OPTION ONE MORTGAGE ACCEPTANCE CORPORATION, Depositor OPTION ONE MORTGAGE CORPORATION, Servicer and WELLS FARGO BANK, N.A., Trustee POOLING AND SERVICING AGREEMENT Dated as of April 1, 2007 Option One Mortgage Loan Trust 2007-4 Asset-Backed...
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION,
Depositor
OPTION
ONE MORTGAGE CORPORATION,
Servicer
and
XXXXX
FARGO BANK, N.A.,
Trustee
Dated
as
of April 1, 2007
___________________________
Asset-Backed
Certificates, Series 2007-4
Table
of Contents
ARTICLE
I
DEFINITIONS
|
SECTION
1.01.
|
Defined
Terms.
|
|
SECTION
1.02.
|
Accounting.
|
|
SECTION
1.03.
|
Allocation
of Certain Interest Shortfalls.
|
|
SECTION
1.04.
|
Rights
of the NIMS Insurer.
|
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans.
|
|
SECTION
2.02.
|
Acceptance
by Trustee.
|
|
SECTION
2.03.
|
Repurchase
or Substitution of Mortgage Loans by the Originator or Responsible
Party.
|
|
SECTION
2.04.
|
Intentionally
Omitted.
|
|
SECTION
2.05.
|
Representations,
Warranties and Covenants of the Servicer.
|
|
SECTION
2.06.
|
Representations
and Warranties of the Depositor.
|
|
SECTION
2.07.
|
Issuance
of Certificates.
|
|
SECTION
2.08.
|
Authorization
to Enter into Interest Rate Swap Agreement.
|
|
SECTION
2.09.
|
Conveyance
of REMIC Regular Interests and Acceptance of REMIC 2, REMIC 3, REMIC
4,
REMIC 5 and REMIC 6 by the Trustee; Issuance of
Certificates.
|
|
SECTION
2.10.
|
Negative
Covenants of the Trustee and the Servicer.
|
ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
SECTION
3.01.
|
Servicer
to Act as Servicer.
|
|
SECTION
3.02.
|
Sub-Servicing
Agreements Between Servicer and Sub-Servicers.
|
|
SECTION
3.03.
|
Successor
Sub-Servicers.
|
|
SECTION
3.04.
|
Liability
of the Servicer.
|
|
SECTION
3.05.
|
No
Contractual Relationship Between Sub-Servicers and the NIMS Insurer,
the
Trustee or Certificateholders.
|
|
SECTION
3.06.
|
Assumption
or Termination of Sub-Servicing Agreements by Trustee.
|
|
SECTION
3.07.
|
Collection
of Certain Mortgage Loan Payments.
|
|
SECTION
3.08.
|
Sub-Servicing
Accounts.
|
|
SECTION
3.09.
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
|
SECTION
3.10.
|
Collection
Account and Distribution Account.
|
|
SECTION
3.11.
|
Withdrawals
from the Collection Account and Distribution Account.
|
|
SECTION
3.12.
|
Investment
of Funds in the Collection Account and the Distribution
Account.
|
|
SECTION
3.13.
|
Rights
of the Class C Certificateholder.
|
|
SECTION
3.14.
|
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
|
SECTION
3.15.
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
|
SECTION
3.16.
|
Realization
Upon Defaulted Mortgage Loans.
|
|
SECTION
3.17.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
|
SECTION
3.18.
|
Servicing
Compensation.
|
|
SECTION
3.19.
|
Reports
to the Trustee; Collection Account Statements.
|
|
SECTION
3.20.
|
Statement
as to Compliance.
|
|
SECTION
3.21.
|
Assessment
of Compliance and Attestation Report.
|
|
SECTION
3.22.
|
Access
to Certain Documentation.
|
|
SECTION
3.23.
|
Title,
Management and Disposition of REO Property.
|
|
SECTION
3.24.
|
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
3.25.
|
Reports
Filed with Securities and Exchange Commission.
|
|
SECTION
3.26.
|
Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments.
|
|
SECTION
3.27.
|
Solicitations.
|
|
SECTION
3.28.
|
[Reserved].
|
|
SECTION
3.29.
|
Advancing
Facility.
|
ARTICLE
IV
FLOW
OF
FUNDS
|
SECTION
4.01.
|
Distributions.
|
|
SECTION
4.02.
|
[Reserved].
|
|
SECTION
4.03.
|
Statements.
|
|
SECTION
4.04.
|
Remittance
Reports; Advances.
|
|
SECTION
4.05.
|
Net
WAC Rate Carryover Reserve Account.
|
|
SECTION
4.06.
|
Distributions
on the REMIC Regular Interests.
|
|
SECTION
4.07.
|
Allocation
of Realized Losses.
|
|
SECTION
4.08.
|
Swap
Account.
|
|
SECTION
4.09.
|
Tax
Treatment of Swap Payments and Swap Termination Payments
|
|
SECTION
4.10.
|
Swap
Collateral Account
|
|
SECTION
4.11.
|
Rights
and Obligations Under the Interest Rate Swap Agreement.
|
ARTICLE
V
THE
CERTIFICATES
|
SECTION
5.01.
|
The
Certificates.
|
|
SECTION
5.02.
|
Registration
of Transfer and Exchange of Certificates.
|
|
SECTION
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
SECTION
5.04.
|
Persons
Deemed Owners.
|
|
SECTION
5.05.
|
Appointment
of Paying Agent.
|
ARTICLE
VI
THE
SERVICER AND THE DEPOSITOR
|
SECTION
6.01.
|
Liability
of the Servicer and the Depositor.
|
|
SECTION
6.02.
|
Merger
or Consolidation of, or Assumption of the Obligations of, the Servicer
or
the Depositor.
