% and (ii) the related Net WAC
Pass-Through Rate. The Pass-Through Rate for the Class A-1-W Certificates
for the first Interest Accrual Period will be a per annum rate of
6.00000%.
|
|
(4)
|
The
Pass-Through Rate for the Class A-2 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 6.25000% and (ii) the related Net WAC Pass-Through
Rate.
The Pass-Through Rate for the Class A-2 Certificates for the first
Interest Accrual Period will be a per annum rate of
6.25000%.
|
|
(5)
|
The
Pass-Through Rate for the Class A-3-W Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the lesser of (i) 6.25000% and (ii) the related Net WAC
Pass-Through Rate. The Pass-Through Rate for the Class A-3-W Certificates
for the first Interest Accrual Period will be a per annum rate of
6.25000%.
|
|
(6)
|
The
Pass-Through Rate for the Class A-4 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) one-month LIBOR + 0.59000%, subject to a maximum
rate of
6.25000% and to a minimum rate of 0.59000% and (ii) the related Net
WAC
Pass-Through Rate. The Pass-Through Rate for the Class A-4 Certificates
for the first Interest Accrual Period will be a per annum rate of
5.91000%.
|
|
(7)
|
The
Class A-5, Class A-7, Class A-9, Class A-11, Class A-13, Class A-15,
Class
A-17 and Class L-IO Certificates will be Notional Amount Certificates,
will have no Class Principal Balances and will bear interest on their
respective initial Notional Amounts (initially, $230,006,000,
$230,006,000, $230,006,000, $7,507,708, $15,015,416, $2,131,625,
$4,263,250 and $10,000,
respectively).
|
|
(8)
|
The
Pass-Through Rate for the Class A-5 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the excess of (i) the lesser of (a) 5.67000% and (b) the related
Net WAC
Pass-Through Rate over (ii) one-month LIBOR, in each case subject
to a
maximum rate of 5.67000% and to a minimum rate of 0.01000%. The
Pass-Through Rate for the Class A-5 Certificates for the first Interest
Accrual Period will be a per annum rate of
0.35000%.
|
|
(9)
|
Minimum
denomination is based on the Notional Amount of such
Class.
|
10
|
(10)
|
The
Pass-Through Rate for the Class A-6 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) one-month LIBOR + 0.60000%, subject to a maximum
rate of
6.26000% and to a minimum rate of 0.60000% and (ii) the related Net
WAC
Pass-Through Rate. The Pass-Through Rate for the Class A-6 Certificates
for the first Interest Accrual Period will be a per annum rate of
5.92000%.
|
|
(11)
|
The
Pass-Through Rate for the Class A-7 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) the lesser of (a) 5.66000% and (b) the related
Net WAC
Pass-Through Rate over (ii) one-month LIBOR, in each case subject
to a
maximum rate of 5.66000% and to a minimum rate of 0.00000%. The
Pass-Through Rate for the Class A-7 Certificates for the first Interest
Accrual Period will be a per annum rate of
0.34000%.
|
|
(12)
|
The
Pass-Through Rate for the Class A-8 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) one-month LIBOR + 0.60000%, subject to a maximum
rate of
6.26000% and to a minimum rate of 6.00000% and (ii) the related Net
WAC
Pass-Through Rate. The Pass-Through Rate for the Class A-8 Certificates
for the first Interest Accrual Period will be a per annum rate of
6.00000%.
|
|
(13)
|
The
Pass-Through Rate for the Class A-9 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) the lesser of (a) 5.66000% and (b) the related
Net WAC
Pass-Through Rate over (ii) one-month LIBOR, subject to a maximum
rate of
0.26000% and to a minimum rate of 0.00000%. The Pass-Through
Rate for the Class A-9 Certificates for the first Interest Accrual
Period
will be a per annum rate of
0.26000%.
|
|
(14)
|
The
Pass-Through Rate for the Class A-10 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 6.00000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-10 Certificates for
the first Interest Accrual Period will be a per annum rate of
6.00000%.
|
|
(15)
|
The
Pass-Through Rate for the Class A-11 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 6.00000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-11 Certificates for
the first Interest Accrual Period will be a per annum rate of
6.00000%.
|
|
(16)
|
The
Pass-Through Rate for the Class A-12 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 5.50000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-12 Certificates for
the first Interest Accrual Period will be a per annum rate of
5.50000%.
|
11
|
(17)
|
The
Pass-Through Rate for the Class A-13 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 6.00000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-13 Certificates for
the first Interest Accrual Period will be a per annum rate of
6.00000%.
|
|
(18)
|
The
Pass-Through Rate for the Class A-14 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 6.00000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-14 Certificates for
the first Interest Accrual Period will be a per annum rate of
6.00000%.
|
|
(19)
|
The
Pass-Through Rate for the Class A-15 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 6.00000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-15 Certificates for
the first Interest Accrual Period will be a per annum rate of
6.00000%.
|
|
(20)
|
The
Pass-Through Rate for the Class A-16 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 5.75000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-16 Certificates for
the first Interest Accrual Period will be a per annum rate of
5.75000%.
|
|
(21)
|
The
Pass-Through Rate for the Class A-17 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 6.00000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-17 Certificates for
the first Interest Accrual Period will be a per annum rate of
6.00000%.
|
|
(22)
|
The
Pass-Through Rate for the Class A-18 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 6.00000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-18 Certificates for
the first Interest Accrual Period will be a per annum rate of
6.00000%.
|
|
(23)
|
The
Pass-Through Rate for the Class A-19 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 6.00000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-19 Certificates for
the first Interest Accrual Period will be a per annum rate of
6.00000%.
|
|
(24)
|
The
Pass-Through Rate for the Class A-20 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 5.75000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-20 Certificates for
the first Interest Accrual Period will be a per annum rate of
5.75000%.
|
12
|
(25)
|
The
Pass-Through Rate for the Class A-21 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 6.25000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-21 Certificates for
the first Interest Accrual Period will be a per annum rate of
6.25000%.
|
|
(26)
|
The
Pass-Through Rate for the Class A-22 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 5.50000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-22 Certificates for
the first Interest Accrual Period will be a per annum rate of
5.50000%.
|
|
(27)
|
The
Pass-Through Rate for the Class A-23 Certificates for the Interest
Accrual
Period related to any Distribution Date will be a per annum rate
equal to
the lesser of (i) 6.25000% and (ii) the related Net WAC Pass-Through
Rate. The Pass-Through Rate for the Class A-23 Certificates for
the first Interest Accrual Period will be a per annum rate of
6.25000%.
|
|
(28)
|
The
Class A-R Certificates represent the sole Class of residual interest
in
each REMIC. [THE CLASS A-R CERTIFICATES ARE LISTED HERE FOR
ADMINISTRATIVE CONVENIENCE AND DO NOT REPRESENT AN INTEREST IN THE
CLASS
ES TRUST].
|
|
(29)
|
The
Class A-R Certificate shall be issued as two separate certificates,
one with an initial Certificate Balance of $99.99 and the Tax Matters
Person Certificate with an initial Certificate Balance of
$0.01.
|
|
(30)
|
The
Pass-Through Rate for the Class M-1 Certificates for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 0.400%, (ii) the related Net WAC Pass-Through Rate and
(iii)
11.00000%. Beginning with the Interest Accrual Period related
to the Distribution Date immediately following the Initial Optional
Termination Date, the Pass-Through Rate for the Class M-1 Certificates
will be a per annum rate equal to the least of (i) LIBOR + 0.600%,
(ii)
the related Net WAC Pass-Through Rate and (iii) 11.00000%. The
Pass-Through Rate for the Class M-1 Certificates for the first Interest
Accrual Period will be a per annum rate of
5.72000%.
|
|
(31)
|
The
Pass-Through Rate for the Class M-2 Certificates for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 0.500%, (ii) the related Net WAC Pass-Through Rate and
(iii)
11.00000%. Beginning with the Interest Accrual Period related
to the Distribution Date immediately following the Initial Optional
Termination Date, the Pass-Through Rate for the Class M-2 Certificates
will be a per annum rate equal to the least of (i) LIBOR
+ 0.750%, (ii) the related Net WAC Pass-Through Rate and (iii)
11.00000%. The Pass-Through Rate for the Class M-2 Certificates
for the first Interest Accrual Period will be a per annum rate of
5.82000%.
|
13
|
(32)
|
The
Pass-Through Rate for the Class M-3 Certificates for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 0.600%, (ii) the related Net WAC Pass-Through Rate
and (iii) 11.00000%. Beginning with the Interest Accrual Period
related to the Distribution Date immediately following the Initial
Optional Termination Date, the Pass-Through Rate for the Class M-3
Certificates will be a per annum rate equal to the least of (i) LIBOR
+
0.900%, (ii) the related Net WAC Pass-Through Rate and (iii)
11.00000%. The Pass-Through Rate for the Class M-3 Certificates
for the first Interest Accrual Period will be a per annum rate of
5.92000%.
|
|
(33)
|
The
Pass-Through Rate for the Class M-4 Certificates for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 1.000%, (ii) the related Net WAC Pass-Through Rate and
(iii)
11.00000%. Beginning with the Interest Accrual Period related
to the Distribution Date immediately following the Initial Optional
Termination Date, the Pass-Through Rate for the Class M-4 Certificates
will be a per annum rate equal to the least of (i) LIBOR + 1.50%,
(ii) the
related Net WAC Pass-Through Rate and (iii) 11.00000%. The
Pass-Through Rate for the Class M-4 Certificates for the first Interest
Accrual Period will be a per annum rate of
6.32000%.
|
|
(34)
|
The
Pass-Through Rate for the Class M-5 Certificates for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 1.400%, (ii) the related Net WAC Pass-Through Rate and
(iii)
11.00000%. Beginning with the Interest Accrual Period related
to the Distribution Date immediately following the Initial Optional
Termination Date, the Pass-Through Rate for the Class M-5 Certificates
will be a per annum rate equal to the least of (i) LIBOR
+ 2.100%, (ii) the related Net WAC Pass-Through Rate and (iii)
11.00000%. The Pass-Through Rate for the Class M-5 Certificates
for the first Interest Accrual Period will be a per annum rate of
6.63867%.
|
|
(35)
|
The
Pass-Through Rate for the Class M-6 Certificates for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 2.000%, (ii) the related Net WAC Pass-Through Rate and
(iii)
11.00000%. Beginning with the Interest Accrual Period related
to the Distribution Date immediately following the Initial Optional
Termination Date, the Pass-Through Rate for the Class M-6 Certificates
will be a per annum rate equal to the least of (i) LIBOR + 3.000%,
(ii)
the related Net WAC Pass-Through Rate and (iii) 11.00000%. The
Pass-Through Rate for the Class M-6 Certificates for the first Interest
Accrual Period will be a per annum rate of
6.63867%.
|
|
(36)
|
The
Pass-Through Rate for the Class B-1 Certificates for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 2.2500%, (ii) the related Net WAC Pass-Through Rate and
(iii)
11.00000%. Beginning with the Interest Accrual Period related
to the Distribution Date immediately following the Initial Optional
Termination Date, the Pass-Through Rate for the Class B-1 Certificates
will be a per annum rate equal to the least of (i) LIBOR + 3.3750%,
(ii)
the related Net WAC Pass-
|
14
|
|
Through
Rate and (iii) 11.00000%. The Pass-Through Rate for the Class
B-1 Certificates for the first Interest Accrual Period will be a
per annum
rate of 6.63867%.
|
|
(37)
|
The
Pass-Through Rate for the Class B-2 Certificates for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 2.4000%, (ii) the related Net WAC Pass-Through Rate and
(iii)
11.00000%. Beginning with the Interest Accrual Period related
to the Distribution Date immediately following the Initial Optional
Termination Date, the Pass-Through Rate for the Class B-2 Certificates
will be a per annum rate equal to the least of (i) LIBOR + 3.6000%,
(ii)
the related Net WAC Pass-Through Rate and (iii) 11.00000%. The
Pass-Through Rate for the Class B-2 Certificates for the first Interest
Accrual Period will be a per annum rate of
6.63867%.
|
|
(38)
|
The
Pass-Through Rate for the Class B-3 Certificates for the Interest
Accrual
Period related to any Distribution Date on or prior to the first
related
Optional Termination Date will be a per annum rate equal to the least
of
(i) LIBOR + 2.4000%, (ii) the related Net WAC Pass-Through Rate and
(iii)
11.00000%. Beginning with the Interest Accrual Period related
to the Distribution Date immediately following the Initial Optional
Termination Date, the Pass-Through Rate for the Class B-3 Certificates
will be a per annum rate equal to the least of (i) LIBOR + 3.6000%,
(ii)
the related Net WAC Pass-Through Rate and (iii) 11.00000%. The
Pass-Through Rate for the Class B-3 Certificates for the first Interest
Accrual Period will be a per annum rate of
6.63867%.
|
|
(39)
|
The
Class P Certificates will not be entitled to any interest, but will
be
entitled to 100% of any prepayment premiums paid on the Mortgage
Loans. For the federal income tax purposes, the Class P
Certificates will be entitled to 100% of the monies distributed in
respect
of the Class 1-P Interest.
|
|
(40)
|
The
Class L-IO Certificates will be issued as a single Class of
Certificates.
|
|
(41)
|
For
each Interest Accrual Period and for all federal income tax purposes,
the
Class OC Certificates will represent two classes of regular interests
issued by the Master REMIC, (i) a class that does not accrue interest
and
has a principal balance equal to the Overcollateralized Amount as
of the
Closing Date and (ii) a regular interest that accrues a specified
portion
of the interest on the REMIC 1 Interests (other than the Class 1-P
and
Class R-1 Interests) equal to the excess of the Net WAC Pass-Through
Rate
over the product of two and the weighted average interest rate of
the
REMIC 1 Regular Interests (other than the Class 1-P and Class R-1
Interests), with each such Class other than the Class 1-Accrual Interest
subject to a cap equal to the Pass-Through Rate of the corresponding
Master REMIC Class and the Class 1-Accrual Interest subject to a
cap of
0.00%. The Pass-Through Rate of the Class OC Certificates shall
be a rate sufficient to entitle it to all interest accrued on the
Mortgage
Loans, less the interest accrued on the other interests issued by
the
Master REMIC. The Class OC Distributable Amount for any
Distribution Date is payable from current interest on the Mortgage
Loans
and any OC Release Amount for that Distribution Date. The Class
OC Certificates will represent beneficial ownership of a regular
interest
issued by the Master REMIC, subject to the obligation to make payments
in
respect of Basis Risk Carry Forward Amounts to
the
|
15
|
|
Certificates. For
federal income tax purposes, the Class OC Certificateholders’ obligation
to make payments of Basis Risk Carry Forward Amounts to the Certificates
will be treated as payments made pursuant to an interest rate cap
contract
written by the Class OC Certificateholders in favor of
Certificates.
|
|
(42)
|
The
Class OC Certificates will be issued as a single Class of
Certificates.
|
The
foregoing provisions in the Preliminary Statement are intended to cause net
interest and principal collections in respect of the Mortgage Loans to be
distributed from REMIC 1 to the Master REMIC and from the Master REMIC to each
Class of Certificates. The Preliminary Statement will be interpreted
and applied consistently with such intent.
For
any
purpose for which the Pass-Through Rate is calculated, the interest rate on
the
Mortgage Loans shall be appropriately adjusted to account for the difference
between the monthly day count convention of the Mortgage Loans and the monthly
day count convention of the regular interests issued by each of the
REMICs. For purposes of calculating the Pass-Through Rates for each
of the interests issued by each REMIC other than the Master REMIC such rates
shall be adjusted to equal a monthly day count convention based on a 30 day
month for each Due Period and a 360-day year so that the Mortgage Loans and
all
regular interests will be using the same monthly day count
convention.
The
fiscal year of each REMIC will end on December 31.
16
Set
forth
below are designations of Classes or Components of Certificates and other
defined terms to the categories used herein:
|
Accretion
Directed Certificates
|
None.
|
||
|
Accretion
Directed Components
|
None.
|
||
|
Accrual
Certificates
|
None.
|
||
|
Accrual
Components
|
None.
|
||
|
Book-Entry
Certificates
|
All
Classes of Certificates other than the Definitive
Certificates.
|
||
|
Class
A
Certificates
|
The
Class A-1, Class A-1-W, Class A-2, Class A-3-W, Class A-4, Class
A-5,
Class A-6, Class A-7, Class A-8, Class A-9, Class A-10, Class A-11,
Class
A-12, Class A-13, Class A-14, Class A-15, Class A-16, Class A-17,
Class
A-18, Class A-19, Class A-20, Class A-21, Class A-22 and Class A-23
Certificates.
|
||
|
Class
B
Certificates
|
Class
B-1, Class B-2 and Class B-3 Certificates.
|
||
|
Class
M
Certificates
|
Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-6
Certificates.
|
||
|
Class
M Senior Certificates
|
Class
M-1, Class M-2 and Class M-3 Certificates.
|
||
|
Class
P
Certificates
|
Class
P Certificates.
|
||
|
Component
Certificates
|
None.
|
||
|
Components
|
For
purposes of calculating distributions of principal and/or interest,
the
Component Certificates, if any, will be comprised of multiple payment
components having the designations, Initial Component Balances or
Notional
Amounts, as applicable, and Pass-Through Rates set forth
below:
|
||
|
Destination
|
Initial
Component
Principal Balance |
Pass-Through
Rate
|
|
|
N/A
|
N/A
|
N/A
|
|
|
Definitive
Certificates
|
Private
Certificates and the Residual Certificates.
|
|
Delay
Certificates
|
All
interest-bearing Classes of Certificates other than the Non-Delay
Certificates, if any.
|
|
Depositable
Certificates
|
The
Class A-1, Class A-2, Class A-4 and Class A-5
Certificates.
|
|
ERISA-Restricted
Certificates
|
The
Residual Certificates and Private Certificates; and any Certificate
of a
Class that ceases to satisfy the applicable rating requirement under
the Underwriter’s Exemption.
|
|
Exchangeable
Certificates
|
The
Class A-6, Class A-7, Class A-8, Class A-9, Class A-10, Class A-11,
Class
A-12, Class A-13, Class A-14, Class A-15, Class A-16, Class A-17,
Class
A-18, Class A-19, Class A-20, Class A-21, Class A-22 and Class A-23
Certificates.
|
|
Floating
Rate Certificates
|
The
Class A-4, Class A-6 and Class A-8 Certificates and Subordinated
Certificates.
|
|
Senior
Certificates
|
The
Class A and Class A-R Certificates.
|
|
Subordinated
Certificates
|
Class
M and Class B Certificates.
|
|
Inverse
Floating Rate Certificates
|
The
Class A-5, Class A-7 and Class A-9 Certificates
|
|
LIBOR
Certificates
|
Floating
Rate Certificates and Inverse Floating Rate
Certificates.
|
|
Non-Delay
Certificates
|
The
LIBOR Certificates.
|
|
Notional
Amount Certificates
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The
Class A-5, Class A-7, Class A-9, Class A-11, Class A-13, Class A-15,
Class
A-17 and Class L-IO Certificates.
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Notional
Amount Components
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None.
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Offered
Certificates
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All
Classes of Certificates other than the Private
Certificates.
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Planned
Principal Classes
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None.
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Principal
Only Certificates
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None.
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Private
Certificates
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Class
L-IO, Class P and Class OC Certificates.
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Rating
Agencies
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S&P
and Xxxxx’x.
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Regular
Certificates
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All
Classes of Certificates, other than the Residual
Certificates.
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Residual
Certificates
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Class A-R
Certificates.
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2
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Scheduled
Principal Classes
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None.
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Targeted
Principal Classes
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None.
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Underwriter
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Xxxxxx
Xxxxxxx & Co. Incorporated.
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With
respect to any of the foregoing designations as to which the corresponding
reference is “None,” all defined terms and provisions herein relating solely to
such designations shall be of no force or effect, and any calculations herein
incorporating references to such designations shall be interpreted without
reference to such designations and amounts. Defined terms and
provisions herein relating to statistical rating agencies not designated above
as Rating Agencies shall be of no force or effect.
ARTICLE
I
DEFINITIONS
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Section
1.01. Definitions.
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The
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
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.
Accretion
Directed
Certificates: As specified in the Preliminary
Statement.
Accretion
Direction
Rule: Not applicable.
Accrual
Amount: Not applicable.
Accrual
Certificates: As specified in the Preliminary
Statement.
Accrual
Components: As specified in the Preliminary
Statement.
Accrual
Termination
Date: Not applicable.
Acknowledgements: The
Assignment, Assumption and Recognition Agreements, each dated as of June 1,
2007, assigning rights under the Purchase and Servicing Agreements from the
Seller to the Depositor and from the Depositor to the Trustee, for the benefit
of the Certificateholders.
Act: The
Securities Act of 1933, as amended.
Additional
Collateral: With respect to any Additional Collateral Mortgage
Loan, the marketable securities and other acceptable collateral pledged as
collateral pursuant to the related pledge agreements.
3
Additional
Collateral
Mortgage Loan: Each Mortgage Loan identified as such in the
Mortgage Loan Schedule.
Additional
Form 10-D
Disclosure: As defined in Section 13.02 hereof.
Additional
Form 10-K
Disclosure: As defined in Section 13.04 hereof.
Additional
Servicer: Each affiliate of each Servicer that services any of
the Mortgage Loans and each Person who is not an affiliate of the any Servicer,
who services 10% or more of the Mortgage Loans. For clarification
purposes, the Master Servicer and the Securities Administrator are Additional
Servicers.
Adjustment
Date: Not applicable.
Advance: With
respect to a Mortgage Loan, the payments required to be made by the Master
Servicer or the applicable Servicer with respect to any Distribution Date
pursuant to this Agreement or the applicable Purchase and Servicing Agreement,
as applicable, the amount of any such payment being equal to the aggregate
of
the payments of principal and interest (net of the applicable Servicing Fee
and
net of any net income in the case of any REO Property) on the Mortgage Loans
that were due on the related Due Date and not received as of the close of
business on the related Determination Date, less the aggregate amount of any
such delinquent payments that the Master Servicer or the applicable Servicer
has
determined would constitute Nonrecoverable Advances if advanced.
Adverse
REMIC
Event: Either (i) loss of status as a REMIC, within the
meaning of Section 860D of the Code, for any group of assets identified as
a REMIC in the Preliminary Statement to this Agreement, or (ii) imposition
of any tax, including the tax imposed under Section 860F(a)(1) on
prohibited transactions, and the tax imposed under Section 860G(d) on
certain contributions to a REMIC, on any REMIC created hereunder to the extent
such tax would be payable from assets held as part of the Trust
Fund.
Affiliate: With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Aggregate
Denomination: With respect to any date of determination and
Class or Classes Certificates, the aggregate of the denominations of the
Outstanding Certificates of such Class or Classes on such date.
Aggregate
Expense
Rate: With respect to any Mortgage Loan, the applicable
Servicing Fee Rate and, with respect to any LPMI Mortgage Loan, the interest
premium charged by the mortgagee to obtain or maintain any Primary Mortgage
Insurance Policy.
4
Aggregate
Planned
Balance: With respect to any group of Planned Principal
Classes or Components and any Distribution Date, the amount set forth for such
group for such Distribution Date in Schedule B hereto.
Aggregate
Targeted
Balance: With respect to any group of Targeted Principal
Classes or Components and any Distribution Date, the amount set forth for such
group for such Distribution Date in Schedule B hereto.
Aggregate
Voting
Interests: The aggregate of the Voting Interests of all the
Certificates under this Agreement.
Agreement: This
Pooling and Servicing Agreement and all amendments or supplements
hereto.
Allocable
Share: Not applicable.
Allocation
Ratio: With respect to each Class of Exchangeable
Certificates, a fraction, the numerator of which is equal to the Aggregate
Denomination of such Class of Exchangeable Certificates at the close of business
on the related Record Date and the denominator of which is the Initial
Authorized Determination with respect to such Exchangeable
Certificates.
Amount
Held for Future
Distribution: As to any Distribution Date, the aggregate
amount held in the Custodial Accounts at the close of business on the related
Determination Date on account of (i) Principal Prepayments received after the
related Prepayment Period and Liquidation Proceeds and Subsequent Recoveries
received in the month of such Distribution Date and (ii) all Scheduled Payments
due after the related Due Date.
Applied
Loss
Amount: As to any Distribution Date, with respect to the
Subordinated Certificates and the Class OC Certificates, the excess, if any,
of
(i) the aggregate Class Principal Balances of the Certificates, after giving
effect to all Realized Losses with respect to the Mortgage Loans during the
Due
Period for such Distribution Date and payments of principal on such Distribution
Date over (ii) the aggregate Stated Principal Balance of the Mortgage Loans
for
such Distribution Date.
Appraised
Value: With respect to any Mortgage Loan, the Appraised Value
of the related Mortgaged Property shall be: (i) with respect to a Mortgage
Loan other than a Refinancing Mortgage Loan, the lesser of (a) the value of
the Mortgaged Property based upon the appraisal made at the time of the
origination of such Mortgage Loan and (b) the sales price of the Mortgaged
Property at the time of the origination of such Mortgage Loan; and
(ii) with respect to a Refinancing Mortgage Loan, the value of the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Refinancing Mortgage Loan.
Assets: As
such term is used with respect to any Auction, as defined in Section 7.01(b)
hereof.
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,
5
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 the Trustee
shall not be responsible for determining whether any such assignment is in
recordable form or sufficient under the laws of the applicable jurisdiction
to
reflect the sale of the Mortgage to the Trustee.
Assignment
of Proprietary
Lease: With respect to a Cooperative Loan, an assignment of
the Proprietary Lease sufficient under the laws of the jurisdiction wherein
the
related Cooperative Unit is located to reflect the assignment of such
Proprietary Lease; provided,
however, that the Trustee
shall not be responsible for determining whether such assignment is sufficient
to reflect the assignment of the Proprietary Lease.
Assignment
of Recognition
Agreement: With respect to a Cooperative Loan, an assignment
of the Recognition Agreement sufficient under the laws of the jurisdiction
wherein the related Cooperative Unit is located to reflect the assignment of
such Recognition Agreement; provided,
however, that the Trustee
shall not be responsible for determining whether such assignment is sufficient
to reflect the assignment of the Recognition Agreement.
Auction: As
defined in Section 7.01(b) hereof.
Auction
Administrator: The Securities Administrator, or any successor
in interest, or if any successor Auction Administrator shall be appointed as
herein provided, then such successor Auction Administrator.
Auction
Date: As defined in Section 7.01(b) hereof.
Auction
Excess
Proceeds: With respect to an Auction Sale, the excess of the
Mortgage Loan Auction Price paid by the Auction Purchaser over the Minimum
Bid
Price.
Auction
Purchaser: As defined in Section 7.01(b)
hereof. For the avoidance of doubt, the Auction Purchaser cannot be
the Seller or an Affiliate of the Seller.
Auction
Sale: As defined in Section 7.01(b) hereof.
Authenticating
Agent: Any authenticating agent appointed pursuant to
Section 6.10 until any successor authenticating agent for the Certificates
is named, and thereafter “Authenticating Agent” shall mean any such
successor. The initial Authenticating Agent shall be the Securities
Administrator under this Agreement.
Authorized
Officer: Any Person who may execute an Officer’s Certificate
on behalf of the Depositor.
Available
Distribution
Amount: For any Distribution Date and the Certificates, the
sum of the following amounts:
(1) the
total amount of all cash received by or on behalf of each Servicer with respect
to the Mortgage Loans serviced by it and received by the Master Servicer by
the
related Servicer Remittance Date and not previously distributed (including
Liquidation Proceeds, Subsequent
6
Recoveries,
condemnation proceeds and Insurance Proceeds with respect to the Mortgage
Loans), except:
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all
scheduled payments of principal and related interest collected on
the
Mortgage Loans but due on a date after the related Due
Date;
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all
partial Principal Prepayments received with respect to the Mortgage
Loans
after the related Prepayment Period, together with all related interest
accrued on such Mortgage Loans;
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all
Prepayment Penalties received in connection with the Mortgage
Loans;
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all
Principal Prepayments in Full received with respect to the Mortgage
Loans
after the related Prepayment Period, together with all related interest
accrued on such Mortgage Loans;
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Liquidation
Proceeds, condemnation proceeds and Insurance Proceeds received on
such
Mortgage Loans after the previous calendar
month;
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all
amounts reimbursable to a Servicer pursuant to the terms of the related
Purchase and Servicing Agreement or this Agreement, as applicable,
or to
the Master Servicer, the Securities Administrator, the Trustee and/or
the
Custodian pursuant to the terms of this
Agreement;
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reinvestment
income on the balance of funds, if any, in the Custodial Accounts
or
Distribution Account; and
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any
fees payable to the Servicers and the Master Servicer, in each case
with
respect to the Mortgage Loans;
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(2) all
Advances on the Mortgage Loans made by each Servicer and/or the Master Servicer
for that Distribution Date;
(3) any
amounts paid as Compensating Interest with respect to the Mortgage Loans by
each
Servicer and/or the Master Servicer for that Distribution Date;
(4) the
total amount of any cash deposited in the Distribution Account in connection
with the repurchase of any Mortgage Loans by the Depositor, the Seller or the
related Originator; and
(5) in
the case of the first Distribution Date, the $100 plus interest deposited in
respect of the Class A-R Certificates.
Available
Funds: Not applicable.
Balloon
Loan: Any
Mortgage Loan which, by its terms, does not fully amortize the principal balance
thereof by its stated maturity and thus requires a payment at the stated
maturity larger than the monthly payments due thereunder.
7
Bankruptcy: As
to any Person, the making of an assignment for the benefit of creditors, the
filing of a voluntary petition in bankruptcy, adjudication as a bankrupt or
insolvent, the entry of an order for relief in a bankruptcy or insolvency
proceeding, the seeking of reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief, or seeking, consenting
to or acquiescing in the appointment of a trustee, receiver or liquidator,
dissolution, or termination, as the case may be, of such Person pursuant to
the
provisions of either the Bankruptcy Code or any other similar state
laws.
Bankruptcy
Code: The United States Bankruptcy Code of 1986, as
amended.
Basic
Principal Distribution
Amount: For any Distribution Date will equal the excess of the Principal
Remittance Amount over
the Excess Subordinated Amount.
Basis
Risk Carry Forward
Amount: With respect to any Class of Certificates and any
Distribution Date on which the Pass-Through Rate for that Class of Certificates
is limited to the Net WAC Pass-Through Rate, an amount equal to the sum of
(i)
the excess of (x) the amount of interest such Class of Certificates would have
been entitled to receive on such Distribution Date if the Net WAC Pass-Through
Rate had not been applicable to such Class on such Distribution Date over (y)
the amount of interest accrued on such Distribution Date at the Net WAC
Pass-Through Rate and (ii) the related Basis Risk Carry Forward Amount for
the
previous Distribution Date not previously distributed together with interest
thereon at a rate equal to the related Pass-Through Rate for such Class of
Certificates for the most recently ended Interest Accrual Period. The preceding
sentence notwithstanding, the following are additional limitations to the
Pass-Through Rates for certain Classes of Certificates and the amount of Basis
Risk Carry Forward Amounts that those Classes of Certificates can
accrue:
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both
the maximum per annum Pass-Through Rate for the Class A-4 Certificates
and
the maximum per annum rate at which the Class A-4 Certificates can
accrue
Basis Risk Carry Forward Amounts are 6.25% per
annum.
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both
the maximum per annum Pass-Through Rate for the Class A-5 Certificates
and
the maximum per annum rate at which the Class A-5 Certificates can
accrue
Basis Risk Carry Forward Amounts are 5.67% per
annum.
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both
the maximum per annum Pass-Through Rate for the Class A-6 Certificates
and
the maximum per annum rate at which the Class A-6 Certificates can
accrue
Basis Risk Carry Forward Amounts are 6.26% per
annum.
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both
the maximum per annum Pass-Through Rate for the Class A-7 Certificates
and
the maximum per annum rate at which the Class A-7 Certificates can
accrue
Basis Risk Carry Forward Amounts are 5.66% per
annum.
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both
the maximum per annum Pass-Through Rate for the Class A-8 Certificates
and
the maximum per annum rate at which the Class A-8 Certificates can
accrue
Basis Risk Carry Forward Amounts are 6.26% per
annum.
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both
the maximum per annum Pass-Through Rate for the Class A-9 Certificates
and
the maximum per annum rate at which the Class A-9 Certificates can
accrue
Basis Risk Carry Forward Amounts are 0.26% per
annum.
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both
the maximum per annum Pass-Through Rate for each Class of Subordinated
Certificates and the maximum per annum rate at which each Class of
Subordinated Certificates can accrue Basis Risk Carry Forward Amounts
are
11.00% per annum.
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Basis
Risk Carry Forward
Reserve Fund: A Reserve Fund established by the Securities
Administrator on behalf of the Trustee for the benefit of the Holders of the
Certificates. The Basis Risk Carry Forward Reserve Fund is an
“outside Reserve Fund” within the meaning of Treasury regulation Section
1.860G-2(h), which is not an asset of any REMIC, ownership of which is evidenced
by the Class OC Certificates, and which is established and maintained pursuant
to Section 5.10.
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 Book-Entry Termination 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.” The Classes of Certificates that constitute
“Book-Entry Certificates” as of the Closing Date are set forth in the
Preliminary Statement.
Book-Entry
Termination: The date on which the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with respect
to the Book Entry Certificates, and the Depositor is unable to locate a
qualified successor.
Breached
Mortgage
Loan: A Mortgage Loan (a)(i) on which the first payment was not made or
(ii) that has been delinquent one or two times in the six months following
the
Cut-off Date and (b) as to which the Seller obtained a representation or
warranty that no condition set forth in (a)(i) or, for the same or other period
time specified in such representation or warranty (a)(ii), exists.
Business
Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in New York, New York or, if other
than New York, the city in which the Corporate Trust Office of the Trustee
is
located, or the States of Maryland or Minnesota, are authorized or obligated
by
law or executive order to be closed. In addition, solely for purposes of the
Class A-1-W and Class A-3-W Policy and any claims thereunder, “Business Day” is
a day other than (i) a Saturday or a Sunday or (ii) a day on which the
office of the Certificate Insurer, banking institutions in New York, New York
or, if other than New York, the city in which the Corporate Trust Office of
the
Trustee is located, or the States of Maryland or Minnesota, are authorized
or
obligated by law or executive order to be closed.
Certificate: Any
one of the certificates signed by the Trustee, or the Securities Administrator
on the Trustee’s behalf, and authenticated by the Securities Administrator as
Authenticating Agent in substantially the forms attached hereto as
Exhibit A.
9
Certificate
Balance: With respect to any Certificate other than a Class OC
Certificate at any date, the maximum dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
principal balance or notional amount, as applicable, as of the Closing Date
(A)
plus any Subsequent Recoveries added to the Certificate Balance of such
Certificate pursuant to Section 5.02 hereof, (B) minus the sum of (i) all
distributions of principal previously made with respect thereto, and (ii) with
respect to the Subordinated Certificates only, all Applied Loss Amounts
allocated thereto and all other reductions in Certificate Balance previously
allocated thereto pursuant to Section 5.04 hereof. Exclusively for
the purpose of determining any subrogation rights of the Certificate Insurer
arising under Section 5.07 hereof, “Certificate Balance” of the Class A-1-W and
Class A-3-W Certificates shall be deemed to not be reduced by any principal
amounts paid to the Holder of the Class A-1-W and Class A-3-W Certificates
from
Certificate Insurance Payments, unless such amounts have been reimbursed to
the
Certificate Insurer pursuant to the Section 5.02. No individual Class
OC Certificate has a Certificate Balance.
Certificate
Insurance
Account: The account established pursuant to Section 5.07.
Certificate
Insurance
Payment: Any payment made by the Certificate Insurer with respect to the
Class A-1-W or Class A-3-W Certificates under the Class A-1-W and Class A-3-W
Policy.
Certificate
Insurer:
MBIA Insurance Corporation, a subsidiary of MBIA Inc., organized and created
under the laws of the State of New York, or any successor thereto.
Certificate
Insurer Contact
Person: As defined in Section 5.07.
Certificate
Insurer
Default: As defined in Section 5.07.
Certificate
Owner: With respect to a Book-Entry Certificate, the Person
who is the owner of such Book-Entry Certificate, as reflected on the books
of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance
with
the rules of such Clearing Agency).
Certificate
Register and
Certificate Registrar: The register maintained and the
registrar appointed pursuant to Section 3.02. The initial
Certificate Registrar is the Securities Administrator under this
Agreement.
Certificateholder: The
meaning provided in the definition of “Holder.”
Certification
Party: As defined in Section 13.05 hereof.
Certifying
Person: As defined in Section 13.05 hereof.
Class: All
Certificates bearing the same Class designation as set forth in the Preliminary
Statement.
Class
A Reserve
Fund: A Reserve Fund established by the Securities
Administrator on behalf of the trustee of the Supplemental Interest Trust for
the benefit of the Holders of the Class A-4, Class A-6 and Class A-8
Certificates. The Class A Reserve Fund is an “outside
Reserve
10
Fund”
within the meaning of Treasury regulation Section 1.860G-2(h), which is an
asset
of the Supplemental Interest Trust and is not an asset of any REMIC, ownership
of which is evidenced by the Class A-4, Class A-6 and Class A-8 Certificates
and
which is established and maintained pursuant to Section 5.10.
Class
A-3-W Portion:
For the Class A-3-W Certificates and any Distribution Date, an amount equal
to
the product of (x) a fraction, the numerator of which is the Class Principal
Balance of the Class A-3-W Certificates immediately prior to that Distribution
Date, and the denominator of which is equal to the aggregate Class Principal
Balance of the Class A Certificates immediately prior to that Distribution
Date,
and (y) the portion of the Principal Distribution Amount payable to all of
the
Classes of Class A Certificates on that Distribution Date.
Class
A-1-W and Class A-3-W
Policy: The irrevocable Certificate Guaranty Insurance Policy, No.
498640, including any endorsements thereto, issued by the Certificate Insurer
for the benefit of the Holders of the Class A-1-W and Class A-3-W Certificates,
any endorsements thereto, a form of which is attached hereto as Exhibit
D.
Class
A-1-W
Premium: With respect to the Class A-1-W Certificates, the
Class A-1-W and Class A-3-W Policy and any Distribution Date, an amount equal
to
the product of (i) one-twelfth (1/12) of 0.125% and (ii) the Class Principal
Balance of the Class A-1-W Certificates immediately prior to such Distribution
Date.
Class
A-1-W and Class A-3-W
Premium: Collectively, for any Distribution Date, the Class
A-1-W Premium and the Class A-3-W Premium, in each case for that Distribution
Date.
Class
A-3-W
Premium: With respect to the Class A-3-W Certificates, the
Class A-1-W and Class A-3-W Policy and any Distribution Date, an amount equal
to
the product of (i) one-twelfth (1/12) of 0.125% and (ii) the Class Principal
Balance of the Class A-3-W Certificates immediately prior to such Distribution
Date.
Class
B
Certificates: As specified in the Preliminary
Statement.
Class
B-1 Principal
Distribution Amount: With respect to the Class B-1
Certificates and any Distribution Date (i) prior to the Stepdown Date or on
or
after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the Principal Distribution Amount for that Distribution Date remaining
after distribution of the Senior Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal Distribution Amount,
the
Class M-3 Principal Distribution Amount, the Class M-4 Principal Distribution
Amount, the Class M-5 Principal Distribution Amount and the Class M-6 Principal
Distribution Amount or (ii) on or after the Stepdown Date if a Trigger Event
is
not in effect for that Distribution Date, the lesser of:
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the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount, the Class
M-1
Principal Distribution Amount, the Class M-2 Principal Distribution
Amount, the Class M-3 Principal Distribution Amount, the Class M-4
Principal Distribution Amount, the
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Class
M-5 Principal Distribution Amount and the Class M-6 Principal Distribution
Amount; and
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the
excess (if any) of (A) the sum of (1) the Class Principal Balance
of the
Class B-1 Certificates immediately prior to that Distribution Date
and (2)
the aggregate Class Principal Balance of the Class A Certificates
and the
Class M Certificates (after taking into account the payment of the
Class
A, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class
M-6
Principal Distribution Amounts for such Distribution Date) over (B)
the
lesser of (i) the aggregate Stated Principal Balance of the Mortgage
Loans
as of the last day of the related Due Period multiplied by 96.00%
and (ii)
the amount, if any, by which (x) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period exceeds
(y) the Overcollateralization
Floor.
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Class
B-2 Principal
Distribution Amount: With respect to the Class B-2
Certificates and any Distribution Date (i) prior to the Stepdown Date or on
or
after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the Principal Distribution Amount for that Distribution Date remaining
after distribution of the Senior Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal Distribution Amount,
the
Class M-3 Principal Distribution Amount, the Class M-4 Principal Distribution
Amount, the Class M-5 Principal Distribution Amount, the Class M-6 Principal
Distribution Amount and the Class B-1 Principal Distribution Amount or (ii)
on
or after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, the lesser of:
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the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount, the Class
M-1
Principal Distribution Amount, the Class M-2 Principal Distribution
Amount, the Class M-3 Principal Distribution Amount, the Class M-4
Principal Distribution Amount, the Class M-5 Principal Distribution
Amount, the Class M-6 Principal Distribution Amount and the Class
B-1
Principal Distribution Amount; and
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the
excess (if any) of (A) the sum of (1) the Class Principal Balance
of the
Class B-2 Certificates immediately prior to that Distribution Date
and (2)
the aggregate Class Principal Balance of the Class A Certificates,
the
Class M Certificates and the Class B-1 Certificates (after taking
into
account the payment of the Class A, Class M-1, Class M-2, Class M-3,
Class
M-4, Class M-5, Class M-6 and Class B-1 Principal Distribution Amounts
for
such Distribution Date) over (B) the lesser of (i) the aggregate
Stated
Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period multiplied by 96.70% and (ii) the amount, if any, by which
(x)
the aggregate Stated Principal Balance of the Mortgage Loans as of
the
last day of the related Due Period exceeds (y) the Overcollateralization
Floor.
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Class
B-3 Principal
Distribution Amount: With respect to the Class B-3
Certificates and any Distribution Date (i) prior to the Stepdown Date or on
or
after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the Principal Distribution Amount for that Distribution Date remaining
after distribution of the Senior Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal Distribution Amount,
the
12
Class
M-3
Principal Distribution Amount, the Class M-4 Principal Distribution Amount,
the
Class M-5 Principal Distribution Amount, the Class M-6 Principal Distribution
Amount, the Class B-1 Principal Distribution Amount and the Class B-2 Principal
Distribution Amount or (ii) on or after the Stepdown Date if a Trigger Event
is
not in effect for that Distribution Date, the lesser of:
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·
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the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount, the Class
M-1
Principal Distribution Amount, the Class M-2 Principal Distribution
Amount, the Class M-3 Principal Distribution Amount, the Class M-4
Principal Distribution Amount, the Class M-5 Principal Distribution
Amount, the Class M-6 Principal Distribution Amount, the Class B-1
Principal Distribution Amount and the Class B-2 Principal Distribution
Amount; and
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·
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the
excess (if any) of (A) the sum of (1) the Class Principal Balance
of the
Class B-3 Certificates immediately prior to that Distribution Date
and (2)
the aggregate Class Principal Balance of the Class A Certificates,
the
Class M Certificates and the Class B-1 and Class B-2 Certificates
(after
taking into account the payment of the Class A, Class M-1, Class
M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class B-1 and Class B-2
Principal Distribution Amounts for such Distribution Date) over (B)
the
lesser of (i) the aggregate Stated Principal Balance of the Mortgage
Loans
as of the last day of the related Due Period multiplied by 97.70%
and (ii)
the amount, if any, by which (x) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period exceeds
(y) the Overcollateralization
Floor.
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Class
Interest
Shortfall: Not applicable.
Class
L-IO Interest
Distribution Amount: With respect to the Class L-IO
Certificates and any Distribution Date, interest accrued during the related
Interest Accrual Period on the Notional Amount of the Class L-IO Certificates
earned prior to that Distribution Date at the Pass-Through Rate for that Class
reduced (to an amount not less than zero), in the case of such Class, by the
allocable share, if any, for that Class of (x) Prepayment Interest Shortfalls
on
the Mortgage Loans to the extent not covered by Compensating Interest paid
by
the Master Servicer or the Servicers for the Mortgage Loans and (y) Relief
Act
Interest Shortfalls on the Mortgage Loans.
Class
M Certificates:
As specified in the Preliminary Statement.
Class
M Senior
Certificates: As specified in the Preliminary Statement.
Class
M-1 Principal
Distribution Amount: With respect to the Class M-1
Certificates and any Distribution Date (i) prior to the Stepdown Date or on
or
after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the Principal Distribution Amount for that Distribution Date remaining
after distribution of the Senior Principal Distribution Amount or (ii) on or
after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, the lesser of:
13
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·
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the Principal Distribution Amount for that Distribution Date remaining after distribution of the Senior Principal Distribution Amount; and |
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·
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the
excess (if any) of (A) the sum of (1) the Class Principal Balance
of the
Class M-1 Certificates immediately prior to that Distribution Date
and (2)
the aggregate Class Principal Balance of the Class A Certificates
(after
taking into account the payment of the Senior Principal Distribution
Amount for such Distribution Date) over (B) the lesser of (i) the
aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period multiplied by 90.20% and (ii) the amount,
if
any, by which (x) the aggregate Stated Principal Balance of the Mortgage
Loans as of the last day of the related Due Period exceeds (y) the
Overcollateralization Floor.
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Class
M-2 Principal
Distribution Amount: With respect to the Class M-2
Certificates and any Distribution Date (i) prior to the Stepdown Date or on
or
after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the Principal Distribution Amount for that Distribution Date remaining
after distribution of the Senior Principal Distribution Amount and the Class
M-1
Principal Distribution Amount or (ii) on or after the Stepdown Date if a Trigger
Event is not in effect for that Distribution Date, the lesser of:
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·
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the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount and the
Class M-1
Principal Distribution Amount; and
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·
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the
excess (if any) of (A) the sum of (1) the Class Principal Balance
of the
Class M-2 Certificates immediately prior to that Distribution Date
and (2)
the aggregate Class Principal Balance of the Class A Certificates
and the
Class M-1 Certificates (after taking into account the payment of
the Class
A and Class M-1 Principal Distribution Amounts for such Distribution
Date)
over (B) the lesser of (i) the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period multiplied
by
91.80% and (ii) the amount, if any, by which (x) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period exceeds (y) the Overcollateralization
Floor.
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Class
M-3 Principal
Distribution Amount: With respect to the Class M-3
Certificates and any Distribution Date (i) prior to the Stepdown Date or on
or
after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the Principal Distribution Amount for that Distribution Date remaining
after distribution of the Senior Principal Distribution Amount, the Class M-1
Principal Distribution Amount and the Class M-2 Principal Distribution Amount
or
(ii) on or after the Stepdown Date if a Trigger Event is not in effect for
that
Distribution Date, the lesser of:
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the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount, the Class
M-1
Principal Distribution Amount and the Class M-2 Principal Distribution
Amount; and
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·
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the
excess (if any) of (A) the sum of (1) the Class Principal Balance
of the
Class M-3 Certificates immediately prior to that Distribution Date
and (2)
the aggregate Class
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14
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Principal
Balance of the Class A Certificates and the Class M-1 and Class M-2
Certificates (after taking into account the payment of the Class
A, Class
M-1 and Class M-2 Principal Distribution Amounts for such Distribution
Date) over (B) the lesser of (i) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period multiplied
by 93.10% and (ii) the amount, if any, by which (x) the aggregate
Stated
Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period exceeds (y) the Overcollateralization
Floor.
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Class
M-4 Principal
Distribution Amount: With respect to the Class M-4 Certificates and any
Distribution Date (i) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the Principal
Distribution Amount for that Distribution Date remaining after distribution
of
the Senior Principal Distribution Amount, the Class M-1 Principal Distribution
Amount, the Class M-2 Principal Distribution Amount and the Class M-3 Principal
Distribution Amount or (ii) on or after the Stepdown Date if a Trigger Event
is
not in effect for that Distribution Date, the lesser of:
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·
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the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount, the Class
M-1
Principal Distribution Amount, the Class M-2 Principal Distribution
Amount
and the Class M-3 Principal Distribution Amount;
and
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the
excess (if any) of (A) the sum of (1) the Class Principal Balance
of the
Class M-4 Certificates immediately prior to that Distribution Date
and (2)
the aggregate Class Principal Balance of the Class A Certificates
and the
Class M Senior Certificates (after taking into account the payment
of the
Class A, Class M-1, Class M-2 and Class M-3 Principal Distribution
Amounts
for such Distribution Date) over (B) the lesser of (i) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day
of the
related Due Period multiplied by 93.90% and (ii) the amount, if any,
by
which (x) the aggregate Stated Principal Balance of the Mortgage
Loans as
of the last day of the related Due Period exceeds (y) the
Overcollateralization Floor.
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Class
M-5 Principal
Distribution Amount: With respect to the Class M-5
Certificates and any Distribution Date (i) prior to the Stepdown Date or on
or
after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the Principal Distribution Amount for that Distribution Date remaining
after distribution of the Senior Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal Distribution Amount,
the
Class M-3 Principal Distribution Amount and the Class M-4 Principal Distribution
Amount or (ii) on or after the Stepdown Date if a Trigger Event is not in effect
for that Distribution Date, the lesser of:
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·
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the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount, the Class
M-1
Principal Distribution Amount, the Class M-2 Principal Distribution
Amount, the Class M-3 Principal Distribution Amount and the Class
M-4
Principal Distribution Amount; and
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the
excess (if any) of (A) the sum of (1) the Class Principal Balance
of the
Class M-5 Certificates immediately prior to that Distribution Date
and (2)
the aggregate Class
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15
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Principal
Balance of the Class A Certificates, the Class M Senior Certificates
and
the Class M-4 Certificates (after taking into account the payment
of the
Class A, Class M-1, Class M-2, Class M-3 and Class M-4 Principal
Distribution Amounts for such Distribution Date) over (B) the lesser
of
(i) the aggregate Stated Principal Balance of the Mortgage Loans
as of the
last day of the related Due Period multiplied by 94.60% and (ii)
the
amount, if any, by which (x) the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period exceeds
(y)
the Overcollateralization Floor.