|
|
SECTION
6.03.
|
Limitation
on Liability of the Servicer and Others.
|
|
SECTION
6.04.
|
Servicer
Not to Resign.
|
|
SECTION
6.05.
|
Delegation
of Duties.
|
|
SECTION
6.06.
|
[Reserved].
|
|
SECTION
6.07.
|
Inspection.
|
ARTICLE
VII
DEFAULT
|
SECTION
7.01.
|
Servicer
Events of Termination.
|
|
SECTION
7.02.
|
Trustee
to Act; Appointment of Successor.
|
|
SECTION
7.03.
|
Waiver
of Defaults.
|
|
SECTION
7.04.
|
Notification
to Certificateholders.
|
|
SECTION
7.05.
|
Survivability
of Servicer Liabilities.
|
ARTICLE
VIII
THE
TRUSTEE
|
SECTION
8.01.
|
Duties
of Trustee.
|
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee.
|
|
SECTION
8.03.
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
|
SECTION
8.04.
|
Trustee
May Own Certificates.
|
|
SECTION
8.05.
|
Trustee
Fee and Expenses.
|
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee.
|
|
SECTION
8.07.
|
Resignation
or Removal of Trustee.
|
|
SECTION
8.08.
|
Successor
Trustee.
|
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee.
|
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
SECTION
8.11.
|
Limitation
of Liability.
|
|
SECTION
8.12.
|
Trustee
May Enforce Claims Without Possession of Certificates.
|
|
SECTION
8.13.
|
Suits
for Enforcement.
|
|
SECTION
8.14.
|
Waiver
of Bond Requirement.
|
|
SECTION
8.15.
|
Waiver
of Inventory, Accounting and Appraisal Requirement.
|
ARTICLE
IX
REMIC
ADMINISTRATION
|
SECTION
9.01.
|
REMIC
Administration.
|
|
SECTION
9.02.
|
Prohibited
Transactions and Activities.
|
|
SECTION
9.03.
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
ARTICLE
X
TERMINATION
|
SECTION
10.01.
|
Termination.
|
|
SECTION
10.02.
|
Additional
Termination Requirements.
|
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
SECTION
11.01.
|
Amendment.
|
|
SECTION
11.02.
|
Recordation
of Agreement; Counterparts.
|
|
SECTION
11.03.
|
Limitation
on Rights of Certificateholders.
|
|
SECTION
11.04.
|
Governing
Law; Jurisdiction.
|
|
SECTION
11.05.
|
Notices.
|
|
SECTION
11.06.
|
Severability
of Provisions.
|
|
SECTION
11.07.
|
Article
and Section References.
|
|
SECTION
11.08.
|
Notice
to the Rating Agencies and the NIMS Insurer.
|
|
SECTION
11.09.
|
Further
Assurances.
|
|
SECTION
11.10.
|
Third
Party Rights.
|
|
SECTION
11.11.
|
Benefits
of Agreement.
|
|
SECTION
11.12.
|
Acts
of Certificateholders.
|
|
SECTION
11.13.
|
No
Petition.
|
|
SECTION
11.14.
|
Intention
of the Parties and Interpretation.
|
EXHIBITS:
|
Exhibit
A-1
|
Form
of Class I-A-1 Certificates
|
|
Exhibit
A-2
|
Form
of Class II-A-1 Certificates
|
|
Exhibit
A-3
|
Form
of Class II-A-2 Certificates
|
|
Exhibit
A-4
|
Form
of Class II-A-3 Certificates
|
|
Exhibit
A-5
|
Form
of Class II-A-4 Certificates
|
|
Exhibit
A-6
|
Form
of Class M-1 Certificates
|
|
Exhibit
A-7
|
Form
of Class M-2 Certificates
|
|
Exhibit
A-8
|
Form
of Class M-3 Certificates
|
|
Exhibit
A-9
|
Form
of Class M-4 Certificates
|
|
Exhibit
A-10
|
Form
of Class M-5 Certificates
|
|
Exhibit
A-11
|
Form
of Class M-6 Certificates
|
|
Exhibit
A-12
|
Form
of Class M-7 Certificates
|
|
Exhibit
A-13
|
Form
of Class M-8 Certificates
|
|
Exhibit
A-14
|
Form
of Class M-9 Certificates
|
|
Exhibit
A-15
|
Form
of Class C Certificates
|
|
Exhibit
A-16
|
Form
of Class P Certificates
|
|
Exhibit
A-17
|
Form
of Class R Certificates
|
|
Exhibit
A-18
|
Form
of Class R-X Certificates
|
|
Exhibit
B
|
[Reserved]
|
|
Exhibit
C
|
Form
of Mortgage Loan Purchase Agreement
|
|
Exhibit
D
|
Mortgage
Loan Schedule
|
|
Exhibit
E
|
Request
for Release
|
|
Exhibit
F-1
|
Form
of Trustee’s Initial Certification
|
|
Exhibit
F-2
|
Form
of Trustee’s Final Certification
|
|
Exhibit
F-3
|
Form
of Receipt of Mortgage Note
|
|
Exhibit
G
|
Loss
Mitigation Procedures
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
|
Exhibit
I
|
Form
of Interest Rate Swap Agreement
|
|
Exhibit
J
|
Form
of Investment Letter
|
|
Exhibit
K
|
Form
of Residual Certificates Transfer Affidavit
|
|
Exhibit
L
|
Form
of Transferor Certificate
|
|
Exhibit
M
|
Form
of ERISA Representation Letter
|
|
Exhibit
N
|
Form
of Swap Administration Agreement
|
|
Exhibit
O
|
Form
of Remittance Report
|
|
Exhibit
P
|
[Reserved]
|
|
Exhibit
Q
|
[Reserved]
|
|
Exhibit
R-1
|
Form
of Certification to Be Provided by the Depositor with Form
10-K
|
|
Exhibit
R-2
|
Form
of Certification to Be Provided to Depositor by the
Trustee
|
|
Exhibit
S
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
|
Exhibit
T
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
U
|
Additional
Disclosure Notification
|
|
Schedule
I
|
Prepayment Charge Schedule |
This
Pooling and Servicing Agreement is dated as of April 1, 2007 (the “Agreement”),
among OPTION ONE MORTGAGE ACCEPTANCE CORPORATION, as depositor (the
“Depositor”), OPTION ONE MORTGAGE CORPORATION, as servicer (the “Servicer”) and
XXXXX FARGO BANK, N.A., as trustee (the “Trustee”).
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in multiple classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Fund created hereunder. The Certificates will consist of eighteen classes of
certificates, designated as (i) the
Class
I-A-1 Certificates, (ii) the
Class
II-A-1 Certificates, (iii) the Class II-A-2 Certificates, (iv) the Class II-A-3
Certificates, (v) the Class II-A-4 Certificates, (vi) the Class M-1
Certificates, (vii) the Class M-2 Certificates, (viii) the Class M-3
Certificates, (ix) the Class M-4 Certificates, (x) the Class M-5 Certificates,
(xi) the Class M-6 Certificates, (xii) the Class M-7 Certificates, (xiii) the
Class M-8 Certificates, (xiv) the Class M-9 Certificates, (xv) the Class C
Certificates, (xvi) the Class P Certificates, (xvii) the Class R Certificates
and (xviii) the Class R-X Certificates.
REMIC
1
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the Mortgage Loans and certain other related assets subject to
this Agreement (exclusive of the Net WAC Rate Carryover Reserve Account, any
Servicer Prepayment Charge Payment Amounts, the Swap Account, the Supplemental
Interest Trust and the Interest Rate Swap Agreement) as a REMIC for federal
income tax purposes, and such segregated pool of assets shall be designated
as
“REMIC 1.” The Class R-1 Interest shall represent the sole class of “residual
interests” in REMIC 1 for purposes of the REMIC Provisions (as defined herein).
The following table irrevocably sets forth the designation, the Uncertificated
REMIC 1 Pass-Through Rate, the initial Uncertificated Principal Balance and,
for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each of the REMIC 1 Regular Interests (as
defined herein). None of the REMIC 1 Regular Interests shall be certificated.
|
Designation
|
Uncertificated
REMIC 1 Pass-Through
Rate
|
Initial
Uncertificated
Principal Balance
|
Latest
Possible Maturity
Date(1)
|
|||||||
|
I
|
|
Variable(2)
|
|
$
|
65,400,003.66
|
|
|
April
25, 2037
|
|
|
|
II
|
|
Variable(2)
|
|
$
|
8,925,392.50
|
|
|
April
25, 2037
|
|
|
|
I-1-A
|
|
Variable(2)
|
|
$
|
5,741,458.75
|
|
|
April
25, 2037
|
|
|
|
I-1-B
|
|
Variable(2)
|
|
$
|
5,741,458.75
|
|
|
April
25, 2037
|
|
|
|
I-2-A
|
|
Variable(2)
|
|
$
|
7,018,401.25
|
|
|
April
25, 2037
|
|
|
|
I-2-B
|
|
Variable(2)
|
|
$
|
7,018,401.25
|
|
|
April
25, 2037
|
|
|
|
I-3-A
|
|
Variable(2)
|
|
$
|
8,285,523.75
|
|
|
April
25, 2037
|
|
|
|
I-3-B
|
|
Variable(2)
|
|
$
|
8,285,523.75
|
|
|
April
25, 2037
|
|
|
|
I-4-A
|
|
Variable(2)
|
|
$
|
9,534,425.00
|
|
|
April
25, 2037
|
|
|
|
I-4-B
|
|
Variable(2)
|
|
$
|
9,534,425.00
|
|
|
April
25, 2037
|
|
|
|
I-5-A
|
|
Variable(2)
|
|
$
|
10,749,910.00
|
|
|
April
25, 2037
|
|
|
|
I-5-B
|
|
Variable(2)
|
|
$
|
10,749,910.00
|
|
|
April
25, 2037
|
|
|
|
I-6-A
|
|
Variable(2)
|
|
$
|
11,926,698.75
|
|
|
April
25, 2037
|
|
|
|
I-6-B
|
|
Variable(2)
|
|
$
|
11,926,698.75
|
|
|
April
25, 2037
|
|
|
|
I-7-A
|
|
Variable(2)
|
|
$
|
13,039,056.25
|
|
|
April
25, 2037
|
|
|
|
I-7-B
|
|
Variable(2)
|
|
$
|
13,039,056.25
|
|
|
April
25, 2037
|
|
|
|
I-8-A
|
|
Variable(2)
|
|
$
|
13,952,446.25
|
|
|
April
25, 2037
|