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Class
M-6 Principal
Distribution Amount: With respect to the Class M-6
Certificates and any Distribution Date (i) prior to the Stepdown Date or on
or
after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the Principal Distribution Amount for that Distribution Date remaining
after distribution of the Senior Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal Distribution Amount,
the
Class M-3 Principal Distribution Amount, the Class M-4 Principal Distribution
Amount and the Class M-5 Principal Distribution Amount or (ii) on or after
the
Stepdown Date if a Trigger Event is not in effect for that Distribution Date,
the lesser of:
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the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount, the Class
M-1
Principal Distribution Amount, the Class M-2 Principal Distribution
Amount, the Class M-3 Principal Distribution Amount, the Class M-4
Principal Distribution Amount and the Class M-5 Principal Distribution
Amount; and
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the
excess (if any) of (A) the sum of (1) the Class Principal Balance
of the
Class M-6 Certificates immediately prior to that Distribution Date
and (2)
the aggregate Class Principal Balance of the Class A Certificates,
the
Class M Senior Certificates and the Class M-4 and Class M-5 Certificates
(after taking into account the payment of the Class A, Class M-1,
Class
M-2, Class M-3, Class M-4 and Class M-5 Principal Distribution Amounts
for
such Distribution Date) over (B) the lesser of (i) the aggregate
Stated
Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period multiplied by 95.30% and (ii) the amount, if any, by which
(x)
the aggregate Stated Principal Balance of the Mortgage Loans as of
the
last day of the related Due Period exceeds (y) the Overcollateralization
Floor.
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Class
OC
Certificates: As specified in the Preliminary
Statement.
Class
OC Distributable
Amount: With respect to any Distribution Date and the Class OC
Certificates, the excess, if any, of (x) the sum of (i) the amount of interest
accrued during the related Accrual Period at the related Pass-Through Rate
on
the Class Principal Balance for such Distribution Date and not included in
the
Extra Principal Distribution Amount on that Distribution Date and (ii) the
Overcollateralization Release Amount, if any, for such Distribution Date, over
(y) the Overcollateralization Increase Amount, if any, for such Distribution
Date.
Class
OC
Interest: The Upper-Tier Regular Interest as specified and
described in the Preliminary Statement and the related footnote
thereto.
16
Class
Optimal Interest
Distribution Amount: Not applicable.
Class
P Distribution
Amount: For each Distribution Date, an amount equal to the
total of all Prepayment Penalties received by the Securities Administrator
from
the Servicers on the Mortgage Loans in the prior Due Period. The
Class P Distribution Amount is not part of the Available Distribution Amount
and
is therefore not available for distributions to the other Classes of
Certificates.
Class
Principal
Balance: With respect to any Class of Certificates other than
the Class OC Certificates and as to any date of determination, the aggregate
of
the Certificate Balances of all Certificates of such Class as of such
date. With respect to the Class OC Certificates and any Distribution
Date, the Overcollateralized Amount as of that Distribution Date.
Class
Subordination
Percentage: Not applicable.
Clearing
Agency: An organization registered as a “clearing agency”
pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. 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.
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.
Collateralization
Event: Not applicable.
Commission: The
U.S. Securities and Exchange Commission.
Compensating
Interest
Payment: As to any Distribution Date, an amount equal to the
lesser of (i) the Prepayment Interest Shortfall on the Mortgage Loans serviced
by such Servicer with respect to such Distribution Date and (ii) the portion
of
the applicable Servicing Fee that the related Servicer is required to remit
to
the Trust as compensation therefor in accordance with the terms of the related
Purchase and Servicing Agreement.
Component: As
specified in the Preliminary Statement.
Component
Balance: With respect to any Component and any Distribution
Date, the Initial Component Balance thereof on the Closing Date, (A) plus any
Subsequent Recoveries added to the Component Balance of such Component pursuant
to Section 5.02, (B) minus the sum of all amounts applied in reduction of the
principal balance of such Component and Realized Losses allocated thereto on
previous Distribution Dates.
Component
Certificates: As specified in the Preliminary
Statement.
17
Component
Notional
Amount: Not applicable.
Confirmation: With
respect to the Class A-4, Class A-6 and Class A-8 Certificates, the Confirmation
(reference # KQBR4) dated June 29, 2007, evidencing a transaction between the
Corridor Contract Counterparty and the Securities Administrator.
Consent: A
document executed by the Cooperative Corporation (i) consenting to the sale
of
the Cooperative Unit to the Mortgagor and (ii) certifying that all maintenance
charges relating to the Cooperative Unit have been paid.
Controlling
Person: With respect to any Person, any other Person who
“controls” such Person within the meaning of the Securities Act.
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: A Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease, if any.
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 shares of the Cooperative Corporation.
Cooperative
Shares: Shares issued by a Cooperative
Corporation.
Cooperative
Unit: With respect to any Cooperative Loan, a specific unit in
a Cooperative Property.
Corporate
Trust
Office: With respect to the Trustee, the designated office of
the Trustee in the State of Illinois at which at any particular time its
corporate trust business with respect to this Agreement is administered, which
office at the date of the execution of this Agreement is located at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Global Securities
and
Trust Services MSM 2007-10XS, and which is the address to which notices to
and
correspondence with the Trustee should be directed, or at such other address
as
the Trustee may designate from time to time by notice to the Certificateholders,
the Depositor, the Master Servicer and the Securities Administrator or the
principal corporate trust office of any successor Trustee. With
respect to the Certificate Registrar and presentment of Certificates for
registration of transfer, exchange or final payment, Xxxxx Fargo Bank, National
Association, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust, Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-10XS, and
for all other purposes, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000 (or for overnight
deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000), Attention:
Corporate Trust, Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-10XS.
Corridor
Contract: With respect to the Class A-4, Class A-6 and Class
A-8 Certificates, the transactions evidenced by the Confirmation, a form of
which is attached hereto as Exhibit F.
18
Corridor
Contract
Counterparty: Xxxxxx Xxxxxxx Capital Services
Inc.
Corridor
Contract Scheduled
Termination Date: The Distribution Date in November
2015.
Custodial
Account: Each custodial account (other than an Escrow Account)
established and maintained by a Servicer pursuant to a Purchase and Servicing
Agreement.
Custodial
Agreement: Not applicable.
Custodial
Delivery
Failure: With respect to any Custodian appointed hereunder, as
defined in Section 6.21 hereof.
Custodian: A
Person who is at anytime appointed by the Depositor as a custodian of the
Mortgage Documents and the Trustee Mortgage Files. The initial
Custodian is LaSalle Bank National Association.
Custodian
Certification: As defined in Section 2.01.
Cut-off
Date: June 1, 2007.
Cut-off
Date Pool Principal
Balance: $557,457,043.24
Cut-off
Date Principal
Balance: As to any Mortgage Loan, the Stated Principal Balance
thereof as of the close of business on the Cut-off Date.
Debt
Service
Reduction: With respect to any Mortgage Loan, a reduction by a
court of competent jurisdiction in a proceeding under the Bankruptcy Code in
the
Scheduled Payment for such Mortgage Loan which became final and non-appealable,
except such a reduction resulting from a Deficient Valuation or any reduction
that results in a permanent forgiveness of principal.
Deceased
Holder: Not
Applicable.
Defaulted
Swap Termination
Payment: Not Applicable.
Defective
Mortgage
Loan: The meaning specified in
Section 2.05(a).
Deficient
Valuation: With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding indebtedness under the Mortgage Loan, or any
reduction in the amount of principal to be paid in connection with any Scheduled
Payment that results in a permanent forgiveness of principal, which valuation
or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
Definitive
Certificate: A Certificate of any Class issued in definitive,
fully registered, certificated form. As of the Closing Date the
Classes of Certificates being issued as “Definitive Certificates” are set forth
in the Preliminary Statement.
Delay
Certificates:
As specified in the Preliminary Statement.
19
Deleted
Mortgage
Loan: A Mortgage Loan that is repurchased, or replaced or to
be replaced with a Replacement Mortgage Loan.
Delinquent: Any
Mortgage Loan with respect to which the Scheduled Payment due on a Due Date
is
not received.
Depositable
Certificates: As specified in the Preliminary
Statement.
Depositor: Xxxxxx
Xxxxxxx Capital I Inc., a Delaware corporation having its principal place of
business in New York, or its successors in interest.
Depository: Cede
& Co., or any other organization registered as a “clearing agency” pursuant
to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository shall initially be the registered Holder of
the Book-Entry Certificates. The Depository shall at all times be a
“clearing corporation” as defined in Section 8-102(a)(5) of the Uniform
Commercial Code of the State of New York.
Determination
Date: With respect to each Servicer, the “Determination Date”
set forth in the related Purchase and Servicing Agreement.
Disqualified
Organization: A “disqualified organization” as defined in
Section 860E(e)(5) of the Code.
Distribution
Account: The separate Eligible Account created and maintained
by the Securities Administrator, on behalf of the Trustee, pursuant to
Section 4.01. Funds in the Distribution Account (exclusive of
any earnings on investments made with funds deposited in the Distribution
Account) shall be held in trust for the Trustee and the Certificateholders
for
the uses and purposes set forth in this Agreement.
Distribution
Account Deposit
Date: With respect to each Servicer, not later than 1:00 p.m.,
New York time, on 18th day of each calendar month after the initial issuance
of
the Certificates or, if such 18th day is not a Business Day, either the
immediately preceding or immediately following Business Day, as set forth in
the
related Acknowledgement, commencing in July 2007.
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 July
2007.
Due
Date: With respect to any Distribution Date, the first day of
the month in which such Distribution Date occurs. With respect to any
Mortgage Loan, the date on which a Scheduled Payment is due under the related
Mortgage Note as indicated in the applicable Purchase and Servicing
Agreement.
Due
Period: As to any Distribution Date, the period beginning on
the second day of the calendar month preceding the calendar month in which
such
Distribution Date occurs to, and including the first day of the calendar month
in which such Distribution Date occurs.
XXXXX: The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
20
Eligible
Account: Any of (i) an account or accounts maintained
with a federal or state chartered depository institution or trust company that
is an Eligible Institution, the short-term unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the debt obligations of such holding
company) have the highest short-term ratings of each Rating Agency at the time
any amounts are held on deposit therein, or (ii) a trust account or
accounts maintained with the corporate trust department of a federal depository
institution or state-chartered depository institution subject to the regulations
regarding fiduciary funds on deposit similar to Title 12 of the U.S. Code of
Federal Regulations Section 9.10(b) which, in either case, has corporate trust
powers and is acting in its fiduciary capacity, or (iii) any other account
acceptable to each Rating Agency, as evidenced by a signed writing delivered
by
each Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the Trustee,
the Paying Agent, the Securities Administrator or the Master
Servicer.
Eligible
Institution: An institution having the highest short-term debt
rating, and one of the two highest long-term debt ratings of the Rating Agencies
or the approval of the Rating Agencies. Upon a downgrade in the
rating of an Eligible Institution at which an Eligible Account is held below
the
required ratings set forth in the definition of Eligible Account, within 30
days
of such downgrade, such account will be transferred to an account meeting the
requirements of the definition of Eligible Account; provided, however, that
this
transfer requirement may be waived by the applicable Rating Agency.
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: As specified in the Preliminary
Statement.
Escrow
Account: With respect to each Mortgage Loan, as defined in
Article I of the related Purchase and Servicing Agreement.
ES
Trust: The
separate trust created under this Agreement pursuant to Section
4.03(a).
ES
Trust
Certificate: Any Class of Certificates issued by the ES Trust
and representing beneficial ownership of one or more uncertificated Master
REMIC
Interests held by such ES Trust.
Estoppel
Letter: A document executed by the Cooperative Corporation
certifying, with respect to a Cooperative Unit, (i) the appurtenant Proprietary
Lease will be in full force and effect as of the date of issuance thereof,
(ii)
the related stock certificate was registered in the Mortgagor’s name and the
Cooperative Corporation has not been notified of any lien upon, pledge of,
levy
of execution on or disposition of such stock certificate, and (iii) the
Mortgagor is not in default under the appurtenant Proprietary Lease and all
charges due the Cooperative Corporation have been paid.
Event
of
Default: Any one of the conditions or circumstances enumerated
in Section 6.14.
21
Excess
Priority
Amount: Not applicable.
Excess
Subordinated
Amount: For any Distribution Date will equal the excess, if any,
of the
Overcollateralized Amount on that Distribution Date over (ii) the
Overcollateralization Target Amount for such Distribution Date.
Exchange
Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exchange
Act
Reports: Any reports on Form 10-D, Form 8-K and Form 10-K
required to be filed with respect to the Trust Fund under the Exchange
Act.
Exchangeable
Certificates: As specified in the Preliminary
Statement.
Exchangeable
Certificates
Distribution Account: The separate Eligible Account created
and maintained by the Securities Administrator on behalf of the ES Trust
pursuant to Section 4.03(a) in the name of the Securities Administrator, on
behalf of the Trustee for the benefit of the Holders of the Exchangeable
Certificates and designated “Xxxxx Fargo Bank National Association in trust for
registered Holders of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-10XS, Mortgage
Pass-Through Certificates, Series 2007-10XS.” Funds in the
Exchangeable Certificates Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this
Agreement.
Extra
Principal Distribution
Amount: For any Distribution Date will be the lesser of
the Net Monthly Excess Cashflow for such Distribution Date and the Overcollateralization
Increase Amount as of that Distribution Date.
Xxxxxx
Mae: The entity formerly known as 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.
FHLMC: 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.
Fifth
Third Mortgage
Loan: Each Mortgage Loan originated by Fifth Third Mortgage
Company and listed on the Mortgage Loan Schedule.
Fifth
Third Purchase
Agreement: The Mortgage Loan Purchase and Warranties Agreement
listed in Exhibit E hereto between the Seller and Fifth Third Mortgage
Company.
Fifth
Third Serviced
Mortgage Loan: Each Mortgage Loan serviced by Fifth Third
Mortgage Company and listed on the Mortgage Loan Schedule.
Fifth
Third Servicing
Agreement: The Servicing Agreement listed in Exhibit E hereto
between the Seller and Fifth Third Mortgage Company.
22
Final
Custodian
Certification: As defined in Section 2.02 hereof.
Fiscal
Agent: As defined in the Class A-1-W and Class A-3-W
Policy.
Fitch: Fitch,
Inc., or any successor thereto. If Fitch is designated as a Rating
Agency in the Preliminary Statement, for purposes of Section 11.07 the address
for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance
Group, or such other address as Fitch may hereafter furnish to the Depositor,
the Trustee and the Master Servicer.
FNBN
Mortgage
Loan: Each Mortgage Loan originated by First National Bank of
Nevada and listed on the Mortgage Loan Schedule.
FNBN
Purchase
Agreement: The Mortgage Loan Purchase Agreement listed in
Exhibit E hereto between the Seller and First National Bank of
Nevada.
Form
8-K
Disclosure: As defined in Section 13.03 hereof.
Global
Securities: The global certificates representing the
Book-Entry Certificates.
GMAC
Serviced Mortgage
Loan: Each Mortgage Loan serviced by GMAC Mortgage, LLC and
listed on the Mortgage Loan Schedule.
GMAC
Servicing
Agreement: The Servicing Agreement listed in Exhibit E hereto
between the Seller and GMAC Mortgage, LLC.
Grantor
Trust: A trust described in Section 671 of the Code, the items
of income, deductions and credits of which must be included in computing the
taxable income and credits of the person treated as the owner of such trust
(either the grantor or other person designated under the Code).
GreenPoint
Mortgage
Loan: Each Mortgage Loan originated by GreenPoint Mortgage
Funding, Inc. and listed on the Mortgage Loan Schedule.
GreenPoint
Purchase
Agreement: The Mortgage Loan Purchase and Warranties Agreement
listed in Exhibit E hereto between the Seller and GreenPoint Mortgage Funding,
Inc. as seller and servicer.
GreenPoint
Serviced Mortgage
Loan: Each Mortgage Loan serviced by GreenPoint Mortgage
Funding, Inc. and listed on the Mortgage Loan Schedule.
GreenPoint
Servicing
Agreement: The Servicing Agreement listed in Exhibit E hereto
between the Seller and GreenPoint Mortgage Funding, Inc.
Holder: The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except that, solely for the purposes of taking any action or giving
any consent pursuant to this Agreement, any Certificate registered in the name
of the Depositor, the Trustee, the Master Servicer, the Securities Administrator
and any Servicer, or any Affiliate
23
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 or the Securities Administrator shall be
protected in relying upon any such consent, only Certificates that a Responsible
Officer of the Trustee or the Securities Administrator, respectively, knows
to
be so owned shall be disregarded. The Trustee or the Securities
Administrator may request and conclusively rely on certifications by the
Depositor, the Master Servicer, the Securities Administrator or any Servicer
in
determining whether any Certificates are registered to an Affiliate of the
Depositor, the Master Servicer, the Securities Administrator or any
Servicer.
HUD: The
United States Department of Housing and Urban Development, or any successor
thereto.
Indemnifying
Party: As specified in Section 13.08 hereof.
Independent: When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Securities and Exchange 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,
and (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.
Index: As
to each Mortgage Loan, the index from time to time in effect for adjustment
of
the Mortgage Rate as set forth as such on the related Mortgage
Note.
Initial
Authorized
Determination: With respect to any Depositable Certificate or
Exchangeable Certificate, the amount set forth with respect to such Class in
Schedule C under the heading, “Original Certificate Balance or Notional
Amount”.
Initial
Component
Balance: As specified in the Preliminary
Statement.
Initial
Custodian
Certification: As defined in Section 2.02.
Initial
Optional Termination
Date: The first Distribution Date following the date on which
the aggregate Stated Principal Balance of the Mortgage Loans is equal to or
less
than 10% of the aggregate Stated Principal Balance thereof as of the Cut-off
Date.
Insurance
Agreement: That certain insurance agreement, dated as of June
29, 2007, among MBIA Insurance Corporation, as Insurer, Xxxxx Fargo Bank,
National Association, as Master Servicer and Securities Administrator, Xxxxxx
Xxxxxxx Mortgage Capital Holdings LLC, as Seller, Xxxxxx Xxxxxxx Capital I
Inc.,
as Depositor, and LaSalle Bank National Association, as Trustee, relating to
the
Class A-1-W and Class A-3-W Policy for the Insured Certificates.
Insurance
Policy: With respect to any Mortgage Loan, any insurance
policy, including all names and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
24
Insurance
Proceeds: Proceeds paid by any Insurance Policy (excluding
proceeds required to be applied to the restoration and repair of the related
Mortgaged Property or released to the Mortgagor), in each case other than any
amount included in such Insurance Proceeds in respect of Insured Expenses and
the proceeds from any Limited Purpose Surety Bond.
Insured
Certificates: The Class A-1-W and Class A-3-W
Certificates.
Insured
Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Insured
Payment: As defined in the Class A-1-W and Class A-3-W
Policy.
Interest
Accrual
Period: With respect to each Class of Delay Certificates, its
corresponding Subsidiary REMIC Regular Interest and any Distribution Date,
the
calendar month prior to the month of such Distribution Date. With
respect to any Class of Subordinated Certificates, their respective
corresponding Subsidiary REMIC Regular Interest and the Distribution Date in
July 2007, the 26 day period commencing on the Closing Date and ending on the
day immediately preceding such Distribution Date. With respect to any
Class of Subordinated Certificates, its corresponding Subsidiary REMIC Regular
Interest and each Distribution Date following the Distribution Date in July
2007, the one month period commencing on the Distribution Date in the calendar
month preceding the month in which such Distribution Date occurs and ending
on
the day immediately preceding such Distribution Date. For purposes of computing
interest accruals on each Class of Subordinated Certificates, each Interest
Accrual Period has the actual number of days in such month and each year is
assumed to have 360 days. For purposes of computing interest accruals
on each Class of Delay Certificates, each Interest Accrual Period has 30 days
in
such month and each year is assumed to have 360 days.
Interest
Carry Forward
Amount: With respect to any Distribution Date, the amount, if
any, by which the Interest Distribution Amount for that Class of Certificates
for the immediately preceding Distribution Date exceeds the actual amount
distributed on such Class in respect of interest on the immediately preceding
Distribution Date, together with any Interest Carry Forward Amount with respect
to such Class remaining unpaid from the previous Distribution Date, plus
interest accrued thereon at the related Pass-Through Rate for the most recently
ended Interest Accrual Period.
Interest
Determination
Date: With respect to any Interest Accrual Period for any
Class of LIBOR Certificates, the second LIBOR Business Day prior to the first
day of such Interest Accrual Period.
Interest
Distribution
Amount: With respect to the Senior Certificates, the Senior
Interest Distribution Amount. With respect to the Subordinated
Certificates, the Subordinated Interest Distribution Amount. With
respect to the Class L-IO Certificates, the Class L-IO Interest Distribution
Amount.
Interest
Remittance
Amount: For any Distribution Date, that portion of the
Available Distribution Amount for such Distribution Date that represents
interest received or advanced on the Mortgage Loans.
25
Interest
Transfer
Amount: Not applicable.
Investor
Based
Exemption: Any of Prohibited Transaction Class Exemption
(“PTCE”) 84-14 (for transactions by independent “qualified professional asset
managers”), XXXX 00-0 (for transactions by insurance company pooled separate
accounts), PTCE 91-38 (for transactions by bank collective investment funds),
PTCE 95-60 (for transactions by insurance company general accounts), PTCE 96-23
(for transactions effected by “in house asset managers”) the service provider
exemption provided by Section 308(b)(17) of ERISA and Section 4975(d)(20) of
the
Code, or any comparable exemption available under Similar Law.
Last
Scheduled Distribution
Date: The Distribution Date in February 2037.
Latest
Possible Maturity
Date: The Distribution Date in February 2037.
LIBOR: The
London interbank offered rate for one-month United States dollar deposits
calculated in the manner described in Section 5.09.
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: As specified in the Preliminary
Statement.
Limited
Purpose Surety
Bond: Collectively, Ambac Assurance Corporation Surety Bond
No. AB0039BE and any other Limited Purpose Surety Bond securing an Additional
Collateral Mortgage Loan.
Liquidated
Mortgage
Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) which was liquidated in the calendar
month preceding the month of such Distribution Date and as to which the related
Servicer has certified (in accordance with its Purchase and Servicing Agreement)
that it has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan including the final disposition of an REO
Property.
Liquidation
Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee’s sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO
Property.
Living
Holders: Not applicable.
Loan-To-Value
Ratio: With respect to any Mortgage Loan and as to any date of
determination, the fraction (expressed as a percentage) the numerator of which
is the principal balance of the related Mortgage Loan at such date of
determination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
26
LPMI
Mortgage
Loan: Certain Mortgage Loans as to which the lender (rather
than the borrower) acquires the Primary Mortgage Insurance Policy and charges
the related borrower an interest premium.
Master
REMIC: As described in the Preliminary Statement.
Master
Servicer: Xxxxx Fargo Bank, National Association, a national
banking association organized under the laws of the United States in its
capacity as Master Servicer and any Person succeeding as Master Servicer
hereunder or any successor in interest, or if any successor master servicer
shall be appointed as herein provided, then such successor master
servicer.
Master
Servicer
Compensation: With respect to any Master Servicer that is a
successor to Xxxxx Fargo Bank, National Association as Master Servicer, the
portion of the earnings on the funds on deposit in the Distribution Account
payable on each Distribution Date pursuant to Section 4.02(b)(ii) hereof agreed
to by and between such successor Master Servicer and the successor securities
administrator; provided, that the sum of such Master Servicer Compensation
and
the Securities Administrator Compensation payable on each Distribution Date
shall not exceed the total earnings on funds in the Distribution Account payable
pursuant to Section 4.02(b)(ii) hereof earned since the prior Distribution
Date.
Memorandum: Not
applicable.
MERS: Mortgage
Electronic Registration Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware, or any successor to Mortgage Electronic
Registration Systems, Inc.
MERS
Mortgage
Loan: Any Mortgage Loan registered with MERS on the MERS®
System.
MERS®
System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The
mortgage identification number for any MERS Mortgage Loan.
Minimum
Auction
Price: With respect to any Distribution Date on which an
Auction is being held, an amount equal to the sum of (a) 100% of the current
aggregate Stated Principal Balance of the Mortgage Loans, plus accrued interest
thereon, (b) the fair market value of any related REO Property in the Trust
Fund
and all other property in the Trust Fund being purchased, (c) any unreimbursed
Servicing Advances related to the Mortgage Loans and (d) any expenses incurred
by the Auction Administrator in the Auction process and (e) any Reimbursement
Amounts payable to the Certificate Insurer.
MOM
Loan: Any Mortgage Loan as to which MERS is acting as
mortgagee, solely as nominee for the originator of such Mortgage Loan and its
successors and assigns.
Moody’s: Xxxxx’x
Investors Service, Inc., or any successor thereto. If Xxxxx’x is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 11.07 the address for notices to Moody’s shall be Xxxxx’x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx
00
Xxxx,
Xxx
Xxxx 00000, Attention: Residential Pass-Through Monitoring, or such other
address as Moody’s may hereafter furnish to the Depositor or the Master
Servicer.
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
Documents: With respect to each Mortgage Loan, the mortgage
documents required to be delivered to the Custodian.
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 (including any
REO Property), including without limitation, each Mortgage Loan listed on the
Mortgage Loan Schedule, as amended from time to time.
Mortgage
Loan Auction
Price: The price, calculated as set forth in Section 7.01(b),
to be paid in connection with the purchase of the Mortgage Loans by the Auction
Purchaser.
Mortgage
Loan
Schedule: The schedule attached hereto as Schedule A, which
shall identify each Mortgage Loan, as such schedule may be amended by the
Depositor or a Servicer from time to time to reflect the addition of Replacement
Mortgage Loans to, or the deletion of Deleted Mortgage Loans from, the Trust
Fund. Such schedule shall, among other things (i) designate the
Servicer servicing such Mortgage Loan and the applicable Servicing Fee Rate;
(ii) [reserved], (iii) identify any LPMI Mortgage Loan and designate the
rate at which the premium for such insurance is calculated and (iv) separately
identify the Additional Collateral Mortgage Loans, if any.
Mortgage
Note: The original executed note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage under a Mortgage
Loan.
Mortgage
Rate: As to any Mortgage Loan, the annual rate of interest
borne by the related Mortgage Note.
Mortgaged
Property: The underlying property, including any Additional
Collateral, securing a Mortgage Loan which, with respect to a Cooperative Loan,
is the related Cooperative Shares and Proprietary Lease.
Mortgagor: The
obligor on a Mortgage Note.
MSCC
Serviced Mortgage
Loan: Each Mortgage Loan originated and serviced by Xxxxxx
Xxxxxxx Credit Corp. and listed on the Mortgage Loan Schedule.
MSCC
Purchase
Agreement: The Second Amended and Restated Master Mortgage
Loan Purchase Agreement listed in Exhibit E hereto between the Seller and Xxxxxx
Xxxxxxx Credit Corp.
MSCC
Purchase and Servicing
Agreement: Collectively, the MSCC Purchase Agreement and the
MSCC Servicing Agreement.
28
MSCC
Servicing
Agreement: The Amended and Restated Master Servicing Agreement
listed in Exhibit E hereto between the Seller and Xxxxxx Xxxxxxx Credit
Corp.
MSMCH
Mortgage
Loan: A Mortgage Loan sold by the Seller to the Depositor
pursuant to the MSMCH Purchase Agreement.
MSMCH
Purchase
Agreement: The Mortgage Loan Purchase Agreement listed in
Exhibit E hereto between the Seller and the Depositor.
Net
Liquidation
Proceeds: With respect to any Liquidated Mortgage Loan or any
other disposition of related Mortgaged Property, the related Liquidation
Proceeds net of Advances, Servicer Advances, Servicing Fees and any other
accrued and unpaid servicing fees received and retained in connection with
the
liquidation of such Mortgage Loan or Mortgaged Property.
Net
Monthly Excess
Cashflow: For any Distribution Date, the excess, if any, of
(x) the Available Distribution Amount for the Distribution Date over (y) the
sum
for the Distribution Date of the aggregate of the Interest Distribution Amounts
and the Principal Distribution Amount payable to the holders of the
Certificates, and the Class A-1-W and Class A-3-W Premium, and Reimbursement
Amounts payable to the Certificate Insurer.
Net
Mortgage
Rate: With respect to any Mortgage Loan and any Distribution
Date, the related Mortgage Rate as of the Due Date in the month preceding the
month of such Distribution Date reduced by the Aggregate Expense Rate for such
Mortgage Loan.
Net
Prepayment Interest
Shortfalls: As to any Distribution Date, the amount by which
the aggregate of Prepayment Interest Shortfalls exceeds the Compensating
Interest Payments for that Distribution Date (and any amounts paid by the Master
Servicer in respect of such shortfalls pursuant to Section
5.06). Each Class’ pro rata share of the Net Interest Shortfalls on
the Mortgage Loans shall be based on the amount of interest the Class otherwise
would have been entitled to receive on such Distribution Date.
Net
Swap
Payment: Not Applicable.
Net
Swap
Receipt: Not Applicable.
Net
WAC Pass-Through
Rate: For each Class of Certificates (other than the Class
A-11, Class A-13, Class A-15, Class A-17, Class A-20, Class A-21, Class A-22
and
Class A-23 Certificates) and any Distribution Date, a per annum rate equal
to
(i) the Weighted Average Net Mortgage Rate of the Mortgage Loans as of the
first
day of the month preceding the month in which such Distribution Date occurs
minus (ii) the product of (a) 0.01% and (b) the Notional Balance of the Class
L-IO Certificates immediately prior to that Distribution
Date, divided by the aggregate Stated Principal Balance of the
Mortgage Loans as of the as of the end of the Due Period related to the
immediately prior Distribution Date (after giving effect to the distributions
made on that Distribution Date) and adjusted, in the case of the Subordinated
Certificates only, to accrue on the basis of a 360-day year and the actual
number of days in the related Interest Accrual Period, except that with respect
to the July 2007 Distribution Date, the number of days in the related Interest
Accrual Period will be 26. The preceding sentence notwithstanding,
the
29
following
are additional reductions to the Net WAC Pass-Through Rate for the Classes
of
Certificates listed below:
|
|
·
|
the
Net WAC Pass-Through Rate for each of the Class A-1-W and Class A-3-W
Certificates is also net of an additional 0.125% in respect of the
Certificate Guaranty Premium payable to the Certificate
Insurer.
|
|
|
·
|
the
Net WAC Pass-Through Rate for the Class A-4 Certificates is also
net of an
additional 0.01%.
|
|
|
·
|
the
Net WAC Pass-Through Rate for the Class A-5 Certificates is also
net of an
additional 0.59%.
|
|
|
·
|
the
Net WAC Pass-Through Rate for the Class A-7 Certificates is net of
an
additional 0.60%.
|
|
|
·
|
the
Net WAC Pass-Through Rate for the Class A-9 Certificates is net of
an
additional 6.00%.
|
The
Net WAC Pass-Through Rate for the
Class A-11 Certificates for any Distribution Date will be equal to the excess,
if any, of (a) 6.00% over (b) the product of (i) 24 and (ii) 6.00% minus the
Net
WAC Pass-Through Rate calculated as described in the first
sentence. The Net WAC Pass-Through Rate for the Class A-13
Certificates and any Distribution Date will be equal to the excess, if any,
of
(a) 6.00% over (b) the product of (i) 12 and (ii) 6.00% minus the Net WAC
Pass-Through Rate calculated as described in the first sentence. The
Net WAC Pass-Through Rate for the Class A-15 Certificates and any Distribution
Date will be equal to the excess, if any, of (a) 6.00% over (b) the product
of
(i) 24 and (ii) 6.25% minus the Net WAC Pass-Through Rate calculated as
described in the first sentence. The Net WAC Pass-Through Rate for
the Class A-17 Certificates and any Distribution Date will be equal to the
excess, if any, of (a) 6.00% over (b) the product of (i) 12 and (ii) 6.25%
minus
the Net WAC Pass-Through Rate calculated as described in the first
sentence. The Net WAC Pass-Through Rate for the Class A-20
Certificates and any Distribution Date will be equal to the excess, if any,
of
(a) 5.75% over (b) 6.00% minus the Net WAC Pass-Through Rate calculated as
described in the first sentence. The Net WAC Pass-Through Rate for
the Class A-21 Certificates and any Distribution Date will be equal to the
excess, if any, of (a) 6.25% over (b) 6.00% minus the Net WAC Pass-Through
Rate
calculated as described in the first sentence. The Net WAC
Pass-Through Rate for the Class A-22 Certificates and any Distribution Date
will
be equal to the excess, if any, of (a) 5.50% over (b) the product of (i) 2
and
(ii) 6.00% minus the Net WAC Pass-Through Rate calculated as described in the
first sentence. The Net WAC Pass-Through Rate for the Class A-23
Certificates and any Distribution Date will be equal to the excess, if any,
of
(a) 6.25% over (b) the product of (i) 0.50 and (ii) 6.00% minus the Net WAC
Pass-Through Rate calculated as described in the first sentence.
Non-Book-Entry
Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Delay
Certificates: As specified in the Preliminary
Statement.
30
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.
Nonrecoverable
Advance: Any portion of an Advance or Servicer Advance
previously made or proposed to be made by the Master Servicer and/or a Servicer
(as certified in an Officer’s Certificate of such Servicer), which in the good
faith judgment of such party, shall not be ultimately recoverable by such party
from the related Mortgagor, related Liquidation Proceeds or
otherwise.
Notional
Amount: With respect to any Distribution Date
and:
(i) the
Class A-5 Certificates, the Class Principal Balance of the Class A-4
Certificates immediately prior to that Distribution Date.
(ii) the
Class A-7 Certificates, the Class Principal Balance of the Class A-6
Certificates immediately prior to that Distribution Date;
(iii) the
Class A-9 Certificates, the Class Principal Balance of the Class A-8
Certificates immediately prior to that Distribution Date;
(iv) the
Class A-11 Certificates, the product of (i) a fraction, the numerator of which
is 0.25, and the denominator of which is 6.00 and (ii) the Class Principal
Balance of the Class A-10 Certificates immediately prior to that Distribution
Date;
(v) the
Class A-13 Certificates, the product of (i) a fraction, the numerator of which
is 0.50, and the denominator of which is 6.00 and (ii) the Class Principal
Balance of the Class A-12 Certificates immediately prior to that Distribution
Date;
(vi) the
Class A-15 Certificates, the product of (i) a fraction, the numerator of which
is 0.25, and the denominator of which is 6.00 and (ii) the Class Principal
Balance of the Class A-14 Certificates immediately prior to that Distribution
Date;
(vii) the
Class A-17 Certificates, the product of (i) a fraction, the numerator of which
is 0.50, and the denominator of which is 6.00 and (ii) the Class Principal
Balance of the Class A-16 Certificates immediately prior to that Distribution
Date; and
(viii) the
Class L-IO Certificates, the product of (i) the Pool Factor for that
Distribution Date and (ii) $10,000.
Notional
Amount
Certificates: As specified in the Preliminary
Statement.
Offered
Certificates: As specified in the Preliminary
Statement.
Offering
Document: The Prospectus or the Memorandum, as
applicable.
31
Officer’s
Certificate: A certificate signed by two Authorized Officers
of the Depositor or the Chairman of the Board, any Vice Chairman, the President,
any Vice President or any Assistant Vice President of the Master Servicer or
the
Securities Administrator or in the case of any other Person, signed by an
authorized officer of such Person, and in each case delivered to the Trustee
or
the Securities Administrator, as applicable signed by an authorized officer
of
that Person.
Officer’s
Certificate of a
Servicer: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director,
a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of a Servicer, or (ii) if provided for herein, signed by a
Servicing Officer, as the case may be, and delivered to the Trustee, the
Securities Administrator or the Master Servicer, as required
hereby.
Opinion
of
Counsel: A written opinion of counsel, reasonably acceptable
in form and substance to the Trustee, the Securities Administrator or the Master
Servicer, as required hereby, and who may be in-house or outside counsel to
the
Depositor, the Master Servicer, the Securities Administrator or the Trustee
but
which must be Independent outside counsel with respect to any such opinion
of
counsel concerning the transfer of any Residual Certificate or concerning
certain matters with respect to ERISA, or the taxation, or the federal income
tax status, of each REMIC.
Original
Applicable Credit
Support Percentage: Not applicable.
Originator: Any
one of First National Bank of Nevada, GreenPoint Mortgage Funding, Inc., Xxxxxx
Xxxxxxx Credit Corporation, Wachovia Mortgage Corporation, Wilmington Finance,
Inc. and US Bank, N.A., as applicable.
Outstanding
Certificate: Any Outstanding Exchangeable Certificate and
Outstanding Depositable Certificate.
Outstanding
Depositable
Certificate: Any Depositable Certificate issued hereunder;
provided, however, that upon the exchange of any Depositable Certificate
pursuant to Section 4.03 hereof, the Depositable Certificate so exchanged shall
be deemed no longer to be an Outstanding Depositable Certificate, and the
Exchangeable Certificate issued in exchange therefore shall be deemed to be
an
Outstanding Exchangeable Certificate.
Outstanding
Exchangeable
Certificate: Any Exchangeable Certificate issued hereunder; provided,
however, that upon the exchange of any Exchangeable Certificate pursuant to
Section 4.03 hereof, the Exchangeable Certificate so exchanged shall be deemed
no longer to be an Oustanding Certificate, and each Depositable Certificate
issued in exchange therefore shall be deemed to be an Outstanding Depositable
Certificate.
Overcollateralization
Floor: With respect to the Offered Certificates (other than the Class A-R
Certificates) and any Distribution Date prior to the Distribution Date in July
2027, the product of (x) 0.35% and (y) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the Cut-off Date. The Overcollateralization
Floor for any Distribution Date on and after the Distribution Date in July
2027
will equal the greater of: (i) the product of (x) 0.35% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date; and
(ii)
the
32
sum
of
(a) the product of (x) 0.10% and (y) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the Cut-off Date; and (b) the aggregate Stated
Principal Balance, as of the last day of the related Due Period, of all
outstanding Mortgage Loans having original terms to maturity of 40
years.
Overcollateralization
Increase Amount: With respect to any Distribution Date, the
amount, if any, by which the Overcollateralization Target Amount exceeds the
Overcollateralized Amount for such Distribution Date (calculated for this
purpose only after assuming that 100% of the Principal Remittance Amount on
such Distribution Date has been distributed).
Overcollateralization
Release Amount: For any Distribution Date, the lesser of (1)
the Principal Remittance Amount and (2) the excess of (a) the Overcollateralized
Amount over (b) the Overcollateralization Target Amount. In addition,
in connection with the final distribution on the Certificates pursuant to
Section 7.02 hereof, the Overcollateralization Release Amount for the related
Distribution Date shall also include the excess, if any of, (a) the purchase
price paid for the Mortgage Loans and any REO Properties related to the Mortgage
Loans pursuant to Section 7.01 hereof, less any costs incurred by the Trust
Fund
in connection with the liquidation thereof pursuant to Section 7.02 hereof,
over
(b) the amount distributed on the Certificates (other than the Class OC
Certificates) on that Distribution Date.
Overcollateralization
Target
Amount: With respect to any Distribution Date (i) prior to the
Stepdown Date, the product of (x) 1.15% and (y) the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, (ii) on and
after the Stepdown Date, provided that a Trigger Event is not in effect, the
lesser of (a) the product of (x) 2.30% and (y) the aggregate Stated Principal
Balance of the Mortgage Loans as of the related Due Date and (b) the
product of (x) 1.15% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date and (iii) on and after the Stepdown Date,
if a Trigger Event is in effect for that Distribution Date, the
Overcollateralization Target Amount for the immediately preceding Distribution
Date; provided, however, that on each Distribution Date the
Overcollateralization Target Amount shall not be lower than the
Overcollateralization Floor.
Overcollateralized
Amount: As of the Closing Date, an amount equal to
$6,411,043. With respect to any Distribution Date following the
Closing Date, the amount by which the aggregate Stated Principal Balance of
the
Mortgage Loans as of the last day of the related Due Period exceeds
the aggregate Class Principal Balance of the Offered Certificates after taking
into account all payments of principal on such Distribution Date.
Pass-Through
Rate: For any interest bearing Class of Certificates or
Component, the per annum rate set forth or calculated in the manner described
in
the Preliminary Statement.
Paying
Agent: Any paying agent appointed pursuant to
Section 3.08. The initial Paying Agent shall be the Securities
Administrator under this Agreement.
PCOAB: The
Public Company Accounting Oversight Board.
Percentage
Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on
33
the
face
thereof or equal to the percentage obtained by dividing the initial principal
balance or notional amount, as applicable, of such Certificate by the aggregate
of the Class Principal Balance or Notional Amount, as applicable, of all
Certificates of the same Class.
Permitted
Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations
of the United States or any agency thereof, provided that such obligations
are
backed by the full faith and credit of the United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as shall not result in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies (without regard to the Class A-1-W and Class A-3-W Policy), as
evidenced by a signed writing delivered by each Rating Agency;
(iii) commercial
or finance company paper which is then receiving the highest commercial or
finance company paper rating of each Rating Agency rating such paper, or such
lower rating as shall not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies (without regard to
the
Class A-1-W and Class A-3-W Policy), as evidenced by a signed writing delivered
by each Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal and/or state banking authorities, provided that the commercial paper
and/or long-term unsecured debt obligations of such depository institution
or
trust company (or in the case of the principal depository institution in a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company, but only if Xxxxx’x is not the applicable
Rating Agency) are then rated one of the two highest long-term and the highest
short-term ratings of each Rating Agency for such securities, or following
a
downgrade, withdrawal, or suspension of such institution’s rating, each account
should promptly (and in any case within not more than 10 calendar days) be
moved
to a qualifying institution or to one or more segregated trust accounts in
the
trust department of such institution, if permitted unless such lower ratings
as
shall not result in the downgrading or withdrawal of the ratings then assigned
to the Certificates by the Rating Agencies (without regard to the Class A-1-W
and Class A-3-W Policy), as evidenced by a signed writing delivered by each
Rating Agency;
(v) guaranteed
reinvestment agreements issued by any bank, insurance company or other
corporation acceptable to the Rating Agencies at the time of the issuance of
such agreements, as evidenced by a signed writing delivered by each Rating
Agency;
34
(vi) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above;
(vii) securities
(other than stripped bonds, stripped coupons or instruments sold at a purchase
price in excess of 115% of the face amount thereof) bearing interest or sold
at
a discount issued by any corporation incorporated under the laws of the United
States or any state thereof which, at the time of such investment, have one
of
the two highest ratings of each Rating Agency (except if the Rating Agency
is
Moody’s, such rating shall be the highest commercial paper rating of Moody’s for
any such series), or such lower rating as shall not result in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies (without regard to the Class A-1-W and Class A-3-W Policy), as
evidenced by a signed writing delivered by each Rating Agency;
(viii) interests
in any money market fund which at the date of acquisition of the interests
in
such fund and throughout the time such interests are held in such fund has
the
highest applicable rating by each Rating Agency rating such fund or such lower
rating as shall not result in a change in the rating then assigned to the
Certificates by each Rating Agency (without regard to the Class A-1-W and Class
A-3-W Policy), as evidenced by a signed writing delivered by each Rating Agency,
including funds for which the Trustee, the Master Servicer, the Securities
Administrator or any of its Affiliates is investment manager or
adviser;
(ix) short-term
investment funds sponsored by any trust company or national banking association
incorporated under the laws of the United States or any state thereof which
on
the date of acquisition has been rated by each applicable Rating Agency in
their
respective highest applicable rating category or following a downgrade,
withdrawal, or suspension of such institution’s rating, each account should
promptly (and in any case within not more than 10 calendar days) be moved to
a
qualifying institution or to one or more segregated trust accounts in the trust
department of such institution, if permitted unless such lower rating as shall
not result in a change in the rating then specified stated maturity and bearing
interest or sold at a discount acceptable to each Rating Agency as shall not
result in the downgrading or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies (without regard to the Class A-1-W and
Class
A-3-W Policy), as evidenced by a signed writing delivered by each Rating Agency;
and
(x) such
other investments having a specified stated maturity and bearing interest or
sold at a discount acceptable to the Rating Agencies as shall not result in
the
downgrading or withdrawal of the ratings then assigned to the Certificates
by
the Rating Agencies (without regard to the Class A-1-W and Class A-3-W Policy),
as evidenced by a signed writing delivered by each Rating Agency;
provided,
that no such instrument shall be a Permitted Investment if (i) such instrument
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument or (ii) such instrument would require
the
Depositor to register as an investment company under the Investment Company
Act
of 1940, as amended.
35
Person: Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan: Any
employee benefit plan or other plan or arrangement subject to Section 406 of
ERISA or Section 4975 of the Code, including individual retirement accounts
and
annuities, Xxxxx plans and collective investment funds and separate accounts
in
which such plans, accounts or arrangements are invested.
Plan
Asset
Regulations: The Department of Labor regulations set forth in
29 C.F.R. §2510.3-101.
Planned
Balance: With respect to any group of Planned Principal
Classes or Components in the aggregate and any Distribution Date appearing
in
Schedule B hereto, the Aggregate Planned Balance for such group and Distribution
Date. With respect to any other Planned Principal Class or Component
and any Distribution Date appearing in Schedule B hereto, the applicable amount
appearing opposite such Distribution Date for such Class or
Component.
Planned
Principal
Classes: As specified in the Preliminary
Statement.
Pool
Factor: A ten-digit decimal that the Securities Administrator
will compute for each Distribution Date expressing the outstanding Stated
Principal Balance of the Mortgage Loans as of the end of the Due Period related
to the immediately prior Distribution Date (after giving effect to the
distributions made on that Distribution Date) as a proportion of the Cut-off
Date Pool Principal Balance.
Prepayment
Interest
Shortfall: With respect to each Mortgage Loan, the amount of
the shortfall in interest payable on such Mortgage Loan that occurs as a result
of the prepayment by the related Mortgagor of such Mortgage Loan calculated
in
accordance with formula set forth in the related Purchase and Servicing
Agreement.
Prepayment
Penalty: As to a Mortgage Loan, any penalty payable by a
Mortgagor in connection with certain partial prepayments and all prepayments
in
full made within the related Prepayment Penalty Period, the Prepayment Penalties
with respect to each applicable Mortgage Loan so held by the Trust Fund being
identified in the Prepayment Penalty Schedule.
Prepayment
Penalty
Period: As to any Mortgage Loan, the period of time during
which a Prepayment Penalty may be imposed.
Prepayment
Penalty
Schedule: As of any date, the list of Prepayment Penalties
included in the Trust Fund on that date (including the Prepayment Penalty
summary attached thereto). The Prepayment Penalty Schedule shall set
forth the following information with respect to each Prepayment
Penalty:
|
·
|
the
Mortgage Loan account number;
|
|
·
|
a
code indicating the type of Prepayment
Penalty;
|
36
|
·
|
the
state of origination in which the related Mortgage Property is
located;
|
|
·
|
the
first date on which a monthly payment is or was due under the related
Mortgage Note;
|
|
·
|
the
term of the Prepayment Penalty;
|
|
·
|
the
original principal amount of the related Mortgage Loan;
and
|
|
·
|
the
Cut-off Date Principal Balance of the related Mortgage
Loan.
|
The
Prepayment Penalty Schedule shall be amended from time to time by the Seller
in
accordance with this Agreement.
Prepayment
Period: With respect to any Mortgage Loan and any Distribution
Date, the calendar month preceding that Distribution Date.
Prepayment
Shift
Percentage: Not applicable.
Primary
Mortgage Insurance
Policy: Each policy of primary mortgage guaranty insurance or
any replacement policy therefor with respect to any Mortgage Loan.
Principal
Distribution
Amount: For any Distribution Date will be the sum of the Basic
Principal
Distribution Amount and the Extra Principal Distribution Amount, in each case
for that Distribution Date, and, with respect to the first Distribution Date,
the $100 deposited in respect of the Class A-R Certificates pursuant to Section
2.01 hereof.
Principal
Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is
not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Principal
Prepayment in
Full: Any Principal Prepayment made by a Mortgagor of the
entire principal balance of a Mortgage Loan.
Principal
Reductions: Not applicable.
Principal
Remittance
Amount: For any Distribution Date, the sum of
(i)
the
principal portion of all Scheduled Payments on the Mortgage Loans due during
the
related Due Period, whether or not received on or prior to the related
Determination Date;
(ii)
the
principal portion of all proceeds received in respect of the repurchase of
a
Mortgage Loan (or, in the case of a substitution, certain amounts representing
a
principal adjustment as required by this Agreement) during the related
Prepayment Period; and
(iii)
the
principal portion of all other unscheduled collections, including Insurance
Proceeds, condemnation proceeds, Liquidation Proceeds and all partial
Principal
37
Prepayments
and Principal Prepayments in full, received during the related Prepayment
Period, to the extent applied as recoveries of principal on the Mortgage
Loans,
provided,
that in no event will the Principal Remittance Amount with respect to any
Distribution Date be (x) less than zero or (y) greater than the then outstanding
aggregate Class Principal Balance of the Certificates.
Priority
Amount: With respect to any Distribution Date, the amount
equal to the product of (i) the Priority Percentage, (ii) the Shift Percentage
and (iii) the Remaining Senior Portion for that Distribution Date.
Priority
Percentage: With respect to any Distribution Date, the
fraction, expressed as a percentage, the numerator of which is the Class
Principal Balance of the Class A-2 Certificates, and the denominator of which
is
the aggregate Class Principal Balance of the Class A-1, Class A-1-W, Class
A-2
and Class A-4 Certificates, in each case prior to giving effect to any
distributions of principal on the Certificates on that Distribution
Date.
Private
Certificate: As specified in the Preliminary
Statement.
Pro
Rata Portion:
With respect to any Class of Class A Certificates and any Distribution Date,
the
product of (x) a fraction, the numerator of which is the Class Principal Balance
of that Class of Class A Certificates immediately prior to that Distribution
Date, and the denominator of which is equal to the aggregate Class Principal
Balance of the Class A Certificates immediately prior to that Distribution
Date,
and (y) the portion of the Principal Distribution Amount payable to all of
the
Classes of Class A Certificates on that Distribution Date.
Pro
Rata
Share: Not applicable.
Pro
Rata Subordinated
Percentage: Not applicable.
Proceeding: Any
suit in equity, action at law or other judicial or administrative
proceeding.
Proprietary
Lease: With respect to any Cooperative Property, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
Prospectus: The
prospectus supplement dated June 27, 2007, together with the accompanying
prospectus dated December 1, 2006, relating to the Offered
Certificates.