|
|
|
I-8-B
|
|
Variable(2)
|
|
$
|
13,952,446.25
|
|
|
April
25, 2037
|
|
|
|
I-9-A
|
|
Variable(2)
|
|
$
|
14,425,208.75
|
|
|
April
25, 2037
|
|
|
|
I-9-B
|
|
Variable(2)
|
|
$
|
14,425,208.75
|
|
|
April
25, 2037
|
|
|
|
I-10-A
|
|
Variable(2)
|
|
$
|
14,184,490.00
|
|
|
April
25, 2037
|
|
|
|
I-10-B
|
|
Variable(2)
|
|
$
|
14,184,490.00
|
|
|
April
25, 2037
|
|
|
|
I-11-A
|
|
Variable(2)
|
|
$
|
13,775,561.25
|
|
|
April
25, 2037
|
|
|
|
I-11-B
|
|
Variable(2)
|
|
$
|
13,775,561.25
|
|
|
April
25, 2037
|
|
|
|
I-12-A
|
|
Variable(2)
|
|
$
|
13,380,822.50
|
|
|
April
25, 2037
|
|
|
|
I-12-B
|
|
Variable(2)
|
|
$
|
13,380,822.50
|
|
|
April
25, 2037
|
|
|
|
I-13-A
|
|
Variable(2)
|
|
$
|
12,997,490.00
|
|
|
April
25, 2037
|
|
|
|
I-13-B
|
|
Variable(2)
|
|
$
|
12,997,490.00
|
|
|
April
25, 2037
|
|
|
|
I-14-A
|
|
Variable(2)
|
|
$
|
12,625,236.25
|
|
|
April
25, 2037
|
|
|
|
I-14-B
|
|
Variable(2)
|
|
$
|
12,625,236.25
|
|
|
April
25, 2037
|
|
|
|
I-15-A
|
|
Variable(2)
|
|
$
|
12,265,545.00
|
|
|
April
25, 2037
|
|
|
|
I-15-B
|
|
Variable(2)
|
|
$
|
12,265,545.00
|
|
|
April
25, 2037
|
|
|
|
I-16-A
|
|
Variable(2)
|
|
$
|
11,988,268.75
|
|
|
April
25, 2037
|
|
|
|
I-16-B
|
|
Variable(2)
|
|
$
|
11,988,268.75
|
|
|
April
25, 2037
|
|
|
|
I-17-A
|
|
Variable(2)
|
|
$
|
11,683,646.25
|
|
|
April
25, 2037
|
|
|
|
I-17-B
|
|
Variable(2)
|
|
$
|
11,683,646.25
|
|
|
April
25, 2037
|
|
|
|
I-18-A
|
|
Variable(2)
|
|
$
|
11,559,011.25
|
|
|
April
25, 2037
|
|
|
|
I-18-B
|
|
Variable(2)
|
|
$
|
11,559,011.25
|
|
|
April
25, 2037
|
|
|
|
I-19-A
|
|
Variable(2)
|
|
$
|
12,616,840.00
|
|
|
April
25, 2037
|
|
|
|
I-19-B
|
|
Variable(2)
|
|
$
|
12,616,840.00
|
|
|
April
25, 2037
|
|
|
|
I-20-A
|
|
Variable(2)
|
|
$
|
16,198,625.00
|
|
|
April
25, 2037
|
|
|
|
I-20-B
|
|
Variable(2)
|
|
$
|
16,198,625.00
|
|
|
April
25, 2037
|
|
|
|
I-21-A
|
|
Variable(2)
|
|
$
|
21,769,637.50
|
|
|
April
25, 2037
|
|
|
|
I-21-B
|
|
Variable(2)
|
|
$
|
21,769,637.50
|
|
|
April
25, 2037
|
|
|
|
I-22-A
|
|
Variable(2)
|
|
$
|
21,845,715.00
|
|
|
April
25, 2037
|
|
|
|
I-22-B
|
|
Variable(2)
|
|
$
|
21,845,715.00
|
|
|
April
25, 2037
|
|
|
|
I-23-A
|
|
Variable(2)
|
|
$
|
19,389,598.75
|
|
|
April
25, 2037
|
|
|
|
I-23-B
|
|
Variable(2)
|
|
$
|
19,389,598.75
|
|
|
April
25, 2037
|
|
|
|
I-24-A
|
|
Variable(2)
|
|
$
|
15,425,692.50
|
|
|
April
25, 2037
|
|
|
|
I-24-B
|
|
Variable(2)
|
|
$
|
15,425,692.50
|
|
|
April
25, 2037
|
|
|
|
I-25-A
|
|
Variable(2)
|
|
$
|
10,331,392.50
|
|
|
April
25, 2037
|
|
|
|
I-25-B
|
|
Variable(2)
|
|
$
|
10,331,392.50
|
|
|
April
25, 2037
|
|
|
|
I-26-A
|
|
Variable(2)
|
|
$
|
8,788,565.00
|
|
|
April
25, 2037
|
|
|
|
I-26-B
|
|
Variable(2)
|
|
$
|
8,788,565.00
|
|
|
April
25, 2037
|
|
|
|
I-27-A
|
|
Variable(2)
|
|
$
|
8,491,240.00
|
|
|
April
25, 2037
|
|
|
|
I-27-B
|
|
Variable(2)
|
|
$
|
8,491,240.00
|
|
|
April
25, 2037
|
|
|
|
I-28-A
|
|
Variable(2)
|
|
$
|
8,204,220.00
|
|
|
April
25, 2037
|
|
|
|
I-28-B
|
|
Variable(2)
|
|
$
|
8,204,220.00
|
|
|
April
25, 2037
|
|
|
|
I-29-A
|
|
Variable(2)
|
|
$
|
7,927,282.50
|
|
|
April
25, 2037
|
|
|
|
I-29-B
|
|
Variable(2)
|
|
$
|
7,927,282.50
|
|
|
April
25, 2037
|
|
|
|
I-30-A
|
|
Variable(2)
|
|
$
|
7,659,915.00
|
|
|
April
25, 2037
|
|
|
|
I-30-B
|
|
Variable(2)
|
|
$
|
7,659,915.00
|
|
|
April
25, 2037
|
|
|
|
I-31-A
|
|
Variable(2)
|
|
$
|
7,401,742.50
|
|
|
April
25, 2037
|
|
|
|
I-31-B
|
|
Variable(2)
|
|
$
|
7,401,742.50
|
|
|
April
25, 2037
|
|
|
|
I-32-A
|
|
Variable(2)
|
|
$
|
7,152,446.25
|
|
|
April
25, 2037
|
|
|
|
I-32-B
|
|
Variable(2)
|
|
$
|
7,152,446.25
|
|
|
April
25, 2037
|
|
|
|
I-33-A
|
|
Variable(2)
|
|
$
|
6,911,318.75
|
|
|
April
25, 2037
|
|
|
|
I-33-B
|
|
Variable(2)
|
|
$
|
6,911,318.75
|
|
|
April
25, 2037
|
|
|
|
I-34-A
|
|
Variable(2)
|
|
$
|
6,678,460.00
|
|
|
April
25, 2037
|
|
|
|
I-34-B
|
|
Variable(2)
|
|
$
|
6,678,460.00
|
|
|
April
25, 2037
|
|
|
|
I-35-A
|
|
Variable(2)
|
|
$
|
6,453,985.00
|
|
|
April
25, 2037
|
|
|
|
I-35-B
|
|
Variable(2)
|
|
$
|
6,453,985.00
|
|
|
April
25, 2037
|
|
|
|
I-36-A
|
|
Variable(2)
|
|
$
|
4,473,796.25
|
|
|
April
25, 2037
|
|
|
|
I-36-B
|
|
Variable(2)
|
|
$
|
4,473,796.25
|
|
|
April
25, 2037
|
|
|
|
I-37-A
|
|
Variable(2)
|
|
$
|
5,017,257.50
|
|
|
April
25, 2037
|
|
|
|
I-37-B
|
|
Variable(2)
|
|
$
|
5,017,257.50
|
|
|
April
25, 2037
|
|
|
|
I-38-A
|
|
Variable(2)
|
|
$
|
4,849,382.50
|
|
|
April
25, 2037
|
|
|
|
I-38-B
|
|
Variable(2)
|
|
$
|
4,849,382.50
|
|
|
April
25, 2037
|
|
|
|
I-39-A
|
|
Variable(2)
|
|
$
|
4,687,281.25
|
|
|
April
25, 2037
|
|
|
|
I-39-B
|
|
Variable(2)
|
|
$
|
4,687,281.25
|
|
|
April
25, 2037
|
|
|
|
I-40-A
|
|
Variable(2)
|
|
$
|
4,530,736.25
|
|
|
April
25, 2037
|
|
|
|
I-40-B
|
|
Variable(2)
|
|
$
|
4,530,736.25
|
|
|
April
25, 2037
|
|
|
|
I-41-A
|
|
Variable(2)
|
|
$
|
4,379,551.25
|
|
|
April
25, 2037
|
|
|
|
I-41-B
|
|
Variable(2)
|
|
$
|
4,379,551.25
|
|
|
April
25, 2037
|
|
|
|
I-42-A
|
|
Variable(2)
|
|
$
|
4,233,535.00
|
|
|
April
25, 2037
|
|
|
|
I-42-B
|
|
Variable(2)
|
|
$
|
4,233,535.00
|
|
|
April
25, 2037
|
|
|
|
I-43-A
|
|
Variable(2)
|
|
$
|
4,092,521.25
|
|
|
April
25, 2037
|
|
|
|
I-43-B
|
|
Variable(2)
|
|
$
|
4,092,521.25
|
|
|
April
25, 2037
|
|
|
|
I-44-A
|
|
Variable(2)
|
|
$
|
3,956,330.00
|
|
|
April
25, 2037
|
|
|
|
I-44-B
|
|
Variable(2)
|
|
$
|
3,956,330.00
|
|
|
April
25, 2037
|
|
|
|
I-45-A
|
|
Variable(2)
|
|
$
|
3,824,792.50
|
|
|
April
25, 2037
|
|
|
|
I-45-B
|
|
Variable(2)
|
|
$
|
3,824,792.50
|
|
|
April
25, 2037
|
|
|
|
I-46-A
|
|
Variable(2)
|
|
$
|
3,697,748.75
|
|
|
April
25, 2037
|
|
|
|
I-46-B
|
|
Variable(2)
|
|
$
|
3,697,748.75
|
|
|
April
25, 2037
|
|
|
|
I-47-A
|
|
Variable(2)
|
|
$
|
3,575,043.75
|
|
|
April
25, 2037
|
|
|
|
I-47-B
|
|
Variable(2)
|
|
$
|
3,575,043.75
|
|
|
April
25, 2037
|
|
|
|
I-48-A
|
|
Variable(2)
|
|
$
|
3,456,523.75
|
|
|
April
25, 2037
|
|
|
|
I-48-B
|
|
Variable(2)
|
|
$
|
3,456,523.75
|
|
|
April
25, 2037
|
|
|
|
I-49-A
|
|
Variable(2)
|
|
$
|
3,342,046.25
|
|
|
April
25, 2037
|
|
|
|
I-49-B
|
|
Variable(2)
|
|
$
|
3,342,046.25
|
|
|
April
25, 2037
|
|
|
|
I-50-A
|
|
Variable(2)
|
|
$
|
3,231,471.25
|
|
|
April
25, 2037
|
|
|
|
I-50-B
|
|
Variable(2)
|
|
$
|
3,231,471.25
|
|
|
April
25, 2037
|
|
|
|
I-51-A
|
|
Variable(2)
|
|