Purchase
and Servicing
Agreements: Collectively, the mortgage loan purchase and
servicing agreements, each as amended by the related Acknowledgement, listed
in
Exhibit E hereto, as each such agreement may be amended or supplemented
from time to time as permitted hereunder.
Purchase
Date: As defined in Section 7.01(c).
Purchase
Price: With respect to any Mortgage Loan required or permitted
to be purchased by the Seller or Depositor pursuant to this Agreement, or
by the
related Originator or
38
Servicer
pursuant to the related Purchase and Servicing Agreement, an amount equal to
the
sum of (i) 100% of the unpaid principal balance of the Mortgage Loan on the
date of such purchase and (ii) accrued interest thereon at the applicable
Net Mortgage Rate from the date through which interest was last paid by the
Mortgagor to the Due Date in the month in which the Purchase Price is to be
distributed to Certificateholders, or such other amount as may be specified
in
the related Purchase and Servicing Agreement and (iii) costs and damages
incurred by the Trust Fund in connection with a repurchase pursuant to Section
2.05 hereof that arises out of a violation of any predatory or abusive lending
law with respect to the related Mortgage Loan.
Rating
Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If any such organization or a successor is no
longer in existence, “Rating Agency” shall be such nationally recognized
statistical rating organization, or other comparable Person, as is designated
by
the Depositor, notice of which designation shall be given to the Trustee and
the
Certificate Insurer. References herein to a given rating category of
a Rating Agency shall mean such rating category without giving effect to any
modifiers.
Realized
Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the related
Mortgage Loan) as of the date of such liquidation, equal to (i) the Stated
Principal Balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus (ii) interest at the Net Mortgage Rate from the Due Date
as to
which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation Proceeds
are required to be distributed on the Stated Principal Balance of such
Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation occurred,
to the extent applied as recoveries of interest at the Net Mortgage Rate and
to
principal of the Liquidated Mortgage Loan. With respect to each
Mortgage Loan which has become the subject of a Deficient Valuation, if the
principal amount due under the related Mortgage Note has been reduced, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of
the
Mortgage Loan as reduced by the Deficient Valuation. With respect to
each Mortgage Loan which has become the subject of a Debt Service Reduction
and
any Distribution Date, the amount, if any, by which the principal portion of
the
related Scheduled Payment has been reduced.
To
the
extent the Master Servicer or a Servicer receives Subsequent Recoveries with
respect to any Mortgage Loan, the amount of the Realized Loss with respect
to
that Mortgage Loan will be reduced by such Subsequent Recoveries.
Recognition
Agreement: An agreement among a Cooperative Corporation, a
lender and a Mortgagor with respect to a Cooperative Loan whereby such parties
(i) acknowledge that such lender may make, or intends to make, such Cooperative
Loan, and (ii) make certain agreements with respect to such Cooperative
Loan.
Recombination
Group: The Class or Classes of Depositable Certificates and
the related Class or Classes of Exchangeable Certificates included within any
particular “Recombination” specified in Schedule C.
39
Record
Date: As to any Distribution Date (i) with respect to the
Non-Delay Certificates, the last Business Day preceding such Distribution Date
(or the Closing Date, in the case of the first Distribution Date) unless such
Certificates shall no longer be Book-Entry Certificates, in which case the
Record Date shall be the last Business Day of the month preceding the month
of
such Distribution Date and (ii) in the case of the Delay Certificates (including
the Non-Delay Certificates that are subsequently reissued as Definitive
Certificates), the last Business Day of the month preceding the month of each
Distribution Date.
Redemption
Price: With respect to any Class of Certificates to be
redeemed, an amount equal to 100% of the related Class Principal Balance of
the
Certificates to be so redeemed, together with interest on such amount at the
applicable Pass-Through Rate through the related Accrual Period (as increased
by
any Class Unpaid Interest Amounts), and including, in the case of the Redemption
Price payable in connection with the redemption and retirement of all of the
Certificates, all amounts (including, without limitation, all previously
unreimbursed Advances and Servicer Advances and accrued and unpaid Servicing
Fees) payable or reimbursable to the Trustee, the Securities Administrator,
the
Master Servicer, the Servicers or the Custodian pursuant to this Agreement,
the
Purchase and Servicing Agreements, or the Custodial Agreements (to the extent
such amounts are not paid to the Custodian by the Seller) and any Reimbursement
Amounts payable to the Certificate Insurer.
Refinancing
Mortgage
Loan: Any Mortgage Loan originated in connection with the
refinancing of an existing mortgage loan.
Regular
Certificates: As specified in the Preliminary
Statement.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation
AB), 17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided
by
the Commission in the adopting release (Asset-Backed Securities, Securities
Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (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.
Reimbursement
Amount: The amount of all Insured Payments and other payments
made by the Certificate Insurer pursuant to the Class A-1-W and Class A-3-W
Policy which have not been previously repaid, plus all costs and expenses
incurred in connection with such action, proceeding or investigation, including
(without limitation) reasonable attorney’s fees and any judgment or settlement
entered into affecting the Certificate Insurer or the Certificate Insurer’s
interests plus all amounts due to the Certificate Insurer under the Insurance
Agreement and any other documents relating to the Insured Certificates, in
each
case with interest thereon as set forth in the Insurance Agreement, and that
have been certified to by the Certificate Insurer to the Securities
Administrator.
Relevant
Servicing
Criteria: The Servicing Criteria applicable to the various parties, as
set forth on Exhibit O attached hereto. For clarification purposes,
multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by
the Master Servicer, the Securities Administrator, any Servicer or
any
40
Custodian,
the term “Relevant Servicing Criteria” may refer to a portion of the Relevant
Servicing Criteria applicable to such parties.
Relief
Act: The Servicemembers’ Civil Relief Act (formerly known as
the Soldiers’ and Sailors’ Civil Relief Act of 1940), as amended, and any
similar state laws.
Relief
Act Interest
Shortfalls: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result
of
the application of the Relief Act, the amount, if any, by which
(i) interest collectible on such Mortgage Loan for the most recently ended
calendar month is less than (ii) interest accrued thereon for such month
pursuant to the Mortgage Note.
Relief
Act
Reduction: A reduction in the amount of the monthly interest
payment on a Mortgage Loan pursuant to the Servicemembers’ Civil Relief
Act.
Remaining
Senior
Portion: With respect to the Class A Certificates other than the Class
A-3-W Certificates and any Distribution Date an amount equal to the excess
of
(i) the portion of the Principal Distribution Amount payable to all of the
Classes of Class A Certificates on that Distribution Date over (ii) the Class
A-3-W Portion for that Distribution Date.
REMIC: Each
pool of assets in the Trust Fund designated as a REMIC as described in the
Preliminary Statement.
REMIC
1: As specified in the Preliminary Statement.
REMIC
1
Interest: As specified in the Preliminary
Statement.
REMIC
1 Regular
Interest: As specified in the Preliminary
Statement.
REMIC
Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of the Code, and related provisions, and
regulations, including proposed regulations and rulings, and administrative
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
REO
Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan or otherwise treated as having been acquired pursuant
to
the REMIC Provisions.
Replacement
Mortgage
Loan: A mortgage loan substituted by an Originator or the
Seller for a Deleted Mortgage Loan which must, on the date of such substitution,
as confirmed in a Request for Release, (i) have a Stated Principal Balance,
after deduction of all Scheduled Payments due in the month of substitution,
not
in excess of the Stated Principal Balance of the Deleted Mortgage Loan, (ii)
if
such Mortgage Loan is a fixed-rate Mortgage Loan, have a Mortgage Rate not
less
than (and not more than two percentage points greater than) the mortgage rate
of
the Deleted Mortgage Loan, (iii) if such Mortgage Loan is an adjustable-rate
Mortgage Loan, have a Mortgage Rate not less than (and not more than two
percentage points greater than)
41
the
mortgage rate of the Deleted Mortgage Loan, (iv) have a Loan-to-Value Ratio
equal to or less than that of the Deleted Mortgage Loan, (v) have a remaining
term to maturity not greater than (and not more than one year less than) that
of
the Deleted Mortgage Loan, (vi) is otherwise acceptable to the Seller, (vii)
if
such Mortgage Loan is an adjustable-rate Mortgage Loan, have the same adjustment
date as that of the Deleted Mortgage Loan, (viii) if such Mortgage Loan is
an
adjustable-rate Mortgage Loan, have a minimum Mortgage Rate not less than that
of the Deleted Mortgage Loan, (ix) if such Mortgage Loan is an adjustable-rate
Mortgage Loan, have the same Index as that of the Deleted Mortgage Loan, (x)
comply with all of the representations and warranties set forth in the related
underlying servicing agreement, as modified by any related assignment thereof,
and (xi) shall be accompanied by an Opinion of Counsel that such
Replacement Mortgage Loan would not adversely affect the REMIC status of any
REMIC created hereunder or would not otherwise be prohibited by this Pooling
and
Servicing Agreement.
Replacement
Swap
Counterparty Payment: Not Applicable.
Reportable
Event: As defined in Section 13.03 hereof.
Reporting
Party: The Depositor, any Originator, the Master Servicer, any
Custodian, any Servicer, any originator identified in the Prospectus Supplement,
the Corridor Contract Counterparty, any credit enhancement provider described
herein and any other material transaction party as may be mutually agreed
between the Depositor and the Master Servicer from time to time for the purpose
of complying with the requirements of the Commission.
Reporting
Subcontractor: With respect to the Master Servicer, the
Securities Administrator or the Custodian, any Subcontractor determined by
such
Person pursuant to Section 13.08(b) to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation
AB. References to a Reporting Subcontractor shall refer only to the
Subcontractor of such Person and shall not refer to Subcontractors
generally.
Repurchase
Price: With respect to any Mortgage Loan purchased from the
Trust pursuant to Section 2.07 hereof, 100% of the unpaid principal balance
of
such Mortgage Loan, plus all related accrued and unpaid interest, and the amount
of any unreimbursed Servicing Advances made by the Servicers or the Master
Servicer related to the Mortgage Loan.
Request
for
Release: The Request for Release submitted by the applicable
Servicer to the Trustee or the applicable Custodian, as applicable,
substantially in the form of Exhibit M or the equivalent form under the
applicable Custodial Agreement.
Required
Coupon: Not applicable.
Required
Distributions: As defined in the Class A-1-W and Class A-3-W
Policy.
Reserve
Fund: The Basis Risk Carry Forward Reserve Fund or the Class A
Reserve Fund, as the context requires.
Reserve
Fund
Deposit: With respect to each Reserve Fund,
$1,000.
42
Residual
Certificate: The Class A-R Certificates.
Responsible
Officer: With respect to the Trustee, any officer in the
corporate trust department or similar group of the Trustee with direct
responsibility for the administration of this Agreement and also, with respect
to a particular corporate trust matter, any other officer to whom such matter
is
referred because of his or her knowledge of and familiarity with the particular
subject. With respect to the Master Servicer, any officer in its
master servicing operations with direct responsibility for the Administration
of
this Agreement. With respect to the Securities Administrator, any
officer in the corporate trust department or similar group of the Securities
Administrator with direct responsibility for the administration of this
Agreement and also, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his or her knowledge
of
and familiarity with the particular subject.
Restricted
Classes: As defined in Section 5.02(e).
Restricted
Global
Security: As defined in Section 3.01(c).
Reuters
Page LIBOR01:
The display designated as “LIBOR01” on Reuters (or such other page as may
replace Reuters Page LIBOR01 on that service for the purpose of displaying
London interbank offered rates of major banks).
Rule
144A: Rule 144A under the Securities Act.
Xxxxxxxx-Xxxxx
Act:
The Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
Xxxxxxxx-Xxxxx
Certification: A written certification covering the activities
of all Servicing Function Participants and signed by a senior officer of the
Master Servicer in charge of the master servicing function that complies with
(i) the Xxxxxxxx-Xxxxx Act of 2002, as amended from time to time, and (ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to
time.
S&P: Standard
& Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 11.07 the address for notices to S&P shall be Standard
& Poor’s, 55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
Surveillance Monitoring, or such other address as S&P may hereafter furnish
to the Depositor and the Master Servicer.
Scheduled
Balances: Not applicable.
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified in the related Purchase and Servicing
Agreement, shall give effect to any related Debt Service Reduction and any
Deficient Valuation that affects the amount of the monthly payment due on such
Mortgage Loan.
Scheduled
Principal
Classes: As specified in the Preliminary
Statement.
43
Scheduled
Principal
Distribution Amount: Not applicable.
Securities
Act: The Securities Act of 1933, as amended, and the rules and
regulations thereunder.
Securities
Administrator: Xxxxx Fargo Bank, National Association, not in
its individual capacity but solely as Securities Administrator, or any successor
in interest, or if any successor Securities Administrator shall be appointed
as
herein provided, then such successor Securities Administrator.
Securities
Administrator
Compensation: With respect to any Securities Administrator that is a
successor to Xxxxx Fargo Bank, National Association as Securities Administrator,
the portion of the earnings on the funds on deposit in the Distribution Account
payable on each Distribution Date pursuant to Section 4.02(b)(ii) hereof agreed
to by and between such Securities Administrator and the successor master
servicer; provided, that (x) such Securities Administrator Compensation payable
on each Distribution Date shall equal at least one day’s earnings accrued since
the prior Distribution Date and (y) the sum of such Securities Administrator
Compensation and the Master Servicer Compensation payable on each Distribution
Date shall not exceed the total earnings on the funds on deposit in the
Distribution Account payable on each Distribution Date pursuant to Section
4.02(b)(ii) hereof earned since the prior Distribution Date.
Seller: Xxxxxx
Xxxxxxx Mortgage Capital Holdings LLC, a New York limited liability company,
successor by merger to Xxxxxx Xxxxxxx Mortgage Capital Inc.
Senior
Certificate
Group: As specified in the Preliminary Statement.
Senior
Certificates: As specified in the Preliminary
Statement.
Senior
Defaulted Swap
Termination Payment: Not Applicable.
Senior
Enhancement
Percentage: For any Distribution Date and the Senior
Certificates, the percentage obtained by dividing (x) the sum of (i) the
aggregate Class Principal Balance of the Subordinated Certificates and (ii)
the
Overcollateralized Amount by (y) the aggregate Stated Principal Balance of
the
Mortgage Loans as of the end of the related Due Period, calculated after taking
into account distributions of principal on the Mortgage Loans and distribution
of the Principal Distribution Amount to the holders of the Certificates then
entitled to distributions of principal on such Distribution Date.
Senior
Interest Distribution
Amount: With respect to any Distribution Date and any Class of
Senior Certificates, interest accrued during the related Interest Accrual Period
on the related Class Principal Balance of that Class immediately prior to the
Distribution Date at the Pass-Through Rate for that Class reduced (to an amount
not less than zero), in the case of such Class, by the allocable share, if
any,
for that Class of Prepayment Interest Shortfalls to the extent not covered
by
Compensating Interest paid by the Master Servicer or the Servicers and Relief
Act Interest Shortfalls, together with the Interest Carry Forward Amount, if
any, for such Distribution Date for such Class of Senior Certificates, and
with
respect to the first Distribution Date, the amount deposited in respect of
the
Class A-R Certificates.
44
Senior
Principal
Distribution Amount: With respect to any Distribution Date and
any Class of Senior Certificates, (i) prior to the Stepdown Date or on or after
the Stepdown Date if a Trigger Event is in effect for that Distribution Date,
the Principal Distribution Amount or (ii) on or after the Stepdown Date if
a
Trigger Event is not in effect for that Distribution Date, the lesser
of:
|
|
·
|
the
Principal Distribution Amount for that Distribution Date;
and
|
|
|
·
|
the
excess (if any) of (A) the aggregate Class Principal Balance of the
Class
A Certificates immediately prior to that Distribution Date over (B)
the
lesser of (i) the aggregate Stated Principal Balance of the Mortgage
Loans as of the last day of the related Due Period multiplied
by 87.10% and (ii) the amount, if any, by which (x) the aggregate
Stated
Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period exceeds (y) the Overcollateralization
Floor.
|
Senior
Turbo Allocation
Amount: Not applicable.
Sequential
Portion: With respect to any of the Class A-1, Class A-1-W,
Class A-2 and Class A-4 Certificates and any Distribution Date, the product
of
(x) a fraction, the numerator of which is the Class Principal Balance of that
Class of Class A Certificates immediately prior to that Distribution Date,
and
the denominator of which is equal to the aggregate Class Principal Balance
of
the Class A-1, Class A-1-W, Class A-2 and Class A-4 Certificates immediately
prior to that Distribution Date, and (y) the portion of the Principal
Distribution Amount payable to all of the Classes of Class A Certificates on
that Distribution Date.
Sequential
Trigger
Event: With respect to any Distribution Date, a Sequential
Trigger Event is in effect if (a) with respect to any Distribution Date
occurring before July 2009, the circumstances in which the aggregate amount
of
Realized Losses incurred since the Cut-off Date through the last day of the
related Prepayment Period divided by the aggregate Stated Principal Balance
of
the Mortgage Loans as of the Cut-off Date exceeds 0.20% and (b) with respect
to
any Distribution Date occurring in or after July 2009, a Trigger Event is in
effect.
Servicer: Each
Servicer under a Purchase and Servicing Agreement, and its respective successors
and assigns. As of the Closing Date, the Servicers of the Mortgage
Loans shall be GMAC Mortgage, LLC, GreenPoint Mortgage Funding, Inc., Xxxxxx
Xxxxxxx Credit Corporation, Wachovia Mortgage Corporation and Xxxxx Fargo Bank,
National Association.
Servicer
Advance: A “Servicer Advance” or “Servicing Advance” as
defined in the applicable Purchase and Servicing Agreement.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d)
of Regulation AB, as the same 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 related Servicing Fee
Rate and (b) the Stated Principal Balance of such Mortgage Loan as of the
first day of the related Due Period.
45
Servicing
Fee
Rate: With respect to each Mortgage Loan and any Distribution
Date, the per annum rate specified in the related Purchase and Servicing
Agreement.
Servicing
Function
Participant: Any Sub-Servicer, Subcontractor or any other
Person, other than each Servicer, the Master Servicer, the Trustee, the
Securities Administrator and any Custodian, that is performing activities
addressed by the Servicing Criteria.
Servicing
Officer: Any officer of the related Servicer involved in, or
responsible for, the administration and servicing of the related Mortgage Loans
whose name and facsimile signature appear on a list of servicing officers
furnished to the Master Servicer by the related Servicer on the Closing Date
pursuant to the related Purchase and Servicing Agreement, as such list may
from
time to time be amended.
Shift
Percentage: With respect to each Distribution Date, the
percentage set forth below for that Distribution Date:
|
Distribution
Date
|
Percentage
|
|
July
2007—June 2012
|
0%
|
|
July
2012—June 2013
|
30%
|
|
July
2013—June 2014
|
40%
|
|
July
2014—June 2015
|
60%
|
|
July
2015—June 2016
|
80%
|
|
July
2016 and thereafter
|
100%
|
Similar
Law: As defined in Section 3.03(d) hereof.
Startup
Day: The day designated as such pursuant to
Section 10.01(b) hereof.
Stated
Principal
Balance: As to any Mortgage Loan and Due Date, the unpaid
principal balance of such Mortgage Loan as of such Due Date as specified in
the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to
any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related
Mortgagor.
Stepdown
Date: The later to occur
of:
(1) the
earlier to occur
of
(x) the
Distribution Date in July 2010, and
(y) the
Distribution Date on which the aggregate Class Principal Balance of the Senior
Certificates is reduced to zero; and
(2) the
first Distribution Date on which the Senior Enhancement Percentage (calculated
for this purpose only after taking into account distributions of principal
on
the
46
Mortgage
Loans, but prior to any distribution of the Principal Distribution Amount to
the
holders of the Certificates then entitled to distributions of principal on
the
Distribution Date) is greater than or equal to 12.90%.
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 Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of any Servicer (including
a
Sub-Servicer of any Servicer), the Securities Administrator, the Master
Servicer, the Trustee or any Custodian, as the case may be.
Subordinated
Certificates: As specified in the Preliminary
Statement.
Subordinated
Interest
Distribution Amount: With respect to any Class of Subordinated
Certificates and any Distribution Date, interest accrued during the related
Interest Accrual Period on the related Class Principal Balance of that Class
immediately prior to the Distribution Date at the Pass-Through Rate for that
Class reduced (to an amount not less than zero), in the case of such Class,
by
the allocable share, if any, for that Class of (x) Prepayment Interest
Shortfalls on the Mortgage Loans to the extent not covered by Compensating
Interest paid by the Master Servicer or the Servicers for the Mortgage Loans
and
(y) Relief Act Interest Shortfalls on the Mortgage Loans.
Subsequent
Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, amounts received by the Securities Administrator from the related
Servicer (net of any related expenses permitted to be reimbursed pursuant to
Section 4.02) specifically related to such Liquidated Mortgage
Loan.
Sub-Servicer: Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer, and (iii) is responsible
for
the performance (whether directly or through sub-servicers or Subcontractors)
of
Servicing functions required to be performed under this Agreement, any related
Servicing Agreement or any sub-servicing agreement that are identified in Item
1122(d) of Regulation AB.
Substitution
Adjustment
Amount: As defined in the second paragraph of
Section 2.05(b).
Substitution
Event: Not Applicable.
Supplemental
Interest
Trust: The corpus of a trust created pursuant to Section 5.10
hereof, consisting of the Corridor Contract and amounts on deposit in the Class
A Reserve Fund.
Swap
Account: Not Applicable.
Swap
Agreement: Not Applicable.
Swap
Counterparty: Not Applicable.
Swap
Payment
Allocation: Not Applicable.
47
Swap
Payment
Rate: Not Applicable.
Swap
Termination
Date: Not Applicable.
Swap
Termination
Payment: Not Applicable.
Targeted
Balance: With respect to any group of Targeted Principal
Classes or Components in the aggregate and any Distribution Date appearing
in
Schedule B hereto, the Aggregate Targeted Balance for such group and
Distribution Date. With respect to any other Targeted Principal Class
or Component and any Distribution Date appearing in Schedule B hereto, the
applicable amount appearing opposite such Distribution Date for such Class
or
Component.
Tax
Matters
Person: The person designated as “tax matters person” in the
manner provided under Treasury regulation § 1.860F-4(d) and temporary Treasury
regulation §301.6231(a)(7)1T. Initially, the Tax Matters Person shall
be the Securities Administrator.
Tax
Matters Person
Certificate: The Class A-R Certificate with a Denomination of
$0.01.
Three
Month Rolling
Average: With respect to the end of the Due Period related to
any Distribution Date, the rolling 3 month average percentage of the aggregate
Stated Principal Balance of the Mortgage Loans that are 60 or more days
Delinquent (including Mortgage Loans in foreclosure, REO Property or discharged
in bankruptcy).
Trigger
Event: With respect to any Distribution Date, a Trigger Event
is in effect if (x) the Three Month Rolling Average with respect to the Mortgage
Loans exceeds 50.00% of the Senior Enhancement Percentage for the prior
Distribution Date, or (y) the aggregate amount of Realized Losses on the
Mortgage Loans incurred since the Cut-off Date through the last day of the
related Due Period divided by the aggregate outstanding principal balance of
the
Mortgage Loans as of the Cut-off exceeds the applicable percentages set forth
below with respect to such Distribution Date:
|
Distribution
Date
|
Percentage
|
|
July
2009 —June 2010
|
0.20%
for the first month, plus an additional 1/12th of 0.30% for each
month
thereafter
|
|
July
2010 — June 2011
|
0.50%
for the first month, plus an additional 1/12th of 0.35% for each
month
thereafter
|
|
July
2011 — June 2012
|
0.85%
for the first month, plus an additional 1/12th of 0.35% for each
month
thereafter
|
|
July
2012 — June 2013
|
1.30%
for the first month, plus an additional 1/12th of 0.25% for each
month
thereafter
|
|
July
2013 and thereafter
|
1.45%
|
Trust: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-10XS.
48
Trust
Fund: The corpus of the trust created pursuant to this
Agreement consisting of (i) the Mortgage Loans and all interest and principal
received on or with respect thereto after the Cut-off Date (other than Scheduled
Payments due on or prior to the Cut-off Date) to the extent not applied in
computing the Cut-off Date Principal Balance thereof; (ii) all cash, instruments
or property held or required to be held in the Custodial Accounts, the
Distribution Account and the Exchangeable Certificates Distribution Account,
and
all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been acquired
by
foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the Depositor’s
rights assigned to the Trustee under the Purchase and Servicing Agreements,
as
modified by the Acknowledgements; (v) all insurance policies related to the
Mortgage Loans and any insurance proceeds; (vi) the pledge, control and guaranty
agreements and the Limited Purpose Surety Bond relating to the Additional
Collateral Mortgage Loans; (vii) the amounts on deposit in the Basis Risk Carry
Forward Reserve Fund, (viii) with respect to the Class the Class A-1-W and
Class
A-3-W Certificates only, the Class A-1-W and Class A-3-W Policy and the
Certificate Insurance Account and all amounts deposited therein and (ix) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing.
The Corridor Contract and the amounts on deposit in the Class A Reserve Fund
are
assets of the Supplemental Interest Trust.
Trustee: LaSalle
Bank National Association, a national banking association, organized under
the
laws of the United States and any Person succeeding the Trustee hereunder,
or if
any successor trustee or any co-trustee shall be appointed as herein provided,
then such successor trustee and such co-trustee, as the case may
be.
Trustee
Mortgage
Files: With respect to each Mortgage Loan, the Mortgage
Documents to be retained in the custody and possession of the Trustee or
Custodian on behalf of the Trustee identified in Section 2.01(a)
hereof.
Turbo
Allocation
Amount: Not applicable.
UCC: The
Uniform Commercial Code as enacted in the relevant jurisdiction.
Underwriter: As
specified in the Preliminary Statement.
Underwriter’s
Exemption: Prohibited Transaction Exemption 2002-41, 67 Fed.
Reg. 54487 (2002), as amended (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of
Labor.
Underwriting
Agreement: The Underwriting Agreement, dated June 27, 2007,
among the Seller, the Depositor and the Underwriter.
Uniform
Commercial
Code: The Uniform Commercial Code as in effect in any
applicable jurisdiction from time to time.
Unpaid
Interest Shortfall
Amount: The sum of Relief Act Interest Shortfalls and Net
Prepayment Interest Shortfalls on the Mortgage Loans allocated to such Class
of
Certificates on that Distribution Date and such amounts from any prior
Distribution Date remaining unpaid.
49
Unpaid
Realized Loss
Amount: With respect to each Class of Subordinated
Certificates, the portion of any Realized Losses on the Mortgage Loans
previously allocated to that Class remaining unpaid from prior Distribution
Dates.
Unscheduled
Principal
Distribution Amount: Not applicable.
US
Bank Mortgage
Loan: Each Mortgage Loan originated by US Bank, N.A. and
listed on the Mortgage Loan Schedule.
US
Bank Purchase
Agreement: The Seller’s Purchase, Warranties and Servicing
Agreement listed in Exhibit E hereto between the Seller and US Bank,
N.A.
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, 1.00% of all Voting Interests shall be allocated to the Class OC
Certificates, each Class of Notional Amount Certificates and the Class A-R
Certificates. Voting Interests shall be allocated among all other
Classes of Certificates pro rata based on Class Principal Balances for each
Class then outstanding. Voting Interests shall be allocated among the
Certificates within each such Class in proportion to their Certificate Balances
or Percentage Interests. The Holders of each Class of Exchangeable
Certificates shall be entitled to exercise Voting Interests in direct proportion
to the Voting Interests of the related Class or Classes of Depositable
Certificates.
Weighted
Average Net
Mortgage Rate: As to any Distribution Date, the average of the
Net Mortgage Rate of each Mortgage Loan, weighted on the basis of its Stated
Principal Balance as of the end of the Prepayment Period related to the
immediately preceding Distribution Date.
Wachovia
Originated Mortgage
Loan: Each Mortgage Loan originated by Wachovia Mortgage
Corporation and listed on the Mortgage Loan Schedule.
Wachovia
Purchase
Agreement: The Mortgage Loan Purchase and Warranties Agreement
listed in Exhibit E hereto between the Seller and Wachovia Mortgage Corporation
as seller and servicer.
Wachovia
Serviced Mortgage
Loan: Each Mortgage Loan serviced by Wachovia Mortgage
Corporation and listed on the Mortgage Loan Schedule.
Wachovia
Servicing
Agreement: The Servicing Agreement listed in Exhibit E hereto
between the Seller and Wachovia Mortgage Corporation.
Xxxxx
Fargo Serviced
Mortgage Loan: Each Mortgage Loan serviced by Xxxxx Fargo
Bank, National Association and listed on the Mortgage Loan
Schedule.
Xxxxx
Fargo Servicing
Agreement: The Servicing Agreement listed in Exhibit E hereto
between the Seller and Xxxxx Fargo Bank, National Association.
Wilmington
Finance Mortgage
Loan: Each Mortgage Loan originated by Wilmington Finance,
Inc. and listed on the Mortgage Loan Schedule.
50
Wilmington
Finance Purchase
Agreement: The Seller’s Purchase, Warranties and Servicing
Agreement listed in Exhibit E hereto between the Seller and Wilmington Finance,
Inc.
Yield
Supplement
Amount: With respect to any Distribution Date on which LIBOR exceeds
5.66%, an amount equal to interest on the Class Principal Balance of the Class
A-4 Certificates immediately prior to that Distribution Date (which for the
purposes of this calculation assumes that no portion of the Class A-4
Certificates has been deposited in exchange for any classes of Exchangeable
Certificates) at a per annum rate equal to the lesser of LIBOR and 9.41% over
5.66%.
51
ARTICLE
II
DECLARATION
OF TRUST;
ISSUANCE OF CERTIFICATES
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 and 2.05, in trust, all the
right, title and interest of the Depositor in and to the Trust
Fund. Such conveyance includes, without limitation, (i) the
Mortgage Loans, including 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 Scheduled Payments 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; (ii) all of the
Depositor’s right, title and interest in and to all amounts from time to time
credited to and the proceeds of the Distribution Account, any Custodial Accounts
or any Escrow Account established with respect to the Mortgage Loans;
(iii) all of the rights and obligations of the Depositor as assignee of the
Seller with respect to the Seller’s rights and obligations under the Purchase
and Servicing Agreements pursuant to the Acknowledgements; (iv) all of the
Depositor’s right, title or interest in REO Property and the proceeds thereof;
(v) all of the Depositor’s rights under any Insurance Policies related to
the Mortgage Loans; (vi) $1,000 (which amount has been delivered by the
Depositor to the Securities Administrator to be held in the Distribution Account
until distributed to the Holders of the Class P Certificates pursuant to Section
5.02(a)) and $100, plus interest, (which amount has been delivered by the
Depositor to the Securities Administrator to be held in the Distribution Account
until distributed to the Holders of the Class A-R Certificates pursuant to
Section 5.02(a)); and (vii) if applicable, the Depositor’s security
interest in any collateral pledged to secure the Mortgage Loans, including
the
Mortgaged Properties and any Additional Collateral relating to the Additional
Collateral Mortgage Loans, including, but not limited to, the pledge, control
and guaranty agreements and the Limited Purpose Surety Bond, to have and to
hold, 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.
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 obligation of the Depositor, the Seller or any other Person in connection
with the Mortgage Loans or any other agreement or instrument relating thereto
except as specifically set forth therein.
In
connection with such transfer and assignment of the Mortgage Loans, the
Depositor shall cause to be delivered and the Custodian acting on the Trustee’s
behalf will continue to hold
52
the
documents or instruments listed below with respect to each Mortgage Loan (each,
a “Trustee Mortgage
File”) so transferred and assigned:
(i)
with
respect to each Mortgage Loan, the original Mortgage Note endorsed without
recourse in proper form to the order of “LaSalle Bank National Association, as
Trustee of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-10XS, Mortgage Pass-Through
Certificates, without recourse”, or in blank (in each case, with all necessary
intervening endorsements, as applicable);
(ii)
with
respect to each Mortgage Loan (other than a Cooperative Loan) that is not a
MERS
Mortgage Loan, the original Mortgage with evidence of recording thereon, or
if
the original Mortgage has not yet been returned from the recording office,
a
copy of such Mortgage certified by the applicable Originator, title company,
escrow agent or closing attorney to be a true copy of the original of the
Mortgage which has been sent for recording in the appropriate jurisdiction
in
which the Mortgaged Property is located, and in the case of the each MERS
Mortgage Loan, the original Mortgage, noting the presence of the MIN of the
Mortgage Loans and either language indicating that the Mortgage Loan is a MOM
Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM
Loan at origination, the original Mortgage and the assignment thereof to MERS,
with evidence of recording indicated thereon;
(iii)
with respect to each Mortgage Loan (other than a Cooperative Loan) that is
not a
MERS Mortgage Loan, the Assignment of Mortgage in form and substance acceptable
for recording in the relevant jurisdiction, such assignment being either (A)
in
blank, without recourse, or (B) endorsed to “LaSalle Bank National Association,
as Trustee of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-10XS, Mortgage
Pass-Through Certificates, without recourse”;
(iv)
with
respect to each Mortgage Loan (other than a Cooperative Loan) that is not a
MERS
Mortgage Loan, the originals of all intervening assignments of the Mortgage,
if
any, with evidence of recording thereon, or if the original intervening
assignment has not yet been returned from the recording office, a copy of such
assignment certified by the applicable Originator, title company, escrow agent
or closing attorney to be a true copy of the original of the assignment which
has been sent for recording in the appropriate jurisdiction in which the
Mortgaged Property is located;
(v)
with
respect to each Mortgage Loan (other than a Cooperative Loan), the originals
of
all assumption, modification, consolidation or extension agreements, if any,
with evidence of recording thereon;
(vi)
if
any, with respect to each Mortgage Loan (other than a Cooperative Loan), the
original policy of title insurance (or a true copy thereof) with respect to
any
such Mortgage Loan, or, if such policy has not yet been delivered by the
insurer, the title commitment or title binder to issue same;
(vii)
if
any, with respect to each Mortgage Loan (other than a Cooperative Loan), the
original power of attorney and guaranty agreement with respect to such Mortgage
Loan;
(viii)
[reserved];
(ix)
with
respect to each Mortgage Loan which constitutes a Cooperative
Loan:
53
| (a) | the original of any security agreement or similar document executed in connection with the Cooperative Loan; |
|
|
(b)
|
the
original Recognition Agreement and the original Assignment of Recognition
Agreement;
|
|
|
(c)
|
UCC-1
financing statements with recording information thereon from the
appropriate governmental recording offices if necessary to perfect
the
security interest of the Cooperative Loan under the Uniform Commercial
Code in the jurisdiction in which the Cooperative Property is located,
accompanied by UCC-3 financing statements executed in blank for
recordation of the change in the secured party
thereunder;
|
|
|
(d)
|
an
Estoppel Letter and/or Consent;
|
|
|
(e)
|
a
search for (i) federal tax liens, mechanics’ liens, lis pendens, judgments
of record or otherwise against (x) the Cooperative Corporation and
(y) the
seller of the Cooperative Unit, (ii) filings of financing statements
and
(iii) the deed of the cooperative project into the Cooperative
Corporation;
|
|
|
(f)
|
the
guaranty of the Mortgage Note and Cooperative Loan, if
any;
|
|
|
(g)
|
the
original Proprietary Lease and the Assignment of Proprietary Lease
executed by the Mortgagor in blank or if the Proprietary Lease has
been
assigned by the Mortgagor to the Seller, then the Seller must execute
an
assignment of the Assignment of Proprietary Lease in blank;
and
|
|
|
(h)
|
if
any, the original or certified copy of the certificates evidencing
ownership of the Cooperative Shares issued by the Cooperative Corporation
and related assignment of such certificates or an assignment of such
Cooperative Shares, in blank, executed by the Mortgagor with such
signature guaranteed;
|
(x)
[reserved]; and
(xi)
any
other document or instruments required to be delivered.
In
addition, in connection with the assignment of any MERS Mortgage Loan, it is
understood that the related Originator will cause the MERS® System to indicate
that such Mortgage Loans have been assigned by the related Originator to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
the information required by the MERS® System to identify the series of
Certificates issued in connection with such Mortgage Loans. It is
further understood that the related Originator will not, and the Master Servicer
hereby agrees that it will not, alter the information referenced in this
paragraph with respect to any Mortgage Loan during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance with the terms
of this Agreement.
54
On
or
prior to the Closing Date, the Depositor shall cause to be delivered to the
Master Servicer, the Trustee and the Custodian an electronic copy of the
Mortgage Loan Schedule in a form acceptable to the Master Servicer, the
Depositor, the Trustee and the Custodian.
(b) On
or prior to the Closing Date, the Depositor shall cause the Certificate Insurer
to deliver the Class A-1-W and Class A-3-W Policy to the Securities
Administrator (with a copy thereof to the Trustee). In connection therewith,
the
Trustee is hereby directed to execute and deliver the Insurance
Agreement. In addition, as soon as is practicable after the Closing
Date, the Depositor shall cause the Servicer of any Additional Collateral
Mortgage Loan to deliver to the applicable Custodian the Assignment and Notice
of Transfer with respect to each Additional Collateral Mortgage Loan as well
as
the assignments of any rights with respect to each Additional Collateral
Mortgage Loan under any Limited Purpose Surety Bond.
(c) In
instances where a title insurance policy is required to be delivered to the
applicable Custodian on behalf of the Trustee and is not so delivered, the
Depositor will provide a copy of such title insurance policy 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.
(d) 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 such amount to the Securities Administrator, and
delivers to the Securities Administrator, the Trustee, and the applicable
Custodian, 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 Distribution Account pursuant to
Section 4.01 have been so deposited. All original documents that
are not delivered to the applicable Custodian on behalf of the Trustee shall
be
held by the Master Servicer or the related Servicer in trust for the benefit
of
the Trustee and the Certificateholders.
(e) Neither
the Depositor nor the Trust will acquire or hold any Mortgage Loan that would
violate the representations made by the Seller set forth in clauses (iv) through
(vi) of Section 2.05(a) hereof.
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|
Section
2.02. Acceptance of Trust Fund by Trustee; Review of
Documentation for Trust Fund.
|
(a) The
Trustee, by execution and delivery hereof, acknowledges receipt by it of notice
from the Custodian that each holds the documents identified in the Initial
Custodial Certification in the form annexed hereto as Exhibit L-1 (the “Initial Custodial
Certification”) pertaining to the Mortgage Loans listed on the Mortgage
Loan Schedule.
(b) 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.
(c) Each
of the parties hereto acknowledges that (i) the Custodian has delivered to
the
Depositor, the Master Servicer and the Trustee, the Initial Custodial
Certification, in the form annexed hereto as Exhibit L-1, stating that it has
performed the applicable review of the
55
Mortgage
Loans as required herein on the Closing Date and (ii) thereafter, if applicable,
the Custodian shall perform the applicable review of the Mortgage Loans and
deliver the further certifications (including but not limited to the Final
Custodial Certification) as provided herein.
With
respect to the MSMCH Mortgage Loans only, not later than 180 days after the
Closing Date, the Trustee shall enforce the related Custodian’s obligation, to
deliver to the Depositor, the Master Servicer, the Certificate Insurer and
the
Trustee a Final Custodial Certification in the form annexed hereto as Exhibit
L-2 (the “Final Custodial
Certification”), with any applicable exceptions noted
thereon. To the extent that the Custodian must deliver a Final
Certification, the Trustee shall enforce the Custodian’s obligation to make
available, upon request of any Certificateholder, a copy of any exceptions
noted
on the related Initial Custodial Certification or the related Final Custodial
Certification.
(d) Upon
execution of this Agreement, the Depositor hereby delivers to the Trustee (with
a copy to the Master Servicer) and the Trustee acknowledges receipt of the
Acknowledgements, together with the related Purchase and Servicing
Agreements.
(e) Neither
the Trustee nor the Custodian shall make any representation as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in the Trustee Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, perfection, priority, effectiveness or suitability of any such
Mortgage Loan. Except as specifically required hereunder, neither the
Trustee nor the Custodian shall be responsible to verify the validity,
sufficiency or genuiness of any document in the Trustee Mortgage
File.
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Section
2.03. Representations and Warranties of the
Depositor.
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(a) The
Depositor hereby represents and warrants to the Trustee, for the benefit of
the
Certificateholders, and to the Master Servicer, the Certificate Insurer and
the
Securities Administrator as of the Closing Date or such other date as is
specified, that:
(i) the
Depositor is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full corporate
power
and authority to own its property, to carry on its business as presently
conducted, to enter into and perform its obligations under this Agreement,
and
to create the trust pursuant hereto;
(ii) the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Depositor or its properties or the certificate of
incorporation or bylaws of the Depositor;
(iii) the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
56
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, the Master Servicer
and the Securities Administrator, 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;
(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;
(vii) This
Agreement creates a valid and continuing security interest (as defined in the
applicable Uniform Commercial Code (the “UCC”), in the Mortgage Loans in favor
of the Trustee, which security interest is prior to all other liens, and is
enforceable as such against creditors of and purchasers from the
Depositor;
(viii) The
Mortgage Loans constitute “instruments” within the meaning of the applicable
UCC;
57
(ix) Other
than the security interest granted to the Trustee pursuant to this Agreement,
the Depositor has not pledged, assigned, sold, granted a security interest
in,
or otherwise conveyed any of the Mortgage Loans. The Depositor has
not authorized the filing of and is not aware of any financing statement against
the Depositor that includes a description of the collateral covering the
Mortgage Loans other than a financing statement relating to the security
interest granted to the Trustee hereunder or that has been
terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor;
(x) None
of the
Mortgage Loans have any marks or notations indicating that such Mortgage Loans
have been pledged, assigned or otherwise conveyed to any Person other than
the
Trustee; and
(xi) The
Depositor has received all consents and approvals required by the terms of
the
Mortgage Loans to convey the Mortgage Loans hereunder to the
Trustee.
The
foregoing representations made in this Section 2.03 shall survive the
termination of this Agreement and shall not be waived by any party
hereto.
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Section
2.04. Representations and Warranties of the Depositor and the
Seller as to the Mortgage Loans.
|
The
Depositor hereby represents and warrants to the Trustee with respect to the
Mortgage Loans or each Mortgage Loan, as the case may be, as of the date hereof
or such other date set forth herein that as of the Closing Date:
(a) Immediately
prior to the transfer and assignment contemplated herein, the Depositor was
the
sole owner and holder of the Mortgage Loans. The Mortgage Loans were
not assigned or pledged by the Depositor and the Depositor had good and
marketable title thereto, and the Depositor had full right to transfer and
sell
the Mortgage Loans to the Trustee, for the benefit of the Certificateholders,
free and clear of any encumbrance, participation interest, lien, equity, pledge,
claim or security interest and had full right and authority subject to no
interest or participation in, or agreement with any other party to sell or
otherwise transfer the Mortgage Loans.
(b) As
of the Closing Date, the Depositor has transferred all right, title and interest
in the Mortgage Loans to the Trustee on behalf of the Trust.
(c) As
of the Closing Date, the Depositor has not transferred the Mortgage Loans to
the
Trustee on behalf of the Trust with any intent to hinder, delay or defraud
an of
its creditors.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the respective Mortgage Files to the
Trustee or the Custodian and shall inure to the benefit of the Trustee,
notwithstanding any restrictive or qualified endorsement or
assignment.
58
Section
2.05. Representations and Warranties of the Seller; Discovery of
Breach; Repurchase or Substitution of Mortgage Loans.
(a) With
respect to the MSMCH Mortgage Loans the Seller hereby makes the representations
and warranties contained in Section 3.01 of the MSMCH Purchase Agreement to
and
for the benefit of the Depositor, the Trustee and the Trust Fund.
The
Seller hereby represents and warrants that no Mortgage Loan contains a provision
whereby the related mortgagor is permitted to convert the Mortgage Rate from
an
adjustable rate to a fixed rate.
With
respect to the FNBN Mortgage Loans the Seller hereby makes the representations
and warranties contained in Section 9.02 of the FNBN Purchase Agreement (other
than the representation contained in Section 9.02(b) of the FNBN Purchase
Agreement) to and for the benefit of the Depositor, the Trustee and the Trust
Fund. With respect to the FNBN Mortgage Loans the Seller hereby represents
and
warrants to and for the benefit of the Depositor, the Trustee and the Trust
Fund
that all payments due on or prior to the Cut-off Date for each FNBN Mortgage
Loan have been made as of the Closing Date, such FNBN Mortgage Loan is not
delinquent thirty (30) days or more in payment and has not been dishonored;
there are no material defaults under the terms of such FNBN Mortgage Loan;
the
Seller has not advanced funds, or induced, solicited or knowingly received
any
advance of funds from a party other than the owner of the Mortgaged Property
subject to the Mortgage, directly or indirectly, for the payment of any amount
required by any FNBN Mortgage Loan; as to each FNBN Mortgage Loan, there has
been no more than one thirty (30) day delinquency during the immediately
preceding thirty-day period. The Seller agrees to comply with the
provisions of this Section 2.05 in respect of a breach of any of such
representations and warranties.
With
respect to the Wachovia Serviced Mortgage Loans the Seller hereby makes the
representations and warranties contained in Section 3.02 of the Wachovia
Purchase Agreement (other than the representation contained in Section 3.02(d)
of the Wachovia Purchase Agreement) to and for the benefit of the Depositor,
the
Trustee and the Trust Fund. With respect to the Wachovia Serviced Mortgage
Loans
the Seller hereby represents and warrants to and for the benefit of the
Depositor, the Trustee and the Trust Fund that all payments due on or prior
to
the Cut-off Date for each Wachovia Serviced Mortgage Loan have been made as
of
the Closing Date, such Wachovia Serviced Mortgage Loan is not delinquent thirty
(30) days or more in payment and has not been dishonored; there are no material
defaults under the terms of such Wachovia Serviced Mortgage Loan; the Seller
has
not advanced funds, or induced, solicited or knowingly received any advance
of
funds from a party other than the owner of the Mortgaged Property subject to
the
Mortgage, directly or indirectly, for the payment of any amount required by
any
Wachovia Serviced Mortgage Loan; as to each Wachovia Serviced Mortgage Loan,
there has been no more than one thirty (30) day delinquency during the
immediately preceding thirty-day period. The Seller agrees to comply
with the provisions of this Section 2.05 in respect of a breach of any of such
representations and warranties.
With
respect to the Wilmington Finance Mortgage Loans the Seller hereby makes the
representations and warranties contained in Section 9.02 of the Wilmington
Finance Purchase Agreement (other than the representation contained in Section
9.02(b) of the Wilmington
59
Finance
Purchase Agreement) to and for the benefit of the Depositor, the Trustee and
the
Trust Fund. With respect to the Wilmington Finance Mortgage Loans the Seller
hereby represents and warrants to and for the benefit of the Depositor, the
Trustee and the Trust Fund that all payments due on or prior to the Cut-off
Date
for each Wilmington Finance Mortgage Loan have been made as of the Closing
Date,
such Wilmington Finance Mortgage Loan is not delinquent thirty (30) days or
more
in payment and has not been dishonored; there are no material defaults under
the
terms of such Wilmington Finance Mortgage Loan; the Seller has not advanced
funds, or induced, solicited or knowingly received any advance of funds from
a
party other than the owner of the Mortgaged Property subject to the Mortgage,
directly or indirectly, for the payment of any amount required by any Wilmington
Finance Mortgage Loan; as to each Wilmington Finance Mortgage Loan, there has
been no more than one thirty (30) day delinquency during the immediately
preceding thirty-day period. The Seller agrees to comply with the
provisions of this Section 2.05 in respect of a breach of any of such
representations and warranties.
The
Seller hereby represents and warrants to the Trustee with respect to the
Mortgage Loans as of the date hereof or such other date set forth herein that
as
of the Closing Date:
(i) Each
Mortgage Loan at origination complied in all material respects with applicable
predatory and abusive lending laws and consummation of the transactions
contemplated by this Agreement will not involve the violation of any such
laws.
(ii) All
of the Mortgage Loans were originated in compliance with all applicable laws,
including, but not limited to, all applicable anti-predatory and abusive lending
laws.
(iii) None
of the Mortgage Loans is covered by the Home Ownership and Equity Protection
Act
of 1994 (“HOEPA”).
(iv) None
of the Mortgage Loans is a “high cost” loan as defined by applicable predatory
and abusive lending laws.
(v) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable, and with
respect to the foregoing, the terms “High Cost Loan” and “Covered Loan” have the
meaning assigned to them in the then current version of Standard & Poor’s
LEVELS®, which is now Version 5.7 Glossary Revised, Appendix E which is attached
hereto as Exhibit Q (the “Glossary”) where (x) a “High Cost Loan” is each loan
identified in the column “Category under applicable anti-predatory lending law”
of the table entitled “Standard & Poor's High Cost Loan Categorization” in
the Glossary as each such loan is defined in the applicable anti-predatory
lending law of the State or jurisdiction specified in such table and (y) a
“Covered Loan” is each loan identified in the column “Category under applicable
anti-predatory lending law” of the table entitled “Standard & Poor’s High
Covered Loan Categorization” in the Glossary as each such loan is defined in the
applicable anti-predatory lending law of the State or jurisdiction specified
in
such table.
(vi) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act.