$
|
3,124,760.00
|
|
|
April
25, 2037
|
|
|
|
I-51-B
|
|
Variable(2)
|
|
$
|
3,124,760.00
|
|
|
April
25, 2037
|
|
|
|
I-52-A
|
|
Variable(2)
|
|
$
|
3,021,630.00
|
|
|
April
25, 2037
|
|
|
|
I-52-B
|
|
Variable(2)
|
|
$
|
3,021,630.00
|
|
|
April
25, 2037
|
|
|
|
I-53-A
|
|
Variable(2)
|
|
$
|
2,922,186.25
|
|
|
April
25, 2037
|
|
|
|
I-53-B
|
|
Variable(2)
|
|
$
|
2,922,186.25
|
|
|
April
25, 2037
|
|
|
|
I-54-A
|
|
Variable(2)
|
|
$
|
2,826,498.75
|
|
|
April
25, 2037
|
|
|
|
I-54-B
|
|
Variable(2)
|
|
$
|
2,826,498.75
|
|
|
April
25, 2037
|
|
|
|
I-55-A
|
|
Variable(2)
|
|
$
|
2,735,091.25
|
|
|
April
25, 2037
|
|
|
|
I-55-B
|
|
Variable(2)
|
|
$
|
2,735,091.25
|
|
|
April
25, 2037
|
|
|
|
I-56-A
|
|
Variable(2)
|
|
$
|
2,648,921.25
|
|
|
April
25, 2037
|
|
|
|
I-56-B
|
|
Variable(2)
|
|
$
|
2,648,921.25
|
|
|
April
25, 2037
|
|
|
|
I-57-A
|
|
Variable(2)
|
|
$
|
2,562,656.25
|
|
|
April
25, 2037
|
|
|
|
I-57-B
|
|
Variable(2)
|
|
$
|
2,562,656.25
|
|
|
April
25, 2037
|
|
|
|
I-58-A
|
|
Variable(2)
|
|
$
|
2,478,407.50
|
|
|
April
25, 2037
|
|
|
|
I-58-B
|
|
Variable(2)
|
|
$
|
2,478,407.50
|
|
|
April
25, 2037
|
|
|
|
I-59-A
|
|
Variable(2)
|
|
$
|
2,397,017.50
|
|
|
April
25, 2037
|
|
|
|
I-59-B
|
|
Variable(2)
|
|
$
|
2,397,017.50
|
|
|
April
25, 2037
|
|
|
|
I-60-A
|
|
Variable(2)
|
|
$
|
2,318,378.75
|
|
|
April
25, 2037
|
|
|
|
I-60-B
|
|
Variable(2)
|
|
$
|
2,318,378.75
|
|
|
April
25, 2037
|
|
|
|
I-61-A
|
|
Variable(2)
|
|
$
|
2,242,346.25
|
|
|
April
25, 2037
|
|
|
|
I-61-B
|
|
Variable(2)
|
|
$
|
2,242,346.25
|
|
|
April
25, 2037
|
|
|
|
I-62-A
|
|
Variable(2)
|
|
$
|
2,168,891.25
|
|
|
April
25, 2037
|
|
|
|
I-62-B
|
|
Variable(2)
|
|
$
|
2,168,891.25
|
|
|
April
25, 2037
|
|
|
|
I-63-A
|
|
Variable(2)
|
|
$
|
2,097,986.25
|
|
|
April
25, 2037
|
|
|
|
I-63-B
|
|
Variable(2)
|
|
$
|
2,097,986.25
|
|
|
April
25, 2037
|
|
|
|
I-64-A
|
|
Variable(2)
|
|
$
|
2,029,488.75
|
|
|
April
25, 2037
|
|
|
|
I-64-B
|
|
Variable(2)
|
|
$
|
2,029,488.75
|
|
|
April
25, 2037
|
|
|
|
I-65-A
|
|
Variable(2)
|
|
$
|
1,963,305.00
|
|
|
April
25, 2037
|
|
|
|
I-65-B
|
|
Variable(2)
|
|
$
|
1,963,305.00
|
|
|
April
25, 2037
|
|
|
|
I-66-A
|
|
Variable(2)
|
|
$
|
1,899,357.50
|
|
|
April
25, 2037
|
|
|
|
I-66-B
|
|
Variable(2)
|
|
$
|
1,899,357.50
|
|
|
April
25, 2037
|
|
|
|
I-67-A
|
|
Variable(2)
|
|
$
|
1,837,556.25
|
|
|
April
25, 2037
|
|
|
|
I-67-B
|
|
Variable(2)
|
|
$
|
1,837,556.25
|
|
|
April
25, 2037
|
|
|
|
I-68-A
|
|
Variable(2)
|
|
$
|
1,777,843.75
|
|
|
April
25, 2037
|
|
|
|
I-68-B
|
|
Variable(2)
|
|
$
|
1,777,843.75
|
|
|
April
25, 2037
|
|
|
|
I-69-A
|
|
Variable(2)
|
|
$
|
1,720,151.25
|
|
|
April
25, 2037
|
|
|
|
I-69-B
|
|
Variable(2)
|
|
$
|
1,720,151.25
|
|
|
April
25, 2037
|
|
|
|
I-70-A
|
|
Variable(2)
|
|
$
|
1,664,402.50
|
|
|
April
25, 2037
|
|
|
|
I-70-B
|
|
Variable(2)
|
|
$
|
1,664,402.50
|
|
|
April
25, 2037
|
|
|
|
I-71-A
|
|
Variable(2)
|
|
$
|
52,672,533.75
|
|
|
April
25, 2037
|
|
|
|
I-71-B
|
|
Variable(2)
|
|
$
|
52,672,533.75
|
|
|
April
25, 2037
|
|
|
_________________
(1) For
purposes of Section 1.860 G-1(a)(4)(iii) of the Treasury
regulations.