60
Upon
discovery by the Depositor, the Seller or the related Originator or receipt
of
written notice of any materially defective document in, or, following the date
of delivery to the Trustee of the Custodian’s certifications, that a document is
missing from, a Trustee Mortgage File, or discovery by the Trustee, the
Depositor, the Seller or the related Originator of the breach by such Originator
or Seller of any representation or warranty under the related Purchase and
Servicing Agreement, as modified by the Acknowledgement, in the case of the
Originator, or under this Agreement, in the case of the Seller, in respect
of
any Mortgage Loan which materially adversely affects the value of that Mortgage
Loan or the interest therein of the Certificateholders (a “Defective Mortgage Loan”)
(each of the Depositor, the Seller and the related Originator hereby agreeing
to
give written notice thereof to the Trustee, the Certificate Insurer and the
other of such parties), the Trustee, or its designee, shall promptly notify
the
Depositor, the Certificate Insurer and the Seller or the related Originator,
as
applicable, in writing of such nonconforming or missing document or breach
and
request that the Seller or related Originator deliver such missing document
or
cure or cause the cure of such defect or breach within a period of time
specified in the related Purchase and Servicing Agreement, and if the Seller
or
related Originator, as applicable, does not deliver such missing document or
cure such defect or breach in all material respects during such period, the
Trustee, shall enforce the obligations of the related Originator under the
related Purchase and Servicing Agreement, as modified by the Acknowledgement,
or
the Seller under this Agreement, as applicable, and cause the related Originator
or the Seller, as the case may be, to repurchase that Mortgage Loan from the
Trust Fund at the Purchase Price on or prior to the Determination Date following
the expiration of such specified period (subject to Section 2.05(c) below);
provided,
however, that, in connection
with any such breach that could not reasonably have been cured within such
specified period (unless permitted a greater period of time to cure under the
related Purchase and Servicing Agreement), subject to Section 2.05(c) below,
if
the related Originator or the Seller, as applicable, shall have commenced to
cure such breach within such specified period, the related Originator or the
Seller shall be permitted to proceed thereafter diligently and expeditiously
to
cure the same within such additional time as is reasonably necessary to cure
such breach. To the extent that the amount by which the Purchase
Price (as defined in this Agreement) exceeds the repurchase price payable by
the
related Originator under the related Purchase and Servicing Agreement, including
any costs and damages that are 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 any Mortgage
Loan repurchased by the related Originator or the Seller, the payment of such
excess shall be borne by the Seller. The Purchase Price for the
repurchased Mortgage Loan shall be deposited in the related Distribution
Account, and the Trustee, or its designee, upon receipt of written certification
from the Securities Administrator of such deposit, shall release or cause the
Custodian to release to the related Originator or the Seller, as applicable,
the
related Trustee Mortgage File and shall execute and deliver such instruments
of
transfer or assignment, in each case without recourse, representation or
warranties, as either party shall furnish to it and as shall be necessary to
vest in such party any Mortgage Loan released pursuant hereto and the Trustee,
or its designee, shall have no further responsibility with regard to such
Trustee Mortgage File (it being understood that the Trustee shall have no
responsibility for determining the sufficiency of such assignment for its
intended purpose). If pursuant to the foregoing provisions the
related Originator or the Seller repurchases a Mortgage Loan that is a MERS
Mortgage Loan, the related Servicer shall cause MERS to designate on the MERS®
System the related Originator or the Seller, as applicable, as the beneficial
holder of such Mortgage Loan.
61
In
lieu
of repurchasing any such Mortgage Loan as provided above, either party may
cause
such Mortgage Loan to be removed from the Trust Fund (in which case it shall
become a Deleted Mortgage Loan) and substitute one or more Replacement Mortgage
Loans in the manner and subject to the limitations set forth in
Section 2.05(b) below. It is understood and agreed that the
obligations of the Originators and the Seller to cure or to repurchase (or
to
substitute for) any related Mortgage Loan as to which a document is missing,
a
material defect in a constituent document exists or as to which such a breach
has occurred and is continuing shall constitute the sole remedy against the
such
party respecting such omission, defect or breach available to the Trustee on
behalf of the Certificateholders.
(b) Any
substitution of Replacement Mortgage Loans for Deleted Mortgage Loans made
pursuant to Section 2.05(a) above must be effected prior to the last
Business Day that is within two years after the Closing Date. As to
any Deleted Mortgage Loan for which the related Originator or the Seller
substitutes a Replacement Mortgage Loan or Loans, such substitution shall be
effected by delivering to the Custodian, on behalf of the Trustee, for such
Replacement Mortgage Loan or Loans, the Mortgage Note, the Mortgage, any related
assignment thereof and the Acknowledgement to the Trustee, and such other
documents and agreements, with all necessary endorsements thereon, together
with
an Officers’ Certificate stating that each such Replacement Mortgage Loan
satisfies the definition thereof and specifying the Substitution Adjustment
Amount (as described below), if any, in connection with such
substitution. Monthly Payments due with respect to Replacement
Mortgage Loans in the month of substitution shall not be included as part of
the
Trust Fund and shall be retained by the related Originator or the Seller, as
applicable. For the month of substitution, distributions to the
Certificateholders shall reflect the collections and recoveries in respect
of
such Deleted Mortgage in the Due Period preceding the month of substitution
and
the related Originator or the Seller, as applicable, shall thereafter be
entitled to retain all amounts subsequently received in respect of such Deleted
Mortgage Loan. Upon such substitution, such Replacement Mortgage Loan
shall constitute part of the Trust Fund and shall be subject in all respects
to
the terms of this Agreement and the related Purchase and Servicing Agreement,
as
modified by the related Acknowledgement, including all representations and
warranties thereof included in such Purchase and Servicing Agreement, as
modified by the Acknowledgement, in each case as of the date of
substitution.
For
any
month in which an Originator or the Seller substitutes one or more Replacement
Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer
shall determine the excess (each, a “Substitution Adjustment
Amount”), if any, by which the aggregate Purchase Price of all such
Deleted Mortgage Loans exceeds the aggregate Stated Principal Balance of the
Replacement Mortgage Loans replacing such Deleted Mortgage Loans, together
with
one month’s interest on such excess amount at the applicable Net Mortgage
Rate. On the date of such substitution, the related Originator or
Seller, as applicable, shall deliver or cause to be delivered to the related
Servicer for deposit in the related Custodial Account an amount equal to the
related Substitution Adjustment Amount, if any, and the Custodian, on behalf
of
the Trustee, upon receipt of the related Replacement Mortgage Loan or Loans
and
Request for Release and certification by such Servicer of such deposit, shall
release to the related Originator or the Seller, as applicable, the related
Trustee Mortgage File or Files and the Trustee or the Custodian, as applicable,
shall execute and deliver such instruments of transfer or assignment, in each
case
62
without
recourse, as the related Originator or Seller shall deliver to it and as shall
be necessary to vest therein any Deleted Mortgage Loan released pursuant
hereto.
In
addition, the related Originator or the Seller, as applicable, shall obtain
at
its own expense and deliver to the Trustee and the Securities Administrator
an
Opinion of Counsel to the effect that such substitution (either specifically
or
as a class of transactions) shall not cause an Adverse REMIC
Event. If such Opinion of Counsel cannot be delivered, then such
substitution may only be effected at such time as the required Opinion of
Counsel can be given.
(c) Upon
discovery by the related Originator, the Seller, the Master Servicer, the
Depositor or the Trustee that any Mortgage Loan does not constitute a “qualified
mortgage” within the meaning of Section 860G(a)(3) of the Code, the party
discovering such fact shall within two Business Days give written notice thereof
to the other parties. In connection therewith, the applicable party
shall repurchase or, subject to the limitations set forth in
Section 2.05(b), substitute one or more Replacement Mortgage Loans for the
affected Mortgage Loan within 90 days of the earlier of discovery or receipt
of
such notice with respect to such affected Mortgage Loan. Any such
repurchase or substitution shall be made in the same manner as set forth in
Section 2.05(a) above and/or in accordance with this Section
2.05(c). The Trustee shall re-convey to the related Originator or the
Seller, as applicable, the Mortgage Loan to be released pursuant hereto in
the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty.
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|
Section
2.06. Grant Clause.
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(a) It
is intended that the conveyance of the Depositor’s right, title and interest in
and to property constituting the Trust Fund pursuant to this Agreement shall
constitute, and shall be construed as, a sale of such property and not a grant
of a security interest to secure a loan. However, if such conveyance
is deemed to be in respect of a loan, it is intended that: (1) the rights
and obligations of the parties shall be established pursuant to the terms of
this Agreement; (2) the Depositor hereby grants to the Trustee for the
benefit of the Holders of the Certificates a first priority security interest
in
all of the Depositor’s right, title and interest in, to and under, whether now
owned or hereafter acquired, the Trust Fund and all proceeds of any and all
property constituting the Trust Fund to secure payment of the Certificates;
and
(3) this Agreement shall constitute a security agreement under applicable
law. If such conveyance is deemed to be in respect of a loan and the
trust created by this Agreement terminates prior to the satisfaction of the
claims of any Person holding any Certificate, 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 will
be
maintained as such throughout the term of this Agreement. The
Depositor will, 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
63
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 an Originator, the Depositor or the
Trustee, (2) any change of location of the place of business or the chief
executive office of the Seller or the Depositor, (3) any transfer of any
interest of an Originator or the Depositor in any Mortgage Loan or (4) any
change under the relevant UCC or other applicable laws. Neither the
Originators 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, any Originator 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 Originators and the Depositor authorizes its immediate
or
intermediate transferee (but not the Trustee) 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).
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|
Section
2.07. Depositor’s Option to Purchase Breached Mortgage
Loans.
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(a) Subject
to the terms specified in this Agreement, the Depositor has the option, but
is
not obligated, to purchase from the Trust Fund any Breached Mortgage Loan at
the
Repurchase Price; provided that the entity from which the Seller purchased
the
Mortgage Loan has both (a) agreed to purchase the Mortgage Loan from the
Depositor and (b) has represented to the Seller that it has the ability to
purchase such Mortgage Loan from the Depositor, as soon as is practicable
thereafter at the Repurchase Price.
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Section
2.08. Release of Mortgage Documents for
Servicing.
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(a) From
time to time and as appropriate for the foreclosure or servicing of any of
the
Mortgage Loans, the Custodian shall, upon receipt in writing, facsimile or
electronic transmission from the Master Servicer or a Servicer of a Request
for
Release release to the Master Servicer or such Servicer the Mortgage Documents
set forth in such Request for Release. All Mortgage Documents
released by the Custodian to the Master Servicer or a Servicer pursuant to
this
Section 2.08 shall be held by the Master Servicer or such Servicer in trust
for
the benefit of the Trust pursuant to the applicable Purchase and Servicing
Agreement. Upon the repurchase of any Mortgage Loan or upon the
payment in full of any Mortgage Loan, and upon receipt by the Custodian of
(i)
the Request for Release (which Request for Release shall include a statement
to
the effect that all amounts payable to the Trust in connection with a repurchase
have been deposited in the related Custodial Account or the Collection Account
or (ii) direction of the Depositor or the Trustee, as applicable, the Custodian
shall promptly release the related Mortgage Documents in accordance with such
Request for Release or direction.
64
ARTICLE
III
THE
CERTIFICATES
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Section
3.01. The Certificates.
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(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 Balance, or Notional Amount, as applicable, or in the Percentage
Interests, specified herein. Each Class of Certificates will be
issued in the minimum denominations and integral multiples thereof of the
initial Certificate Balance (or Notional Amount) specified in the Preliminary
Statement hereto.
(b) The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Trustee by an authorized officer of the Trustee or of the Securities
Administrator on the Trustee’s behalf. Each Certificate shall, on
original issue, be authenticated by the Authenticating Agent upon the order
of
the Depositor upon receipt by the Trustee (or the Custodian) of the Trustee
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 Authenticating Agent, 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 or on behalf of the 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.
(c) The
Class OC, Class P and Class A-R Certificates offered and sold in reliance on
the
exemption from registration under Rule 144A under the Act shall be issued
initially 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”).
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Section
3.02. Registration.
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The
Securities Administrator is hereby appointed, and the Securities Administrator
hereby accepts its appointment as, initial Certificate Registrar in respect
of
the Certificates and shall maintain books for the registration and for the
transfer of Certificates (the “Certificate Register”). The Trustee
may appoint a bank or trust company to act as successor Certificate
Registrar. A registration book shall be maintained for the
Certificates 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 Securities
Administrator and the appointment of a successor Securities
Administrator. The Certificate Registrar may appoint, by a written
instrument delivered to the Holders and the Master Servicer, any bank or trust
company to act as co-registrar under such conditions as the Certificate
Registrar may prescribe;
65
provided,
however, that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
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Section
3.03. Transfer and Exchange of
Certificates.
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(a) A
Certificate (other than Book-Entry Certificates 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 Securities Administrator on behalf
of the Trustee shall execute, and the 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 Balance (or
Notional Amount) 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 Balance (or Notional Amount) 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 Securities Administrator
on
behalf of the Trustee shall execute, and the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By
acceptance of a Restricted Certificate, whether upon original issuance or
subsequent transfer, each Holder of such a Certificate acknowledges the
restrictions on the transfer of such Certificate set forth thereon and agrees
that it will transfer such a Certificate only as provided herein.
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a Restricted Certificate to a transferee that takes delivery
in
the form of a Definitive Certificate:
(i) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is (x) to the Depositor or an affiliate (as defined
in Rule 405 under the 0000 Xxx) of the Depositor or (y) being made to
a “qualified institutional buyer” (a “QIB”) as defined in
Rule 144A under the Securities Act of 1933,
66
as
amended (the “Act”) by
a transferor that has provided the Certificate Registrar with a certificate
in
the form of Exhibit H 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 Act, or to any Person all of the
equity owners in which are such accredited investors, by a transferor who
furnishes to the Certificate Registrar a letter of the transferee substantially
in the form of Exhibit I hereto.
(d) No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made to any Person or shall be effective unless the
Certificate Registrar, on behalf of the Trustee, has received (A) a
certificate substantially in the form of Exhibit J hereto (or
Exhibit B, in the case of a Residual Certificate) from such transferee or
(B) an Opinion of Counsel satisfactory to the Certificate Registrar and the
Securities Administrator to the effect that the purchase and holding of such
a
Certificate will not constitute or result in any nonexempt prohibited
transactions under Title I of ERISA or Section 4975 of the Code or a
plan subject to any Federal, state or local law (“Similar Law”)
materially similar to the foregoing provisions of ERISA or the Code and will
not
subject the Certificate Registrar, the Trustee, the Master Servicer, the
Depositor or the Securities Administrator to any obligation in addition to
those
undertaken in the Agreement; provided,
however, that the
Certificate Registrar will not require such certificate or opinion in the event
that, as a result of a change of law or otherwise, counsel satisfactory to
the
Certificate Registrar has rendered an opinion 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 and will not subject the Certificate Registrar,
the Trustee, the Master Servicer, the Depositor or the Securities Administrator
to any obligation in addition to those undertaken in this
Agreement. Each Transferee of an ERISA-Restricted Certificate that is
a Book-Entry Certificate shall be deemed to have made the appropriate
representation set forth in paragraph 2 and the representation set forth in
paragraph 3 of Exhibit J. The preparation and delivery of the
certificate and opinions referred to above shall not be an expense of the Trust
Fund, the Certificate Registrar, the Trustee, the Master Servicer, the Depositor
or the Securities Administrator.
During
the period the Supplemental Interest Trust is in effect, no transfer of a Class
A-4 Certificate or any related Exchangeable Certificate shall be made unless
the
Securities Administrator shall have received either (i) a representation from
the transferee of such Certificate acceptable to and in form and substance
satisfactory to the Securities Administrator to the effect that such transferee
is not a Plan, or (ii) a representation that the purchase and holding of the
Certificate satisfy the requirements for exemptive relief under an Investor
Based Exemption or a similar exemption, or in the case of a Plan subject to
Similar Law, will not constitute a non-exempt violation of such Similar
Law. In the event such a representation letter is not delivered, one
of the foregoing representations, as appropriate, shall be deemed to have been
made by the transferee’s (including an initial acquirer’s) acceptance of the
Certificate. In the event that such representation is violated, such
transfer or acquisition shall be void and of no effect.
67
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates to the Underwriter. The
Certificate Registrar 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 Certificate Registrar 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) and
neither the Securities Administrator nor the Paying Agent shall have any
liability 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 Certificate
Registrar in accordance with the foregoing requirements. The
Securities Administrator, on behalf of 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 a Plan any payments made
on
such ERISA-Restricted Certificate at and after such time. Any such
payments so recovered by the Securities Administrator, on behalf of the Trustee,
shall be paid and delivered by the Securities Administrator, on behalf of the
Trustee, to the last preceding Holder of such Certificate that is not such
a
Plan or Person acting on behalf of a Plan.
(e) As
a condition of the registration of transfer or exchange of any Certificate,
the
Certificate Registrar may require the certified taxpayer identification number
of the owner of the Certificate and the payment of a sum sufficient to cover
any
tax or other governmental charge imposed in connection therewith; provided,
however, that the
Certificate Registrar shall have no obligation to require such payment or to
determine whether or not any such tax or charge may be applicable. No
service charge shall be made to the Certificateholder for any registration,
transfer or exchange of a Certificate.
(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 (A) is 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 Certificate Registrar with an effective Internal Revenue Service
Form 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 Certificate Registrar an affidavit in substantially the form attached hereto
as Exhibit B 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 and the Certificate Registrar an affidavit in
substantially the form attached hereto as Exhibit C. In
addition, the Trustee or the Certificate Registrar 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
Trustee and the Certificate Registrar, that such proposed transferee or, if
the
proposed transferee is an agent or nominee, the proposed beneficial owner,
is
68
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 Depositor and the
Certificate Registrar shall be under no 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 Paying Agent making 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 the Certificate Registrar
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
Certificate Registrar shall be entitled 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
Certificate Registrar shall be paid and delivered to the last preceding Holder
of such Residual Certificate.
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 Depositor,
the Certificate Registrar and 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), or for the Paying Agent making
any payment due on such Certificate to the registered Holder thereof or for
taking any other action with respect to such Holder under the provisions of
this
Agreement so long as the transfer was registered upon receipt of the affidavit
described in the preceding paragraph of this Section 3.03(f).
(g) Each
Holder or Certificate Owner of a Restricted Certificate, ERISA-Restricted
Certificate or Residual Certificate, or an interest therein, by such Holder’s or
Owner’s acceptance thereof, shall be deemed for all purposes to have consented
to the provisions of this section.
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Section
3.04. Cancellation of
Certificates.
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Any
Certificate surrendered for registration of transfer or exchange shall be
cancelled and retained in accordance with normal retention policies with respect
to cancelled certificates maintained by the Certificate
Registrar.
69
Section
3.05. Replacement of Certificates.
If
(i) any Certificate is mutilated and is surrendered to the Trustee or the
Certificate Registrar or (ii) the Certificate Registrar receives evidence
to its satisfaction of the destruction, loss or theft of any Certificate, and
there is delivered to the Trustee and the Certificate Registrar (and with
respect to the Class A-1-W and Class A-3-W Certificates, the Certificate
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 Depositor, the Trustee
or
the Certificate Registrar that such destroyed, lost or stolen Certificate has
been acquired by a protected purchaser, the Securities Administrator on behalf
of the Trustee shall execute and the 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
Balance. Upon the issuance of any new Certificate under this
Section 3.05, the Trustee, the Depositor or the Certificate Registrar 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, the Depositor or the Certificate
Registrar) 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.
If
after
the delivery of such new Certificate, a protected purchaser of the original
Certificate in lieu of which such new Certificate was issued presents for
payment such original Certificate, the Depositor, the Certificate Registrar
and
the Trustee or any agent shall be entitled to recover such new Certificate
from
the Person to whom it was delivered or any Person taking therefrom, except
a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expenses
incurred by the Depositor, the Certificate Registrar, the Trustee or any agent
in connection therewith.
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Section
3.06. Persons Deemed
Owners.
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Subject
to the provisions of Section 3.09 with respect to Book-Entry Certificates,
the Depositor, the Master Servicer, the Securities Administrator, the Trustee,
the Certificate Insurer, the Certificate Registrar, the Paying Agent and any
agent of any of them shall 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 Securities Administrator, the Trustee,
the Certificate Registrar, the Paying Agent, the Certificate Insurer, nor any
agent of any of them shall be affected by notice to the contrary.
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Section
3.07. Temporary
Certificates.
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(a) Pending
the preparation of definitive Certificates, upon the order of the Depositor,
the
Securities Administrator on behalf of the Trustee shall execute and the
Authenticating Agent 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
70
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 Certificate Registrar without charge
to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Securities Administrator on behalf of the Trustee
shall execute and the Authenticating Agent shall authenticate and deliver in
exchange therefor a like aggregate Certificate Balance 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.
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Section
3.08. Appointment of Paying
Agent.
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The
Securities Administrator is hereby appointed as the initial Paying
Agent. The Trustee may appoint a successor Paying Agent (which may be
the Trustee) for the purpose of making distributions to the Certificateholders
hereunder. The Trustee shall cause any Paying Agent, other than the
Securities Administrator, 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 the Certificateholders in an
Eligible Account (which shall be the Distribution 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 Securities
Administrator to any such Paying Agent for the purpose of making distributions
shall be paid to the Certificateholders on each Distribution Date and any
amounts not so paid shall be returned on such Distribution Date to the
Securities Administrator. If the Paying Agent is not the Trustee or
the Securities Administrator, the Securities Administrator 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.
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Section
3.09. Book-Entry
Certificates.
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(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
Certificate Registrar, the Paying Agent and the Trustee shall deal with the
Clearing Agency for all purposes (including the making of distributions on
the
Book
71
Entry
Certificates) as the authorized representatives of the Certificate Owners and
the Clearing Agency and shall be responsible for crediting the amount of such
distributions to the accounts of such Persons entitled thereto, in accordance
with the Clearing Agency’s normal procedures;
(iii) to
the extent that the provisions of this Section 3.09 conflict with any other
provisions of this Agreement, the provisions of this Section 3.09 shall
control; and
(iv) the
rights of Certificate Owners shall be exercised only through the Clearing Agency
and the Clearing Agency Participants and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial Clearing
Agency will make book-entry transfers among the Clearing Agency Participants
and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(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 Securities
Administrator 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 Clearing Agency or the Depositor advises the Certificate
Registrar 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 Depositor is unable to locate a qualified
successor satisfactory to the Depositor and the Certificate Registrar or (ii)
after the occurrence of an Event of Default, Certificate Owners representing
beneficial interests aggregating not less than 50% of the Class Principal
Balance of a Class of Book-Entry Certificates advise the Paying Agent 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 Certificate Registrar shall 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 Certificate Registrar of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Certificate Registrar shall issue the Definitive
Certificates. Neither the Depositor, the Certificate Registrar 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 Certificate
Registrar, to the extent applicable, with respect to such Definitive
Certificates and the Certificate Registrar shall recognize the holders of the
Definitive Certificates as Certificateholders
hereunder. Notwithstanding the foregoing, the Certificate Registrar,
upon the instruction of the Depositor, shall have the right to issue Definitive
Certificates on the Closing Date in connection with credit enhancement
programs.
72
ARTICLE
IV
ADMINISTRATION
OF THE TRUST FUND
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|
Section
4.01. Custodial Accounts; Distribution
Account.
|
(a) On
or prior to the Closing Date, the Master Servicer shall have caused each
Servicer to establish and maintain one or more Custodial Accounts, as provided
in the related Purchase and Servicing Agreement, into which all Scheduled
Payments and unscheduled payments with respect to the related Mortgage Loans,
net of any deductions or reimbursements permitted under the related Purchase
and
Servicing Agreement, shall be deposited. On each Distribution Account
Deposit Date, the Servicers shall remit to the Securities Administrator for
deposit into the Distribution Account, all amounts so required to be deposited
into such account in accordance with the terms of the related Purchase and
Servicing Agreements.
(b) The
Securities Administrator, as Paying Agent for the Trust, shall establish and
maintain an Eligible Account entitled “Distribution Account of Xxxxx Fargo Bank,
N.A., as Securities Administrator for the benefit of Xxxxxx Xxxxxxx Mortgage
Loan Trust 2007-10XS, Holders of Mortgage Pass-Through
Certificates.” The Securities Administrator shall, promptly upon
receipt from the Servicers on each related Distribution Account Deposit Date,
deposit into the Distribution Account and retain on deposit until the related
Distribution Date the following amounts:
(i) the
aggregate of collections with respect to the Mortgage Loans remitted by the
Servicers from the related Custodial Accounts in accordance with the Purchase
and Servicing Agreements;
(ii) any
amounts required to be deposited by the Master Servicer with respect to the
Mortgage Loans for the related Due Period pursuant to this Agreement, including
the amount of any Advances or Compensating Interest Payments with respect to
the
Mortgage Loans not paid by the Servicers; and
(iii) any
other amounts so required to be deposited in the Distribution Account in the
related Due Period pursuant to this Agreement.
(c) In
the event the Master Servicer or a Servicer has remitted in error to the
Distribution Account any amount not required to be remitted in accordance with
the definition of Available Distribution Amount, it may at any time direct
the
Securities Administrator to withdraw such amount from the Distribution Account
for repayment to the Master Servicer or Servicer, as applicable, by delivery
of
an Officer’s Certificate to the Securities Administrator and the Trustee which
describes the amount deposited in error.
(d) On
each Distribution Date and Initial Optional Termination Date, the Securities
Administrator, as Paying Agent, shall withdraw from funds available in the
Distribution Account and distribute the Available Distribution Amount to the
Certificateholders and any other parties entitled thereto in the amounts and
priorities set forth in Section 5.02. The Securities
Administrator may from time to time withdraw from the Distribution Account
and
pay the Master Servicer, the Trustee, the Custodian, the Securities
Administrator or any Servicer any
73
amounts
permitted to be paid or reimbursed to such Person from funds in the Distribution
Account pursuant to this Agreement or any Purchase and Servicing
Agreement.
(e) Funds
in the Distribution Account may be invested in Permitted Investments selected
by
and at the written direction of the Securities Administrator, which shall mature
not later than one Business Day prior to the Distribution Date (except that
if
such Permitted Investment is an obligation of the Securities Administrator
or
any of its Affiliates, or is managed or advised by the Securities Administrator
or any Affiliate, then such Permitted Investment shall mature not later than
such applicable Distribution Date) and any such Permitted Investment shall
not
be sold or disposed of prior to its maturity. All such Permitted
Investments shall be made in the name of the Trustee (in its capacity as such)
or its nominee. All income and gain realized from any Permitted Investment
of
amounts on deposit in the Distribution Account shall be for the benefit of
the
Securities Administrator, as additional compensation for its duties hereunder,
and shall be subject to its withdrawal or order from time to time, and shall
not
be part of the Trust Fund; provided,
however, that if Xxxxx Fargo
Bank, National Association is no longer the Master Servicer and the Securities
Administrator, any such income and gain shall be used to pay the successor
Master Servicer and the successor Securities Administrator, the Master Servicer
Compensation and the Securities Administrator Compensation,
respectively. The amount of any losses incurred in respect of any
such investments shall be deposited in such Distribution Account by the
Securities Administrator out of its own funds, without any right of
reimbursement therefor, immediately as realized.
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Section
4.02. Permitted Withdrawals from the Custodial Accounts and the
Distribution Account.
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(a) Each
Servicer may from time to time make withdrawals from its Custodial Account
for
the following purposes:
(i) to
reimburse itself for unreimbursed Advances made by it, such right of
reimbursement pursuant to this subclause (i) being limited to amounts received
on the Mortgage Loan(s) in respect of which any such Advance was
made;
(ii)
to reimburse itself for any Nonrecoverable Advance previously made by
it;
(iii)
to reimburse itself for unreimbursed Servicer Advances, each Servicer’s right to
reimbursement pursuant to this clause (a) with respect to any Mortgage Loan
being limited to amounts received on such Mortgage Loan(s) which represent
late
recoveries of the payments for which such advances were made pursuant to the
related Purchase and Servicing Agreement;
(iv)
to reimburse itself for expenses incurred by it and reimbursable pursuant to
the
related Purchase and Servicing Agreement; and
(v)
to withdraw any amount deposited in the Custodial Account and not required
to be
deposited therein.
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To
the
extent required by the related Purchase and Servicing Agreement each Servicer
shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage
Loan
basis, for the purpose of justifying any withdrawal from its Custodial Account
pursuant to such subclauses (i), (ii), (iii), (iv) and (v). Prior to
making any withdrawal from its Custodial Account pursuant to subclause (ii),
the
related Servicer shall deliver to the Master Servicer an Officer’s Certificate
of a Servicing Officer indicating the amount of any previous Advance determined
by the Servicer to be a Nonrecoverable Advance and identifying the related
Mortgage Loans(s), and their respective portions of such Nonrecoverable
Advance.
(b) The
Securities Administrator shall withdraw funds from the Distribution Account
for
distributions to Certificateholders and payments to the Certificate
Insurer in the manner specified in this Agreement (and to withhold
from the amounts so withdrawn, the amount of any taxes that it is authorized
to
withhold pursuant to Section 10.01). In addition, the Securities
Administrator may from time to time make withdrawals from the Distribution
Account for the following purposes:
(i) to
pay all costs and expenses described in the sixth bullet of clause (1) of the
definition of “Available Distribution Amount”;
(ii) (x)
for so long as Xxxxx Fargo Bank, National Association is the Master Servicer
and
the Securities Administrator, to pay to the Master Servicer the investment
earnings on the Distribution Account as its compensation for the related
Distribution Date and (y) thereafter, concurrently, to the Master Servicer
and
the Securities Administrator, the Master Servicer Compensation and the
Securities Administrator Compensation, respectively;
(iii) to
withdraw and return to the Master Servicer any amount deposited in the
Distribution Account and not required to be deposited therein; and
(iv) to
clear and terminate the Distribution Account upon termination of the Agreement
pursuant to Section 7.01 hereof.
(v) [Reserved].
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Section
4.03. Depositable and Exchangeable
Certificates.
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(a) On
the Closing Date, there is hereby established a separate trust (the “ES Trust”),
which shall be a Grantor Trust for federal income tax purposes. The
ES Trust shall be maintained by the Securities Administrator, on behalf of
the
Trustee, for the benefit of the Holders of the Certificates. The
assets of the ES Trust shall consist of the uncertificated Master REMIC
Interests, which have been placed in the ES Trust through the efforts of the
Underwriter. The uncertificated Master REMIC Interests in the ES
Trust shall be held by the Securities Administrator, on behalf of the
Trustee. On the Closing Date, the ES Trust shall issue the several
Classes of Certificates. Each Class of Exchangeable Certificates shall be issued
on the Closing Date with the respective Class Principal Balance or Notional
Amount set forth for such Class on Exhibit A hereto. Upon the sale of
the Certificates on the Closing Date, the Exchangeable Certificates shall be
placed with the Securities Administrator, on behalf of the Trustee, through
the
efforts of the Underwriter to be held to facilitate the exchange of
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Depositable
and Exchangeable Certificates on and after the Closing Date. Among
the Depositable and Exchangeable Certificates, the beneficial interest of the
uncertificated Master REMIC Interests shall be represented by the related
Depositable Certificates until such Depositable Certificates have been exchanged
for Exchangeable Certificates, at which time, such Exchangeable Certificates
shall represent those uncertificated Master REMIC Interests.
On
or
before the Closing Date, the Securities Administrator shall either (i) open the
Exchangeable Certificates Distribution Account, (ii) in lieu of maintaining
any
such account or accounts, maintain the Exchangeable Certificates Distribution
Account by means of appropriate entries on its books and records designating
all
amounts credited thereto in respect of the Depositable Certificates and all
investments of any such amounts as being held by it in its capacity as
Securities Administrator for the benefit of the Holders of the Certificates
or
(iii) maintain the Exchangeable Certificates Distribution Account in the form
of
any combination of accounts or book entries described in clauses (i) and (ii)
above. Any manner or manners in which the Exchangeable
Certificates Distribution Account is maintained may at any time be changed
without notice to, or the approval of Holders of, the Certificates so long
as
funds held in the ES Trust by, or for the account of, the Securities
Administrator shall at all times be identified. To the extent that
the Exchangeable Certificates Distribution Account is maintained by the
Securities Administrator in the manner provided for in clause (ii) above, all
references herein to deposits and withdrawals from the Exchangeable Certificates
Distribution Account shall be deemed to refer to credits and debits to the
related books of the Securities Administrator. All funds on deposit
in the Exchangeable Certificates Distribution Account shall be held separate
and
apart from, and shall not be commingled with, any other moneys, including
without limitation, other moneys held by or on behalf of the Securities
Administrator, on behalf of the Trustee pursuant to this Agreement.
On
each
Distribution Date, the Securities Administrator, on behalf of the Trustee,
as
holder of any surrendered Depositable Certificates, shall deposit in the
Exchangeable Certificates Distribution Account any amounts distributable to
the
surrendered Depositable Certificates pursuant to Section 5.02. For
the avoidance of doubt, if on any Distribution Date no Classes of Depositable
Certificates have been surrendered or if all Classes of Exchangeable
Certificates have been exchanged for Depositable Certificates according to
Section 4.03(e), then no amounts will be deposited in the Exchangeable
Certificates Deposit Account on such Distribution Date.
(b) The
Securities Administrator shall deposit in the Exchangeable Certificates
Distribution Account all distributions in respect of the Depositable
Certificates received by it as Securities Administrator
hereunder. Funds in the Exchangeable Certificates Distribution
Account shall remain uninvested.
(c) On
each Distribution Date, the Securities Administrator, on behalf of the Trustee,
shall withdraw funds on deposit in the Exchangeable Certificates Distribution
Account on deposit therein from distributions to the surrendered Depositable
Certificates for such Distribution Date and shall cause the Paying Agent to
distribute such amount to the Holders of each related Class of Exchangeable
Certificates. Amounts related to interest distributed to the
surrendered Depositable Certificates shall be distributed as interest to the
related Class or Classes of Exchangeable Certificates pursuant to Section
5.02(a)(1). All distributions of principal to the Exchangeable
Certificates shall be made pro rata among the Classes of
Exchangeable
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Certificates
within each Recombination Group unless specifically provided for otherwise
in
Section 5.03 hereof. All distributions that are made with respect to
a particular Class of Exchangeable Certificates shall be made pro rata among
all
Certificates of such Class in proportion to their respective Class Principal
Balances.
In
addition, the Securities Administrator, on behalf of the Trustee, may from
time
to time make withdrawals from the Exchangeable Certificates Distribution Account
for the following purposes:
(i) to
withdraw any amount deposited in the Exchangeable Certificates Distribution
Account and not required to be deposited therein; and
(ii) to
clear and terminate the Exchangeable Certificates Distribution Account upon
the
termination of this Agreement.
(d) On
each Distribution Date on which a Class of Exchangeable Certificates shall
be
entitled to receive distributions pursuant to Section 4.03(b), such Class shall
be allocated a proportionate share of the Net Prepayment Interest Shortfalls
and
Relief Act Shortfalls allocable to the Classes of Depositable Certificates
in
the related Recombination Group.
(e) [Reserved].
(f) Upon
the presentation and surrender of the Depositable Certificates, the Holder
thereof transfers, assigns, sets over and otherwise conveys to the Securities
Administrator, on behalf of the Trustee, as trustee of the ES Trust, all of
such
Holder’s right, title and interest in and to such Depositable Certificates,
including all payments of interest thereon received after the month of the
exchange.
At
the
request of the Holder of a Class or Classes of Depositable Certificates, and
upon the surrender of such Depositable Certificates, the Securities
Administrator, on behalf of the Trustee, shall deliver such Exchangeable
Certificates as set forth in such Recombination Group in the respective
Denominations determined based on the proportion that the initial Class
Principal Balance or initial Notional Amounts of such Exchangeable Certificates
bear to the initial Class Principal Balances of the Depositable Certificates,
as
set forth in Schedule C, which shall represent in the aggregate, the entire
beneficial ownership of the Master REMIC Interests related to such surrendered
Certificates. In addition, at the request of the Holder of a Class or
Classes of Exchangeable Certificates, and upon the surrender of such
Exchangeable Certificates, the Securities Administrator, on behalf of the
Trustee, shall exchange such Exchangeable Certificates for another Class or
Classes of Exchangeable Certificates or the related surrendered Depositable
Certificates, as set forth in Schedule C. There shall be no
limitation on the number of exchanges authorized pursuant to this Section
4.03.
Exchangeable
Certificates shall be exchangeable on the books of DTC for Depositable
Certificates, and Depositable Certificates shall be exchangeable on the books
of
DTC for Exchangeable Certificates, on and after the Closing Date, by notice
to
the Securities Administrator substantially in the form of Exhibit S-1 (exchange
of Depositable Certificates for Exchangeable Certificates) or Exhibit S-2
(exchange of Exchangeable Certificates for Depositable Certificates) hereto,
as
applicable or, under the terms and conditions set forth herein.
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In
order
to effect an exchange of Certificates, the Certificateholder shall notify the
Securities Administrator in writing or by e-mail at
xxxxxxxxxxxxxxx@xxxxxxxxxx.xxx no later than two Business Days before the
proposed exchange date. The exchange date with respect to the
Certificates may be any Business Day from and including the 25th
calendar day of
the month to and including the second to last Business Day of that month subject
to the Securities Administrator’s approval. The notice must be on the
Certificateholder’s letterhead, carry a medallion stamp guarantee and set forth
the following information: the CUSIP number of each Certificates to be exchanged
and each Certificate to be received; outstanding Class Principal Balance or
Notional Amount, as applicable, and the Original Class Principal Balance or
Notional Amount, as applicable, of the Certificate to be exchanged, the
Certificateholder’s DTC participant number; and the proposed exchange
date. After receiving the notice, the Securities Administrator shall
e-mail the Certificateholder with wire payment instructions relating to the
exchange fee. A notice becomes irrevocable on the second Business Day
before the proposed exchange date. Notwithstanding any other
provision herein set forth, a fee of $5,000 shall be payable to the Securities
Administrator in connection with each exchange.
The
Securities Administrator shall make the first distribution on an Exchangeable
Certificate or an Depositable Certificate received in an exchange transaction
on
the Distribution Date in the month following the month of the exchange to the
Certificateholder of record as of the close of business on the last day of
the
calendar month of the exchange.
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Section
4.04. [Reserved].
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Section
4.05. Reports to Trustee and
Certificateholders.
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On
each
Distribution Date, the Securities Administrator shall have prepared and shall
make available to the Trustee, the Depositor, the Certificate Insurer, the
Rating Agencies and each Certificateholder a written report setting forth the
following information (on the basis of Mortgage Loan level information obtained
from the Master Servicer and the Servicers):
(a) the
amount of the distributions, separately identified, with respect to each Class
of Certificates;
(b) the
amount of the distributions set forth in the clause (a) allocable to
principal, separately identifying the aggregate amount of any Principal
Prepayments, liquidation proceeds or other unscheduled recoveries of principal
included in that amount;
(c) the
amount of the distributions set forth in the clause (a) allocable to
interest and how it was calculated;
(d) with
respect to the Class A-4, Class A-6 and Class A-8 Certificates, the amount
paid
under the Corridor Contract;
(e) the
Class Principal Balance of each Class of Certificates after giving effect to
the
distribution of principal on that Distribution Date;
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(f) the
aggregate Stated Principal Balance of the Mortgage Loans at the end of the
related Prepayment Period, and the Weighted Average Net Mortgage Rate and the
Mortgage Pool at the beginning of the related Due Period;
(g) the
Pool Factor in effect for that Distribution Date;
(h) for
each Distribution Date, the separate product of (x) a fraction, the numerator
of
which is 10,000, and the denominator of which is the Cut-off Date Pool Principal
Balance, and (y) each of the following: (1) the total amount of
principal received in respect of the Mortgage Loans during the related Due
Period, separately identifying the amount received in respect of (a) scheduled
and (b) unscheduled payments on the Mortgage Loans during that Due Period,
(2)
all Liquidation Proceeds and Subsequent Recoveries received on the Mortgage
Loans during that Due Period and (3) the Realized Losses on the Mortgage Loans,
both as of the related Due Period and since the Closing Date;
(i) the
total amount of principal received in respect of the Mortgage Loans, separately
identifying (i) the amount received in respect of scheduled and unscheduled
payments on the Mortgage Loans and (ii) all Liquidation Proceeds and Subsequent
Recoveries;
(j) the
amount of the Servicing Fee paid to or retained by the Master Servicer and
by
each Servicer, respectively;
(k) the
amount of Monthly Advances for the related Due Period;
(l) the
number and aggregate Stated Principal Balance of the Mortgage Loans that were
(A) Delinquent using the OTS Method (exclusive of Mortgage Loans in
foreclosure) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or
more days, (B) in foreclosure and Delinquent (1) 30 to 59 days,
(2) 60 to 89 days and (3) 90 or more days and (C) in bankruptcy
as of the close of business on the last day of the calendar month preceding
that
Distribution Date;
(m) the
total number and principal balance of any REO properties as of the close of
business on the last day of the preceding Due Period;
(n) the
amount of Realized Losses incurred during the preceding calendar
month;
(o) the
cumulative amount of Realized Losses incurred since the Closing
Date;
(p) the
Realized Losses, if any, allocated to each Class of Certificates on that
Distribution Date;
(q) the
Class Principal Balance of each Class of Certificates after giving effect to
the
distribution of principal on the Distribution Date;
(r) the
Pass-Through Rate for each Class of Certificates for that Distribution
Date;
(s) the
total amount of Prepayment Penalties collected and due to the Trust Fund, as
reported by the Servicers;
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(t) the
amount paid to the Certificate Insurer as Class A-1-W and Class A-3-W Premium
for such Distribution Date;
(u) the
amount paid to the Certificate Insurer as Reimbursement Amounts for such
Distribution Date;
(v) the
amount of any outstanding Reimbursement Amounts in total and per Class on such
Distribution Date.
(w) the
applicable Record Date(s) for such Distribution Date;
(x) with
respect to each Class of Certificates, the amount thereof allocable to interest,
any Unpaid Interest Amount included in such distribution and any remaining
Unpaid Interest Amount after giving effect to such distribution, any Basis
Risk
Carry Forward Amount for such Distribution Date;
(y) with
respect to each Class of Certificates, if the distribution to the Holders of
such Class of Certificates is less than the full amount that would be
distributable to such Holders if there were sufficient funds available therefor,
the amount of the shortfall and the allocation thereof as between principal
and
interest;
(z) whether
a Trigger Event or a Sequential Trigger Event has occurred and is continuing
(including the calculation demonstrating the existence of the Trigger Event
or
the Sequential Trigger Event, as applicable);
(aa) the
amount of any Net Monthly Excess Cash Flow on such Distribution Date and the
allocation thereof to the Certificateholders with respect to Unpaid Interest
Amounts, Unpaid Realized Loss Amounts, or Basis Risk Carry Forward
Amounts;
(bb) the
amount distributed on the Class OC Certificates;
(cc) the
Overcollateralized Amount and the Overcollateralization Target
Amount;
(dd) with
respect to each Class of Certificates, the amount of any Subsequent Recoveries
for such Distribution Date;
(ee) exchanges
that took place since the last Distribution Date;
(ff) the
designations of the Exchangeable Classes that were exchanged for;
(gg) the
balances of the outstanding Exchangeable Certificates, including Notional
Amounts;
(hh) the
Pass-Through Rates on the outstanding Classes of Exchangeable
Certificates;
(ii) interest
and principal paid to, and losses allocated, to the outstanding Class of
Exchangeable Certificates; and
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(jj) if
no exchanges have occurred.
The
Securities Administrator shall make such reports available each month via its
website at xxxx://xxx.xxxxxxx.xxx. Assistance in using the website
may be obtained by calling the Securities Administrator’s customer service desk
at (000) 000-0000. Certificateholders, the Certificate Insurer and
other parties that are unable to use the website are entitled to have a paper
copy mailed to them via first class mail by contacting the Securities
Administrator and indicating such. In preparing or furnishing the
foregoing reports, the Securities Administrator shall be entitled to rely
conclusively on the accuracy of the information or data regarding the Mortgage
Loans and the related REO Properties that has been provided to the Securities
Administrator by the Master Servicer and the Servicers, and neither the Trustee
nor the Securities Administrator shall be obligated to verify, recompute,
reconcile or recalculate any such information or data.
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
or any agent thereof, shall be promptly forwarded to the Securities
Administrator, the Securities Administrator shall provide, or cause to be
provided, (or, to the extent that such information or documentation is not
required to be provided by a Servicer under the applicable Purchase and
Servicing Agreement, shall use reasonable efforts to obtain such information
and
documentation from such Servicer, and provide) to such Certificateholders such
reports and access to information and documentation regarding the Mortgage
Loans
as such Certificateholders 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 an investment in the Certificates;
provided,
however, that the Securities
Administrator shall be entitled to be reimbursed by such Certificateholders
for
the Securities Administrator’s actual expenses incurred in providing such
reports and access.
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
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Section
5.01. Distributions
Generally.
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(a) Subject
to Section 7.01 respecting the final distribution on the Certificates, on
each Distribution Date the Securities Administrator or the Paying Agent shall
(x) distribute to the Certificate Insurer the Class A-1-W and Class A-3-W
Premium and, in the case of a distribution pursuant to Section 5.02(a)(1)(A)
or
Section 5.02(a)(1)(B) below, the amount required to be distributed to the
Certificate Insurer pursuant to Section 5.02.02(a)(1)(A) or Section
5.02(a)(1)(B) below and (y) make other distributions in accordance with this
Article V. Such distributions shall be made by check mailed to each
Certificateholder’s address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request made to the Securities
Administrator at least five Business Days prior to the related Record Date
by
any Certificateholder owning an aggregate initial Certificate Balance of at
least $1,000,000, or in the case of a Class of Notional Amount Certificates,
Residual Certificate or Class OC Certificate, a Percentage Interest of not
less
than 100%, by wire transfer 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
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surrender
of such Certificate at the Certificate Registrar’s 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 the reduction of the Class Principal
Balance of any Class of Certificates to zero, such Class will be outstanding
hereunder (solely for the purpose of receiving distributions and not for any
other purpose) until the termination of the respective obligations and
responsibilities of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee hereunder in accordance with Article
VII. Wire transfers will be made at the expense of the Holder
requesting such wire transfer by deducting a wire transfer fee from the related
distribution. 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 Certificate Registrar’s Corporate Trust
Office. If any payment required to be made on the Certificates 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 the Certificateholders within
each Class on each Distribution Date shall be allocated among the outstanding
Certificates in such Class equally in proportion to their respective initial
Class Principal Balances or initial Notional Amounts (or Percentage
Interests).
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Section
5.02. Priorities of
Distribution.
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(a) (1) On
each Distribution Date, the Securities Administrator shall withdraw from the
Distribution Account the Available Distribution Amount (to the extent that
such
amount is then on deposit in the Distribution Account) and shall distribute
such
amount to the Certificates and the Certificate Insurer in the following order
of
priority:
(A) With
respect to the portion of Available Distribution Amount for such Distribution
Date consisting of the Interest Remittance Amount for such Distribution Date,
on
each Distribution Date, the Securities Administration shall withdraw the
Interest Remittance Amount from the Available Distribution Amount on deposit
in
the Distribution Account for that Distribution Date, and distribute such funds
to the specified Class of Certificates that have outstanding Class Principal
Balances and outstanding Notional Amounts and the Certificate Insurer,
sequentially, in the following order of priority:
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(i)
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to
the Class L-IO Certificates, their Interest Distribution Amount for
that
Distribution Date;
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(ii)
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to
the Certificate Insurer, the Class A-1-W and Class A-3-W Premium
for such
Distribution Date;
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(iii)
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concurrently,
to the Senior Certificates (other than the Exchangeable Certificates),
their respective Senior Interest Distribution Amounts
for
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such
Distribution Date, pro rata based on their respective Senior Interest
Distribution Amounts for such Distribution
Date;
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(iv)
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to
the Certificate Insurer to pay any Reimbursement
Amounts;
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(v)
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sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class
M-6,
Class B-1, Class B-2 and Class B-3 Certificates, in that order, their
respective Subordinated Interest Distribution Amounts, in each case,
to
the extent of the Interest Remittance Amount remaining after distributions
of interest to the Classes of Certificates with a higher payment
priority;
and
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(vi)
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any
remaining Interest Remittance Amount on any Distribution Date will
be
distributed pursuant to Section 5.02(a)(1)(C)
hereof.
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(B) (1) On
each Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event is in effect, the Holders of each Class of Certificates and the
Certificate Insurer shall be entitled to receive payments and distributions
in
respect of principal from the Principal Distribution Amount, respectively,
in
the following order of priority:
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(i)
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to
the Certificate Insurer, any Class A-1-W and Class A-3-W Premium
for such
Distribution Date remaining unpaid after application of the Interest
Remittance Amount on that Distribution
Date;
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(ii)
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sequentially,
to the Class A-R Certificates, until its Class Principal Balance
is
reduced to zero, and then to the holders of the Class A Certificates
and
to the Certificate Insurer pursuant to Section 5.03 hereof, until
their
respective Class Principal Balances and any unpaid Reimbursement
Amounts
to the Certificate Insurer are reduced to
zero;
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(iii)
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sequentially,
to the holders of the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class
M-5, Class M-6, Class B-1, Class B-2 and Class B-3 Certificates,
in that
order, until their respective Class Principal Balances are reduced
to
zero; and
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(iv)
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any
remaining Principal Distribution Amount on any Distribution Date
will be
will be distributed pursuant to Section 5.02(a)(1)(C) hereof;
or
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(2) On
each Distribution Date (a) on or after the Stepdown Date and (b) on which a
Trigger Event is not in effect, the Holders of each Class of Certificates and
the Certificate Insurer shall be entitled to receive payments and distributions
in respect of principal from the Principal Distribution Amount, respectively,
in
the following order of priority:
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(i)
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to
the Certificate Insurer, any Class A-1-W and Class A-3-W Premium
for such
Distribution Date remaining unpaid after application of the Interest
Remittance Amount on that Distribution
Date;
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(ii)
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to
the holders of the Class A Certificates and to the Certificate Insurer,
the Senior Principal Distribution Amount, allocated between the Class
A
Certificates and the Certificate Insurer pursuant to Section 5.03
hereof,
until the aggregate Class Principal Balances of the Class A Certificates
and any unpaid Reimbursement Amounts to the Certificate Insurer have
been
reduced to zero;
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(iii)
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to
the Class M-1 Certificates, the Class M-1 Principal Distribution
Amount,
until its Class Principal Balance is reduced to
zero;
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(iv)
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to
the Class M-2 Certificates, the Class M-2 Principal Distribution
Amount,
until its Class Principal Balance is reduced to
zero;
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(v)
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to
the Class M-3 Certificates, the Class M-3 Principal Distribution
Amount,
until its Class Principal Balance is reduced to
zero;
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(vi)
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to
the Class M-4 Certificates, the Class M-4 Principal Distribution
Amount,
until its Class Principal Balance is reduced to
zero;
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(vii)
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to
the Class M-5 Certificates, the Class M-5 Principal Distribution
Amount,
until its Class Principal Balance is reduced to
zero;
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(viii)
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to
the Class M-6 Certificates, the Class M-6 Principal Distribution
Amount,
until its Class Principal Balance is reduced to
zero;
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(ix)
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to
the Class B-1 Certificates, the Class B-1 Principal Distribution
Amount,
until its Class Principal Balance is reduced to zero;
and
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(x)
|
to
the Class B-2 Certificates, the Class B-2 Principal Distribution
Amount,
until its Class Principal Balance is reduced to zero;
and
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(xi)
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to
the Class B-3 Certificates, the Class B-3 Principal Distribution
Amount,
until its Class Principal Balance is reduced to zero;
and
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(xii)
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any
remaining Principal Distribution Amount on any Distribution Date
will be
will be distributed pursuant to Section 5.02(a)(1)(C)
hereof.
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(C) On
each Distribution Date the remaining Net Monthly Excess Cashflow, after giving
effect to the distribution of the Extra Principal Distribution Amount for that
Distribution Date, shall be distributed to the Certificates in the following
order of priority, in each case to the extent of the amounts
remaining:
(i) to
the Class M-1 Certificates, the related Interest Carry Forward
Amount;
(ii) to
the Class M-1 Certificates, the related Unpaid Realized Loss
Amount;
(iii)
to the Class M-2 Certificates, the related Interest Carry Forward
Amount;
84
(iv) to
the Class M-2 Certificates, the related Unpaid Realized Loss
Amount;
(v) to
the Class M-3 Certificates, the related Interest Carry Forward
Amount;
(vi) to
the Class M-3 Certificates, the related Unpaid Realized Loss
Amount;
(vii) to
the Class M-4 Certificates, the related Interest Carry Forward
Amount;
(viii) to
the Class M-4 Certificates, the related Unpaid Realized Loss
Amount;
(ix) to
the Class M-5 Certificates, the related Interest Carry Forward
Amount;
(x) to
the Class M-5 Certificates, the related Unpaid Realized Loss
Amount;
(xi) to
the Class M-6 Certificates, the related Interest Carry Forward
Amount;
(xii) to
the Class M-6 Certificates, the related Unpaid Realized Loss
Amount;
(xiii) to
the Class B-1 Certificates, the related Interest Carry Forward
Amount;
(xiv) to
the Class B-1 Certificates, the related Unpaid Realized Loss
Amount;
(xv) to
the Class B-2 Certificates, the related Interest Carry Forward
Amount;
(xvi) to
the Class B-2 Certificates, the related Unpaid Realized Loss
Amount;
(xvii) to
the Class B-3 Certificates, the related Interest Carry Forward
Amount;
(xviii) to
the Class B-3 Certificates, the related Unpaid Realized Loss
Amount;
(xix) to
the Basis Risk Carry Forward Reserve Fund, the amount of any Basis Risk Carry
Forward Amount for such Distribution Date and from the Basis Risk Carry Forward
Reserve Fund sequentially, first (i) concurrently, to the Class A Certificates,
first pro rata, based on their respective Class Principal Balances or Notional
Amounts, as applicable, to the extent needed to pay any Basis Risk Carry Forward
Amount Carryover for each such Class and then, pro rata, based on any Basis
Risk
Carry Forward Amount Carryover for each such Class, in an amount up to the
amount of any Basis Risk Carry Forward Amount remaining unpaid for such Classes
of Certificates and then (ii) sequentially, to the Class X-0, Xxxxx X-0, Class
M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class B-2 and Class B-3
Certificates, in that order, in an amount up to the amount of any Basis Risk
Carry Forward Amount for such Classes of Certificates;
(xx)
sequentially, first (i) concurrently, to the Class A Certificates, first pro rata, based
on
their respective Class Principal Balances or Notional Amounts, as applicable,
to
the extent needed to pay any Unpaid Interest Shortfall Amount for each such
Class and then, pro
rata, based on any Unpaid Interest Shortfall Amount for each such Class, in
an
amount up to the amount of any Unpaid Interest Shortfall Amount remaining unpaid
for such Classes of Certificates and then (ii) sequentially, to the Class X-0,
Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class B-2
and
Class B-3 Certificates,
85
in
that
order, in an amount up to the amount of any Unpaid Interest Shortfall Amount
for
such Classes of Certificates;
(xxi) to
the Class OC Certificates, the Class OC Distributable Amount; and
(xxii) to
the holders of the Class A-R Certificates, any remaining amounts; provided
that
if such Distribution Date is the Distribution Date immediately following the
expiration of the latest prepayment charge term or any Distribution Date
thereafter, then any such remaining amounts, together with the Class P
Distribution Amount, will be distributed first, to the holders of the Class
P
Certificates, until the Class Principal Balance thereof has been reduced to
zero; and second, to the holders of the Class A-R Certificates.
For
the avoidance of doubt, Section
5.02(a)(1)(C) is intended to cause the Class OC Certificates to receive from
amounts remaining after the application of all other clauses of Section
5.02(a)(1)(C) preceding it, an amount up to the sum of the Class OC
Distributable Amount for that Distribution Date and any Class OC Distributable
Amounts remaining unpaid from prior Distribution Dates and the Securities
Administrator shall construe Section 5.02(a)(1)(C) as necessary so as to
accomplish such result.
(D) On
each Distribution Date, the Class P Distribution Amount received during the
related Prepayment Period will be distributed to the holders of the Class P
Certificates. On the Distribution Date in October 2012, the $1,000
held in trust for the Class P Certificates will be distributed to the holders
of
the Class P Certificates.
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|
Section
5.03. Allocation of Principal Payments to Class A
Certificates.
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(a) On
each Distribution Date on which a Sequential Trigger is not in effect, except
as
set forth in Section 5.03(c) hereof, principal will be distributed to the Class
A Certificates and the Certificate Insurer concurrently as follows:
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1.
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the
Remaining Senior Portion for that Distribution Date will be distributed
sequentially, to the Class A-1, Class A-1-W, Class A-2 and Class
A-4
Certificates and to the Certificate Insurer, in the following order
of
priority:
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a.
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to
the Class A-2 Certificates, the Priority Amount, until its Class
Principal
Balance is reduced to zero;
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b.
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to
the Class A-4 Certificates, in an amount up to $1,000 on each Distribution
Date, until its Class Principal Balance is reduced to
zero;
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c.
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concurrently,
in an amount up to $2,232,000 on each Distribution Date, to (x) the
Class
A-1-W Certificates and the Certificate Insurer and (y) the Class
A-1
Certificates, pro rata, (based on, with respect to clause (x), the
Class
Principal Balance of the Class
A-1-
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86
|
|
W
Certificates, and with respect to clause (y), the Class Principal
Balance
of the Class A-1 Certificates) concurrently as
follows:
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|
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i.
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to
the Class A-1 Certificates, until its Class Principal Balance is
reduced
to zero; and
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ii.
|
sequentially,
first, to the Certificate Insurer, until any unpaid Reimbursement
Amount
with respect to the Class A-1-W Certificates is reduced to zero and
second, to the Class A-1-W Certificates, until its Class Principal
Balance
is reduced to zero;
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d.
|
to
the Class A-4 Certificates, until its Class Principal Balance is
reduced
to zero;
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e.
|
concurrently
to (x) the Class A-1-W Certificates and the Certificate Insurer and
(y)
the Class A-1 Certificates pro rata, (based on, with respect to clause
(x), the Class Principal Balance of the Class A-1-W Certificates,
and with
respect to clause (y), the Class Principal Balance of the Class A-1
Certificates) as follows:
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i.
|
to
the Class A-1 Certificates, until its Class Principal Balance is
reduced
to zero; and
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|
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ii.
|
sequentially,
first, to the Certificate Insurer, until any unpaid Reimbursement
Amount
with respect to the Class A-1-W Certificates is reduced to zero,
and
second, to the Class A-1-W Certificates until the Class Principal
Balance
is reduced to zero; and
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f.
|
to
the Class A-2 Certificates, without regard to the Priority Amount
until
its Class Principal Balance is reduced to zero;
and
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|
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2.
|
the
Class A-3-W Portion for that Distribution Date will be distributed
to the
Class A-3-W Certificates and to the Certificate Insurer sequentially,
first, to the Certificate Insurer, until any unpaid Reimbursement
Amount
with respect to the Class A-3-W Certificates is reduced to zero and
second, to the Class A-3-W Certificates, until its Class Principal
Balance
is reduced to zero.
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(b) On
each Distribution Date on which a Sequential Trigger is in effect, except as
set
forth in Section 5.03(c) hereof, principal will be distributed to the Class
A
Certificates and the Certificate Insurer sequentially, in the following order
of
priority:
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|
1.
|
to
the Class A-2 Certificates, the Priority Amount, until its Class
Principal
Balance has been reduced to zero;
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87
|
|
2.
|
to
the Class A-4 Certificates, in an amount up to $1,000 on each Distribution
Date, until its Class Principal Balance is reduced to
zero;
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3.
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sequentially,
in an amount up to $2,323,000 on each Distribution Date, to (x) the
Class
A-1-W Certificates and the Certificate Insurer and (y) the Class
A-1
Certificates (based on, with respect to clause (x), the Class Principal
Balance of the Class A-1-W Certificates, and with respect to clause
(y),
the Class Principal Balance of the Class A-1 Certificates) in the
following order of priority:
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|
|
a.
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to
the Class A-1 Certificates, until its Class Principal Balance is
reduced
to zero; and
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b.
|
sequentially,
first, to the Certificate Insurer, until any unpaid Reimbursement
Amount
with respect to the Class A-1-W Certificates is reduced to zero and
second, to the Class A-1-W Certificates, until its Class Principal
Balance
is reduced to zero;
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4.
|
to
the Class A-4 Certificates, until its Class Principal Balance is
reduced
to zero;
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5.
|
sequentially,
to (x) the Class A-1-W Certificates and the Certificate Insurer and
(y)
the Class A-1 Certificates (based on, with respect to clause (x),
the
Class Principal Balance of the Class A-1-W Certificates, and with
respect
to clause (y), the Class Principal Balance of the Class A-1 Certificates)
in the following order of priority:
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|
|
a.
|
to
the Class A-1 Certificates, until its Class Principal Balance is
reduced
to zero; and
|
|
|
b.
|
sequentially,
first, to the Certificate Insurer, until any unpaid Reimbursement
Amount
with respect to the Class A-1-W Certificates is reduced to zero and
second, to the Class A-1-W Certificates, until its Class Principal
Balance
is reduced to zero;
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6.
|
to
the Class A-2 Certificates, without regard to the Priority Amount
until
its Class Principal Balance is reduced to zero;
and
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7.
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to
the Class A-3-W Certificates and to the Certificate Insurer sequentially,
first, to the Certificate Insurer, until any unpaid Reimbursement
Amount
with respect to the Class A-3-W Certificates is reduced to zero and
second, to the Class A-3-W Certificates, until its Class Principal
Balance
is reduced to zero.
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(c) Notwithstanding
the allocation of principal to the Class A Certificates described above, in
the
event that the aggregate Class Principal Balance of the
Subordinated
88
Classes
and the Class OC Certificates have been reduced to zero, principal will be
distributed to the Class A Certificates and the Certificate Insurer, as
follows:
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|
1.
|
if
a Sequential Trigger is
not
in
effect, then principal distributions to the Class A Certificates
will be
distributed concurrently, as
follows:
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|
|
a.
|
the
aggregate of the Pro Rata Portions for the Class A-1, Class A-2 and
Class
A-4 Certificates for that Distribution Date will be distributed
concurrently, to the Class A-1, Class A-2 and Class A-4 Certificates,
pro
rata, until their respective Class Principal Balances have been reduced
to
zero;
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b.
|
the
Pro Rata Portion for the Class A-1-W Certificates for that Distribution
Date will be distributed sequentially, first, to the Certificate
Insurer,
until any unpaid Reimbursement Amount with respect to the Class A-1-W
Certificates is reduced to zero, and second, to the Class A-1-W
Certificates, until its Class Principal Balance is reduced to zero;
and
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c.
|
the
Pro Rata Portion for the Class A-3-W Certificates for that Distribution
Date will be distributed sequentially, first, to the Certificate
Insurer,
until any unpaid Reimbursement Amount with respect to the Class A-3-W
Certificates is reduced to zero, and second, to the Class A-3-W
Certificates, until its Class Principal Balance is reduced to zero;
or
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2.
|
if
a Sequential Trigger is in effect,
then
principal distributions to the Class A Certificates will be allocated
sequentially, in the following order of
priority:
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|
|
a.
|
concurrently,
(x) the aggregate of the Sequential Portions for the Class A-2 and
Class
A-4 Certificates for that Distribution Date will be distributed
concurrently, to the Class A-2 and Class A-4 Certificates, pro rata,
until
their respective Class Principal Balances have been reduced to zero;
and
(y) the aggregate of the Sequential Portions for the Class A-1 and
Class
A-1-W Certificates for that Distribution Date will be distributed
sequentially, first to the Class A-1 Certificates, until its Class
Principal Balance is reduced to zero, second, to the Certificate
Insurer,
until any unpaid Reimbursement Amount with respect to the Class A-1-W
Certificates is reduced to zero, and third, to the Class A-1-W
Certificates, until its Class Principal Balance is reduced to zero;
and
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|
|
b.
|
to
the Class A-3-W Certificates and to the Certificate Insurer sequentially,
first, to the Certificate Insurer, until any unpaid Reimbursement
Amount
with respect to the Class A-3-W
|
89
|
|
Certificates
is reduced to zero and second, to the Class A-3-W Certificates, until
its
Class Principal Balance is reduced to
zero.
|
If
any
Class of Depositable Certificates has been surrendered to the Securities
Administrator, on behalf of the Trustee for Exchangeable Certificates, the
Securities Administrator, as holder of such surrendered Depositable
Certificates, shall deposit any amounts distributable to such Class of
Depositable Certificates in this Section 5.03 into the Exchangeable Certificates
Distribution Account and shall distribute such amounts to the Holders of the
related Class or Classes of Exchangeable Certificates pursuant to Section 4.03
hereof pro rata based upon their respective entitlements for that Distribution
Date; provided, however, if a Sequential Trigger is in effect on any
Distribution Date and the Class A-1 Certificates have been deposited in exchange
for the Class A-18 and Class A-19 Certificates, the aggregate proportionate
share due to the Class A-18 and Class A-19 Certificates of the principal that
the Class A-1 Certificates are entitled to receive on that Distribution Date
will be distributed sequentially, to the Class A-18 and Class A-19 Certificates,
in that order, until their respective Class Principal Balances are reduced
to
zero.
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|
Section
5.04. Allocation of
Losses.
|
(a) On
or prior to each Distribution Date, the Securities Administrator shall aggregate
the information provided by each Servicer with respect to the total amount
of
Realized Losses experienced on the Mortgage Loans for the related Distribution
Date.
(b) Applied
Loss Amounts with respect to the Mortgage Loans on any Distribution Date shall
be allocated as follows:
(i) any
Applied Loss Amounts on the Mortgage Loans shall be allocated first to the
Class
OC Certificates, until its Class Principal Balance is reduced to zero, and
second, to the Subordinated Certificates in reverse order of their respective
priorities of payment (beginning with the Class of Class B Certificates then
outstanding with the highest numerical Class designation or, if no Classes
of
Class B Certificates are outstanding, then beginning with the Class of Class
M
Certificates then outstanding with the highest numerical Class designation)
until the respective Class Principal Balance of each such Class is reduced
to
zero; and
(ii) The
Class Principal Balance of the Class of Subordinated Certificates then
outstanding with the highest numerical Class designation shall be reduced on
each Distribution Date by the amount, if any, by which the aggregate of the
Class Principal Balances of all outstanding Classes of Offered Certificates
(after giving effect to the distribution of principal and the allocation of
Applied Loss Amounts on the Mortgage Loans on such Distribution Date) exceeds
the aggregate Stated Principal Balance of the Mortgage Loans for the following
Distribution Date. For the avoidance of doubt, no reductions will be
made in the Class Principal Balance of the Senior Certificates in respect of
Realized Losses on the Mortgage Loans.
(c) Any
Applied Loss Amounts allocated to a Class of Subordinated Certificates or any
reduction in the Class Principal Balance of a Class of Subordinated Certificates
pursuant
90
to
Section 5.04(b) above shall be allocated among the Certificates of such Class
in
proportion to their respective Certificate Balances.
(d) Any
allocation of Realized Losses to a Certificate or to any Component or any
reduction in the Certificate Balance of a Certificate, pursuant to Section
5.04(b) above shall be accomplished by reducing the Certificate Balance or
Component Balance thereof, as applicable, immediately following the
distributions made on the related Distribution Date in accordance with the
definition of “Certificate Balance” or “Component Balance,” as the case may
be. All Realized Losses or Applied Loss Amounts allocated to a Class
of Component Certificates will be allocated, pro rata, to the related
Components.
(e) For
the avoidance of doubt, no Realized Losses on the Mortgage Loans shall be
allocated to the Class P Certificates.
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|
Section
5.05. Advances by the Master
Servicer.
|
If
any
Servicer fails to remit any Advance required to be made under the applicable
Purchase and Servicing Agreement, the Master Servicer shall itself make, or
shall cause the successor Servicer to make, such Advance. If the
Master Servicer determines that an Advance is required, it shall on the Business
Day preceding the related Distribution Date immediately following such
Determination Date remit to the Securities Administrator from its own funds
(or
funds advanced by the applicable Servicer) for deposit in the Distribution
Account immediately available funds in an amount equal to such
Advance. The Master Servicer and each Servicer shall be entitled to
be reimbursed for all Advances made by it. 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. If the Master Servicer determines
that an Advance is non-recoverable, it shall, on or prior to the related
Distribution Date, deliver an Officer’s Certificate to the Trustee and the
Securities Administrator to such effect. Neither the Master Servicer
nor any Servicer shall be under any obligation to make an Advance with respect
to the principal portion of any Balloon Loan that is delinquent on its maturity
date; provided that each Servicer’s rights and obligations under the
applicable Purchase and Servicing Agreement shall in no way be contravened
by
this Section 5.05.
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|
Section
5.06. Compensating Interest
Payments.
|
The
amount of compensation payable to the Securities Administrator in respect of
the
Mortgage Loans and any Distribution Date shall be reduced (but not below zero)
by the amount of any aggregate Compensating Interest Payment from the Servicers
for such Distribution Date, but only to the extent that Prepayment Interest
Shortfalls relating to such Distribution Date are required to be paid by the
Servicers pursuant to the Purchase and Servicing Agreements, as amended by
the
Acknowledgements, but are not actually paid by the Servicer. Such
amount shall not be treated as an Advance and shall not be
reimbursable.
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|
Section
5.07. Policy Matters; Payments to the Certificate
Insurer.
|
(a) If,
on the third Business Day before any Distribution Date, the Securities
Administrator, on behalf of the Trustee, determines that the Available Funds
for
such
91
Distribution
Date distributable to the Holders of the Class A-1-W and Class A-3-W
Certificates pursuant to Section 5.02, will be insufficient to pay the Required
Distributions on such Distribution Date, the Securities Administrator, on behalf
of the Trustee, shall determine the amount of any such deficiency and shall
give
notice to the Certificate Insurer and the Fiscal Agent (as defined in the Class
A-1-W and Class A-3-W Policy), if any, by telephone or telecopy of the amount
of
such deficiency, confirmed in writing by notice substantially in the form of
Exhibit A to the Class A-1-W and Class A-3-W Policy by 12:00 noon, New York
City
time on such third Business Day. The Securities Administrator’s
responsibility for delivering the notice to the Certificate Insurer as provided
in the preceding sentence is limited to the availability, timeliness and
accuracy of the information provided to the Securities Administrator by the
Master Servicer and the Servicers.
(b) In
the event the Trustee or the Securities Administrator receives a certified
copy
of an order of the appropriate court that any scheduled payment of principal
or
interest on a Class A-1-W and Class A-3-W Certificate has been voided in whole
or in part as a preference payment under applicable bankruptcy law, if the
Securities Administrator receives such notice (or if the Trustee receives such
notice the Trustee shall notify the Securities Administrator), the Securities
Administrator, on behalf of the Trustee, shall (i) promptly notify Certificate
Insurer and the Fiscal Agent, if any, and (ii) comply with the provisions of
the
Class A-1-W and Class A-3-W Policy to obtain payment by Certificate Insurer
of
such voided scheduled payment. In addition, the Securities
Administrator shall mail notice to all Holders of the Class A-1-W and Class
A-3-W Certificates so affected that, in the event that any such Holder’s
scheduled payment is so recovered, such Holder will be entitled to payment
pursuant to the terms of the Class A-1-W and Class A-3-W Policy a copy of which
shall be made available to such Holders by the Securities
Administrator. The Securities Administrator shall furnish to the
Certificate Insurer and the Fiscal Agent, if any, its records listing the
payments on the affected Class A-1-W and Class A-3-W Certificates, if any,
that
have been made by the Securities Administrator and subsequently recovered from
the affected Holders, and the dates on which such payments were made by the
Securities Administrator.
(c) At
the time of the execution hereof, and for the purposes hereof, the Securities
Administrator, on behalf of the Trustee shall establish a separate special
purpose trust account in the name of the Trustee for the benefit of Holders
of
the Class A-1-W and Class A-3-W Certificates (the “Certificate Insurance
Account”) over which the Trustee and the Securities Administrator shall have
exclusive control and sole right of withdrawal. The Certificate
Insurance Account shall be an Eligible Account. The Securities
Administrator shall deposit any amount paid under the Class A-1-W and Class
A-3-W Policy into the Certificate Insurance Account and distribute such amount
only for the purposes of making the payments to Holders of the Class A-1-W
and
Class A-3-W Certificates in respect of the Required Distribution for which
the
related claim was made under the Class A-1-W and Class A-3-W
Policy. Such amounts shall be allocated by the Securities
Administrator to Holders of Class A-1-W and Class A-3-W Certificates affected
by
such shortfalls in the same manner as principal and interest payments are to
be
allocated with respect to such Certificates pursuant to Section
5.02. It shall not be necessary for such payments to be made by
checks or wire transfers separated from the checks or wire transfers used to
make regular payments hereunder with funds withdrawn from the Distribution
Account. However, any payments made on the Class A-1-W and Class
A-3-W Certificates from funds in the Certificate Insurance Account shall be
noted as provided in
92
subsection
(e) below. Funds held in the Certificate Insurance Account shall not
be invested by the Securities Administrator or the Trustee.
(d) Any
funds received from Certificate Insurer for deposit into the Certificate
Insurance Account pursuant to the Class A-1-W and Class A-3-W Policy
in respect of a Distribution Date or otherwise as a result of any claim under
the Class A-1-W and Class A-3-W Policy shall be applied by the Securities
Administrator directly to the payment in full (i) of the Required Distribution
due on such Distribution Date on the Class A-1-W and Class A-3-W Certificates,
or (ii) of other amounts payable under the Class A-1-W and Class A-3-W
Policy. Funds received by the Securities Administrator as a result of
any claim under the Class A-1-W and Class A-3-W Policy shall be used solely
for
payment to the Holders of the Class A-1-W and Class A-3-W Certificates and
may
not be applied for any other purpose, including, without limitation,
satisfaction of any costs, expenses or liabilities of the Securities
Administrator, the Trustee, the Master Servicer or the Trust
Fund. Any funds remaining in the Certificate Insurance Account on the
first Business Day after each Distribution Date shall be remitted promptly
to
the Certificate Insurer in accordance with the instructions set forth in Section
5.07(n).
(e) The
Securities Administrator shall keep complete and accurate records in respect
of
(i) all funds remitted to it by Certificate Insurer and deposited into the
Certificate Insurance Account and (ii) the allocation of such funds to (A)
payments of interest on and principal in respect of any Class A-1-W and Class
A-3-W Certificates, and (B) the amount of funds available to make distributions
on the Class A-1-W and Class A-3-W Certificates pursuant to Section
5.02. The Certificate Insurer shall have the right to inspect such
records at reasonable times during normal business hours upon three Business
Days’ prior notice to the Securities Administrator.
(f) The
Securities Administrator acknowledges, and each Holder of a Class A-1-W and
Class A-3-W Certificate by its acceptance of the Class A-1-W and Class A-3-W
Certificate agrees, that, without the need for any further action on the part
of
the Certificate Insurer, the Securities Administrator or the Trustee to the
extent the Certificate Insurer makes payments, directly or indirectly, on
account of principal of or interest on any Class A-1-W and Class A-3-W
Certificates, the Certificate Insurer will be fully subrogated to the rights
of
the Holders of such Class A-1-W and Class A-3-W Certificates to receive such
principal and interest from the Trust Fund. The Holders of the Class
A-1-W and Class A-3-W Certificates, by acceptance of the Class A-1-W and Class
A-3-W Certificates, assign their rights as Holders of the Class A-1-W and Class
A-3-W Certificates to the extent of the Certificate Insurer’s interest with
respect to amounts paid under the Class A-1-W and Class A-3-W
Policy. Anything herein to the contrary notwithstanding, solely for
purposes of determining the Certificate Insurer’s rights, as applicable, as
subrogee for payments distributable pursuant to Section 5.02, any payment with
respect to distributions to the Class A-1-W and Class A-3-W Certificates which
is made with funds received pursuant to the terms of the Class A-1-W and Class
A-3-W Policy, shall not be considered payment of the Class A-1-W and Class
A-3-W
Certificates from the Trust Fund and shall not result in the distribution or
the
provision for the distribution in reduction of the Class Principal Balance
of
the Class A-1-W and Class A-3-W Certificates within the meaning of Article
V.
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(g) Upon
its becoming aware of the occurrence of an Event of Default, the Securities
Administrator shall promptly notify the Certificate Insurer of such Event of
Default.
(h) The
Securities Administrator shall promptly notify Certificate Insurer of either
of
the following as to which it has actual knowledge: (A) the commencement of
any
proceeding by or against the Depositor commenced under the United States
bankruptcy code or any other applicable bankruptcy, insolvency, receivership,
rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of
any claim in connection with any Insolvency Proceeding seeking the avoidance
as
a preferential transfer (a “Preference Claim”) of any distribution made with
respect to the Class A-1-W and Class A-3-W Certificates as to which it has
actual knowledge. Each Holder of a Class A-1-W and Class A-3-W
Certificate, by its purchase of Class A-1-W and Class A-3-W Certificates, and
the Securities Administrator hereby agrees that the Certificate Insurer (so
long
as no Certificate Insurer Default exists) may at any time during the
continuation of any proceeding relating to a Preference Claim direct all matters
relating to such Preference Claim, including, without limitation, (i) the
direction of any appeal of any order relating to any Preference Claim and (ii)
the posting of any surety, supersedeas or performance bond pending any such
appeal. In addition and without limitation of the foregoing, the
Certificate Insurer shall be subrogated to the rights of the Securities
Administrator and each Holder of a Class A-1-W and Class A-3-W Certificate
in
the conduct of any Preference Claim, including, without limitation, all rights
of any party to an adversary proceeding action with respect to any court order
issued in connection with any such Preference Claim.
(i) The
Master Servicer shall designate a Certificate Insurer Contact Person who shall
be available to the Certificate Insurer to provide reasonable access to
information regarding the Mortgage Loans. The initial Certificate
Insurer Contact Person from the Master Servicer is Client Manager — Xxxxxx
Xxxxxxx 2007-10XS.
(j) The
Trustee or the Securities Administrator on behalf of the Trustee shall surrender
the Class A-1-W and Class A-3-W Policy to the Certificate Insurer for
cancellation upon the reduction of the Class Principal Balance of the Class
A-1-W and Class A-3-W Certificates to zero.
(k) The
Securities Administrator or Trustee, as applicable, shall send to the
Certificate Insurer the reports prepared pursuant to Sections 4.05, 6.17 and
6.20, as well as any other statements or communications sent to Holders of
the
Class A-1-W and Class A-3-W Certificates, in each case at the same time such
reports, statements and communications are otherwise sent.
(l) For
so long as there is no continuing default by the Certificate Insurer under
its
obligations under the Class A-1-W and Class A-3-W Policy (a “Certificate Insurer
Default”), each Holder of a Class A-1-W and Class A-3-W Certificate agrees that
the Certificate Insurer shall be treated by the Depositor, the Master Servicer,
the Trustee and the Securities Administrator as if the Certificate Insurer
were
the Holder of all of the Class A-1-W and Class A-3-W Certificates for the
purpose (and solely for the purpose) of the giving of any consent or waiver,
the
making of any direction or the exercise of any voting or other control rights
otherwise given to the Holders of the Class A-1-W and Class A-3-W Certificates
hereunder.
94
(m) With
respect to this Section 5.07, (i) the terms “Receipt” and “Received” shall mean
actual delivery to the Certificate Insurer and the Certificate Insurer’s Fiscal
Agent, if any, if any, prior to 12:00 noon, New York City time, on a Business
Day; delivery either on a day that is not a Business Day or after 12:00 noon,
New York City time, shall be deemed to be Receipt on the next succeeding
Business Day. If any notice or certificate given under the Class
A-1-W and Class A-3-W Policy by the Securities Administrator is not in proper
form or is not properly completed, executed or delivered, it shall be deemed
not
to have been Received. The Certificate Insurer or its Fiscal Agent,
if any, shall promptly so advise the Securities Administrator and the Securities
Administrator may submit an amended notice and (ii) “Business Day” means any day
other than (A) a Saturday or Sunday or (B) a day on which the Certificate
Insurer or banking institutions in the City of New York, New York, or the city
in which the Corporate Trust Offices of the Securities Administrator and the
Trustee are located, are authorized or obligated by law or executive order
to be
closed.
(n) Payments
to the Certificate Insurer shall be made by wire transfer of immediately
available funds to the following account, unless the Certificate Insurer
notifies the Securities Administrator in writing of a change in such
instructions: Account Name: MBIA Insurance Corporation, Account
Number 000-0-000000, Bank – JPMorgan Chase Bank, ABA Number 000-000-000,
Re: Xxxxxx Xxxxxxx MSM 2007-10XS – Policy No. 498640– Class A-1-W and
Class A-3-W Certificates.
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Section
5.08. [Reserved].
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|
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Section
5.09. Determination of Pass-Through Rates for LIBOR
Certificates.
|
(a) On
each Interest Determination Date after the initial Interest Determination Date
and for so long as any LIBOR Certificates (including for this purpose any
Exchangeable Certificates with a Class Principal Balance or Notional Amount,
as
applicable, that is greater than zero) are outstanding, the Securities
Administrator will determine LIBOR on the basis of the British Bankers’
Association (“BBA”) “Interest Settlement Rate” for one-month deposits in U.S.
dollars as found on LIBOR01 as of 11:00 a.m. London time on each related LIBOR
Determination Date (or on such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices).
(b) If
on any Interest Determination Date, LIBOR cannot be determined as provided
in
paragraph (a) of this Section 5.09, the Securities Administrator shall either
(i) request each Reference Bank to inform the Securities Administrator of the
quotation offered by its principal London office for making one-month United
States dollar deposits in leading banks in the London interbank market, as
of
11:00 a.m. (London time) on such Interest Determination Date or (ii) in lieu
of
making any such request, rely on such Reference Bank quotations that appear
at
such time on the Reuters Screen LIBO Page (as defined in the International
Swap
Dealers Association Inc. Code of Standard Wording, Assumptions and Provisions
for Swaps, 1986 Edition), to the extent available. LIBOR for the next
related Interest Accrual Period will be established by the Securities
Administrator on each interest Determination Date as follows:
(i) If
on any Interest Determination Date two or more Reference Banks provide such
offered quotations, LIBOR for the next applicable Interest Accrual
Period
95
shall
be
the arithmetic mean of such offered quotations (rounding such arithmetic mean
upwards if necessary to the nearest whole multiple of 1/32%).
(ii) If
on any Interest Determination Date only one or none of the Reference Banks
provides such offered quotations, LIBOR for the next Interest Accrual Period
shall be whichever is the higher of (i) LIBOR as determined on the previous
related Interest Determination Date or (ii) the Reserve Interest
Rate. The “Reserve Interest Rate” shall be the rate per annum which
the Securities Administrator determines to be either (i) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of 1/32%) of the
one-month United States dollar lending rates that New York City banks selected
by the Securities Administrator are quoting, on the relevant Interest
Determination Date, to the principal London offices of at least two of the
Reference Banks to which such quotations are, in the opinion of the Securities
Administrator, being so made, or (ii) in the event that the Securities
Administrator can determine no such arithmetic mean, the lowest one-month United
States dollar lending rate which New York City banks selected by the Securities
Administrator are quoting on such Interest Determination Date to leading
European banks.
(iii) If
on any Interest Determination Date the Securities Administrator is required
but
is unable to determine the Reserve Interest Rate in the manner provided in
paragraph (b) above, LIBOR for the related Classes of Certificates shall be
LIBOR as determined on the preceding applicable Interest Determination Date
or
(B) in the case of the first Interest Determination Date, LIBOR with respect
to
the Senior Certificates shall be 5.32% and with respect to the Subordinated
Certificates shall be 5.32%.
Until
all
of the LIBOR Certificates are paid in full, the Securities Administrator will
at
all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each Interest Determination Date. The
Securities Administrator initially shall designate the Reference
Banks. Each “Reference Bank” shall be a leading bank engaged in
transactions in Eurodollar deposits in the international Eurocurrency market,
shall not control, be controlled by, or be under common control with, the
Securities Administrator and shall have an established place of business in
London. If any such Reference Bank should be unwilling or unable to
act as such or if the Master Servicer should terminate its appointment as
Reference Bank, the Securities Administrator shall promptly appoint or cause
to
be appointed another Reference Bank. The Securities Administrator
shall have no liability or responsibility to any Person for (i) the selection
of
any Reference Bank for purposes of determining LIBOR or (ii) any inability
to
retain at least four Reference Banks which is caused by circumstances beyond
its
reasonable control.
(c) The
Pass-Through Rate for each Class of LIBOR Certificates for each Interest Accrual
Period shall be determined by the Securities Administrator on each related
Interest Determination Date so long as such Classes of LIBOR Certificates are
outstanding on the basis of LIBOR and the respective formulae appearing in
footnotes corresponding to the LIBOR Certificates in the table relating to
the
LIBOR Certificates in the Preliminary Statement.
(d) In
determining LIBOR, any Pass-Through Rate for the LIBOR Certificates, any
Interest Settlement Rate, or any Reserve Interest Rate, the Securities
Administrator may
96
conclusively
rely and shall be protected in relying upon the offered quotations (whether
written, oral or on the Dow Xxxxx Markets) from the BBA designated banks, the
Reference Banks or the New York City banks as to LIBOR, the Interest Settlement
Rate or the Reserve Interest Rate, as appropriate, in effect from time to
time. The Securities Administrator shall not have any liability or
responsibility to any Person for (i) the selection of New York City banks for
purposes of determining any Reserve Interest Rate or (ii) its inability,
following a good-faith reasonable effort, to obtain such quotations from, the
BBA designated banks, the Reference Banks or the New York City banks or to
determine such arithmetic mean, all as provided for in this Section
5.09.
(e) The
establishment of LIBOR and each Pass-Through Rate for the LIBOR Certificates
by
the Securities Administrator shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Securities
Administrator.
| Section 5.10 The Reserve Funds. |
(a) The
Class A Reserve
Fund. On the Closing Date, there is hereby established a
separate trust (the “Supplemental Interest Trust”), the assets of which shall
consist of the Class A Reserve Fund and the Securities Administrator’s rights
and obligations under the Corridor Contract. The Securities
Administrator shall establish and maintain the Class A Reserve Fund, a separate
trust account for the benefit of the holders of the Class A-4, Class A-6 and
Class A-8 Certificates (the “Class A Reserve Fund”) on behalf of the trustee of
the Supplemental Interest Trust (which shall initially be the Trustee), into
which the Depositor shall cause to be deposited $1,000 on the Closing
Date. The Class A 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 Securities Administrator, on behalf of the Trustee, held pursuant to
this
Agreement. The Supplemental Interest Trust shall not be an asset of
any REMIC. For the avoidance of doubt, any amounts paid from the
Class A Reserve Fund to the Class A-4, Class A-6 and Class A-8 Certificates
shall be deemed to have been distributed from the Supplemental Interest
Trust.
On
each
Distribution Date, the Securities Administrator shall deposit into the Class
A
Reserve Fund all monies received in respect of the Corridor Contract for that
Distribution Date. Amounts deposited in the Reserve Account shall
remain on deposit or shall be invested according to this Section until the
termination of the Corridor Contract.
Funds
in
the Class A Reserve Fund shall be invested in Permitted Investments as directed
in writing by the Corridor Contract Counterparty. Any earnings on
amounts in the Class A Reserve Fund shall be for the benefit of the Class A-4,
Class A-6 and Class A-8 Certificateholders in an amount equal to current and
unpaid Yield Supplement Amounts. The Corridor Contract Counterparty
shall direct the Securities Administrator, in writing, as to investment of
amounts on deposit therein. The Corridor Contract Counterparty shall
be liable for any losses incurred on such investments. In the absence
of written instructions from the Corridor Contract Counterparty to the
Securities Administrator as to investment of funds on deposit in the Class
A
Reserve Fund, such funds shall be invested in the Xxxxx Fargo Advantage Prime
Investment Money Market Fund. Any net investment earnings on such
amounts shall be retained therein until withdrawn as provided
herein. Any losses incurred in the Class A Reserve Fund
in
97
respect
of any such investments shall be charged against amounts on deposit in the
Class
A Reserve Fund (or such investments) immediately as realized. The
Securities Administrator shall not be liable for the amount of any loss incurred
in respect of any investment or lack of investment of funds held in the Class
A
Reserve Fund and made in accordance with this Section 5.10(a). The
Class A Reserve Fund will not constitute an asset of the Trust Fund nor of
any
REMIC created hereunder.
(b) The
Basis Risk Carry Forward Reserve
Fund. On the Closing Date, the Securities Administrator shall
establish and maintain in its name, in trust for the benefit of the
Certificates, the Basis Risk Carry Forward Reserve Fund and shall deposit $1,000
therein upon receipt of such amount from or on behalf of the
Underwriter. On each Distribution Date, the Securities Administrator
shall transfer from the Distribution Account to the Basis Risk Carry Forward
Reserve Fund the amounts specified pursuant to Section
5.02(a)(1)(C)(viii). Any such amounts transferred shall be treated
for federal tax purposes as amounts distributed to the Holders of the Class
OC
Certificates. On each Distribution Date, to the extent required, the
Securities Administrator shall withdraw amounts in the Basis Risk Carry Forward
Reserve Fund to make distributions to the Classes of Certificates in accordance
with the priorities set forth in Section 5.02(a)(1)(C)(viii). On the
Distribution Date on which the termination of the Certificates occurs pursuant
to Section 7.02, after making all distributions required in connection with
the
Certificates, the Securities Administrator shall withdraw from the Basis Risk
Carry Forward Reserve Fund (to the extent of funds available on deposit therein)
any remaining amounts and distribute them to the Holders of the Class OC
Certificates.
The
Basis
Risk Carry Forward Reserve Fund shall be an Eligible Account, and funds on
deposit therein shall be held separate and apart from, and shall not be
commingled with, any other moneys, including without limitation, other moneys
held by the Securities Administrator on behalf of the Trustee pursuant to this
Agreement. Amounts held in the Basis Risk Carry Forward Reserve Fund
from time to time shall continue to constitute assets of the Trust Fund, but
not
of any REMIC created under this Agreement, until released from the Basis Risk
Carry Forward Reserve Fund pursuant to this Section 5.10(b). The
Basis Risk Carry Forward Reserve Fund constitutes an “outside Reserve Fund”
within the meaning of Treasury Regulation § 1.860G-2(h) and is not an asset of
any REMIC. The Holders of the Class OC Certificates shall be the
owner of the Basis Risk Carry Forward Reserve Fund. The Securities
Administrator shall keep records that accurately reflect the funds on deposit
in
the Basis Risk Carry Forward Reserve Fund. Funds in the Basis Risk Carry Forward
Reserve Fund may be invested in Permitted Investments at the written direction
of the Majority of the Holders of the Class OC Certificates, which Permitted
Investments shall mature not later than the Business Day immediately preceding
the first Distribution Date that follows the date of such investment (except
that if such Permitted Investment is an obligation of the institution that
maintains the Basis Risk Carry Forward Reserve Fund, then such Permitted
Investment shall mature not later than such Distribution Date) and shall not
be
sold or disposed of prior to maturity; provided, however, that if the Securities
Administrator does not receive written investment directions, the funds in
the
Basis Risk Carry Forward Reserve Fund shall be invested in the Xxxxx Fargo
Prime
Investment Money Market Fund. All such Permitted Investments shall be
made in the name of the Trustee, for the benefit of the Holders of the Class
OC
Certificates. All losses incurred in the Basis Risk Carry Forward
Reserve Fund in respect of any such investments shall be charged against amounts
on deposit in the Basis Risk Carry Forward Reserve Fund (or such investments
immediately as realized). The
98
Securities
Administrator shall not be liable for the amount of any loss incurred in respect
of any investment or lack of investment of funds in the Basis Risk Carry Forward
Reserve Fund. The Class OC Certificates shall evidence ownership of
the Basis Risk Carry Forward Reserve Fund for federal tax purposes.
To
the
extent that a Class of Certificates receives interest in excess of the Net
WAC
Pass-Through Rate, such interest shall be deemed to have been paid to the Basis
Risk Carry Forward Reserve Fund and then paid by the Basis Risk Carry Forward
Reserve Fund to those Certificateholders. For purposes of the Code,
amounts deemed deposited in the Basis Risk Carry Forward Reserve Fund shall
be
deemed to have first been distributed to the Class OC Certificates.
| Section 5.11 The Corridor Contract |
(a) The
Depositor hereby directs the Securities Administrator, solely in its capacity
as
Securities Administrator hereunder and not in its individual capacity, to
execute and deliver the Corridor Contract concurrently with the execution and
delivery of this Agreement. Except as may be directed in writing by
the Depositor or by a majority in interest of the Class A-4 Certificates, the
Securities Administrator shall have no duty or responsibility to enter into
any
other interest rate cap contract or agreement upon the expiration or termination
of the Corridor Contract. The Corridor Contract will be an asset of
the Supplemental Interest Trust. The Securities Administrator shall
deposit any amounts received from the Corridor Contract Counterparty with
respect to the Corridor Contract into the Class A Reserve Fund.
(b) The
Securities Administrator will prepare and deliver any notices required to be
delivered to the Corridor Contract Counterparty under the Corridor
Contract.
(c) The
Securities Administrator, on behalf of the Trustee shall terminate the Corridor
Contract Counterparty with respect to the Corridor Contract upon the occurrence
of an event of default under the Corridor Contract of which a Responsible
Officer of the Securities Administrator has actual knowledge. Upon
such a termination, the Corridor Contract Counterparty may be required to pay
an
amount to the Securities Administrator, on behalf of the Trustee, in respect
of
market quotations for the replacement cost of the Corridor
Contract.
(d) (i) On
each Distribution Date, following the distribution of any amounts in respect
of
interest pursuant to Section 5.02(a)(4)(ii), the Securities Administrator shall
distribute amounts on deposit in the Class A Reserve Fund from the Corridor
Contract, to the Holders of the Class A-4, Class A-6 and Class A-8
Certificates. Amounts withdrawn from the Class A Reserve Fund shall
be distributed as follows: from any Corridor Contract Payment on
deposit in the Class A Reserve Fund with respect to any Distribution Date on
prior to the related Corridor Contract Termination Date on which one-month
LIBOR
exceeds 5.66%, an amount equal to interest for the related Interest Accrual
Period on the Class Principal Balance of the Class A-4 Certificates immediately
prior to such Distribution Date (which for the purposes of this calculation
assumes that no portion of the Class A-4 Certificates has been deposited in
exchange for any classes of Exchangeable Certificates) at a rate equal to the
excess of (i) the lesser of one-month LIBOR and 9.41% over (ii) 5.66%, to the
holders of the Class A-4, Class A-6 and Class A-8 Certificates.
99
(ii) Any
payments made under the Corridor Contract on any Distribution Date in excess
of
the Yield Supplement Amount for the Class A-4 Certificates for that Distribution
Date, shall remain on deposit in the Class A Reserve Fund to pay Yield
Supplement Amounts on the Class A-4 Certificates and will be withdrawn therefrom
and distributed to the Class A-4, Class A-6 and Class A-8 Certificates to the
extent needed to pay any related Yield Supplement Amount of the Class A-4,
Class
A-6 and Class A-8 Certificates, for such Distribution Date and all future
distribution dates until the earlier of (i) the date on which the Class
Principal Balance of the Class A-4 Certificates has been reduced to zero and
(ii) the Corridor Contract Termination Date. Thereafter all amounts
on deposit in the Class A Reserve Fund will be distributed to the Corridor
Contract Counterparty.
ARTICLE
VI
CONCERNING
THE TRUSTEE AND
THE
SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
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Section
6.01. Duties of Trustee and the Securities
Administrator.
|
(a) The
Trustee, except during the continuance of an Event of Default, and the
Securities Administrator undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement. Any permissive right
of the Trustee or the Securities Administrator provided for in this Agreement
shall not be construed as a duty of the Trustee or the Securities
Administrator. If an Event of Default has occurred and has not
otherwise been cured or waived, the Trustee or the Securities Administrator
shall exercise such of the rights and powers vested in it by this Agreement
and
use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person’s
own affairs, unless the Trustee is acting as master servicer, in which case it
shall use the same degree of care and skill (in its capacity as successor Master
Servicer) as a master servicer hereunder.
(b) Each
of the Trustee and the Securities Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders
or
other instruments furnished to the Trustee or the Securities Administrator
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 neither the
Trustee nor the Securities Administrator shall be responsible for the accuracy
or content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Master Servicer or any
Servicer to the Trustee or the Securities Administrator pursuant to this
Agreement, and shall not be required to recalculate or verify any numerical
information furnished to the Trustee or the Securities Administrator 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 to the form required by this Agreement
in a material manner the Securities Administrator shall take such action as
it
deems appropriate to cause the instrument to be corrected, and if the instrument
is not corrected to the Securities Administrator ’s satisfaction, the Securities
Administrator will provide notice thereof to the Certificateholders and will,
at
the expense of the Trust Fund, which expense shall be
100
reasonable
given the scope and nature of the required action, take such further action
as
directed by the Certificateholders.
(c) Neither
the Trustee nor the Securities Administrator shall have any liability arising
out of or in connection with this Agreement, except for its respective
negligence or willful misconduct. Notwithstanding anything in this
Agreement to the contrary, neither the Trustee nor the Securities Administrator
shall 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 or the
Securities Administrator 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 of Holders of Certificates or the Certificate Insurer, as subrogee
of
the holders of the Class A-1-W and Class A-3-W Certificates, as provided in
Section 6.18 hereof;
(ii) For
all purposes under this Agreement, the Trustee shall not be deemed to have
notice of any Event of Default 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 of
the
Trustee, and such notice references the Holders of the Certificates and this
Agreement;
(iii) For
all purposes under this Agreement, the Securities Administrator shall not be
deemed to have notice of any Event of Default (other than resulting from a
failure by the Master Servicer (i) to remit funds (or to make Advances) or
(ii)
to furnish information to the Securities Administrator when required to do
so)
unless a Responsible Officer of the Securities Administrator has actual
knowledge thereof or unless written notice of any event which is in fact such
a
default is received by the Securities Administrator at the address provided
in
Section 11.07, and such notice references the Holders of the Certificates
and this Agreement;
(iv) No
provision of this Agreement shall require the Trustee or the Securities
Administrator 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 indemnity reasonably satisfactory
to
it 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 or the Securities Administrator to perform, or be responsible for the
manner of performance of, any of the obligations of the Master Servicer under
this Agreement;
(v) Neither
the Trustee nor the Securities Administrator shall be responsible for any act
or
omission of each other or the Master Servicer, the Depositor, the Seller, any
Servicer or any Custodian.
101
(d)
The Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered to or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee
shall promptly remit to the Master Servicer, upon receipt any such complaint,
claim, demand, notice or other document (i) which is delivered to the
Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer
has actual knowledge, and (iii) which contains information sufficient to
permit the Trustee to make a determination that the real property to which
such
document relates is a Mortgaged Property related to a Mortgage
Loan.
(e) Neither
the Trustee nor the Securities Administrator shall 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 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 the Securities Administrator or
exercising any trust or power conferred upon the Trustee or the Securities
Administrator, as applicable, under this Agreement or the
Acknowledgements.
(f) Neither
the Trustee nor the Securities Administrator shall be required to perform
services under this Agreement or the Purchase and Servicing Agreements, 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 indemnity reasonably
satisfactory to it 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 or the Securities Administrator, as applicable, 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 Purchase and
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
Distribution Account resulting from any investment loss on any Permitted
Investment included therein (except to the extent that the Trustee is the
obligor and has defaulted thereon).
(h) Neither
the Trustee nor, except as otherwise provided herein, the Securities
Administrator shall have any duty (A) to see to any recording, filing, or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or
to see to the maintenance of any such recording or filing or depositing or
to
any rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance, (C) to see to the payment or discharge of any tax, assessment,
or other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Trust Fund other than
from funds available in the Distribution Account, or (D) to confirm or
verify the contents of any reports or certificates of the Master Servicer or
any
Servicer delivered to the Trustee or the Securities Administrator pursuant
to
this Agreement believed by the Trustee or the Securities Administrator, as
applicable, to be genuine and to have been signed or presented by the proper
party or parties.
102
(i) Neither
the Securities Administrator nor the Trustee shall be liable in its individual
capacity for an error of judgment made in good faith by a Responsible Officer
or
other officers of the Trustee or the Securities Administrator, as applicable,
unless it shall be proved that the Trustee or the Securities Administrator,
as
applicable, was negligent in ascertaining the pertinent facts.
(j) Notwithstanding
anything in this Agreement to the contrary, neither the Securities Administrator
nor the Trustee 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 Securities Administrator, as applicable, has been
advised of the likelihood of such loss or damage and regardless of the form
of
action.