(2) Calculated
in accordance with the definition of “Uncertificated REMIC 1 Pass-Through Rate”
herein.
REMIC
2
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the REMIC 1 Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated
as
“REMIC 2.” The Class R-2 Interest will represent the sole class of “residual
interests” in REMIC 2 for purposes of the REMIC Provisions under federal income
tax law. The following table irrevocably sets forth the designation, the
Uncertificated REMIC 2 Pass-Through Rate, the initial Uncertificated Principal
Balance, and for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the “latest possible maturity date” for each of the REMIC 2
Regular Interests. None of the REMIC 2 Regular Interests will be
certificated.
|
Designation
|
Uncertificated
REMIC 2 Pass-Through
Rate(2)
|
Initial
Uncertificated Principal
Balance
|
Latest
Possible Maturity
Date(1)
|
|||||||
|
LTAA
|
|
|
Variable
|
|
$
|
1,175,999,905.59
|
|
|
April
25, 2037
|
|
|
LTIA1
|
|
|
Variable
|
|
$
|
4,620,950.00
|
|
|
April
25, 2037
|
|
|
LTIIA1
|
|
|
Variable
|
|
$
|
1,976,570.00
|
|
|
April
25, 2037
|
|
|
LTIIA2
|
|
|
Variable
|
|
$
|
1,521,660.00
|
|
|
April
25, 2037
|
|
|
LTIIA3
|
|
|
Variable
|
|
$
|
461,480.00
|
|
|
April
25, 2037
|
|
|
LTIIA4
|
|
|
Variable
|
|
$
|
305,340.00
|
|
|
April
25, 2037
|
|
|
LTM1
|
|
|
Variable
|
|
$
|
540,000.00
|
|
|
April
25, 2037
|
|
|
LTM2
|
|
|
Variable
|
|
$
|
528,000.00
|
|
|
April
25, 2037
|
|
|
LTM3
|
|
|
Variable
|
|
$
|
252,000.00
|
|
|
April
25, 2037
|
|
|
LTM4
|
|
|
Variable
|
|
$
|
258,000.00
|
|
|
April
25, 2037
|
|
|
LTM5
|
|
|
Variable
|
|
$
|
228,000.00
|
|
|
April
25, 2037
|
|
|
LTM6
|
|
|
Variable
|
|
$
|
144,000.00
|
|
|
April
25, 2037
|
|
|
LTM7
|
|
|
Variable
|
|
$
|
174,000.00
|
|
|
April
25, 2037
|
|
|
LTM8
|
|
|
Variable
|
|
$
|
126,000.00
|
|
|
April
25, 2037
|
|
|
LTM9
|
|
|
Variable
|
|
$
|
210,000.00
|
|
|
April
25, 2037
|
|
|
LTZZ
|
|
|
Variable
|
|
$
|
12,653,998.07
|
|
|
Xxxxx
00, 0000
|
|
|
XXX
|
|
|
Variable
|
|
$
|
100.00
|
|
|
April
25, 2037
|
|
|
LTIO
|
|
|
Variable
|
|
|
(3)
|
|
|
April
25, 2037
|
|
___________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) Calculated
in accordance with the definition of “Uncertificated REMIC 2 Pass-Through Rate”
herein.
(3) REMIC
2
Regular Interest LTIO will not have an Uncertificated Principal Balance, but
will accrue interest on its Uncertificated Notional Amount.
REMIC
3
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the REMIC 2 Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated
as
“REMIC 3.” The Class R-3 Interest represents the sole class of “residual
interests” in REMIC 3 for purposes of the REMIC Provisions.
The
following table sets forth (or describes) the designation, Pass-Through Rate,
Original Class Certificate Principal Balance, and for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each Class of Certificates that represents one or more of the “regular
interests” in REMIC 3 created hereunder:
|
Designation
|
Pass-Through
Rate
|
Original
Class Certificate
Principal Balance
|
Latest
Possible Maturity
Date(1)
|
|||||||
|
Class
I-A-1
|
|
|
Variable(2)
|
|
$
|
462,095,000.00
|
|
|
April
25, 2037
|
|
|
Class
II-A-1
|
|
|
Variable(2)
|
|
$
|
197,657,000.00
|
|
|
April
25, 2037
|
|
|
Class
II-A-2
|
|
|
Variable(2)
|
|
$
|
152,166,000.00
|
|
|
April
25, 2037
|
|
|
Class
II-A-3
|
|
|
Variable(2)
|
|
$
|
46,148,000.00
|
|
|
April
25, 2037
|
|
|
Class
II-A-4
|
|
|
Variable(2)
|
|
$
|
30,534,000.00
|
|
|
April
25, 2037
|
|
|
Class
M-1
|
|
|
Variable(2)
|
|
$
|
54,000,000.00
|
|
|
April
25, 2037
|
|
|
Class
M-2
|
|
|
Variable(2)
|
|
$
|
52,800,000.00
|
|
|
April
25, 2037
|
|
|
Class
M-3
|
|
|
Variable(2)
|
|
$
|
25,200,000.00
|
|
|
April
25, 2037
|
|
|
Class
M-4
|
|
|
Variable(2)
|
|
$
|
25,800,000.00
|
|
|
April
25, 2037
|
|
|
Class
M-5
|
|
|
Variable(2)
|
|
$
|
22,800,000.00
|
|
|
April
25, 2037
|
|
|
Class
M-6
|
|
|
Variable(2)
|
|
$
|
14,400,000.00
|
|
|
April
25, 2037
|
|
|
Class
M-7
|
|
|
Variable(2)
|
|
$
|
17,400,000.00
|
|
|
April
25, 2037
|
|
|
Class
M-8
|
|
|
Variable(2)
|
|
$
|
12,600,000.00
|
|
|
April
25, 2037
|
|
|
Class
M-9
|
|
|
Variable(2)
|
|
$
|
21,000,000.00
|
|
|
April
25, 2037
|
|
|
Class
C Interest
|
|
|
Variable(3)
|
|
$
|
65,399,903.66
|
|
|
April
25, 2037
|
|
|
Class
P Interest
|
|
|
N/A(4)
|
|
$
|
100.00
|
|
|
April
25, 2037
|
|
|
Class
SWAP-IO Interest
|
|
|
N/A(5)
|
|
|
N/A(5)
|
|
|
April
25, 2037
|
|
__________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) Calculated
in accordance with the definition of “Pass-Through Rate” herein.