(k) Neither
the Securities Administrator nor the Trustee shall be responsible for the acts
or omissions of the other, it being understood that this Agreement shall not
be
construed to render them agents of one another, or of any Servicer.
|
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Section
6.02. Certain Matters Affecting the Trustee and the Securities
Administrator.
|
Except
as
otherwise provided in Section 6.01:
(i) Each
of the Trustee and the Securities Administrator may request, and may rely and
shall be protected in acting or refraining from acting upon any resolution,
Officer’s Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document believed by it to be genuine and
to
have been signed or presented by the proper party or parties;
(ii) Each
of the Trustee and the Securities Administrator 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) Neither
the Trustee nor the Securities Administrator shall 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, neither the Trustee
nor the Securities Administrator shall be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or
other paper or document, unless requested in writing to do so by the Holders
of
at least a majority in Class Principal Balance (or Percentage Interest) of
each
Class of Certificates; provided,
however, that, if the
payment within a reasonable time to the Trustee or the Securities Administrator,
as applicable, 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 or the
Securities Administrator, as applicable, not reasonably assured to the Trustee
or the Securities Administrator by the security afforded to it by the terms
of
this Agreement, the Trustee or
103
the
Securities Administrator, as applicable, may require indemnity reasonably
satisfactory to it against such expense or liability or payment of such
estimated expenses from the Certificateholders 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 or the Securities Administrator, as
applicable, by the Trust Fund;
(v) Each
of the Trustee and the Securities Administrator 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 and the Securities Administrator conferred on them by such appointment,
provided that each of the Trustee and the Securities Administrator shall
continue to be responsible for its duties and obligations hereunder to the
extent provided herein, and provided further that neither the Trustee nor the
Securities Administrator shall be responsible for any misconduct or negligence
on the part of any such agent or attorney appointed with due care by the Trustee
or the Securities Administrator, as applicable;
(vi) Neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the trusts or powers vested in it by this Agreement or the
Acknowledgements 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 pursuant to the provisions of this Agreement, unless
such
Certificateholders shall have offered to the Trustee or the Securities
Administrator, as applicable, security or indemnity reasonably satisfactory
to
it against the costs, expenses and liabilities which may be incurred therein
or
thereby;
(vii) The
right of the Trustee and the Securities Administrator to perform any
discretionary act enumerated in this Agreement shall not be construed as a
duty,
and neither the Trustee nor the Securities Administrator shall be answerable
for
other than its negligence or willful misconduct in the performance of such
act;
and
(viii) Neither
the Trustee nor the Securities Administrator shall be required to give any bond
or surety in respect of the execution of the Trust Fund created hereby or the
powers granted hereunder.
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Section
6.03. Trustee and Securities Administrator Not Liable for
Certificates.
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The
Trustee and the Securities Administrator make no representations as to the
validity or sufficiency of this Agreement, any Purchase and Servicing Agreement
or Acknowledgement, the Corridor Contract or of the Certificates (other than,
in
the case of the Securities Administrator, the certificate of authentication
on
the Certificates) or of any Mortgage Loan, or related document save that the
Trustee and the Securities Administrator represent 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
104
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 and the Securities Administrator 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 Distribution Account
or
any other fund or account maintained with respect to the
Certificates. The Trustee and the Securities Administrator shall not
be responsible for the legality or validity of this Agreement or any other
document or agreement described in this Section 6.03 or the validity, priority,
perfection or sufficiency of the security for the Certificates issued or
intended to be issued hereunder. Neither the Trustee nor, except as
otherwise provided herein, the Securities Administrator shall have any
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to record this
Agreement.
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Section
6.04. Trustee and the Securities Administrator May Own
Certificates.
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The
Trustee and the Securities Administrator and any Affiliate or agent of either
of
them in its individual or any other capacity may become the owner or pledgee
of
Certificates 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, Securities Administrator or such agent.
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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. 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 and the Securities
Administrator.
|
(a) The
Trustee may at any time resign and be discharged from the trust hereby created
by giving written notice thereof to the Securities Administrator, the Depositor
and the Master Servicer. Upon receiving such notice of resignation,
the Depositor will promptly appoint a successor trustee, by written instrument,
one copy of which instrument shall be delivered to the resigning Trustee, one
copy to the successor trustee, one copy to the Securities Administrator and
one
copy to the Master Servicer. 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
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resigning
Trustee may petition any court of competent jurisdiction for the appointment
of
a successor trustee.
At
least
15 calendar days prior to the effective date of such resignation, the Trustee
shall provide (x) written notice to the Depositor and the Master Servicer of
any
successor pursuant to this Section (other than a successor appointed by the
Depositor in accordance with the preceding paragraph) and (y) in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to the resignation of the
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, (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 either of their property or affairs
for
the purpose of rehabilitation, conservation or liquidation, (iii) (A) 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 due to the location
of the Trustee, (B) the imposition of such tax would be avoided by the
appointment of a different trustee and (C) the Trustee fails to indemnify the
Trust Fund against such tax (iv) 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 (without regard to the Class A-1-W and Class A-3-W
Policy), or (v) the Trustee fails to comply with its obligations under the
penultimate paragraph of Section 6.14(a), in the preceding paragraph or Article
XIII and such failure is not remedied within the lesser of 10 calendar days
or
such period in which the applicable Exchange Act Report can be filed timely
(without taking into account any extensions), then, in the case of clauses
(i)
through (iv), the Depositor shall remove the Trustee and the Depositor shall
appoint a successor trustee, acceptable to the Master Servicer by written
instrument, one copy of which instrument shall be delivered to the Trustee
so
removed, one copy to the successor trustee, one copy to the Securities
Administrator and one copy to the Master Servicer.
(c) The
Holders of more than 50% of the Class Principal Balance (or Percentage Interest)
of each Class of Certificates may at any time upon 30 days’ written notice to
the Trustee and to the Depositor remove the Trustee by such written instrument,
signed by such Holders or their attorney-in-fact duly authorized, one copy
of
which instrument shall be delivered to the Depositor, one copy to the Trustee,
one copy to the Securities Administrator and one copy to the Master Servicer;
the Depositor shall thereupon appoint a successor trustee in accordance with
this Section.
(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
acceptance of appointment by the successor trustee, as provided in
Section 6.07. If no successor trustee shall have been so
appointed and shall have accepted appointment within 30 days after such notice
of dismissal, the Trustee who received such notice of dismissal may petition
any
court of competent jurisdiction for the appointment of a successor
trustee.
106
(e) The
Securities Administrator shall not resign except in accordance with the
provisions of Sections 9.06 and 9.07 hereof, to the same extent that the Master
Servicer is entitled to resign or assign or delegate, as applicable, its duties
hereunder.
(f) If
at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of Section 9.10 hereof and shall fail to resign
after written request thereto by the Depositor, or if at any time the Securities
Administrator shall become incapable of acting, or shall be adjudged as bankrupt
or insolvent, or a receiver of the Securities Administrator or of its property
shall be appointed, or any public officer shall take charge or control of the
Securities Administrator or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect
to
the Trust Fund by any state in which the Securities Administrator or the Trust
Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor or
the
Trustee may remove the Securities Administrator and appoint a successor
securities administrator by written instrument, in triplicate, one copy of
which
instrument shall be delivered to the Securities Administrator so removed, one
copy of which shall be delivered to the Master Servicer and one copy to the
successor securities administrator.
(g) If
no successor securities administrator shall have been appointed and shall have
accepted appointment within 60 days after Xxxxx Fargo Bank, N.A., as Securities
Administrator, ceases to be the securities administrator pursuant to this
Section 6.06, then the Trustee (as successor Securities Administrator) shall
perform the duties of the Securities Administrator pursuant to this
Agreement. The Trustee shall notify the Rating Agencies and the
Certificate Insurer of any change of the Securities Administrator. In
such event, the Trustee shall assume all of the rights and obligations of the
Securities Administrator hereunder arising thereafter except that the Trustee
shall not be (i) liable for losses of the predecessor Securities Administrator
or any acts or omissions of the predecessor Securities Administrator hereunder,
(ii) deemed to have made any representations and warranties of the Securities
Administrator made herein and (iii) subject to the same resignation limitations
as set forth in Section 9.06 hereof; provided,
however, that the Trustee
(as successor securities administrator) shall not resign until a successor
securities administrator has accepted appointment pursuant to Section 6.07
hereof. The Trustee shall not be accountable, shall have no liability
and makes no representation as to any acts or omissions hereunder of the
Securities Administrator until such time as the Trustee may be required to
act
as successor Securities Administrator pursuant to this Section 6.06 and
thereupon only for the acts or omissions of the Trustee as successor Securities
Administrator. If the Trustee is unwilling, or unable, to act as
successor Securities Administrator, then, in such event, the Trustee may
appoint, or petition a court of competent jurisdiction to appoint a successor
Securities Administrator meeting the criteria set forth in Section 9.10
hereof. Such successor Securities Administrator shall be entitled to
the Securities Administrator Compensation.
(h) The
Trustee as successor securities administrator shall be entitled to be reimbursed
for all reasonable costs and expenses associated with the transfer of the duties
of the Securities Administrator by the predecessor Securities Administrator,
including, without limitation, any costs or expenses associated with the
complete transfer of all securities administrator data and the completion,
correction or manipulation of such securities administrator data as may be
required by the Trustee as successor securities administrator to
107
correct
any errors or insufficiencies in such securities administrator data or otherwise
to enable the Trustee or successor securities administrator to perform the
duties of the Securities Administrator properly and effectively; provided,
however, that the
predecessor Securities Administrator shall not be obligated to make any such
reimbursements if such Securities Administrator was terminated or removed
without cause or if such termination or removal was a result of the imposition
of any tax on the Trust Estate by any state in which the Securities
Administrator or the Trust Fund is located. If such costs are not
paid by the predecessor Securities Administrator, the Trustee shall pay such
costs from the Trust Fund.
(i) The
Trustee, as successor Securities Administrator, as compensation for its
activities hereunder as successor Securities Administrator, shall be entitled
to
retain or withdraw from the Distribution Account an amount equal to the
Securities Administrator Compensation.
(j) The
Holders of Certificates entitled to at least 51% of the Voting Rights may at
any
time remove the Securities Administrator and appoint a successor securities
administrator by written instrument or instruments, in triplicate, signed by
such Holders or their attorneys-in-fact duly authorized, one complete set of
which instruments shall be delivered by the successor Securities Administrator
to the Trustee, one complete set to the Securities Administrator so removed
and
one complete set to the successor so appointed. Notice of any removal
of the Securities Administrator shall be given to each Rating Agency by the
successor securities administrator.
(k) Any
resignation or removal of the Securities Administrator and appointment of a
successor securities administrator pursuant to any of the provisions of this
Section 6.06 or Section 9.06 shall become effective upon acceptance by the
successor securities administrator of appointment as provided in Section 6.07
hereof.
(l) If
the Securities Administrator and the Master Servicer are the same Person, any
removal of the Master Servicer pursuant to an Event of Default shall also result
in the removal of the Securities Administrator and require the appointment
of a
successor pursuant to this Section and Section 6.07.
(m) The
Securities Administrator shall cooperate with the Trustee and any successor
securities administrator in effecting the termination of the Securities
Administrator’s responsibilities and rights hereunder, providing to the Trustee
and successor securities administrator all documents and records in electronic
or other form reasonably requested by it to enable it to assume the Securities
Administrator’s functions hereunder and for the transfer to the Trustee or
successor Securities Administrator of all amounts in the Distribution Account
or
any other account or fund maintained by the Securities Administrator with
respect to the Trust Fund. Neither the Trustee nor the Master
Servicer, as applicable, nor any other successor, as applicable, 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 predecessor Securities Administrator to deliver, or any delay
in
delivering, cash, documents or records to it, (ii) the failure of the
predecessor Securities Administrator to cooperate as required by this Agreement,
(iii) the failure of the predecessor Securities Administrator to deliver
the related Mortgage Loan data as required by this Agreement or
(iv) restrictions imposed by any regulatory authority having jurisdiction
over the predecessor Securities Administrator. No
108
successor
securities administrator 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 related
to
such distribution, or (ii) the failure of Trustee or the Master Servicer to
cooperate as required by this Agreement.
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Section
6.07. Successor Trustee and Successor Securities
Administrator.
|
(a) Any
successor trustee or successor securities administrator appointed as provided
in
Section 6.06 shall execute, acknowledge and deliver to the Depositor and to
its predecessor trustee or predecessor securities administrator, as applicable,
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee or predecessor securities
administrator, as applicable, shall become effective and such successor trustee
or successor securities administrator, as applicable, 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 or securities administrator, as applicable,
herein. The predecessor trustee or predecessor securities
administrator, as applicable, shall deliver to the successor trustee or
successor securities administrator, as applicable, all Trustee Mortgage Files
and documents and statements related to each Trustee 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 Depositor and
the predecessor trustee or predecessor securities administrator, as applicable,
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 or successor securities administrator, as applicable, 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 and has provided to the Depositor in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement
Trustee.
(c) Upon
acceptance of appointment by a successor trustee or successor securities
administrator, as applicable, as provided in this Section, the Master Servicer
shall mail notice of the succession of such trustee or securities administrator,
as applicable, hereunder to all Holders of Certificates at their addresses
as
shown in the Certificate Register and to any Rating Agency. The costs
of such mailing shall be borne by the Master Servicer.
(d) Any
successor securities administrator shall also either serve as auction
administrator pursuant to Section 7.01(b) hereof or select an investment bank
to
act as auction administrator at the expense of the Trust Fund.
109
(e) Any
successor trustee or successor securities administrator appointed as provided
in
Section 6.06 shall also be the successor trustee with respect to the
Supplemental Interest Trust or successor securities administrator, as
applicable, with respect to the ES Trust.
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Section
6.08. Merger or Consolidation of Trustee or the Securities
Administrator.
|
Any
Person into which the Trustee or Securities Administrator may be merged or
with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee or Securities Administrator
shall be a party, or any Persons succeeding to the business of the Trustee
or
Securities Administrator, shall be the successor to the Trustee or Securities
Administrator 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, in the case of the Trustee, such Person
shall be eligible under the provisions of Section 6.05.
At
least
15 calendar days prior to the effective date of any succession by merger or
consolidation of the Trustee or the Securities Administrator, the Trustee or
the
Securities Administrator, as applicable, shall provide (x) written notice to
the
Depositor of any successor pursuant to this Section and (y) in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Trustee
or
Securities Administrator, as applicable.
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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 Balance
(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, 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 Master Servicer to make Advances
pursuant to Section 5.05 hereof shall not be affected or assigned by the
appointment of a co-trustee.
(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:
110
(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 may at any time, by an instrument in writing executed by it, with the
concurrence of the Depositor, 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.
(d) Any
separate trustee, co-trustee or custodian may, at any time, constitute the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee,
co-trustee or custodian shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest
in and be exercised by the Trustee, to the extent permitted by law, without
the
appointment of a new or successor trustee.
(e) No
separate trustee, co-trustee or custodian hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.05
hereunder and no notice to the Certificateholders of the appointment shall
be
required under Section 6.07 hereof.
(f) The
Securities Administrator on behalf of the Trustee agrees to instruct the
co-trustees, if any, to the extent necessary to fulfill the Trustee’s
obligations hereunder.
111
(g) The
Trust shall pay the reasonable compensation of the co-trustees (which
compensation shall not reduce any compensation payable to the Trustee under
such
Section).
| 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. The
Securities Administrator is hereby appointed as initial Authenticating Agent,
and the Securities Administrator accepts such appointment. 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.
(b) Any
Person into which any Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which any Authenticating Agent shall be a party,
or any Person succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent without the execution
or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
(c) Any
Authenticating Agent may at any time resign by giving at least 30 days’ advance
written notice of resignation to the Trustee 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 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 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.
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|
Section
6.11. Indemnification of the Trustee and the Securities
Administrator.
|
The
Trustee (in its individual capacity and in its representative capacity as
Trustee hereunder) and the Securities Administrator and their respective
directors, officers, employees and agents shall be entitled to indemnification
from the Trust Fund for any loss, liability or expense (including the reasonable
compensation and the expenses and disbursements of its agents or counsel),
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 under the Purchase and Servicing Agreements, the Acknowledgements,
the Corridor Contract or
112
in connection with the performance of their duties hereunder
or thereunder including 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 or thereunder, provided that:
(i) with respect to any such claim, the Trustee or the Securities Administrator, as applicable, shall have given the Depositor written notice thereof promptly after the Trustee, the Securities Administrator, as applicable, shall have knowledge thereof;
(ii) while
maintaining control over its own defense, the Trustee or the Securities
Administrator, as applicable, shall cooperate and consult fully with the
Depositor 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 or the Securities
Administrator, as applicable, entered into without the prior consent of the
Depositor, which consent shall not be unreasonably withheld.
The
provisions of this Section 6.11 shall survive any termination of this
Agreement and the resignation or removal of the Trustee or the Securities
Administrator or Custodian, as applicable, and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
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Section
6.12. Fees and Expenses of the Master Servicer, Securities
Administrator, the Trustee and the
Custodian.
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(a) For
so long as Xxxxx Fargo Bank, National Association is the Master Servicer and
the
Securities Administrator, the Securities Administrator shall be entitled to
be
paid by the Master Servicer reasonable compensation for the Securities
Administrator’s services hereunder in an amount to be agreed upon between the
Master Servicer and the Securities Administrator. Should Xxxxx Fargo Bank,
National Association no longer be both the Master Servicer and the Securities
Administrator, the Securities Administrator shall be entitled to receive the
Securities Administrator Compensation payable pursuant to Section 4.02(b)(ii)
hereof. The Securities Administrator shall be entitled to all
disbursements and advancements incurred or made by the Securities Administrator
in accordance with this Agreement (including fees and expenses of its counsel
and all persons not regularly in its employment), except any such expenses
arising from its negligence, bad faith or willful misconduct.
(b) As
compensation for its services hereunder, the Trustee and each Custodian shall
each be entitled to receive a fee (which, in the case of the Trustee, shall
not
be limited by any provision of law in regard to the compensation of a trustee
of
an express trust) which shall be paid by the Master Servicer pursuant to a
separate agreement between the Trustee, the related Custodian and the Master
Servicer. Any expenses incurred by the Trustee or any Custodian shall
be reimbursed in accordance with Section 6.11. The parties
hereto acknowledge and agree that (i) the Master Servicer shall only be
obligated to pay to the Custodian the fee agreed to by the Custodian and the
Master Servicer in the separate fee agreement referred to above, and (ii) except
as may be expressly set forth therein with respect to the Master Servicer,
in no
event shall the Master Servicer have any responsibility or liability for the
payment of any other fees or any
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expenses
or other amounts, if any, that may be payable to the Custodian, all of which
shall be payable in accordance with the terms and conditions
herein.
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Section
6.13. Collection of
Monies.
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Except
as
otherwise expressly provided in this Agreement, the Securities Administrator
on
behalf of the Trustee may demand payment or delivery of, and shall receive
and
collect, all money and other property payable to or receivable by the Securities
Administrator on behalf of the Trustee pursuant to this
Agreement. The Securities Administrator on behalf of 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.
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Section
6.14. Events of Default; Trustee To Act; Appointment of
Successor.
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(a) The
occurrence of any one or more of the following events shall constitute an “Event of Default” with
respect to the Master Servicer:
(i) Any
failure by the Master Servicer to furnish the Securities Administrator the
Mortgage Loan data on the Mortgage Loans sufficient to prepare the reports
described in Section 4.05 which continues unremedied for a period of one
Business Day after the date upon which written notice of such failure shall
have
been given to the Master Servicer by the Trustee or the Securities Administrator
or to the Master Servicer, the Securities Administrator and the Trustee by
the
Holders of not less than 25% of the Class Principal Balance or Percentage
Interest of each Class of Certificates affected thereby; or
(ii) 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 (other than those
referred to in (vii) and (ix) below) on the part of the Master Servicer
contained in this Agreement (including any obligation to enforce any Purchase
and Servicing Agreement) or any representation or warranty of the Master
Servicer shall prove to be untrue in any material respect, which failure or
breach continues unremedied for a period of 60 days 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 the Securities
Administrator, or to the Master Servicer, the Securities Administrator and
the
Trustee by the Holders of more than 50% of the Aggregate Voting Interests of
the
Certificates; provided that the sixty-day cure period shall not apply so long
as
the Depositor is required to file Exchange Act Reports with respect to the
Trust
Fund, the failure to comply with the requirements set forth in Section 9.11,
Section 9.05 and Section 9.06 (with respect to notice and information to be
provided to the Depositor) or Article XIII, for which the grace period shall
not
exceed the lesser of 10 calendar days or such period in which the applicable
Exchange Act Report can be filed timely (without taking into account any
extensions); or
(iii) 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
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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
(iv) 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
(v) 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
(vi) 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 9.05 hereof; or
(vii) If
a representation or warranty set forth in Section 9.03 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 90 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 the Securities Administrator,
or
to the Master Servicer, the Securities Administrator and the Trustee by the
Holders of more than 50% of the Aggregate Voting Interests of the Certificates;
or
(viii) 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 and Certificateholders holding more than 50% of the Aggregate
Voting Interests of the Certificates; or
(ix) After
receipt of notice from the Trustee or the Securities Administrator, any failure
of the Master Servicer to make any Advances required to be made by it hereunder;
or
(x) (a)
Any failure by the Master Servicer to deposit in the Distribution Account or
remit to the Securities Administrator any payment required to be made by the
Master Servicer under the terms of this Agreement (other than an Advance
required pursuant to Section 5.05 hereof), which failure shall continue
unremedied for three Business Days after the date upon which written notice
of
such failure shall have been given to the Master Servicer by the Securities
Administrator, Trustee or the Depositor or
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to
the
Master Servicer and the Trustee by the Holders of Certificates having not less
than 25% of the Voting Rights evidenced by the Certificates or (b) any failure
by the Master Servicer to deposit in the Distribution Account or remit to the
Securities Administrator any Advance required to be made by the Master Servicer
under Section 5.05 hereof, which failure shall continue unremedied for one
Business Day after the date upon which written notice of such failure shall
have
been given to the Master Servicer by the Securities Administrator, Trustee
or
the Depositor or to the Master Servicer and the Trustee by the Holders of
Certificates having not less than 25% of the Voting Rights evidenced by the
Certificates; or
(xi) If
the Master Servicer and the Securities Administrator are the same Person, any
removal of the Securities Administrator pursuant to Section 6.06.
If
an
Event of Default described in clauses (i) through (ix) or (xi) of this Section
shall occur with respect to the Master Servicer, 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, if
so
directed by (a) Certificateholders evidencing more than 50% of the Class
Principal Balance of each Class of Certificates or (b) the Depositor, in the
case of a failure related to a filing obligation triggered by a Reportable
Event; the Trustee shall by notice in writing to the Master Servicer (with
a
copy to each Rating Agency, the Certificate Insurer and the Depositor),
terminate all of the respective rights and obligations of the Master Servicer
hereunder and in and to the Mortgage Loans and the proceeds
thereof. Subject to Section 6.01(c)(ii), if an Event of Default
described in clause (x) of this Section shall occur with respect to the Master
Servicer, 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 shall by notice
in
writing to the Master Servicer terminate all of the respective 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 with respect to the Master Servicer 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 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 affected Mortgage
Loans and related documents or otherwise. The defaulting Master
Servicer agrees to cooperate with the Trustee and the Securities Administrator
in effecting the termination of the defaulting Master Servicer’s
responsibilities and rights hereunder as Master Servicer which includes, without
limitation, notifying the 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 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 Distribution Account, any related Custodial Account and any other account
or
fund maintained with respect to the Certificates or thereafter received with
respect to the affected Mortgage Loans. The Master Servicer being
terminated shall bear all costs of the transfer of the master
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servicing
to the successor master servicer, including but not limited to those of the
Trustee or Securities Administrator 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. If
such costs are not paid by the terminated Master Servicer, the Trustee shall
pay
such costs from the Trust Fund.
Notwithstanding
the termination of its activities as Master Servicer, any terminated Master
Servicer shall continue to be entitled to reimbursement under this Agreement
to
the extent such reimbursement relates to the period prior to such Master
Servicer’s termination.
The
Securities Administrator and the Master Servicer shall promptly notify the
Responsible Officers of the Trustee and the Depositor of the occurrence and
continuance of an Event of Default. If any Event of Default shall
occur, the Trustee, upon a Responsible Officer of the Trustee becoming aware
of
the occurrence thereof, shall promptly notify each Rating Agency and the
Certificate Insurer of the nature and extent of such Event of
Default. The Securities Administrator shall immediately give written
notice to the Master Servicer upon the failure of the Master Servicer to make
Advances as required under this Agreement with a copy to the
Trustee.
Upon
the
occurrence of an Event of Default, the Trustee shall provide the Depositor
in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
master servicer in the event the Trustee should succeed to the duties of the
Master Servicer as set forth herein.
In
order
to comply with applicable Form 8-K reporting requirements under Regulation
AB,
at least 15 calendar days prior to the effective date of such appointment,
(x)
the Trustee shall provide written notice to the Depositor of such successor
pursuant to this Section 6.14 and (y) such successor Master Servicer shall
provide to the Depositor in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02
of
Form 8-K with respect to a replacement master servicer.
(b) On
and after the time the Master Servicer receives a notice of termination from
the
Trustee or the Securities Administrator, as applicable, pursuant to
Section 6.14(a) or the Trustee or the Securities Administrator, as
applicable, receives the resignation of the Master Servicer evidenced by an
Opinion of Counsel pursuant to Section 9.06, 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 failure of the Master
Servicer to provide information required by this Agreement shall not be
considered a default by the Trustee or the Securities Administrator, as
applicable, hereunder. In addition, neither the Trustee nor the
Securities Administrator, as applicable, shall have any responsibility for
any
act or omission of the Master Servicer prior to the issuance of any notice
of
termination. The Trustee shall have no liability relating to the
representations and warranties of the Master Servicer set forth in
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Section 9.03. In
the capacity as such successor, the Trustee shall have the same limitations
on
liability herein granted to the Master Servicer. As compensation for
being the successor master servicer, the Trustee shall be entitled to receive
all compensation payable to the Master Servicer under this
Agreement. Any successor to the Master Servicer hereunder also may
assume the obligations of the Securities Administrator hereunder as successor
in
such capacity shall be entitled to the compensation payable to the Securities
Administrator pursuant to Section 4.02 hereof from and after the date of such
assumption.
(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 respective responsibilities, duties or liabilities of a master servicer,
like the Master Servicer. Any entity designated by the Trustee, 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 the 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 master 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 the Servicers
of
the assignment of the master servicing functions and providing the Trustee
and
successor master servicer 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 all
amounts which shall at the time be or should have been deposited by the Master
Servicer in the Distribution Account, any Custodial Account, or any other
account or fund maintained with respect to the Certificates or thereafter be
received with respect to the Mortgage Loans. Neither the Trustee nor
the Securities Administrator, as applicable, nor any other successor, as
applicable, 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 related Mortgage Loan data as
required by this Agreement or (iv) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer. No 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 Securities Administrator
to deliver, or any delay in delivering cash, documents or records to it related
to such distribution, or (ii) the failure of Trustee or the Securities
Administrator to cooperate as required by this Agreement.
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Section
6.15. Additional Remedies of Trustee Upon Event of
Default.
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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 the
Trust Fund, 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 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.
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Section
6.16. Waiver of
Defaults.
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More
than
50% of the Aggregate Voting Interests of the Certificateholders 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 Distribution Account that would result in a failure of the
Securities Administrator or the Paying Agent 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. 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.
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Section
6.17. Notification to
Holders.
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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 Securities Administrator and the
Certificateholders at their respective addresses appearing on the Certificate
Register. The Trustee shall also, within 45 days after the occurrence
of any Event of Default known to the Trustee, give written notice thereof to
the
Securities Administrator, the Certificate 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.
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Section
6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default.
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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 Balance (or Percentage Interest) of each Class of Certificates
affected thereby may 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
119
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,
unless such Certificateholders shall have offered to the Trustee security or
indemnity reasonably satisfactory to it 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.
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Section
6.19. Action Upon Certain Failures of the Master Servicer and
Upon Event of Default.
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In
the
event that a Responsible Officer of the Trustee shall have actual knowledge
or
written notice 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.
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Section
6.20. Preparation of Tax Returns and Other
Reports.
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(a) The
Securities Administrator 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 Securities
Administrator shall file federal tax returns, all in accordance with Article
X
hereof. If the Securities Administrator is notified in writing that a
state tax return or other return is required, then, at the sole expense of
the
Trust Fund, the Securities Administrator shall prepare and file such 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, shall file any other
documents to the extent required by applicable state tax law (to the extent
such
documents are in the Securities Administrator’s possession). The
Securities Administrator 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 Securities Administrator as the Depositor
may reasonably request in writing, and shall forward to each Certificateholder
such forms and furnish such information within the control of the Securities
Administrator as are required by the Code and the REMIC Provisions to be
furnished to them, and will prepare and forward to Certificateholders
Form 1099 (supplemental tax information) (or otherwise furnish information
within the control of the Securities Administrator) to the extent required
by
applicable law. The Master Servicer will indemnify the Securities
Administrator and the Trustee for any liability of or assessment against the
Securities Administrator or the Trustee, as applicable, resulting from any
error
in any of such tax or information returns directly resulting from errors in
the
information provided by such Master Servicer except to the extent that such
information was provided in reasonable reliance upon information from any
Servicer.
(b) The
Securities Administrator shall prepare and file with the Internal Revenue
Service (“IRS”), on behalf of the Trust Fund and each REMIC created hereunder,
an application for an employer identification number on IRS Form SS-4 or by
any other acceptable method.
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The
Securities Administrator shall also file a Form 8811 as
required. The Securities Administrator, 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 Trustee and the
Depositor. The Securities Administrator shall furnish any other
information that is required by the Code and regulations thereunder to be made
available to the Certificateholders. The Master Servicer agrees that
it shall cause each Servicer to, provide the Securities Administrator with
such
information related to the Mortgage Loans in the possession of such Servicer,
as
may reasonably be required for the Securities Administrator to prepare such
reports.
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Section
6.21. Certain Matters Regarding any Custodian Appointed
Hereunder.
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(a) The
Custodian shall maintain continuous custody of all items constituting the
Trustee Mortgage Files in secure facilities in accordance with customary
standards for such custody and shall reflect in its records the interest of
the
Trustee for the benefit of the Certificateholders therein. Each
Mortgage Note (and Assignment of Mortgage) shall be maintained in fire resistant
facilities.
(b) With
respect to the documents constituting each Trustee Mortgage File relating to
a
Mortgage Loan listed on the Mortgage Loan Schedule, the Custodian shall (i)
act
exclusively as the custodian for the Trustee, (ii) hold all documents
constituting such Trustee Mortgage File received by it for the exclusive use
and
benefit of the Trust, and (iii) make disposition thereof only in accordance
with
the terms of this Agreement.
(c) In
the event that (i) the Trustee, a Servicer, the Securities Administrator, the
Master Servicer or the Custodian shall be served by a third party with any
type
of levy, attachment, writ or court order with respect to any Trustee Mortgage
File or any document included within a Trustee Mortgage File or (ii) a third
party shall institute any court proceeding by which any Trustee Mortgage File
or
a document included within a Trustee Mortgage File shall be required to be
delivered otherwise than in accordance with the provisions of this Agreement,
the party receiving such service shall promptly deliver or cause to be delivered
to the other parties to this Agreement copies of all court papers, orders,
documents and other materials concerning such proceedings. The
Custodian shall, to the extent permitted by law, continue to hold and maintain
all the Trustee Mortgage Files that are the subject of such proceedings pending
a final, nonappealable order of a court of competent jurisdiction permitting
or
directing disposition thereof. Upon final determination of such
court, the Custodian shall dispose of such Trustee Mortgage File or any document
included within such Trustee Mortgage File as directed by the Trustee which
shall give a direction consistent with such determination. Expenses
and fees (including reasonable attorney’s fees) of the Custodian incurred as a
result of such proceedings shall be borne by the Trust Fund.
(d) The
Custodian shall provide access to the Mortgage Loan Documents in its possession
regarding the related Mortgage Loans and REO Property and the servicing thereof
to the Trustee, the Master Servicer, the Securities Administrator, the related
Servicer, the Certificateholders, the FDIC, and the supervisory agents and
examiners of the FDIC, such access being afforded only upon reasonable prior
written request and during normal business hours at the office of the
Custodian. The Custodian shall allow representatives of the
above entities to
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photocopy
any of the records and documentation and shall provide equipment for that
purpose at the expense of the person requesting such access.
(e) The
Custodian shall have no duties or responsibilities except those that are
specifically set forth herein, or as subsequently agreed in writing by the
parties hereto, and no implied covenants or obligations shall be read into
this
Agreement against the Custodian.
(f) The
Custodian shall have no responsibility nor duty with respect to any Trustee
Mortgage Files while not in its possession.
(g) The
Custodian shall be under no obligation to make any investigation into the facts
or matters stated in any resolution, exhibit, request, representation, opinion,
certificate, statement, acknowledgement, consent, order or document in the
Trustee Mortgage File.
(h) If
the Trustee and a Custodian are the same Person, any removal or resignation
of
that Person in either capacity shall also result in the removal of the Person
in
its other capacity.
(i) In
the event that the Custodian fails to produce a Mortgage Note, Assignment of
Mortgage or any other document related to a Mortgage Loan that was in its
possession pursuant to Section 2.01 within five (5) Business Days after required
or requested by the Depositor, the Trustee, the Master Servicer or the related
Servicer, and provided, that (i) Custodian previously delivered to the Trustee
an Initial Certification or a Final Certification with respect to such document;
(ii) such document is not outstanding pursuant to a Request for Release; and
(iii) such document was held by the Custodian on behalf of the Trustee (a “Custodial Delivery Failure”),
then the Custodian shall (a) with respect to any missing Mortgage Note, promptly
deliver to the Depositor, the Trustee, the Master Servicer or the Servicer
upon
request, a Lost Note Affidavit in the form of Exhibit R annexed hereto and
(b)
with respect to any missing document related to such Mortgage Loan including
but
not limited to, a missing Mortgage Note, indemnify the Depositor, Trustee,
the
Master Servicer or the Servicer in accordance with the succeeding paragraph
of
this Section 6.21(i).
The
Custodian appointed hereunder agrees to indemnify and hold the Depositor, the
Trustee, the Master Servicer and the Servicer and their respective employees,
officers, directors and agents harmless against any and all direct liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements, including reasonable attorney’s fees, that may be
imposed on, incurred by, or asserted against it or them in any way relating
to
or arising out of such Custodial Delivery Failure. The foregoing
indemnification shall survive any termination or assignment of this Agreement
or
the removal or resignation of the Custodian hereunder.
For
the
avoidance of doubt, if the entity serving as Trustee is also serving as a
Custodian, such entity in its capacity as Custodian shall have the same rights,
protections and indemnities as are afforded to the Trustee hereunder provided
that such Custodian shall not be indemnified by the Trust Fund for any
liability, obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement imposed on, incurred by or asserted against the
Custodian because of the breach by the Custodian of its obligations hereunder,
which breach was caused by
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negligence,
lack of good faith or willful misconduct on the part of the Custodian or any
of
its directors, officers, agents or employees.
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Section
6.22. WHFIT Regulation
Compliance.
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(a) The
Securities Administrator shall treat the ES Trust as a WHMT. The
Securities Administrator will report to the Holders of the Certificates (other
than the Class A-R Certificates), as the beneficial owners of the ES Trust,
as
required under the WHFIT Regulations to the extent such information as is
reasonably necessary to enable Securities Administrator to do so is provided
to
Securities Administrator on a timely basis. The Securities
Administrator will not be liable for any tax reporting penalties that may arise
under the WHFIT Regulations as a result of the incorrect determination of the
status of the ES Trust as a WHFIT or failing to identify whether or not the
ES
Trust is a WHFIT.
(b) The
Securities Administrator, in its discretion, will report required WHFIT
information to the beneficial owner of the ES Trust using either the cash or
accrual method and will specify the method used by it, except to the extent
the
WHFIT Regulations specifically require a different method. The
Securities Administrator will be under no obligation to determine whether any
Certificateholder uses the cash or accrual method. The Securities
Administrator will make available WHFIT information to Certificateholders on
its
website. In addition, except for posting such information on its
website, the Securities Administrator will not be responsible or liable for
providing subsequently amended, revised or updated information to any
Certificateholder, unless requested by that Certificateholder.
(c) The
Securities Administrator shall not be liable for failure to meet the reporting
requirements of the WHFIT Regulations nor for any penalties thereunder if such
failure is due to: (i) the lack of reasonably necessary information being
provided to Securities Administrator, (ii) incomplete, inaccurate or untimely
information being provided to Securities Administrator, or (iii) the inability
of the Securities Administrator, after good faith efforts, to alter its existing
information reporting systems to capture information neceesary to fully comply
with the WHFIT Regulations for the 2007 calendar year. Absent receipt
of information from the owner of a Class of Certificates (other than the Class
A-R Certificates) representing, in whole or in part, beneficial ownership of
an
interest in a WHFIT, or the Depositor regarding any sale of securities,
including the price, amount of proceeds and date of sale, the Securities
Administrator will assume there is no secondary market trading of WHFIT
interests.
(d) To
the extent required by the WHFIT Regulations, the Securities Administrator
will
publish on an appropriate website or otherwise make available the CUSIPs for
the
certificates that represent ownership of a WHFIT. The Securities
Administrator will use its best efforts to keep the information accurate and
updated to the extent CUSIPs have been received. The Securities
Administrator will not be liable for investor reporting delays that result
from
the receipt of inaccurate or untimely CUSIP information.
(e) The
Securities Administrator shall be entitled to additional reasonable compensation
for changes in reporting required in respect of the WHFIT Regulations that
arise
as a result of a change in the WHFIT Regulations or a change in interpretation
of the WHFIT Regulations by the IRS or the Depositor or their counsel, if such
change requires, in the
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Securities
Administrator’s reasonable discretion, a material increase in its reporting
obligations in respect of the ES Trust.
ARTICLE
VII
PURCHASE
OF MORTGAGE LOANS AND
TERMINATION
OF THE TRUST FUND
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Section
7.01. Purchase of Mortgage Loans; Termination of Trust Fund
Upon Purchase or Liquidation of All Mortgage
Loans.
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(a) The
respective obligations and responsibilities of the Trustee, the Securities
Administrator and the Master Servicer created hereby (other than the obligation
of the Securities Administrator to make payments to the Certificateholders
as
set forth in Section 7.02), shall terminate on the earliest of (i) the
final payment or other liquidation of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property, (ii) the sale or
auction of the property held by the Trust Fund in accordance with both
Section 7.01(b) and/or 7.01(c) and (iii) the Latest Possible Maturity
Date; 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. Any termination of the Trust Fund shall be carried out
in such a manner so that the termination of each REMIC included therein shall
qualify as a “qualified liquidation” under the REMIC Provisions.
(b) On
the Initial Optional Termination Date, the Auction Administrator shall solicit
bids for the Assets from at least three institutions that are regular purchasers
and/or sellers in the secondary market of residential whole mortgage loans
similar to the Mortgage Loans. If the Auction Administrator receives
at least three bids for all of the Mortgage Loans and any related REO Properties
(collectively, the “Assets”),
and one of
such bids is equal to or greater than the Minimum Auction Price, the Auction
Administrator shall sell (such sale, an “Auction”)
the related
Assets to the highest bidder (the “Auction
Purchaser”)
at the price offered by the Auction Purchaser (the “Mortgage
Loan Auction
Price”). If the Auction Administrator receives less
than three bids, or does not receive any bid that is at least equal to the
Minimum Auction Price, the Auction Administrator shall, on each six-month
anniversary of the Initial Optional Termination Date, repeat these auction
procedures until the Auction Administrator receives a bid that is at least
equal
to the Minimum Auction Price, at which time the Auction Administrator shall
sell
the Assets to the Auction Purchaser at that Mortgage Loan Auction Price; provided,
however, that the Auction
Administrator shall not be required to repeat these auction procedures on any
Distribution Date for any six-month anniversary of the Initial Optional
Termination Date unless the Auction Administrator reasonably believes that
there
is a reasonable likelihood of receiving a bid of at least the Minimum Auction
Price. The Auction Administrator shall give notice to the Rating
Agencies, the Certificate Insurer and each Servicer that is servicing any of
the
Mortgage Loans of the sale of the related Assets pursuant to this Section
7.01(b) (an “Auction
Sale”) and of
the date of such auction (the “Auction
Date”).
(c) In
the event that the Master Servicer chooses to exercise its optional termination
rights it shall do so in accordance with the following:
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(i) On
any Distribution Date occurring after the Initial Optional Termination Date,
the
Master Servicer has the option to cause the Trust Fund to adopt a plan of
complete liquidation of the Mortgage Loans pursuant to Sections 7.02 and
7.03 hereof to sell all of the property related thereto. If the
Master Servicer elects to exercise such option, it shall no later than 30 days
prior to the Distribution Date selected for purchase of the Mortgage Loans
and
all other assets of the Trust Fund (the “Purchase Date”) deliver written notice
to the Trustee, Certificate Insurer and the Securities Administrator and either
(a) deposit in the Distribution Account the related Redemption Price or
(b) state in such notice that the Redemption Price shall be deposited in
the Distribution Account not later than 10:00 a.m., New York City time, on
the
applicable Purchase Date. Upon exercise of such option, the Assets
shall be sold to the Master Servicer at a price equal to the related Redemption
Price.
(d) The
Depositor, the Master Servicer, each Servicer, the Securities Administrator,
the
Trustee and the Custodian shall be reimbursed from the Redemption Price for
any
Advances, Servicer Advances, accrued and unpaid Servicing Fees or other amounts
with respect to the Mortgage Loans and any related assets being purchased
pursuant to Section 7.01(b) or (c) above that are reimbursable to such parties
(and such other amounts which, if not related to the Mortgage Loans and other
assets of the Trust Fund not being purchased, that are then due and owing to
any
such Person) under this Agreement and the related Purchase and Servicing
Agreement or the related Custodial Agreement.
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Section
7.02. Procedure Upon Redemption of Trust
Fund.
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(a) Notice
of any termination pursuant to the provisions of Section 7.01, specifying
the Distribution Date upon which the final distribution shall be made or the
purchase of the Trust’s assets, as applicable, will occur, shall be given
promptly by the Securities Administrator by first class mail to the
Certificateholders mailed in the case of a redemption of the Certificates,
no
later than (i) the first day of the month in which the Distribution Date
selected for redemption of such Certificates shall occur or (ii) upon
(x) the sale of all of the property of the Trust Fund by the Securities
Administrator or in the case of a sale of assets of the Trust Fund, or
(y) upon the final payment or other liquidation of the last Mortgage Loan
or REO Property in the Trust Fund. Such notice shall specify
(A) the Initial Optional Termination Date, Distribution Date upon which
final distribution on the Certificates 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 Certificate Registrar’s
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
Securities Administrator therein specified. The Securities
Administrator shall give such notice to the Trustee, Certificate Insurer, the
Master Servicer and the Certificate Registrar at the time such notice is given
to Holders of the Certificates. Upon any such termination, the duties
of the Certificate Registrar with respect to the affected Certificates shall
terminate and, in the event that such termination is the second termination
pursuant to Section 7.01, the Securities Administrator shall terminate the
Distribution Account and any other account or fund maintained with respect
to
the Certificates, subject to the Securities Administrator’s obligation hereunder
to hold all amounts payable to Certificateholders in trust without interest
pending such payment.
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(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 Securities Administrator 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 Securities Administrator
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 Securities Administrator shall deliver any remaining funds
being held by it to the Holder of the Class A-R Certificates and the Holder
of
the Class A-R Certificates 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
Securities Administrator 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. The
foregoing provisions are intended to distribute to each Class of Certificates
any accrued and unpaid interest and/or principal to which they are entitled
based on their Pass-Through Rates and Class Principal
(c) Balances
or Notional Amounts set forth in the Preliminary Statement upon liquidation
of
the Trust Fund.
(d) Any
reasonable expenses incurred by the Securities Administrator in connection
with
any purchase or termination or liquidation of the Trust Fund shall be reimbursed
from proceeds received from the liquidation of the Trust Fund.
(e) Any
purchase of the Assets by the related Auction Purchaser shall be made on an
Auction Date by receipt of the Auction Administrator of the related Mortgage
Loan Auction Price from the Auction Purchaser, and deposit of the such Mortgage
Loan Auction Price into the Distribution Account by the Auction Administrator
before the Distribution Date on which such purchase is effected. Upon
deposit of such purchase price into the Distribution Account, the Trustee and
the Securities Administrator, shall, upon request and at the expense of the
Auction Purchaser, execute and deliver all such instruments of transfer or
assignment, in each case without recourse, as shall be reasonably requested
by
the Auction Purchaser to vest title in the Auction Purchaser in the Assets
so
purchased and shall transfer or deliver to the Auction Purchaser the purchased
Assets.
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Section
7.03. Additional Trust Fund Termination
Requirements.
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(a) On
the termination of the Trust Fund under Section 7.01 (a), upon an Auction Sale
pursuant to Section 7.01(b) or upon the exercise of the right to purchase all
of
the Mortgage Loans pursuant to Section 7.01(c), the Securities Administrator,
on
behalf of the Trustee, shall comply with requirements of this Section 7.03
with
respect to each Lower Tier REMIC relating to the assets to be sold (the
“Affected REMIC”) and with respect to the Certificates corresponding to the
Affected REMIC (the “Corresponding Certificates”), unless the party having the
right to purchase the assets of the Affected REMIC (the “Purchaser”) delivers to
the Trustee and the Securities Administrator, an Opinion of Counsel (at the
Master Servicer’s
126
expense),
addressed to the Trustee and the Securities Administrator to the effect that
the
failure of the Trustee and the Securities Administrator to comply with the
requirements of this Section 7.03 will not result in an Adverse REMIC
Event:
(i) Within
89 days prior to the time of making the final payment on the Corresponding
Certificates, (and upon notification by (1) the Auction Administrator in the
case of a purchase under Section 7.01(b) or (2) the Master Servicer in the
case
of a purchase under Section 7.01(c)(i) or Section 7.01(c)(ii), as applicable)
the Securities Administrator on behalf of the Trustee shall adopt on behalf
of
the Affected REMIC, a plan of complete liquidation, meeting the requirements
of
a qualified liquidation under the REMIC Provisions;
(ii) Any
sale of the assets of the Affected REMIC shall be for cash and shall occur
at or
after the time the plan of complete liquidation is adopted and prior to the
time
the final payments on the Corresponding Certificates are made;
(iii) On
the date specified for final payment of the Corresponding Certificates, the
Securities Administrator shall make final distributions of principal and
interest on the Corresponding Certificates in accordance with Section 5.02
and,
after payment of, or provision for any outstanding expenses, 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 portion of the Trust Fund (and the Affected REMIC)
shall terminate at that time; and
(iv) In
no event may the final payment on the Corresponding Certificates or the final
distribution or credit to the Holders of the Residual Certificates be made
after
the 89th day from the date on which the plan of complete liquidation is
adopted.
(b) By
its acceptance of a Residual Certificate, each Holder thereof hereby agrees
to
accept the plan of complete liquidation adopted by the Securities Administrator
on behalf of the Trustee under this Section and to take such other action in
connection therewith as may be reasonably requested by the Trustee, the
Securities Administrator or any Servicer.
ARTICLE
VIII
RIGHTS
OF
CERTIFICATEHOLDERS
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Section
8.01. Limitation on Rights of
Holders.
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(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
127
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 (or Percentage Interest) of Certificates of each Class affected thereby
shall 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 such Trustee
during such sixty-day period by such Certificateholders; it being understood
and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder, the Securities Administrator 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
to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
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Section
8.02. Access to List of
Holders.
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(a) If
the Trustee is not acting as Certificate Registrar, the Certificate Registrar
will furnish or cause to be furnished to the Trustee, within fifteen days after
receipt by the Certificate Registrar of a request by the Trustee 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
three or more Holders or Certificate Owners (hereinafter referred to as
“Applicants”) apply in writing to the Certificate Registrar, 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 Certificate Registrar shall, within five Business Days after
the receipt of such application, afford such Applicants reasonable access during
the normal business hours of the Certificate Registrar to the most recent list
of Certificateholders held by the Certificate Registrar 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.
128
(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,
the
Securities Administrator, the Certificate Registrar and the Trustee that none
of
the Depositor, the Master Servicer, the Securities Administrator, the
Certificate Registrar nor 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.
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Section
8.03. Acts of Holders of
Certificates.
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(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
Owners, 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 and the Securities Administrator 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, the Securities
Administrator and the Master Servicer, if made in the manner provided in this
Section. Each of the Trustee, the Securities Administrator and the
Master Servicer shall promptly notify the others of receipt of any such
instrument by it, and shall promptly forward a copy of such instrument to the
others.
(b) The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer authorized by law to take
acknowledgments or deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Whenever such
execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
individual executing the same, may also be proved in any other manner which
the
Trustee deems sufficient.
(c) The
ownership of Certificates (whether or not such Certificates 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 Securities Administrator, the Master Servicer 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 shall bind every future Holder of the
same Certificate and the Holder of every Certificate 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
129
Trustee
or the Master Servicer in reliance thereon, whether or not notation of such
action is made upon such Certificate.
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
BY
THE
MASTER SERVICER
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Section
9.01. Duties of the Master Servicer; Enforcement of Servicers’
and Master Servicer’s Obligations.
|
(a) The
Master Servicer, on behalf of the Trustee, the Depositor and the
Certificateholders shall monitor the performance of the Servicers under the
Purchase and Servicing Agreements, and shall use its reasonable good faith
efforts to cause the Servicers duly and punctually to perform all of their
respective duties and obligations thereunder. Upon the occurrence of
a default of which a Responsible Officer of the Master Servicer has actual
knowledge under a Purchase and Servicing Agreement, the Master Servicer shall
promptly notify the Trustee thereof, and shall specify in such notice the
action, if any, the Master Servicer is taking in respect of such
default. So long as any such default shall be continuing, the Master
Servicer may, and shall if it determines such action to be in the best interests
of Certificateholders, (i) terminate all of the rights and powers of such
Servicer pursuant to the applicable provisions of the related Purchase and
Servicing Agreement; (ii) exercise any rights it may have to enforce the
related Purchase and Servicing Agreement against such Servicer; and/or
(iii) waive any such default under the related Purchase and Servicing
Agreement or take any other action with respect to such default as is permitted
thereunder. Notwithstanding anything to the contrary in this
Agreement, with respect to any Additional Collateral Mortgage Loan, the Master
Servicer will have no duty or obligation to supervise, monitor or oversee the
activities of the related Servicer under any Purchase and Servicing Agreement
with respect to any Additional Collateral or under any agreement relating to
the
pledge of, or the perfection of a pledge or security interest in, any Additional
Collateral except upon the occurrence of the following events (i) in the case
of
a final liquidation of any Mortgaged Property secured by Additional Collateral,
the Master Servicer shall enforce the obligation of the Servicer under the
related Servicing Agreement to liquidate such Additional Collateral as required
by such Servicing Agreement, and (ii) if the Master Servicer assumes the
obligations of such Servicer as successor Servicer under the related Servicing
Agreement pursuant to this Section 9.01, as successor Servicer, it shall be
bound to service and administer the Additional Collateral in accordance with
the
provisions of such Servicing Agreement.
(b) Upon
any termination by the Master Servicer of a Servicer’s rights and powers
pursuant to its Purchase and Servicing Agreement, the rights and powers of
such
Servicer with respect to the related Mortgage Loans shall vest in the Master
Servicer and the Master Servicer shall be the successor in all respects to
such
Servicer in its capacity as Servicer with respect to such Mortgage Loans under
the related Purchase and Servicing Agreement, unless or until the Master
Servicer shall have appointed (and the Trustee shall have acknowledged), with
the consent of the Rating Agencies and in accordance with the applicable
provisions of the related Purchase and Servicing Agreement, a new Xxxxxx Xxx-
or
FHLMC-approved Person to serve as successor to the Servicer; provided,
however, that it is
understood and agreed by the
130
parties
hereto that there will be a period of transition (not to exceed 90 days) before
the actual servicing functions can be fully transferred to a successor servicer
(including the Master Servicer). With such letter from the Rating
Agencies, the Master Servicer may elect to continue to serve as successor
servicer under the Purchase and Servicing Agreement. Upon appointment
of a successor servicer, as authorized under this Section 9.01(b), unless
the successor servicer shall have assumed the obligations of the terminated
Servicer under such Purchase and Servicing Agreement, the Master Servicer and
such successor servicer shall enter into a servicing agreement in a form
substantially similar to the affected Purchase and Servicing Agreement, and
the
Trustee shall acknowledge such servicing agreement. In connection
with any such appointment, the Master Servicer may make such arrangements for
the compensation of such successor servicer as it and such successor servicer
shall agree, but in no event shall such compensation of any successor servicer
(including the Master Servicer) be in excess of that payable to the Servicer
under the affected Purchase and Servicing Agreement.
The
Master Servicer shall pay the costs of such enforcement (including the
termination of a Servicer, the appointment of a successor servicer or the
transfer and assumption of the servicing by the Master Servicer) at its own
expense and shall be reimbursed therefor initially (i) by the terminated
Servicer, (ii) 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, (iii) from a specific recovery of costs,
expenses or attorney’s fees against the party against whom such enforcement is
directed, or (iv) to the extent that such amounts described in (i)-(iii)
above are insufficient to reimburse the Master Servicer for such costs of
enforcement, from the Trust Fund, as provided in Section 9.04.
If
the
Master Servicer assumes the servicing with respect to any of the Mortgage Loans,
it will not assume liability for the representations and warranties of any
Servicer it replaces or for the errors or omissions of such
Servicer.
If
the
Seller is the owner of the servicing rights and the Seller chooses to terminate
that Servicer with or without cause and sell those servicing rights to a
successor servicer, then the Depositor shall (i) cause the Seller to give
reasonable prior written notice to the Master Servicer, and (ii) obtain a letter
from the Rating Agencies indicating that the appointment of the proposed
successor servicer will not result in a downgrade or withdrawal of the rating
of
any of the Certificates (without taking into account the Class A-1-W and Class
A-3-W Policy), and a New Xxxxxx Mae- or FHLMC-approved Person reasonably
acceptable to the Master Servicer shall be chosen by the Seller and appointed
as
successor servicer with the acknowledgment of the Master Servicer and the
Trustee; provided,
however, that the Seller
shall not be required to get a no-downgrade letter from the Rating Agencies
if:
(i) the Rating Agencies received prior written notice of the transfer of the
servicing rights and the name of the successor Servicer, (ii) such successor
Servicer has a servicing rating in the highest category of Fitch or Xxxxx’x to
the extent that Fitch or Xxxxx’x, respectively, is a Rating Agency, and such
successor Servicer has a servicer evaluation ranking in one of the two highest
categories of S&P to the extent that S&P is a Rating Agency, and (iii)
such successor Servicer shall service the related Mortgage Loans under either
the Purchase and Servicing Agreement together with the related Assignment
Agreement under which such Mortgage Loans are currently being serviced or under
another Servicing Agreement together with a related Assignment Agreement that
have already been reviewed and approved by the Rating Agencies. The
Depositor shall cause the costs of such
131
transfer
including any costs of such transfer (including any costs of the Master
Servicer) to be borne by the Seller.
At
least
15 calendar days prior to the effective date of such termination, (x) the
Depositor shall provide written notice to the Master Servicer and all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a replacement
servicer.
(c) Upon
any termination of a Servicer’s rights and powers pursuant to its Purchase and
Servicing Agreement, the Master Servicer shall promptly notify the Trustee
and
the Rating Agencies, specifying in such notice that the Master Servicer or
any
successor servicer, as the case may be, has succeeded such Servicer under the
related Purchase and Servicing Agreement or under any other servicing agreement
reasonably satisfactory to the Master Servicer and the Rating Agencies, which
notice shall also specify the name and address of any such successor
servicer.
(d) The
Depositor shall not consent to the assignment by any Servicer of such Servicer’s
rights and obligations under the related Purchase and Servicing Agreement
without the prior written consent of the Master Servicer, which consent shall
not be unreasonably withheld.
(e) The
Trustee shall execute and deliver, at the written request of the Master Servicer
or any Servicer, and furnish to the Master Servicer and any Servicer, at the
expense of the requesting party, a power of attorney in the standard form
provided by the Trustee to take title to the Mortgaged Properties after
foreclosure in the name of and on behalf of the Trustee in its capacity as
Trustee hereunder and for the purposes described herein to the extent necessary
or desirable to enable the Master Servicer or any Servicer to perform its
respective duties. The Trustee shall not be liable for the actions of
the Master Servicer or any Servicer under such powers of attorney.
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Section
9.02. Assumption of Master Servicing by
Trustee.
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(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 by the Master Servicer
under this Agreement), the Trustee shall thereupon assume all of the rights
and
obligations of such Master Servicer hereunder and under each Purchase and
Servicing Agreement entered into with respect to the Mortgage Loans or shall
appoint or petition a court to appoint a Xxxxxx-Xxx or FHLMC-approved servicer
as successor servicer that is acceptable to the Depositor and the Rating
Agencies. The Trustee, as successor master servicer, 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 Purchase and Servicing Agreements 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 Purchase and
Servicing Agreement accruing prior to its replacement as Master Servicer, and
shall be liable to the Trustee, and hereby agrees to indemnify and hold harmless
the Trustee (in its individual corporate capacity and as Trustee hereunder)
from
and against all costs, damages, expenses and liabilities (including reasonable
attorneys’ fees) incurred by the Trustee as a result of such
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liability
or obligations of the Master Servicer and in connection with the Trustee’s
assumption (but not its performance, except to the extent that costs or
liability of the Trustee 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. To the extent that the costs and
expenses of the Trustee described in this Section are not timely reimbursed
by
the Master Servicer, the Trustee shall be entitled to reimbursement from the
Distribution Account and the Master Servicer is hereby obligated to reimburse
the Trust promptly for such amounts by deposit thereof in the Distribution
Account.
(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 Purchase and Servicing Agreement, this
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 Purchase and Servicing Agreement and this Agreement
to the assuming party.
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Section
9.03. Representations and Warranties of the Master
Servicer.
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The
Master Servicer hereby represents and warrants to the Depositor, the Securities
Administrator, the Certificate 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 under the laws of the United States
of
America as a national banking association, 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 corporate 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 charter or bylaws, (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);
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(iv) the
Master Servicer is not in default with respect to any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument or
subject to any charter provision, bylaw or any other corporate 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 Mae- or
FHLMC-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;
and
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer.
It
is
understood and agreed that the representations and warranties set forth in
this
Section shall survive the execution and delivery of this
Agreement. The Master Servicer shall indemnify the Depositor, the
Securities Administrator 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 material
breach of the Master Servicer’s representations and warranties contained in this
Section 9.03. It is understood and agreed that the enforcement
of the obligation of the Master Servicer set forth in this Section to indemnify
the Depositor, the Securities Administrator and the Trustee as provided in
this
Section constitutes the sole remedy (other than as set forth in
Section 6.14) of the Depositor, the Securities Administrator 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, the resignation or removal of
the
Trustee and any termination of this Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such
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breach
by
either the Depositor, the Master Servicer or the Trustee or notice thereof
by
any one of such parties to the other parties.
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Section
9.04. Compensation to the Master
Servicer.
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The
Master Servicer shall be compensated for its duties hereunder pursuant to
Section 4.02(b) hereof. The Master Servicer shall either retain or
withdraw from the Distribution Account (i) amounts necessary to reimburse
itself for any previously unreimbursed Advances, Servicer Advances and
Nonrecoverable Advances with respect to the Mortgage Loans in accordance with
the definition of “Available Distribution Amount” and (ii) amounts
representing assumption fees, late payment charges or other ancillary income
not
included in the definition of “Available Distribution Amount” and which are not
required to be remitted by the Servicers to the Securities Administrator or
deposited by the Securities Administrator into the Distribution Account and
(iii) any amounts to which the Master Servicer is entitled pursuant to 4.01(e)
hereof. 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.
In
addition, the Master Servicer shall be entitled to reimbursement from the
Distribution Account for all reasonable expenses, disbursements and advances
incurred or made by the Master Servicer in connection with the performance
of
its duties hereunder and under the Purchase and Servicing Agreements, as
modified by the Acknowledgements (including the reasonable compensation and
the
expenses and disbursements of its agents and counsel), to the extent not
otherwise reimbursed pursuant to this Agreement, except any such expense,
disbursement or advance as may be attributable to its willful misfeasance,
bad
faith or negligence.
The
Master Servicer and any director, officer, employee or agent of the Master
Servicer shall be indemnified by the Trust and held harmless thereby against
any
loss, liability or expense (including reasonable legal fees and disbursements
of
counsel) incurred on their part that may be sustained in connection with,
arising out of, or related to, any claim or legal action (including any pending
or threatened claim or legal action) relating to this Agreement, the Purchase
and Servicing Agreements or the Certificates, other than any loss, liability
or
expense resulting from the Master Servicer’s failure to perform its duties
hereunder or thereunder or incurred by reason of the Master Servicer’s
negligence, willful misfeasance or bad faith.
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Section
9.05. Merger or
Consolidation.
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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 FHLMC and
shall have a net worth of not less than $15,000,000.
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As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation of
the
Master Servicer, the Master Servicer shall provide (x) written notice to the
Depositor of any successor pursuant to this Section and (y) in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Master
Servicer.
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Section
9.06. Resignation of Master Servicer and Securities
Administrator.
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Except
as
otherwise provided in Sections 9.05, 9.07 and 9.10 hereof, neither the
Master Servicer nor the Securities Administrator shall resign from the
obligations and duties hereby imposed on it unless the duties of the Master
Servicer or the Securities Administrator, as applicable, 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 or the Securities Administrator shall be evidenced by an Opinion
of Counsel that shall be Independent to such effect delivered to the
Trustee. No resignation of the Master Servicer or the Securities
Administrator shall become effective until the Trustee shall have assumed,
or a
successor master servicer or successor securities administrator, as applicable,
shall have been appointed pursuant to Section 6.07 or 9.02, as applicable,
and
until such successor shall have assumed, such Master Servicer’s or Securities
Administrator’s responsibilities and obligations under this
Agreement. Notice of any such resignation shall be given promptly by
the Master Servicer or the Securities Administrator, as applicable, to the
Depositor and the Trustee.
If,
at
any time, the Master Servicer resigns under this Section 9.06, or transfers
or assigns its rights and obligations under Section 9.07, or is removed as
Master Servicer pursuant to Section 6.14, then at such time Xxxxx Fargo
Bank, National Association (or any successor thereto) also shall resign or
be
removed, as applicable, as Securities Administrator, Auction Administrator,
Paying Agent, Authenticating Agent and Certificate Registrar under this
Agreement. In such event, the obligations of the Master Servicer and
the Securities Administrator shall be assumed by the Trustee as successor or
by
such other successor master servicer and/or securities administrator, as
applicable, appointed by the Trustee (subject to the provisions of Sections
6.07
and 9.02(a)).
As
a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Master Servicer shall
provide (x) written notice to the Depositor of any successor pursuant to this
Section and (y) in writing and in form and substance reasonably satisfactory
to
the Depositor, all information reasonably requested by the Depositor in order
to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
the resignation of the Master Servicer.
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Section
9.07. Assignment or Delegation of Duties by the Master Servicer
and Securities Administrator.
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Except
as
expressly provided herein, neither the Master Servicer nor the Securities
Administrator shall assign or transfer any of their respective rights, benefits
or privileges hereunder to any other Person, or delegate to or subcontract
with,
or authorize or appoint any
136
other
Person to perform any of the respective duties, covenants or obligations to
be
performed by the Master Servicer or Securities Administrator, as applicable,
hereunder; provided,
however, that the Master
Servicer and the Securities Administrator shall each have the right with the
prior written consent of the Trustee and the Depositor (which consent shall
not
be unreasonably withheld), and upon delivery to the Trustee and the Depositor
of
a letter from each Rating Agency to the effect that such action shall not result
in a downgrading of the Certificates (without regard to the Class A-1-W and
Class A-3-W Policy), to delegate or assign to or subcontract with or authorize
or appoint any qualified Person to perform and carry out any of the respective
duties, covenants or obligations to be performed and carried out by the Master
Servicer or the Securities Administrator, as applicable,
hereunder. Notice of such permitted assignment shall be given
promptly by the Master Servicer or the Securities Administrator, as applicable,
to the Depositor and the Trustee. If, pursuant to any provision
hereof, the respective duties of the Master Servicer or the Securities
Administrator are transferred to a successor master servicer or successor
securities administrator, as applicable, the entire amount of the compensation
payable to the Master Servicer or Securities Administrator pursuant hereto
shall
thereafter be payable to such successor master servicer or successor securities
administrator. Such successor Master Servicer shall also pay the fees
of the Trustee, as provided herein.
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Section
9.08. Limitation on Liability of the Master Servicer and
Others.
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(a) Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer 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 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 and any director, officer, employee or agent of the Master Servicer
may
rely in good faith on any document of any kind prima facie properly executed
and
submitted by any Person respecting any matters arising hereunder. The
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 Distribution Account.
The
Master Servicer shall not be liable for any acts or omissions of the Servicers
except to the extent that damages or expenses are incurred as a result of such
act or omissions and such damages and expenses would not have been incurred
but
for the negligence, willful misfeasance, bad faith or recklessness of the Master
Servicer in supervising, monitoring and overseeing the obligations of the
Servicers in this Agreement and the Purchase and Servicing
Agreements.
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Section
9.09. Indemnification; Third-Party
Claims.
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137
The
Master Servicer agrees to indemnify the Depositor, the Securities Administrator
and the Trustee, and hold them harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
any
other costs, liability, fees and expenses that the Depositor, the Securities
Administrator or the Trustee may sustain as a result of the Master Servicer’s
willful misfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of its reckless disregard for its obligations and duties
under this Agreement, the Acknowledgements and the related Purchase and
Servicing Agreements. The Depositor, the Securities Administrator 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 Securities Administrator or the Trustee to indemnification under
this Section 9.09, 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.
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Section
9.10. Eligibility Requirements for Securities
Administrator.
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The
Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with
a
credit rating of at least investment grade or at least “A/F1” by Fitch if Fitch
is a Rating Agency. If such corporation or association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes
of
this Section 9.10 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any
time the Securities Administrator shall cease to be eligible in accordance
with
the provisions of this Section 9.10, the Securities Administrator shall resign
immediately in the manner and with the effect specified in Section 6.06
hereof. The entity serving as Securities Administrator may have
normal banking and trust relationships with the Depositor, the Seller, the
Master Servicer, any Custodian or the Trustee and their respective
affiliates.
The
Securities Administrator (i) may not be an Originator, Master Servicer,
Servicer, the Depositor or an affiliate of the Depositor unless the Securities
Administrator is in an institutional trust department, (ii) must be authorized
to exercise corporate trust powers under the laws of its jurisdiction of
organization, and (iii) must be rated at least “A/F1” by Fitch, if Fitch is a
Rating Agency, or the equivalent rating by S&P or Xxxxx'x (or such rating
acceptable to Fitch pursuant to a written confirmation). If at any
time the Securities Administrator shall cease to be eligible in accordance
with
the provisions of this Section 9.10, the Securities Administrator shall resign
in the manner and with the effect specified in Section 6.06
hereof. If no successor Securities Administrator shall have been
appointed and shall have accepted appointment within 60 days after the
Securities Administrator ceases to be the Securities Administrator pursuant
to
this Section 9.10, then the Trustee shall become the successor Securities
Administrator and shall, in accordance with Article VI hereof and in such
capacity, perform the duties of the Securities Administrator pursuant to this
Agreement. The Trustee shall notify the Rating Agencies and the
Certificate Insurer of any change of Securities Administrator.
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Section
9.11. Annual Statement as to
Compliance.
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The
Master Servicer and the Securities Administrator shall deliver (and the Master
Servicer and Securities Administrator shall cause any Additional Servicer
engaged by it to deliver) or otherwise make available to the Depositor, the
Certificate Insurer and the Securities Administrator 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, (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 and (C) in the case of the Master Servicer, to
the
best of such officer’s knowledge, each Servicer has fulfilled all its
obligations under its Servicing Agreement in all material respects throughout
such year, or, if there has been a failure to fulfill any such obligation in
any
material respect specifying each such failure known to such officer and the
nature and status thereof.
The
Master Servicer shall enforce any obligation of the Servicers, to the extent
set
forth in the related Servicing Agreement, to deliver to the Master Servicer
and
to the Depositor (and the Master Servicer shall make it available the
Certificate Insurer) an annual statement of compliance and all reports and
other
information required from the Servicers under Reg AB within the time frame
set
forth in, and in such form and substance as may be required pursuant to, the
related Servicing Agreement. The Master Servicer shall include such annual
statements of compliance with its own annual statement of compliance to be
submitted to the Securities Administrator pursuant to this Section.
ARTICLE
X
REMIC
ADMINISTRATION
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Section
10.01. REMIC
Administration.
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(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.
(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
Securities Administrator 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 Securities Administrator
shall pay any and all tax related expenses (not including taxes) of each REMIC,
including but not limited to any
139
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 Securities Administrator in fulfilling its duties
hereunder (including its duties as tax return preparer). The
Securities Administrator shall be entitled to reimbursement of expenses to
the
extent provided in clause (i) above from the Distribution Account, provided,
however, the Securities
Administrator 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
Securities Administrator shall prepare, the Trustee shall sign and the
Securities Administrator shall file all of each REMIC’s federal and appropriate
state tax and information returns as such REMIC’s direct
representative. The expenses of preparing and filing such returns
shall be borne by the Securities Administrator. In preparing such
returns, the Securities Administrator shall, with respect to each REMIC other
than the Master REMIC: (i) treat the accrual period for interests in such
REMIC as the calendar month; (ii) account for distributions made from each
REMIC other than the Master REMIC as made on the first day of each succeeding
calendar month; (iii) account for income under the all-OID method at the
weighted average of the Net Mortgage Rates; (iv) use the aggregation method
provided in Treasury Regulation section 1.1275-2(c); and
(v) account for income and expenses related to each REMIC other than the
Master REMIC in the manner resulting in the lowest amount of excess inclusion
income possible accruing to the Holder of the residual interest in each such
REMIC.
(e) The
Securities Administrator 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 Securities Administrator shall provide,
upon receipt of additional reasonable compensation, (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 and
the Trustee such information or reports as are required by the Code or REMIC
Provisions.
(f) To
the extent within their control, the Trustee, the Securities Administrator,
the
Master Servicer and the Holders of Certificates shall take any action or cause
any REMIC to take any action necessary to 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. None of the Trustee, the Securities
Administrator, the Master Servicer, nor the Holder of any Residual Certificate
shall knowingly take any action, cause any REMIC to take any action or fail
to
take (or fail to cause to be taken) any action 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, the Securities Administrator and the Master Servicer
have received an Opinion of Counsel (at the expense of
140
the
party
seeking to take such action) to the effect that the contemplated action will
not
endanger such status or result in the imposition of such a tax. 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 Securities Administrator, the
Master Servicer or their respective designees, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur with respect
to
any REMIC, and no such Person shall take any such action or cause any REMIC
to
take any such action as to which the Trustee, the Securities Administrator
or
the Master Servicer has advised it in writing that an Adverse REMIC Event could
occur; provided,
however, that if no Adverse
REMIC Event would occur but such action could result in the imposition of
additional taxes on the Residual Certificateholders, no such Person shall take
any such action, or cause any REMIC to take any such action without the written
consent of the Residual Certificateholders.
(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
Paying Agent 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, (A) out of other amounts held
in the Distribution Account, and shall reduce amounts otherwise payable to
holders of regular interests in any such REMIC or (B) to the extent that any
such taxes are imposed on the REMIC as a result of the breach of any
representation, warranty or covenant of the Master Servicer, the Securities
Administrator or any Servicer, then the Master Servicer, the Securities
Administrator, or that Servicer, as applicable, shall pay when due any and
all
such taxes.
(h) The
Securities Administrator 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 Securities Administrator nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
(k)
[Reserved].
(l) The
Class A-R Holder shall act as “tax matters person” with respect to each
REMIC created hereunder and the Securities Administrator shall act as agent
for
the Class A-R Holder in such roles, unless and until another party is so
designated by the Class A-R Holder.
(m) The
Securities Administrator, on behalf of the Trustee, shall treat the rights
of
the holders of the Certificates to receive Basis Risk Carry Forward Amounts
from
amounts on deposit in the Basis Risk Carry Forward Reserve Fund as rights in
an
interest rate cap contract written by the Holders of the Class OC Certificates
in favor of the Holders of the Certificates (other than the Class OC and Class
A-R Certificates). Thus, the Certificates (other than the Class OC
and Class A-R Certificates) shall be treated as representing ownership of not
only a Master REMIC regular interest, but also ownership of an interest in
an
interest rate cap contract. For
141
purposes
of determining the issue price of the Master REMIC regular interest, the
Securities Administrator, on behalf of the Trustee, shall assume that this
interest rate cap contract has a value of $5,000.
(n) The
Securities Administrator, on behalf of the Trustee, shall treat the Class A
Reserve Fund as an outside reserve fund within the meaning of Treasury
Regulation 1.860G-2(h) which is owned by the Corridor Contract Counterparty
and
that is an asset of the Supplemental Interest Trust. The Securities
Administrator, on behalf of the Trustee, shall account for the Supplemental
Interest Trust as a disregarded entity under Treasury Regulation Section
301.7701-3, and not as an asset of any REMIC created hereunder. The
Class A-4, Class A-6 and Class A-8 Certificates shall be treated as representing
ownership of a Master REMIC regular interest and a position an interest rate
cap
contract (the Corridor Contract). The Securities Administrator, on
behalf of the Trustee, shall assume that the position of the Class A-4, Class
A-6 and Class A-8 Certificates in such interest rate cap contract has a value
of
$822,000.
(o) It
is intended that the ES Trust be considered a “grantor trust” under the
Code. Based upon such characterization, within a reasonable period of
time after the end of each calendar year but not later than the latest date
permitted by law, the Securities Administrator shall mail to each person who
so
requests in writing and who at anytime during such calendar year shall have
been
a Certificateholder the necessary information under applicable law for
preparation of such Holder’s federal and state income tax returns unless
substantially similar information has been previously provided to such
Certificateholder.
For
federal income tax purposes, the grantor trust created hereunder shall have
a
calendar year taxable year. The Securities Administrator shall
prepare or cause to be prepared and shall file or cause to be filed with the
Internal Revenue Service and applicable state or local tax authorities, income
tax information returns for each taxable year with respect to the grantor
trust.
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Section
10.02. Prohibited Transactions and
Activities.
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Neither
the Depositor, the Master Servicer nor 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 Distribution Account for gain, nor accept any contributions
to any REMIC after the Closing Date, unless it has received an Opinion of
Counsel (at the expense of the party causing such sale, disposition,
substitution or acceptance) that such disposition, acquisition, substitution,
or
acceptance will not 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).
The
Master Servicer with respect to the Mortgage Loans shall not consent to any
modification of any such Mortgage Loan for which the consent of the Master
Servicer is required under the applicable Purchase and Servicing Agreement
under
which such Mortgage Loan is serviced, that would (i) increase the interest
rate
in respect of such Mortgage, defer for a period
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in
excess
of six months or forgive the payment of any principal or interest, reduce the
outstanding principal amount (except for actual payments of principal), increase
the Servicing Fee on such Mortgage Loan or extend the final maturity date on
such Mortgage Loan, or (ii) result in a substitution or release of collateral
or
in the provision of additional collateral for the Mortgage Loan, unless the
applicable Mortgage Loan is in default or default is reasonably foreseeable
in
respect of such Mortgage Loan, or the Master Servicer and the Certificate
Insurer has received an Opinion of Counsel (at the expense of the party
requesting consent for such modification) that such modification will not result
in an Adverse REMIC Event.
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Section
10.03. Indemnification with Respect to Prohibited Transactions
or Loss of REMIC Status.
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Upon
the
occurrence of an Adverse REMIC Event due to the negligent performance by the
Securities Administrator of its duties and obligations set forth herein, the
Securities Administrator shall indemnify the Certificateholders of the related
Residual Certificate against any and all losses, claims, damages, liabilities
or
expenses (“Losses”) resulting from such negligence; provided,
however, that the Securities
Administrator shall not be liable for any such Losses attributable to the action
or inaction of the Depositor, the Trustee or the Holder of the Residual
Certificate, nor for any such Losses resulting from misinformation provided
by
any of the foregoing parties on which the Securities Administrator has
relied. Notwithstanding the foregoing, however, in no event shall the
Securities Administrator have any liability (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 under any
Purchase and Servicing Agreements or under any Acknowledgement, (2) for any
Losses other than arising out of malfeasance, willful misconduct or negligent
performance by the Service Administrator of its duties and obligations set
forth
herein, and (3) for any special or consequential damages to
Certificateholders of the related Residual Certificate (in addition to payment
of principal and interest on the Certificates).
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Section
10.04. REO Property.
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(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 Purchase and 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 applicable
Servicer has provided to the Trustee and the Securities Administrator an Opinion
of Counsel concluding that, under the REMIC Provisions, such action would not
adversely affect the status of any REMIC as a REMIC and any income generated
for
any REMIC by the REO Property would not result in an Adverse REMIC
Event.
(b) The
Depositor shall cause the applicable Servicer (to the extent provided in its
Purchase and Servicing Agreement) to make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the
Depositor shall, or shall cause the applicable Servicer (to the extent provided
in its Purchase and Servicing Agreement) to, dispose of any REO Property within
three years of its acquisition by the Trust Fund unless the Depositor or the
applicable Servicer (on behalf of the Trust Fund) has received a grant of
extension from the
143
Internal
Revenue Service to the effect that, under the REMIC Provisions and any relevant
proposed legislation and under applicable state law, the REMIC may hold REO
Property for a longer period without causing an Adverse REMIC
Event. If such an extension has been received, then the Depositor,
acting on behalf of the Trustee 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 such an extension has not been received and
the Depositor or the applicable Servicer, acting on behalf of the Trust Fund
hereunder, is unable to sell the REO Property within 33 months after its
acquisition by the Trust Fund or if such an extension, has been received and
the
Depositor 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
Depositor 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.
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Section
10.05. Fidelity.
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The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an 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 errors and
omissions insurance policy and the fidelity bond shall be in such form and
amount generally acceptable for entities serving as master servicers and
trustees.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
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Section
11.01. Binding Nature of Agreement;
Assignment.
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This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
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Section
11.02. Entire Agreement.
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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) This
Agreement (other than the provisions of Article XIII hereof) may be amended
from
time to time by the Depositor, the Master Servicer, the Securities
Administrator,
144
and
the
Trustee, without notice to or the consent of any of the Holders, (i) to
cure any ambiguity or mistake, (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
Purchase and 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. 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 shall be provided with an
Opinion of Counsel (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 (such determination to be made without
regard to the Class A-1-W and Class A-3-W Policy).
(b) This
Agreement (other than the provisions of Article XIII hereof) may also be amended
from time to time by the Depositor, the Master Servicer, the Securities
Administrator and the Trustee, with the consent of the Holders of not less
than
66-2/3% of the Class Principal Balance (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 receives an Opinion of Counsel,
at
the expense of the party requesting the change, that such change will not cause
an Adverse REMIC Event; 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 Balance or Class Notional Amount (or Percentage
Interest) of Certificates of each Class, the Holders of which are required
to
consent to any such amendment without the consent of the Holders of 100% of
the
Class Principal Balance or Class Notional Amount (or Percentage Interest) of
each Class of Certificates affected thereby. For purposes of this
paragraph, references to “Holder” or “Holders” shall be deemed to include, in
the case of any Class of Book-Entry Certificates, the related Certificate
Owners.
(c) In
the event the parties to this Agreement desire to further clarify or amend
any
provision of Article XIII hereof, this Agreement shall be amended to reflect
the
new agreement between the parties covering matters in Article XIII, which
amendment shall not require any Opinion of Counsel or Rating Agency
confirmations or the consent of any Certificateholder.
(d) Promptly
after the execution of any such amendment, the Securities Administrator shall
furnish written notification of the substance of such amendment to each Holder,
the Depositor, the Certificate Insurer and the Rating Agencies.
145
(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
subsections (a) and (b) of this Section 11.03, this Agreement can not be amended
without the consent of the Certificate Insurer if such amendment would affect
any provision of this Agreement to which the Certificate Insurer is a
third-party beneficiary.
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Section
11.04. Voting Rights.
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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 Balance or Class Notional Amount (or
Percentage Interest), Certificates owned by the Depositor, the Master Servicer,
the Securities Administrator, the Trustee, any Servicer or any Affiliates
thereof are not to be counted so long as such Certificates are owned by the
Depositor, the Master Servicer, the Securities Administrator, the Trustee,
any
Servicer or any Affiliate thereof. Notwithstanding the foregoing, so long as
there does not exist a Certificate Insurer Default, the Certificate Insurer
shall have the right to exercise all rights of the Holders of the Class A-1-W
and Class A-3-W Certificates without any consent of such Holders, and such
Holders may exercise such rights only with the prior written consent of the
Certificate Insurer.
In
the
event that there shall be any matter arising under this Agreement that requires
the vote of the Holders of Certificates outstanding hereunder, the Securities
Administrator, on behalf of the Trustee, as the holder of the related
Uncertificated Master REMIC Interests shall vote such Uncertificated Master
REMIC Interests in such amounts and proportions as shall reflect instructions
received from Holders of any Outstanding Exchangeable REMIC Certificates and
Outstanding Exchangeable Certificates corresponding to such Uncertificated
Master REMIC Interest.
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Section
11.05. Provision of
Information.
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(a) For
so long as any of the Certificates of any Class are “restricted securities”
within the meaning of Rule 144(a)(3) under the Act, each of the Depositor,
the Master Servicer, the Securities Administrator and the Trustee (upon
instruction from the Depositor) 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,
the Master Servicer or the Securities Administrator in providing such
information shall be reimbursed by the Depositor.
(b) The
Securities Administrator shall provide to any person to whom a Prospectus was
delivered, upon the request of such person specifying the document or
146
documents
requested, a copy (excluding exhibits) of any report on Form 8-K or
Form 10-K filed with the Securities and Exchange Commission pursuant to
Section 6.20(b). Any reasonable out-of-pocket expenses incurred
by the Securities Administrator in providing copies of such documents shall
be
reimbursed by the Depositor.
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Section
11.06. Governing Law.
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(a) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
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Section
11.07. Notices.
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All
requests, demands, notices, authorizations, directions, consents, waivers 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, Xxxxxx
Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telephone
number (000) 000-0000, Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust
2007-10XS, (b) in the case of the Seller, Xxxxxx Xxxxxxx Mortgage Capital
Holdings LLC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-10XS, (c) in the case of the Master
Servicer or the Securities Administrator, Xxxxx Fargo Bank, National
Association, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000 (or, for overnight
deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000),
telecopy number (000) 000-0000, Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust
2007-10XS, (d) with respect to the Trustee or the Certificate Registrar,
its respective Corporate Trust Office (e) with respect to the Certificate
Insurer, MBIA Insurance Corporation MBIA Insurance Corporation, 000 Xxxx Xxxxxx,
Xxxxxx, XX 00000, Attention: Insured Portfolio Management –Structured Finance
(Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-10XS) and (f) in the case of the Rating
Agencies, the address specified therefor in the definition corresponding to
the
name of such Rating Agency, 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.
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Section
11.08. Severability of
Provisions.
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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.
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Section
11.09. Indulgences; No
Waivers.
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147
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.
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Section
11.10. Headings Not To Affect
Interpretation.
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The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
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Section
11.11. Benefits of
Agreement.
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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
and the Holders of the Certificates, any benefit or any legal or equitable
right, power, remedy or claim under this Agreement, except to the extent
specified in Section 11.15.
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Section
11.12. Special Notices to the Rating Agencies and Certificate
Insurer.
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(a) The
Depositor shall give prompt notice to the Rating Agencies and Certificate
Insurer of the occurrence of any of the following events of which it has
notice:
(i) any
amendment to this Agreement pursuant to Section 11.03;
(ii) any
assignment by the Master Servicer of its rights hereunder or delegation of
its
duties hereunder;
(iii) the
occurrence of any Event of Default described in Section 6.14;
(iv) any
notice of termination given to the Master Servicer pursuant to Section 6.14
and any resignation of the Master Servicer hereunder;
(v) the
appointment of any successor to any Master Servicer pursuant to
Section 6.14;
(vi) the
making of a final payment pursuant to Section 7.02; and
(vii) any
termination of the rights and obligations of any Servicer under the applicable
Purchase and 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, to the address
specified therefor in the definition corresponding to the name of such Rating
Agency.
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(c) The
Securities Administrator shall provide or make available to the Rating Agencies
reports prepared pursuant to Section 4.05. In addition, the
Securities Administrator 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 Securities
Administrator.
(d) The
Depositor hereby represents to S&P that, to the Depositor’s knowledge, the
information provided to such Rating Agency, including the loan level detail,
is
true and correct according to such Rating Agency’s requirements.
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Section
11.13. Conflicts.
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To
the
extent that the terms of this Agreement conflict with the terms of any Purchase
and Servicing Agreement, the related Purchase and Servicing Agreement shall
govern.
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Section
11.14. Counterparts.
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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.
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Section
11.15. No Petitions.
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The
Trustee and the Master Servicer (not in its individual corporate capacity,
but
solely as Master Servicer hereunder), by entering into this Agreement, hereby
covenant and agree that they shall not at any time institute against the
Depositor, or join in any institution against the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations relating to this Agreement or any of the
documents entered into by the Depositor in connection with the transactions
contemplated by this Agreement, except that the Trustee shall not be prohibited
from filing a proof of claim in any such proceeding.
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Section
11.16. Indemnification by
Trust.
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Pursuant
to the Purchase and Servicing Agreements, each of the Originators and Servicers
shall be indemnified by the Trust to the extent specified in the related
Purchase and Servicing Agreement.
ARTICLE
XII
CERTAIN
MATTERS REGARDING THE CERTIFICATE INSURER
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Section
12.01. Rights of the Certificate Insurer to Exercise Rights of
Holders of Class A-1-W and Class A-3-W
Certificates.
|
By
accepting its Certificate, each Holder of a Class A-1-W and Class A-3-W
Certificate agrees that unless a Certificate Insurer Default exists, the
Certificate Insurer shall have the right to exercise all consent, voting,
direction and other control rights of the Holders of the Class A-1-
149
W
and
Class A-3-W Certificates under this Agreement without any further consent of
the
Holders of the Class A-1-W and Class A-3-W Certificates.
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Section
12.02. [Reserved]
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Section
12.03. Effect of Payments by the Certificate Insurer;
Subrogation.
|
Anything
in this Agreement to the contrary notwithstanding, for purposes of this Section
12.03, any payment with respect to principal of or interest on the Class A-1-W
and Class A-3-W Certificates that is made with monies received pursuant to
the
terms of the Certificate Policy shall not be considered payment of the Class
A-1-W and Class A-3-W Certificates from the Trust Fund. The Master Servicer,
the
Depositor and the Trustee acknowledge, and each Holder by its acceptance of
a
Class A-1-W and Class A-3-W Certificate agrees, that without the need for any
further action on the part of the Certificate Insurer, the Securities
Administrator, the Master Servicer, the Depositor, the Trustee or the
Certificate Registrar, to the extent the Certificate Insurer or the Fiscal
Agent
makes payments, directly or indirectly, on account of principal of or interest
on the Class A-1-W and Class A-3-W Certificates to the Holders of such
Certificates, the Certificate Insurer will be fully subrogated to, and each
Holder of the Class A-1-W and Class A-3-W Certificates, the Securities
Administrator, the Master Servicer, the Depositor and the Trustee hereby
delegate and assign to the Certificate Insurer, to the fullest extent permitted
by law, the rights of such Holders to receive such principal and interest from
the Trust Fund; provided that the Certificate Insurer shall be paid such amounts
only from the sources and in the manner explicitly provided for in this
Agreement.
Subject
to Section 6.01(c)(iv), the Trustee, the Securities Administrator and the Master
Servicer shall cooperate in all respects with any reasonable request by the
Certificate Insurer for action to preserve or enforce the Certificate Insurer’s
rights or interests under this Agreement without limiting the rights or
affecting the interests of the Holders as otherwise set forth in this
Agreement.
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Section
12.04. Notices and Information to the Certificate
Insurer.
|
(a) All
notices, statements, reports, certificates or opinions required by this
Agreement to be sent to any other party hereto, to the Rating Agencies or to
the
Certificateholders shall also be sent at the same time to the Certificate
Insurer.
(b) The
Master Servicer shall designate a Person who shall be available to the
Certificate Insurer to provide reasonable access to information regarding the
Mortgage Loans and
to
all books, records, accounts, information and other matters relating to the
Certificates or this Agreement.
(c) All
references herein to the ratings assigned to the Certificates and to the
interests of any Certificateholder shall be without regard to the Class A-1-W
and Class A-3-W Policy.
150
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Section
12.05. Trustee to Hold Certificate
Policy.
|
On
behalf
of the Securities Administrator the Trustee will hold the Certificate Policy
in
trust as agent for the Insured Certificateholders for the purpose of making
claims thereon and distributing the proceeds thereof. Neither the Certificate
Policy nor the amounts paid on the Certificate Policy will constitute part
of
the Trust Fund or assets of any REMIC created by this Agreement. Each Insured
Certificateholder, by accepting its Certificate, appoints the Securities
Administrator on behalf of the Trustee as attorney-in-fact for the purpose
of
making claims on the Certificate Policy. On behalf of the Securities
Administrator the Trustee shall surrender the Certificate Policy to the
Certificate Insurer for cancellation upon the payment in full of the Class
A-1-W
and Class A-3-W Certificates. To the extent that the Certificate Policy
constitutes a reserve fund for federal income tax purposes, (1) it shall be
an
outside credit support agreement and not an asset of any REMIC and (2) it shall
be owned by the Certificate Insurer, all within the meaning of Section
1.860G-2(h) of the Treasury Regulations.
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|
Section
12.06. Class A-1-W and Class A-3-W Premium
Payments.
|
(a) The
Securities Administrator shall, to the extent of funds available therefor in
the
Distribution Account, pay the Class A-1-W and Class A-3-W Premium and all other
amounts payable to the Certificate Insurer under the Class A-1-W and Class
A-3-W
Policy or this Agreement in immediately available funds by wire transfer to
such
account as the Certificate Insurer shall designate by notice, and in the lawful
currency of the United States of America, on the dates when due.
|
|
Section
12.07. Certificate Insurer as Third Party
Beneficiary.
|
The
Certificate Insurer shall be an express third-party beneficiary of this
Agreement to the extent of its express subrogation rights, its rights to receive
the Class A-1-W and Class A-3-W Premium and Certificate Insurer Reimbursement
Amounts pursuant to Section 5.02(a) and its express rights set forth in this
Agreement and shall have the right to enforce the related provisions of this
Agreement as if it were a party to this Agreement.
ARTICLE
XIII
EXCHANGE
ACT REPORTING
|
|
Section
13.01. Filing
Obligations.
|
(a) The
Master Servicer, the Securities Administrator, the Trustee and each Custodian
shall reasonably cooperate with the Depositor in connection with the
satisfaction of the Depositor’s reporting requirements under the Exchange Act
with respect to the Trust Fund. In addition to the information specified
below, if so requested by the Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act, the Master Servicer, the Securities
Administrator, the Trustee and each Custodian shall (and the Master Servicer
shall cause each Servicer, to the extent required by the related Servicing
Agreement, to) provide the Depositor with (a) such information which is
available to such Person without unreasonable effort or expense and within
such
timeframe as may be reasonably requested by the Depositor to comply with the
Depositor’s reporting obligations under the Exchange Act and (b) to the extent
such
151
Person
is
a party (and the Depositor is not a party) to any agreement or amendment
required to be filed, copies of such agreement or amendment in XXXXX-compatible
form. Each of the Master Servicer (and the Master Servicer shall
cause any Servicer to notify promptly, to the extent required by the related
Servicing Agreement), the Securities Administrator, each Custodian and the
Trustee shall promptly notify the Depositor and the Master Servicer (if the
notifying party is not the Master Servicer), but in no event later than two
(2)
Business Days after its occurrence, of any Reportable Event either (i) with
respect to itself or any Affiliate of it or (ii) with respect to any Reporting
Party, to the extent that it has received notice thereof.
(b) On
or prior to January 30 of the first year in which the Securities Administrator
is able to do so under applicable law, the Securities Administrator shall
prepare and file a Form 15 relating to the automatic suspension of reporting
in
respect of the Trust under the Exchange Act.
(c) In
the event that the Securities Administrator is unable to file timely with the
Commission all or any required portion of any Form 8-K, Form 10-D or Form 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 Securities
Administrator will immediately notify the Depositor. In the case of
Form 10-D and Form 10-K, the parties to this Agreement will (and the Master
Servicer shall cause each Servicer to cooperate) prepare and file a Form 12b-25
and a Form 10-DA and Form 10-KA as applicable, pursuant to Rule 12b-25 of the
Exchange Act. In the case of Form 8-K, the Securities Administrator
will, upon receipt of all required Form 8-K Disclosure Information shall include
such disclosure information in the next Form 10-D unless directed by the
Depositor to file a Form 8-K with such Form 8-K Disclosure
Information. In the event that any previously filed Form 8-K, Form
10-D or Form 10-K needs to be amended, and such amendment includes any
Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure or any
Form
8-K Disclosure Information or an amendment to any such disclosure, the
Securities Administrator will notify the Depositor and each Servicer affected
by
such amendment (unless such amendment is solely for the purpose of restating
the
monthly statement referred to in Section 4.05 hereof) and such parties will
cooperate to prepare any necessary Form 8-KA, Form 10-DA or Form
10-KA. Any Form 15, Form 12b-25 or any amendment to a Form 8-K or a
Form 10-D shall be signed by a duly authorized representative of the Master
Servicer. Any amendment to a Form 10-K shall be signed by a senior
officer of the Master Servicer in charge of the master servicing
function. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of its
duties under this Article XIII related to the timely preparation and filing
of a
Form 15, Form 12b-25 or any amendment to a Form 8-K, Form 10-D or Form 10-K
is
contingent upon each such party performing its duties under this
Section. Neither the Master Servicer nor the Securities Administrator
shall have any liability for any loss, expense, damage, claim arising out of
or
with respect to any failure to properly prepare, execute and/or timely file
any
such Form 15, Form 12b-25 or any amendments to a Form 8-K, Form 10-D or Form
10-K, where such failure results from the Securities Administrator’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 Form 8-K, Form 10-D or Form 10-K, not
resulting from their own respective negligence, bad faith or willful
misconduct.
152
(d) All
items under this Article XIII to be reviewed by the Depositor should be
forwarded electronically to xxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx. In
addition, for purposes of this Article XIII, if the Securities Administrator
or
the Master Servicer is required to provide any information or documentation
to
such other party, for so long as Xxxxx Fargo Bank, National Association is
both
Securities Administrator and Master Servicer, that delivery will be
automatically deemed to have been made.
(e) Each
of Form 10-D and 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 shall notify the Securities Administration 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 and no later than
March
15th
with respect to
the filing of a report on Form 10-K, if the answer to the questions should
be
“no.” In the absence of such notification by the Depositor to the
Securities Administrator, the Securities Administrator shall be entitled to
assume that the answer to the questions on Form 10-D and Form 10-K should be
“yes”. The
Securities Administrator shall be entitled to rely on such representations
in
preparing, executing and/or filing any such report.
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|
Section
13.02. Form 10-D
Reporting.
|
(a) No
later than 5:00 p.m., New York time, on the 15th
calendar day
after each Distribution Date (subject to permitted extensions under the Exchange
Act), the Securities Administrator shall prepare and file on behalf of the
Trust
any Form 10-D required by the Exchange Act, in form and substance as required
by
the Exchange Act. The Securities Administrator shall file each Form
10-D with a copy of the related Monthly Statement attached
thereto. Any disclosure in addition to the Monthly Statement that is
required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall
be prepared and filed by the Securities Administrator pursuant to the following
paragraph and the Securities Administrator will have no duty or liability for
any failure hereunder to determine any Additional Form 10-D Disclosure, except
as set forth in the next paragraph.
(b) In
accordance with the respective reporting obligations set forth on Exhibit N-1
hereto, within 5 calendar days after the related Distribution Date, the Master
Servicer and any other Reporting Party shall be required to provide to the
Securities Administrator and the Depositor in XXXXX-compatible form, or in
such
other form as otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Additional Form 10-D Disclosure, if
applicable, together with an Additional Disclosure Notification in the form
of
Exhibit P attached hereto (an “Additional Disclosure
Notification”). The Securities Administrator shall notify the
Depositor of any Additional Form 10-D Disclosure with respect to itself or
any
of its Affiliates and any other Additional Form 10-D Disclosure received by
it.
Within one (1) Business Day of such notification, the Depositor will approve
or
disapprove, as the case may be, the inclusion of the Additional Form 10-D
Disclosure on Form 10-D. The Depositor will be responsible for any
reasonable additional fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-D Disclosure
on Form 10-D pursuant to this paragraph.
153
(c) After
preparing the Form 10-D, and no later than the close of business on the 11th
calendar day
after the Distribution Date, the Securities Administrator shall forward
electronically a draft copy of the Form 10-D to the Master Servicer and to
the
Depositor for review. No later than the 13th
calendar day
after the Distribution Date, the Depositor shall notify the Securities
Administrator in writing (which may be provided electronically) of any changes
to or approve the filing of such Form 10-D. In the absence of receipt
of any written changes or approval, or if the Depositor does not request a
copy
of a Form 10-D, the Securities Administrator shall be entitled to assume that
such Form 10-D is in final form and the Securities Administrator may proceed
with the execution and filing of the Form 10-D. A duly authorized
representative of the Master Servicer 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 Securities Administrator. If
a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs
to
be amended, the Securities Administrator will follow the procedures set forth
in
Section 13.01(c) hereof. Promptly (but no later than 1 Business Day)
after filing with the Commission, the Securities Administrator will make
available on its internet website a final executed copy of each Form 10-D
prepared and filed by the Securities Administrator. The signing party
at the Master Servicer can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile (000)
000-0000. Each party to this Agreement acknowledges that the
performance by the Securities Administrator and the Master Servicer of its
duties under this Section 13.02 related to the timely preparation, execution
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
13.02. Neither the Securities Administrator nor the Master Servicer
shall have any liability for any loss, expense, damage, claim arising out of
or
with respect to any failure to properly prepare, execute and/or timely file
such
Form 10-D, where such failure results from the Securities Administrator’s
inability or failure to obtain or receive, on a timely basis, any information
from any other party hereto (other than an Affiliate thereof) needed to prepare,
arrange for execution or file such Form 10-D, not resulting from their
respective negligence, bad faith or willful misconduct.
|
|
Section
13.03. Form 8-K
Reporting.
|
(a) As
directed by the Depositor, within four (4) Business Days after the occurrence
of
an event requiring disclosure on Form 8-K (each such event, a “Reportable
Event”), the Securities Administrator shall prepare and file on behalf of the
Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor
shall file the initial Form 8-K (operative agreements) in connection with the
issuance of the Certificates. Any disclosure or information related
to a Reportable Event or that is otherwise required to be included on Form
8-K
(“Form 8-K Disclosure Information”) shall be prepared by the Securities
Administrator pursuant to the following paragraph and the Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except
as set forth in the next paragraph.
(b) In
accordance with the respective reporting obligations set forth on Exhibit N-3
hereto, no later than the close of business on the second Business Day
immediately following the occurrence of a Reportable Event, each of the
Securities Administrator, the Custodian, the Trustee, the Master Servicer and
the Depositor shall be required to provide to the Securities Administrator
and
the Depositor, as applicable, in XXXXX-compatible form, or in such other
154
form
as
otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Additional Form 8-K Disclosure, if applicable, together
with an Additional Disclosure Notification. The Securities
Administrator shall notify the Depositor of any Form 8-K Disclosure Information
with respect to itself or any of its Affiliates and any other Form 8-K
Disclosure Information received by it. The Depositor will approve or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Depositor will be responsible for any
reasonable additional fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this paragraph.
(c) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a draft copy of the Form 8-K to the Depositor and the Master
Servicer for review no later than 12:00 p.m., New York time, on the third
Business Day following the Reportable Event. The Depositor shall
notify the Securities Administrator in writing (which may be provided
electronically) of any changes to or approval of such Form 8-K no later than
the
close of business on the third Business Day following the Reportable
Event. In the absence of receipt of any written changes or approval,
the Securities Administrator shall be entitled to assume that such Form 8-K
is
in final form and the Securities Administrator may proceed with the execution
and filing of the Form 8-K. By 12:00 p.m., New York time, on the
fourth Business Day after the occurrence of the Reportable Event, a duly
authorized representative of the Master Servicer shall sign the Form 8-K, then
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 Securities
Administrator. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Securities Administrator
will
follow the procedures set forth in Section 13.01(c). With respect to
each Form 8-K prepared and filed by the Securities Administrator, promptly
(but
no later than 1 Business Day) after filing with the Commission, the Securities
Administrator will, make available on its internet website a final executed copy
thereof. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of its
duties under this Section 13.03 related to the timely preparation, execution
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
13.03. Neither the Securities Administrator nor the Master Servicer
shall have any liability for any loss, expense, damage, claim arising out of
or
with respect to any failure to properly prepare, execute and/or timely file
such
Form 8-K, where such failure results from the Securities Administrator’s
inability or failure to obtain or receive, on a timely basis, any information
from any other party hereto (other than an Affiliate thereof) needed to prepare,
arrange for execution or file such Form 8-K, not resulting from their respective
negligence, bad faith or willful misconduct.
| Section 13.04. Form 10-K Reporting. |
(a) Within
90 days (including the 90th day) after the end of each fiscal year of the
Trust
or such earlier date as may be required by the Exchange Act (the “10-K Filing
Deadline”), commencing in March 2008 and continuing until the Trust has been
deregistered with the Commission, the Securities Administrator shall prepare
and
file on behalf of the Trust a Form 10-K, in form and substance as required
by
the Exchange Act. Each such Form 10-K shall include the following
items, in each case to the extent they have been delivered to the Securities
Administrator within the applicable time frames set forth in this Agreement
and
the related
155
Servicing
Agreement, (i) an annual compliance statement for each Servicer, each Additional
Servicer, the Master Servicer, each Custodian and the Securities Administrator
(each such party and each Custodian, a “Reporting Servicer”) as described under
Section 9.11, (ii)(A) the annual reports on assessment of compliance with
servicing criteria for each Reporting Servicer, as described under Section
13.06, and (B) if each Reporting Servicer’s report on assessment of compliance
with servicing criteria described under Section 13.06 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if each Reporting Servicer’s report on assessment of
compliance with servicing criteria described under Section 13.06 is not included
as an exhibit to such Form 10-K, disclosure that such report is not included
and
an explanation why such report is not included, (iii)(A) the registered public
accounting firm attestation report for each Reporting Servicer, as described
under Section 13.06, and (B) if any registered public accounting firm
attestation report described under Section 13.06 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included,
and
(iv) a Xxxxxxxx-Xxxxx Certification as described in Section 13.05. Any
disclosure or information in addition to (i) through (iv) above that is required
to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be
determined and prepared by and at the direction of the Depositor pursuant
to the
following paragraph and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional
Form
10-K Disclosure, except as set forth in the next paragraph.
(b) In
accordance with the respective reporting obligations set forth on Exhibit N-2
hereto, no later than March 15 of each year that the Trust is subject to the
Exchange Act reporting requirements, commencing in 2008 and continuing until
the
Trust has been deregistered with the Commission, the Master Servicer and any
other Reporting Party shall be required to provide to the Securities
Administrator and the Depositor, in XXXXX-compatible form, or in such other
form
as otherwise agreed upon by the Securities Administrator and such party, the
form and substance of any Additional Form 10-K Disclosure, if applicable,
together with an Additional Disclosure Notification. The Securities
Administrator shall notify the Depositor of any Additional Form 10-K Disclosure
with respect to itself or any of its Affiliates and any other Additional Form
10-K Disclosure received by it. Within one (1) Business Day of such
notification, the Depositor will approve or disapprove, as the case may be,
the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The
Depositor will be responsible for any reasonable additional fees and expenses
assessed or incurred by the Securities Administrator in connection with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph.
(c) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a draft copy of the Form 10-K to the Master Servicer and, upon
request, to the Depositor for review. No later than the earlier of:
(x) three (3) Business Days following the receipt by the Depositor and (y)
March
25th, the Depositor and the Master Servicer shall notify the Securities
Administrator in writing (which may be provided electronically) of any changes
to or approve the filing of such Form 10-K. In the absence of receipt
of any written changes or approval, or if the Depositor does not request a
copy
of a Form 10-K, the Securities Administrator shall be entitled to assume that
such Form 10-K is in final form and the Securities Administrator may proceed
with the execution and filing of the Form 10-K. A senior officer of
156
the
Master Servicer in charge of the master servicing function 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 Securities
Administrator. If a Form 10-K cannot be filed on time or if a
previously filed Form 10-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 13.01(c). Promptly
(but no later than 1 Business Day) after filing with the Commission, the
Securities Administrator will make available on its internet website a final
executed copy of each Form 10-K prepared and filed by the Securities
Administrator. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of its
duties under this Section 13.04 related to the timely preparation, execution
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 13.04, Section 9.11
Section 13.05 and Section 13.06. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 10-K, where such failure results from the Master
Servicer’s or the Securities Administrator’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
their own respective negligence, bad faith or willful misconduct.
|
|
Section
13.05. Xxxxxxxx-Xxxxx
Certification.
|
Each
Form
10-K shall include a Xxxxxxxx-Xxxxx Certification required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act. The senior officer of
the Master Servicer in charge of the master servicing function shall sign the
Xxxxxxxx-Xxxxx Certification and shall serve as the Certifying Person on behalf
of the Trust.
The
respective parties hereto agree to cooperate with all reasonable requests made
by any Person involved in the preparation and/or filing a Form 10-K on behalf
of
the Trust (each a “Certifying
Person”)
and each Person from whom the Trust must obtain a Xxxxxxxx-Xxxxx Certification
(each a “Certification
Party”)
in connection with such Person’s attempt to conduct any due diligence that such
Person reasonably believes to be appropriate in order to allow it to deliver
any
Xxxxxxxx-Xxxxx Certification or portion thereof with respect to the Trust
Fund.
|
|
Section
13.06. Reports on Assessment of Compliance and
Attestation.
|
(a) By
March 15 of each year (such date includes the expiration of any applicable
grace
period), commencing in March 2008, the Master Servicer, the Securities
Administrator, each Custodian (for so long as a Form 10-K will be filed on
behalf of the Trust for the preceding calendar year) and each other Reporting
Party, each at its own expense, shall furnish or otherwise make available,
and
each such party shall cause any Servicing Function Participant engaged by it
to
furnish, each at its own expense, to the Securities Administrator and the
Depositor, a report on an assessment of compliance with the Relevant Servicing
Criteria 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 Relevant 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
157
10-K
required to be filed pursuant to Section 13.04, 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.
No
later
than the end of each fiscal year for the Trust for which a 10-K is required
to
be filed, the Master Servicer and each Custodian shall each forward to the
Securities Administrator the name of each Servicing Function Participant engaged
by it and what Relevant Servicing Criteria will be addressed in the report
on
assessment of compliance prepared by such Servicing Function Participant;
however if the Master Servicer and the Securities Administrator are the same
entity, then the Master Servicer is not required to forward to the Securities
Administrator its 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 13.04. When the Master Servicer and the
Securities Administrator (or any Servicing Function Participant engaged by
them)
submit their assessments to the Securities Administrator, such parties will
also
at such time include the assessment (and attestation pursuant to Section
13.06(b) of each Servicing Function Participant engaged by it.
Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Securities Administrator, the Custodian and any Servicing Function
Participant engaged by such parties as to the nature of any material instance
of
noncompliance with the Relevant Servicing Criteria by each such party, and
(ii)
the Securities Administrator shall confirm that the assessments, taken as a
whole, address all of the Servicing Criteria and taken individually address
the
Relevant Servicing 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 notify the Depositor of any exceptions.
(b) By
March 15 of each year, commencing in March 2008, the Master Servicer, the
Securities Administrator, each Custodian (for so long as a Form 10-K will be
filed in respect of the Trust for the preceding calendar year) and each other
Reporting Party, each at its own expense, shall cause, and each such party
shall
cause any Servicing Function Participant engaged by it to cause, each at its
own
expense, a registered public accounting firm (which may also render other
services to the Master Servicer, the Trustee, the Custodian, the Securities
Administrator, or such other Servicing Function Participants, as the case may
be) and that is a member of the American Institute of Certified Public
Accountants to furnish a report to the Securities Administrator and the
Depositor, to the effect that (i) 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 (ii)
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.
158
Promptly
after receipt of such report from the Master Servicer, the Securities
Administrator, each Custodian or any Servicing Function Participant engaged
by
such parties, (i) the Depositor shall review the report and, if applicable,
consult with such parties as to the nature of any defaults by such parties,
in
the fulfillment of any of each such party’s obligations hereunder or under any
other applicable agreement, and (ii) the Securities Administrator shall confirm
that each assessment submitted pursuant to Section 13.06(a) is coupled with
an
attestation meeting the requirements of this Section 13.06(b) and notify the
Depositor of any exceptions.
|
|
Section
13.07. Use of
Subcontractors.
|
(a) The
Master Servicer shall cause any Subcontractor used by the Master Servicer for
the benefit of the Depositor to comply with the provisions of Section 9.11
and
this Article XIII to the same extent as if such Subcontractor were the Master
Servicer (except with respect to the Master Servicer’s duties with respect to
preparing and filing any Exchange Act Reports or as the Certifying
Person). The Master Servicer shall be responsible for obtaining from
each Subcontractor and delivering to the Depositor any servicer compliance
statement required to be delivered by such Subcontractor under Section 9.11,
any
assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 13.07 and any certification required to be delivered
to the Certifying Person under Section 13.05 as and when required to be
delivered. As a condition to the succession to any Subcontractor as
subservicer under this Agreement by any Person (i) into which such Subcontractor
may be merged or consolidated, or (ii) which may be appointed as a successor
to
any Subcontractor, the Master Servicer shall provide to the Depositor, at least
15 calendar days prior to the effective date of such succession or appointment,
(x) written notice to the Depositor of such succession or appointment and (y)
in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K.
(b) It
shall not be necessary for the Master Servicer or the Trustee to seek the
consent of the Depositor or any other party hereto to the utilization of any
Subcontractor. The Master Servicer or the Trustee, as applicable,
shall promptly upon request provide to the Depositor (or any designee of the
Depositor, such as the Master Servicer or administrator) a written description
(in form and substance satisfactory to the Depositor) of the role and function
of each Subcontractor utilized by such Person, specifying (i) the identity
of
each such Subcontractor, (ii) which (if any) of such Subcontractors are
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this
paragraph.
As
a
condition to the utilization of any Subcontractor determined to be a Reporting
Subcontractor, the Master Servicer or the Trustee, as applicable, shall cause
any such Subcontractor used by such Person for the benefit of the Depositor
to
comply with the provisions of Sections 13.07 and 13.09 of this Agreement
to the
same extent as if such Subcontractor were the Master Servicer (except with
respect to the Master Servicer’s duties with respect to preparing and filing any
Exchange Act Reports or as the Certifying Person) or the Trustee, as
applicable. The Master Servicer or the Trustee, as applicable, shall
be responsible for obtaining from each
159
Subcontractor
and delivering to the Depositor and the Master Servicer, any assessment of
compliance and attestation required to be delivered by such Subcontractor under
Section 13.07, in each case as and when required to be delivered.
|
|
Section
13.08. Indemnification by the Master Servicer and the
Securities Administrator.
|
(a) The
Master Servicer and the Securities Administrator (each, an “Indemnifying
Party”), shall, severally and not jointly, indemnify the Depositor and the
Seller for the preparation, execution or filing of any report required to be
filed with the Commission with respect to the Trust Fund, or for execution
of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to the Trust Fund; and the respective present and former
directors, officers, employees and agents of each of the foregoing and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out
of
or based upon:
(i) any
untrue statement of a material fact contained or alleged to be contained in
or
the omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading in (A) any
compliance certificate delivered by it, or by any Servicing Function Participant
engaged by it, pursuant to this Agreement, (B) any assessment or attestation
delivered by or on behalf of it, or by any Servicing Function Participant
engaged by it, pursuant to this Agreement, or (C) any Additional Form 10-D
Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information
concerning the Securities Administrator or the Master Servicer and provided
by
either of them;
(ii) any
failure by the Indemnifying Party to perform its obligations when and as
required under this Article XIII; or
(iii) any
negligence, bad faith or willful misconduct by the Indemnifying
Party.
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Indemnifying Party shall promptly reimburse the Seller or the Depositor,
as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to the Trust,
for all costs reasonably incurred by each such party in order to obtain the
information, report, certification, accountants’ letter or other material not
delivered as required by the Indemnifying Party or any Subservicer or
Subcontractor of the Indemnifying Party.
(b) (i)
Any failure by the Indemnifying Party or any Subservicer or any Subcontractor
of
the Indemnifying Party to deliver any information, report, certification or
accountants’ letter when and as required under this Article XIII, including
(except as provided below) any failure by the Indemnifying Party to identify
pursuant to Section 13.07 any Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten calendar days after the date on which such
160
information,
report, certification or accountants’ letter was required to be delivered shall
constitute an Event of Default with respect to the Indemnifying Party under
this
Agreement, and shall entitle the Seller or Depositor, as applicable, in its
sole
discretion to terminate the rights and obligations of the Indemnifying Party
under this Agreement without payment (notwithstanding anything in this Agreement
to the contrary) of any compensation to the Indemnifying Party; provided that
to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Master Servicer as servicer, such
provision shall be given effect.
Neither
the Seller nor any Depositor shall be entitled to terminate the rights and
obligations of an Indemnifying Party pursuant to this subparagraph (b)(ii)
if a
failure of the Master Servicer to identify a Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with respect
to mortgage loans other than the Mortgage Loans.
(ii) The
Indemnifying Party shall promptly reimburse the Seller and any Depositor for
all
reasonable expenses incurred by them, in connection with the termination of
the
Indemnifying Party and the transfer of their duties to a
successor. The provisions of this paragraph shall not limit whatever
rights the Seller or the Depositor may have under other provisions of this
Agreement or otherwise, whether in equity or at law, such as an action for
damages, specific performance or injunctive relief.
|
|
Section
13.09. Indemnification by the
Custodian.
|
(a) If
the entity serving as Trustee is also serving as a Custodian, such entity in
its
capacity as Custodian shall indemnify the Depositor, each affiliate of the
Depositor, the Master Servicer and each Person who controls any of such parties
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act); and the respective directors, officers, and employees of each
of
the foregoing (each, an “Indemnified Party”), and shall hold each of them
harmless from and against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any other costs,
fees
and expenses that any of them may sustain directly relating to:
(i) (A) any
untrue statement of a material fact contained or alleged to be contained in
any
information, compliance assessment or other material it is required to provide
or cause to be provided under this Article XII (collectively, the “Custodian
Information”), or (B) the omission or alleged omission to state in the Custodian
Information a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; or
(ii) any
failure to deliver or cause to be delivered any information, report,
certification, accountants’ attestation or other material when and as required
under this Article XII.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Custodian agrees that it shall
contribute to the amount paid or
161
payable
by such Indemnified Party as a result of any claims, losses, damages or
liabilities incurred by such Indemnified Party in such proportion as is
appropriate to reflect the relative fault of such Indemnified Party on the
one
hand and the Custodian on the other.
(b) In
the case of any failure of performance described in clause (a) of this Section
13.09, the Custodian shall promptly reimburse the Indemnified Party responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to the Trust, for all costs reasonably incurred by
each such party in order to obtain the information, report, certification,
accountants’ letter or other material not delivered as required.
(c) This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
162
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.
| XXXXXX XXXXXXX CAPITAL I INC., | |||
| as Depositor | |||
|
|
By:
|
/s/ Xxxxxxx Xxx | |
| Name: Xxxxxxx Xxx | |||
| Title: Vice President | |||
|
LASALLE BANK
NATIONAL
ASSOCIATION,
|
|||
| as Trustee and Custodian | |||
|
|
By:
|
/s/ Xxxxx X. Xxxx | |
| Name: Xxxxx X. Xxxx | |||
| Title: Vice President | |||
|
|
By:
|
/s/ Xxxx X. Xxxxx | |
| Name: Xxxx X. Xxxxx | |||
| Title: Vice President | |||
|
XXXXX FARGO
BANK,
NATIONAL
ASSOCIATION,
|
|||
| as Master Servicer | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | |||
| Title: Vice President | |||
|
XXXXX
FARGO BANK,
NATIONAL
ASSOCIATION,
|
|||
| as Securities Administrator | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | |||
| Title: Vice President | |||
Solely
for purposes of Section 2.05
accepted
and agreed to on the Closing Date by:
| XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC | ||
|
By:
|
/s/ Xxxxxxx Xxx | |
| Name: Xxxxxxx Xxx | ||
| Title: Vice President | ||
EXHIBIT
A
FORMS
OF
CERTIFICATES
A-1
EXHIBIT
B
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 (“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) 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
satisfy the requirements for exemptive relief under Sections I and
III of
XXXX
|
X-0
|
|
95-60;
or (z) herewith delivers to the Certificate Registrar an opinion of
counsel satisfactory to the Certificate Registrar and the Securities
Administrator and upon which the Certificate Registrar, the Trustee,
the
Master Servicer, the Depositor and Securities Administrator 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 Certificate Registrar, the Trustee,
the Depositor, the Master Servicer or the Securities Administrator
to any
obligation in addition to those undertaken by such entities in the
Pooling
and Servicing Agreement, which opinion of counsel shall not be an
expense
of the Trust Fund or any of the above
parties.
|
|
|
5.
|
That
the Purchaser hereby acknowledges that under the terms of the Pooling
and
Servicing Agreement, dated as of June 1, 2007 (the “Agreement”), by and
among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo Bank,
National Association, as Master Servicer and as Administrator and
LaSalle
Bank National Association, as Trustee with respect to Xxxxxx Xxxxxxx
Mortgage Loan Trust 2007-10XS, Mortgage Pass-Through Certificates,
no
transfer of the Residual Certificates shall be permitted to be made
to any
person unless the Certificate Registrar has 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 Certificate Registrar a written statement substantially
in the form of Exhibit C 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 the Certificate
Registrar
|
B-2
|
|
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 the
transferor, the Trustee and the Certificate Registrar 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.
|
|
|
11.
|
The
Purchaser will not cause income from the Residual Certificate to
be
attributable to a foreign permanent establishment or fixed base of
the
Purchaser or another U.S. taxpayer.
|
|
|
12.
|
That
the Purchaser agrees to such amendments of the Pooling and Servicing
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.
|
|
|
13.
|
That
the Purchaser consents to the designation of the Securities Administrator
to act as agent for the “tax matters person” of each REMIC created by the
Trust Fund pursuant to the Pooling and Servicing
Agreement.
|
B-3
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: | |||
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__.
B-4
EXHIBIT
C
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
|
|
____________________________
|
|
|
Date
|
|
Re:
|
Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-10XS
|
| Mortgage Pass-Through Certificates |
_______________________
(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: | |||
C-1
EXHIBIT
D
FORM
OF
CLASS A-1-W AND CLASS A-3-W POLICY
D-1
EXHIBIT
E
LIST
OF
PURCHASE AND SERVICING AGREEMENTS
1. Second
Amended and Restated Master Mortgage Loan Purchase and Warranties Agreement,
dated as of April 1, 2006, between First National Bank of Nevada, as seller
and
Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC, successor-in-interest to Xxxxxx
Xxxxxxx Mortgage Capital Inc., as purchaser.
2. First
Amended and Restated Servicing Agreement, dated as of January 1, 2006, between
GMAC Mortgage, LLC, as servicer and Xxxxxx Xxxxxxx Mortgage Capital Holdings
LLC, successor-in-interest to Xxxxxx Xxxxxxx Mortgage Capital Inc., as
purchaser.
3. Fifth
Amended and Restated Mortgage Loan Sale And Servicing Agreement, dated as
of June 1, 2006, between GreenPoint Mortgage Funding, Inc., as seller and
servicer, and Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC,
successor-in-interest to Xxxxxx Xxxxxxx Mortgage Capital Inc., as
purchaser.
4. Third
Amended And Restated Master Mortgage Loan Purchase Agreement, dated as of
November 1, 2005 and an Amended and Restated Master Servicing Agreement, dated
as of February 1, 2004, between Xxxxxx Xxxxxxx Credit Corporation, as seller
and
servicer and Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC, successor-in-interest
to Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser.
5. Seller’s
Purchase, Warranties and Servicing Agreement, dated as of September 1, 2004
as
amended by that certain First Amended and Restated Seller’s Purchase, Warranties
and Servicing Agreement, dated as of June 1, 2006, each as supplemented by
the
Amended and Restated Regulation AB Compliance Addendum, dated as of April 17,
2006, each between Wachovia Mortgage Corporation, as seller and servicer and
Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC, successor-in-interest to Xxxxxx
Xxxxxxx Mortgage Capital Inc., as purchaser.
6. Master
Seller’s Warranties and Servicing Agreement dated as of April 1, 2006 between
Xxxxx Fargo Bank, National Association, as servicer and Xxxxxx Xxxxxxx Mortgage
Capital Holdings LLC, successor-in-interest to Xxxxxx Xxxxxxx Mortgage Capital
Inc., as purchaser.
7. Mortgage
Loan Purchase and Warranties Agreement, dated as of November 1, 2006 between
Wilmington Finance, Inc., as seller and Xxxxxx Xxxxxxx Mortgage Capital Holdings
LLC, successor-in-interest to Xxxxxx Xxxxxxx Mortgage Capital Inc., as
purchaser.
8. Fifth
Amended and Restated Mortgage Loan Purchase And Warranties Agreement, dated
as
of April 1, 2007, between US Bank, N.A. as seller and Xxxxxx Xxxxxxx Mortgage
Capital Holdings LLC, successor-in-interest to Xxxxxx Xxxxxxx Mortgage Capital
Inc., as purchaser.
E-1
EXHIBIT
F
Corridor
Contract Confirmation
F-1
EXHIBIT
G
ASSIGNMENT
AND NOTICE OF TRANSFER WITH RESPECT TO ADDITIONAL COLLATERAL MORTGAGE
LOANS
[On
File]
G-1
EXHIBIT
H
FORM
OF
RULE 144A TRANSFER CERTIFICATE
|
Re:
|
Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-10XS,
|
| Mortgage Pass-Through Certificates |
Reference
is hereby made to the Pooling and Servicing Agreement, dated as of June 1,
2007
(the “Pooling and Servicing Agreement”), by and among Xxxxxx Xxxxxxx Capital I
Inc., as Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer,
as Securities Administrator and, in its capacity as Securities Administrator,
as
Auction Administrator, LaSalle Bank National Association, as Trustee and
Custodian. Capitalized terms used but not defined herein shall have
the meanings given to them in the Pooling and Servicing 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 Pooling and
Servicing 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 Underwriter, the Certificate Registrar and the
Depositor.
| [Name of Transferor] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
Dated:
___________, ____
H-1
EXHIBIT
I
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTOR
|
|
Date
|
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount of
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-10XS, Mortgage Pass-Through Certificates
(the “Privately Offered Certificates”) of Xxxxxx Xxxxxxx Capital I Inc. (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 Certificate
Registrar under the Pooling and Servicing Agreement, dated as of
June 1,
2007 (the “Pooling and Servicing Agreement”), by and among Xxxxxx Xxxxxxx
Capital I Inc., as Depositor, Xxxxx Fargo Bank, National Association,
as
Master Servicer, as Securities Administrator and, in its capacity
as
Securities Administrator, as Auction Administrator and LaSalle Bank
National Association, as Trustee and Custodian, 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 Certificate Registrar 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
|
I-1
|
|
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.
|
|
(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 Pooling and Servicing
Agreement.
|
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement.
I-2
You
and
the Certificate Registrar 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: | |||
I-3
EXHIBIT
J
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. The
Investor either (x) is not, and on ___________ [date of transfer] will not
be, an employee benefit plan or other plan or 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; (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 satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60; or (z) herewith delivers to the
Certificate Registrar an opinion of counsel satisfactory to the Certificate
Registrar and the Securities Administrator and upon which the Certificate
Registrar, the Trustee, the Master Servicer, the Depositor and the Securities
Administrator shall be entitled to rely, to the effect that the purchase and
holding of such Certificate by the Investor will not constitute or result in
any
non-exempt prohibited transactions under Title I of ERISA or
Section 4975 of the Code and will not subject the Certificate Registrar,
the Trustee, the Master Servicer, the Depositor or the Securities Administrator
to any obligation in addition to those undertaken by such entities in the
Pooling and Servicing Agreement, which opinion of counsel shall not be an
expense of the Trust Fund or the above parties.
3. The
Investor hereby acknowledges that under the terms of the Pooling and Servicing
Agreement, dated as of June 1, 2007 (the “Pooling and Servicing Agreement”), by
and among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo Bank,
National Association, as Master Servicer, as Securities Administrator and,
in
its capacity as Securities Administrator, as Auction Administrator and LaSalle
Bank National Association, as Trustee and Custodian, no transfer of the
ERISA-Restricted Certificates shall be permitted to be made to any person unless
the Certificate Registrar has received a certificate from such transferee in
the
form hereof.
J-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: | |||
ATTEST:
|
STATE
OF
|
)
|
|
) ss.:
|
|
|
COUNTY
OF
|
)
|
Personally
appeared before me the above-named ________________, known or proved to me
to be
the same person who executed the foregoing instrument and to be the
____________________ of the Investor, and acknowledged that he executed the
same
as his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of _________ 20___.
| NOTARY PUBLIC | |||
| My commission expires the | |||
| _____ day of __________ 20___. | |||
J-2
EXHIBIT
K
FORM
OF
LETTER OF REPRESENTATIONS
WITH
THE
DEPOSITORY TRUST COMPANY
[On
File
with Securities Administrator]
K-1
EXHIBIT
L-1
FORM
OF
INITIAL CUSTODIAL CERTIFICATION
June
__,
2007
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Fargo Bank, National Association
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
LaSalle
Bank National Association, as Trustee
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services – MSM 2007-10XS
MBIA
Insurance Corporation
000
Xxxx
Xxxxxx
Xxxxxx,
Xxx Xxxx 00000
|
|
Re:
|
Pooling
and Servicing
Agreement (“Pooling
and Servicing
Agreement”)
relating
to Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-10XS, Mortgage
Pass-Through
Certificates, Series
2007-10XS
|
Ladies
and Gentlemen:
In
accordance with and subject to the provisions of Section 2.02 of the Pooling
and
Servicing Agreement, the undersigned, as Custodian, hereby certifies that,
except for the exceptions noted on the schedule attached hereto, (a) all
documents required to be delivered to the Custodian pursuant to Sections
2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of the UCC-1),
(g) and (h), and if delivered to it, the documents identified in Section
2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the UCC-3) and
(f)
of the Pooling and Servicing Agreement are in its possession, (b) such documents
have been reviewed by it and have not been mutilated, damaged, defaced, torn
or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its review and examination and only as to the foregoing documents,
such documents appear regular on their face and related to such Mortgage Loan
and (d) each Mortgage Note has been endorsed and each assignment of Mortgage
has
been delivered as provided in Section 2.01 of the Pooling and Servicing
Agreement. The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically mentioned
above. The Custodian makes no representations as to: (i)
the validity,
L-1-1
legality,
sufficiency, enforceability or genuineness of any of the documents delivered
in
accordance with Section 2.01 of the Pooling and Servicing Agreement or any
of
the Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
The
Custodian acknowledges receipt of notice that the Depositor has granted to
the
Trustee for the benefit of the Certificateholders a security interest in all
of
the Depositor’s right, title and interest in and to the Mortgage
Loans.
L-1-2
Capitalized
terms used herein without definition shall have the meaning assigned to them
in
the Pooling and Servicing Agreement.
| [LASALLE BANK NATIONAL ASSOCIATION] | |||
| as Custodian | |||
|
|
By:
|
||
| Authorized Representative | |||
X-0-0
XXXXXXX
X-0
FORM
OF
FINAL CUSTODIAL CERTIFICATION
June
__, 2007
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Fargo Bank, National Association
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
LaSalle
Bank National Association, as Trustee
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services – MSM 2007-10XS
MBIA
Insurance Corporation
000
Xxxx
Xxxxxx
Xxxxxx,
Xxx Xxxx 00000
|
|
Re:
|
Pooling
and Servicing
Agreement (“Pooling
and Servicing
Agreement”)
relating
to Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-10XS, Mortgage
Pass-Through
Certificates, Series
2007-10XS
|
Ladies
and Gentlemen:
In
accordance with and subject to the provisions of Section 2.02 of the Pooling
and
Servicing Agreement, the undersigned, as Custodian, hereby certifies that,
except for the exceptions noted on the schedule attached hereto, (a) all
documents required to be delivered to the Custodian pursuant to Sections
2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of the UCC-1),
(g) and (h), and if delivered to it, the documents identified in Section
2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the UCC-3) and
(f)
of the Pooling and Servicing Agreement are in its possession, (b) such documents
have been reviewed by it and have not been mutilated, damaged, defaced, torn
or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its examination and only as to the foregoing documents, these
documents with respect to each Mortgage Loan accurately reflect the information
contained in the Mortgage Note and Mortgage and (d) each Mortgage Note has
been
endorsed and each assignment of Mortgage has been delivered as provided in
Section 2.01 of the Pooling and Servicing Agreement. The Custodian has made
no
independent examination of any documents contained in each Mortgage File beyond
the review specifically mentioned above. The Custodian makes no
representations as to: (i) the validity, legality, sufficiency,
enforceability or
L-2-1
genuineness
of any of the documents delivered in accordance with Section 2.01 of the Pooling
and Servicing Agreement or any of the Mortgage Loans identified in the Mortgage
Loan Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
The
Custodian acknowledges receipt of notice that the Depositor has granted to
the
Trustee for the benefit of the Certificateholders a security interest in all
of
the Depositor’s right, title and interest in and to the Mortgage
Loans.
L-2-2
Capitalized
terms used herein without definition shall have the meaning assigned to them
in
the Pooling and Servicing Agreement.
| [LASALLE BANK NATIONAL ASSOCIATION] | |||
| as Custodian | |||
|
|
By:
|
||
|
Authorized
Representative
|
|||
L-2-3
EXHIBIT
M
REQUEST
FOR RELEASE OF DOCUMENTS
[Name
and
Address of Custodian]
|
|
Re:
|
Pooling
and Servicing
Agreement (“Pooling
and Servicing
Agreement”)
relating
to Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-10XS, Mortgage
Pass-Through
Certificates, Series
2007-10XS
|
In
connection with the administration of the Mortgage Loans in the Trust created
by
the above-captioned Pooling and Servicing Agreement and that are held by you
as
Custodian, we request the release, and hereby acknowledge receipt, of the
Mortgage File for the Mortgage Loan described below, for the reason
indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
__________ 1. Mortgage
Paid in Full
__________ 2. Foreclosure
__________ 3. Substitution
__________ 4. Other
Liquidation (Repurchases, etc.)
__________ 5. Nonliquidation
Reason: ______________________
Address
to which Custodian should
Deliver
the Mortgage File:
_____________________________________________
_____________________________________________
_____________________________________________
By:_______________________________________
(authorized
signer)
Issuer:_____________________________________
|
Address:
|
||
|
Date:
|
M-1
Custodian
---------------
[insert
name of appropriate Custodian]
Please
acknowledge the execution of the above request by your signature and date
below:
____________________________________
Signature
_____________________
Date
Documents
returned to Custodian:
____________________________________
Signature
_____________________
Date
M-2
EXHIBIT
N-1
Additional
Form 10-D Disclosure
|
ADDITIONAL
FORM 10-D
DISCLOSURE
|
|
|
Item
on Form
10-D
|
Responsible
Party
|
|
Item
1: Distribution and Pool
Performance Information
|
|
|
Information
included in the Monthly Statement to Certificateholders
|
Servicer,
Master Servicer and Securities Administrator
|
|
Any
information required by 1121 which is NOT included on the Monthly
Statement to Certificateholders
|
Depositor
|
|
Item
2: Legal
Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
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.
|
(i)
Depositor (with respect to the Closing Date) and (ii) Master
Servicer
|
N-1-1
|
ADDITIONAL
FORM 10-D
DISCLOSURE
|
|
|
Item
on Form
10-D
|
Responsible
Party
|
|
Pricing
information can be omitted if securities were not
registered.
|
|
|
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)
|
Securities
Administrator and Trustee
(to
the extent Trustee has knowledge)
|
|
Item
5: Submission
of Matters to a Vote of Security Holders
Information
from Item 4 of
Part II of Form 10-Q
|
Securities
Administrator and
Trustee
(to
the extent trustee has knowledge)
|
|
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
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
|
|
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-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other
Information
|
Any
responsible party for the
applicable
|
N-1-2
|
ADDITIONAL
FORM 10-D
DISCLOSURE
|
|
|
Item
on Form
10-D
|
Responsible
Party
|
|
Disclose
any information
required to be reported on Form 8-K during the period covered by
the Form
10-D but not reported
|
Form
8-K Disclosure item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to
Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601
of Regulation S-K, such as material agreements
|
Depositor
|
N-1-3
EXHIBIT
N-2
Additional
Form 10-K Disclosure
|
ADDITIONAL
FORM 10-K
DISCLOSURE
|
|
|
Item
on Form
10-K
|
Responsible
Party
|
|
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
responsible party for disclosure items on Form 8-K
|
|
Item
15: Exhibits,
Financial Statement Schedules
|
(i)
As to agreements, Securities Administrator/Depositor and (ii) as
to
financial statements, Reporting Parties (as to
themselves)
|
|
Reg
AB Item
1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial
Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item
1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item
1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1117: Legal
Proceedings
|
|
N-2-1
|
ADDITIONAL
FORM 10-K
DISCLOSURE
|
|
|
Item
on Form
10-K
|
Responsible
Party
|
|
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item
1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
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)
|
N-2-2
|
ADDITIONAL
FORM 10-K
DISCLOSURE
|
|
|
Item
on Form
10-K
|
Responsible
Party
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
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 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
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
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
|
N-2-3
EXHIBIT
N-3
Form
8-K
Disclosure Information
|
FORM
8-K DISCLOSURE
INFORMATION
|
|
|
Item
on Form
8-K
|
Responsible
Party
|
|
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 (with respect to any agreement entered into by such
party)
|
|
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 (with respect to any agreement entered into by such
party)
|
|
Item
1.03- Bankruptcy or
Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
|
|
▪
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
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
N-3-1
|
FORM
8-K DISCLOSURE
INFORMATION
|
|
|
Item
on Form
8-K
|
Responsible
Party
|
|
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.
|
Master
Servicer/Securities Administrator/ Depositor (with respect to any
agreement to which neither the Master Servicer nor the Securities
Administrator is a party)
|
|
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.
|
Securities
Administrator
|
|
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”.
|
Securities
Administrator and Depositor
|
|
Item
6.01- ABS Informational
and Computational Material
|
Depositor
|
|
Item
6.02- Change of Servicer
or Trustee
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/
Servicer/Depositor/Trustee
(as to itself)/successor trustee
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
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
|
Depositor/Securities
Administrator/Trustee (to the extent action is required by the
Trustee in
connection with any amendment or modification
therewith)
|
N-3-2
|
FORM
8-K DISCLOSURE
INFORMATION
|
|
|
Item
on Form
8-K
|
Responsible
Party
|
|
credit
enhancements as well as derivatives.
|
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a
Required Distribution
|
Securities
Administrator/Trustee (to the extent the Trustee has knowledge
thereof)/Depositor (to the extent the Depositor has knowledge
thereof)
|
|
Item
6.05- Securities Act
Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD
Disclosure
|
All
parties
|
|
Item
8.01- Other
Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements
and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
N-3-3
EXHIBIT
O
[FORM
OF]
SERVICING
CRITERIA TO BE ADDRESSED IN
ASSESSMENT
OF COMPLIANCE STATEMENT
The
assessment of compliance to be delivered by each party listed below shall
address, at a minimum, the criteria identified as below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria/
Responsible
Party
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing
Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
N/A
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
S,
MS, SA
|
|
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.
|
S,
MS
|
O-1
|
Servicing
Criteria
|
Applicable
Servicing
Criteria/
Responsible
Party
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
O-2
|
Servicing
Criteria
|
Applicable
Servicing
Criteria/
Responsible
Party
|
|
|
Reference
|
Criteria
|
|
|
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.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
|
Pool
Asset
Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
S,
C
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
S,
C
|
|
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.
|
S
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
S
|
|
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.
|
S
|
|
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.
|
S
|
|
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.
|
S
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans
|
S
|
O-3
|
Servicing
Criteria
|
Applicable
Servicing
Criteria/
Responsible
Party
|
|
|
Reference
|
Criteria
|
|
|
including,
for example, phone calls, letters and payment rescheduling plans
in cases
where delinquency is deemed temporary (e.g., illness or
unemployment).
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
S
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
S
|
|
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.
|
S
|
|
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.
|
S
|
|
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.
|
S
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
S,
MS
|
|
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.
|
SA
|
O-4
| [NAME OF REPORTING PARTY] | |||
| Date: | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
Key:
S
= each
Servicer
MS
=
Master Servicer
SA
=
Securities Administrator
C
=
Custodian
O-5
EXHIBIT
P
Additional
Disclosure Notification
Xxxxx
Fargo Bank, N.A. as Securities Administrator
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
[insert
name and address of Depositor]
Attn: Corporate
Trust Services - MSM 2007-10XS-SEC REPORT PROCESSING
RE: **Additional
Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section [13.02(b)][13.03(b)][13.04(b)] of the Pooling and
Servicing Agreement, dated as of [ ] [ ], 2007, among
[ ], as [ ], [ ], as [ ],
[ ], as [ ] and [ ], as
[ ]. The Undersigned, as [ ],
hereby notifies you that certain events have come to our attention that
[will][may] need to be disclosed on Form [ ].
Description
of Additional
Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this notification should be directed to
[ ], phone number: [ ]; email
address: [ ].
| [NAME OF PARTY] | |||
| as [role] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
P-1
EXHIBIT
Q
GLOSSARY
of TERMS for STANDARD & POOR’S LEVELS® VERSION 5.7 FILE FORMAT
APPENDIX E
–
Standard & Poor’s Predatory Lending Categories
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note
that
certain loans classified by the relevant statute as Covered are included
in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by the
industry.
|
Standard
&
Poor’s
High Cost
Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory
Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-
Predatory
Lending
Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx. §§ 00-00-000 et seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 etseq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. Xxx. §§ 5-3.5-101 et seq.
Effective
for covered loans offered or entered into on or after January 1,
2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746 et
seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§ 494.0078 et seq.
|
High
Cost Home Loan
|
Q-1
|
Standard
&
Poor’s
High Cost
Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory
Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-
Predatory
Lending
Law
|
|
Effective
October 2, 2002
|
||
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 etseq.
Effective
October 1, 2002 – March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 – current)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et
seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx. §§ 16a-1-101 et seq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id. § 16a-3-207) and;
|
|
High
APR Consumer Loan (id. § 16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. 287 – High Cost Home Loan Act, Ky. Rev. Stat. §§ 360.100 et
seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
Q-2
|
Standard
&
Poor’s
High Cost
Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory
Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-
Predatory
Lending
Law
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq. and 209 C.M.R. §§ 40.01 et
seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat. §§ 598D.010 et seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E et
seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev.
Code Xxx.
§§ 1349.25 et seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
Q-3
|
Standard
&
Poor’s
High Cost
Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory
Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-
Predatory
Lending
Law
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act,
W. Va. Code
Xxx. §§ 31-17-1 et seq.
Effective
June 5, 0000
|
Xxxx
Xxxxxxxx Mortgage Loan Act Loan
|
Standard
&
Poor’s
Covered Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory
Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-
Predatory
Lending
Law
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 – March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
November 27, 2003 – July 5, 2004
|
Covered
Home Loan
|
|
Standard
&
Poor’s
Home Loan
Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory
Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-
Predatory
Lending
Law
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 – March 6, 2003
|
Home
Loan
|
Q-4
|
Standard
&
Poor’s
Home Loan
Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory
Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-
Predatory
Lending
Law
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E et
seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
Q-5
EXHIBIT R
FORM
OF
LOST NOTE AFFIDAVIT – LA SALLE AS CUSTODIAN
I,
as
_________________________ (title) of ________ (the “Custodian”), am authorized
to make this Lost Note Affidavit on behalf of __________. In
connection with the administration of the Mortgage Loans held by _______________
as Custodian on behalf of ____________ (“____”) or the Trust of such mortgage
loans, as the case may be (the “Investor”), I (hereinafter called “Deponent”),
being duly sworn, depose and say that:
Custodian’s
address is:
[CUSTODIAN’S
Address]
Custodian
previously delivered to the Investor a signed Trust Receipt with respect to
the
Mortgage Note referred to below;
Such
Mortgage Note was endorsed or sold to the Investor by _________________________
pursuant to the terms and provisions of a ____________________ Agreement dated
and effective as of _________ ______, ____;
Such
Mortgage Note is not outstanding pursuant to a Request for Release of
Documents;
Such
Mortgage Note (hereinafter called the “Original”) has been lost;
Deponent
has made or has caused to be made diligent search for Original and has been
unable to find or recover same;
The
Custodian was the Custodian of the Original at the time of loss;
and
Deponent
agrees that, if the Original should ever come into Custodian’s possession,
custody or power, Custodian will immediately and without consideration surrender
Original to the Investor.
Attached
hereto is a true and correct copy of the (i) Mortgage Note, endorsed in blank
by
the Mortgagee, and (ii) [Mortgage][Deed of Trust] with evidence of recording
thereon which secures the Mortgage Note.
Deponent
hereby agrees that the Custodian shall indemnify and hold harmless the
Purchaser, the Trust, the Servicer of the related Mortgage Loan and their
respective employees, officers, directors and agents against any loss, liability
or damage, including reasonable attorney’s fees, resulting from the
unavailability of the Mortgage Note, including but not limited to any loss,
liability or damage arising from (i) any false statement contained in this
Lost
Note Affidavit, (ii) any claim of any party that it has already purchased a
mortgage loan evidenced by the lost Mortgage Note or any interest in such
mortgage loan, (iii) any claim of any borrower with respect to the existence
of
terms of a Mortgage Loan evidenced by the lost Mortgage Note, (iv) the issuance
of new instrument in lieu thereof and (v) any claim whether or not based upon
or
arising from honoring or refusing to honor the Original when presented by anyone
(items (i)
R-1
through
(iv) above are hereinafter referred to as the “Losses”) and (b) if required by
any Rating Agency in connection with placing such lost Mortgage Note into a
securitization transaction, shall obtain a surety bond from an insurer
acceptable to the applicable Rating Agency in an amount acceptable to such
Rating Agency to cover any Losses with respect to such lost Mortgage
Note.
Capitalized
terms used herein but not defined herein have the meanings given them in the
Custodial Agreement, dated as of July 1, 2006, between Xxxxxx Xxxxxxx Mortgage
Capital Inc. and the Custodian.
This
Lost
Note Affidavit is intended to be relied on by the Investor, its successors,
and
assigns and _______________________ represents and warrants that it has the
authority to perform its obligations under this Lost Note
Affidavit.
IN
WITNESS WHEREOF, the Custodian 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__.
| [LA SALLE BANK NATIONAL ASSOCIATION] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
On
this
_________ day of _______________________, ____, before me appeared
____________________________________________, to me personally known, who being
duly sworn did say that she/he is the ______________________________ of
______________________, and that said Lost Note Affidavit was signed and sealed
on behalf of such corporation and said _____________________________
acknowledged this instrument to be the free act and deed of said
corporation.
Subscribed
and sworn before me this _____ day of __________ 20__.
NOTARY
PUBLIC
____________________________
COUNTY
OF
________________
STATE
OF
__________________
My
commission expires the _____ day of __________ 20__.
Signature
R-2
Typed
Name
R-3
EXHIBIT
S-1
FORM
OF EXCHANGE
LETTER
(Depositable
Certificates for Exchangeable Certificates)
___,
20__
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
MSM 2007-10XS
Re: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-10XS,
Mortgage
Pass-Through
Certificates, Series 2007-10XS
Ladies
and Gentlemen:
Pursuant
to the terms of that certain Pooling and Servicing Agreement, dated as of June
1, 2007 (the “Pooling
and Servicing Agreement”), by and among Xxxxxx Xxxxxxx Capital I Inc., as
Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer, as
Securities Administrator and, in its capacity as Securities Administrator,
as
Auction Administrator, LaSalle Bank National Association, as Trustee and
Custodian, we hereby present and surrender the Depositable Certificates
specified on Schedule
I attached hereto (the “Depositable
Certificates”) and transfer, assign, set over and otherwise convey to the
Securities Administrator, all of our right, title and interest in and to the
Depositable Certificates, including all payments of interest thereon received
after [date], in exchange for the Exchangeable Certificates specified on Schedule I attached
hereto (the “Exchangeable
Certificates”).
We
agree
that upon such exchange the portions of the Depositable Certificates designated
for exchange shall be deemed cancelled and replaced by the Exchangeable
Certificates issued in exchange therefor. We confirm that we have paid a fee
to
the Securities Administrator in connection with such exchange equal to
$5,000.
| Sincerely, | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| Acknowledged by: | ||
| XXXXX FARGO BANK, N.A., | ||
|
as
Securities
Administrator
|
||
|
By:
|
||
| Name: | ||
| Title: | ||
EXHIBIT
S-2
FORM
OF EXCHANGE
LETTER
(Exchangeable
Certificates for Depositable Certificates)
___,
20__
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
MSM 2007-10XS
Re: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-10XS,
Mortgage
Pass-Through
Certificates, Series 2007-10XS
Ladies
and Gentlemen:
Pursuant
to the terms of that certain Pooling and Servicing Agreement, dated as of June
1, 2007 (the “Pooling
and Servicing Agreement”), by and among Xxxxxx Xxxxxxx Capital I Inc., as
Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer, as
Securities Administrator and, in its capacity as Securities Administrator,
as
Auction Administrator, LaSalle Bank National Association, as Trustee and
Custodian, we hereby present and surrender the Exchangeable Certificates
specified on Schedule
I attached hereto (the “Exchangeable
Certificates”) and transfer, assign, set over and otherwise convey to the
Securities Administrator, all of our right, title and interest in and to the
Exchangeable Certificates, including all payments of interest thereon received
after [date], in exchange for the Depositable Certificates specified on Schedule I attached
hereto (the “Depositable
Certificates”).
We
agree
that upon such exchange the portions of the Exchangeable Certificates designated
for exchange shall be deemed cancelled and replaced by the Depositable
Certificates issued in exchange therefor. We confirm that we have paid a fee
to
the Securities Administrator in connection with such exchange equal to
$5,000.
R-2
| Sincerely, | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| Acknowledged by: | ||
| XXXXX FARGO BANK, N.A., | ||
|
as
Securities
Administrator
|
||
|
By:
|
||
| Name: | ||
| Title: | ||
R-1
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[On
File
with the Trustee and the Securities Administrator]
SCH.
A-1
SCHEDULE
B
PRINCIPAL
BALANCES SCHEDULE
[Attached
to Prospectus Supplement, if applicable]
SCH.
B-1
SCHEDULE
C
AVAILABLE
EXCHANGES OF DEPOSITABLE
CERTIFICATES FOR EXCHANGEABLE CERTIFICATES(1)(2)
|
Classes
of
Depositable
Certificates
|
Related
Classes of Exchangeable
Certificates
|
|||||||
|
Class
or
Classes
of
Depositable
Certificates
|
Original
Certificate
Balance
or
Notional
Amount
|
Class
or
Classes
of
Exchangeable
Certificates
|
Original
Certificate
Balance
or
Notional
Amount
|
Pass-
Through
Rate(3)
|
||||
|
Recombination
1
|
||||||||
|
Class
A-4
|
$230,006,000
|
Class
A-6
|
$230,006,000
|
Floating
|
||||
|
Class
A-5
|
$230,006,000(4)
|
Class
A-7
|
$230,006,000(4)
|
Inverse
Floating
|
||||
|
Recombination
2
|
||||||||
|
Class
A-4
|
$230,006,000
|
Class
A-8
|
$230,006,000
|
Floating
|
||||
|
Class
A-5
|
$230,006,000(4)
|
Class
A-9
|
$230,006,000(4)
|
Inverse
Floating
|
||||
|
|
||||||||
|
Recombination
3
|
||||||||
|
Class
A-1
|
$180,185,000
|
Class
A-10
|
$180,185,000
|
5.75000%
|
||||
|
Class
A-11
|
$7,507,708(4)
|
6.00000%
|
||||||
|
Recombination
4
|
||||||||
|
Class
A-1
|
$180,185,000
|
Class
A-12
|
$180,185,000
|
5.50000%
|
||||
|
Class
A-13
|
$15,015,416(4)
|
6.00000%
|
||||||
|
Recombination
5
|
||||||||
|
Class
A-2
|
$51,159,000
|
Class
A-14
|
$51,159,000
|
6.00000%
|
||||
|
Class
A-15
|
$2,131,625(4)
|
6.00000%
|
||||||
|
Recombination
6
|
||||||||
|
Class
A-2
|
$51,159,000
|
Class
A-16
|
$51,159,000
|
5.75000%
|
||||
|
Class
A-17
|
$4,263,250(4)
|
6.00000%
|
||||||
|
|
||||||||
|
Recombination
7
|
||||||||
|
Class
A-1
|
$180,185,000
|
Class
A-18
|
$169,285,000
|
6.00000%
|
||||
|
Class
A-19
|
$10,900,000
|
6.00000%
|
||||||
|
Recombination
8
|
||||||||
|
Class
A-1
|
$180,185,000
|
Class
A-20
|
$90,092,500
|
5.75000%
|
||||
|
Class
A-21
|
$90,092,500
|
6.25000%
|
||||||
|
Recombination
9
|
||||||||
|
Class
A-1
|
$180,185,000
|
Class
A-22
|
$60,061,667
|
5.50000%
|
||||
|
Class
A-23
|
$120,123,333
|
6.25000%
|
||||||
______________
|
(1)
|
Depositable
Certificates and Exchangeable Certificates may be exchanged only
in the
proportions shown in this Annex III. In any exchange, the
relative proportions of the Depositable Certificates to be delivered
(or,
if applicable, received) in such exchange will equal the proportions
reflected by the outstanding Class Principal Balances or Notional
Amounts
of the related Depositable Certificates at the time of
exchange.
|
|
(2)
|
If,
as a result of a proposed exchange, a certificateholder would hold
a
Depositable Certificate or Exchangeable Certificate of a Class in
an
amount less than the applicable minimum denomination for that class,
the
certificateholder will be unable to effect the proposed
exchange.
|
|
(3)
|
The
pass-through rate for each Class of Exchangeable Certificates will
be
subject to the related Net WAC Cap. For a description of the Pass-Through
Rates for these Classes of Certificates please see the table on page
[3]
of this Agreement.
|
|
(4)
|
The
Class A-5, Class A-7, Class A-9, Class A-11, Class A-13, Class A-15
and
Class A-17 Certificates are interest only Notional Amount
Certificates.
|
SCH.
C-1