(3) The
Class
C Interest will accrue interest at its variable Pass-Through Rate on the
Notional Amount of the Class C Interest outstanding from time to time which
shall equal the aggregate of the Uncertificated Principal Balances of the REMIC
2 Regular Interests (other than REMIC 2 Regular Interest LTP). The Class C
Interest will not accrue interest on its Class Certificate Principal
Balance.
(4) The
Class
P Interest will not accrue interest.
(5) The
Class
SWAP-IO Interest will not have a Pass-Through Rate or a Certificate Principal
Balance, but will be entitled to 100% of amounts distributed on REMIC 2 Regular
Interest LTIO.
REMIC
4
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class C Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC 4.”
The Class R-4 Interest represents the sole class of “residual interests” in
REMIC 4 for purposes of the REMIC Provisions under federal income tax
law.
The
following table sets forth (or describes) the designation, Pass-Through Rate,
Original Class Certificate Principal Balance, and for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each Class of Certificates that represents one or more of the “regular
interests” in REMIC 4 created hereunder:
|
Designation
|
Pass-Through
Rate
|
Original
Class Certificate
Principal Balance
|
Latest
Possible Maturity
Date(1)
|
|||||||
|
Class
C
|
Variable(2)
|
|
$
|
65,399,903.66
|
April
25, 2037
|
|||||
__________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) The
Class
C Certificates will receive 100% of amounts received in respect of the Class
C
Interest.
REMIC
5
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class P Interest as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as “REMIC 5.”
The Class R-5 Interest represents the sole class of “residual interests” in
REMIC 5 for purposes of the REMIC Provisions under federal income tax
law.
The
following table sets forth (or describes) the designation, Pass-Through Rate,
Original Class Certificate Principal Balance, and for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each Class of Certificates that represents one or more of the “regular
interests” in REMIC 5 created hereunder:
|
Designation
|
Pass-Through
Rate
|
Original
Class Certificate
Principal Balance
|
Latest
Possible Maturity
Date(1)
|
|||||||
|
Class
P
|
Variable(2)
|
|
$
|
100.00
|
April
25, 2037
|
|||||
__________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) The
Class
P Certificates will receive 100% of amounts received in respect of the Class
P
Interest.
REMIC
6
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class SWAP-IO Interest as a REMIC for federal income
tax purposes, and such segregated pool of assets will be designated as “REMIC
6.” The Class R-6 Interest represents the sole class of “residual interests” in
REMIC 6 for purposes of the REMIC Provisions under federal income tax
law.
The
following table sets forth (or describes) the designation, Pass-Through Rate,
Original Class Certificate Principal Balance, and for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each Class of Certificates that represents one or more of the “regular
interests” in REMIC 6 created hereunder, which will be
uncertificated:
|
Designation
|
Pass-Through
Rate
|
Original
Class Certificate
Principal Balance
|
Latest
Possible Maturity
Date(1)
|
|||||||
|
SWAP-IO
|
Variable(2)
|
|
N/A
|
April
25, 2037
|
||||||
__________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) REMIC
6
Regular Interest SWAP-IO will receive 100% of amounts received in respect of
the
Class SWAP-IO Interest.
ARTICLE
I
DEFINITIONS
| SECTION 1.01. |
Defined
Terms.
|
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations in
respect of interest on the Class A Certificates and the Mezzanine Certificates
shall be made on the basis of the actual number of days elapsed on the basis
of
a 360-day year and all calculations in respect of interest on the Class C
Certificates and all other calculations of interest described herein shall
be
made on the basis of a 360-day year consisting of twelve 30-day months. The
Class P Certificates and the Residual Certificates are not entitled to
distributions in respect of interest and, accordingly, will not accrue
interest.
“1933
Act”: The Securities Act of 1933, as amended.
“Account”:
Any
of the Collection Account, the Distribution Account, the Net WAC Rate Carryover
Reserve Account, the Swap Collateral Account or the Swap Account.
“Accrual
Period”: With respect to the Class A Certificates and the Mezzanine Certificates
and each Distribution Date, the period commencing on the preceding Distribution
Date (or in the case of the first such Accrual Period, commencing on the Closing
Date) and ending on the day preceding the current Distribution Date. With
respect to the Class C Certificates and each Distribution Date, the calendar
month prior to the month of such Distribution Date.
“Additional
Disclosure”: As defined in Section 3.25(a)(iv).
“Additional
Form 10-D Disclosure”: As defined in Section 3.25(a)(i).
“Additional
Form 10-K Disclosure”: As defined in Section 3.25(a)(iii).
“Adjustable-Rate
Mortgage Loan”: A Mortgage Loan which provides at any period during the life of
such loan for the adjustment of the Mortgage Rate payable in respect thereto.
The Adjustable-Rate Mortgage Loans are identified as such on the Mortgage Loan
Schedule.
“Adjusted
Net Maximum Mortgage Rate”: With respect to any Distribution Date and any
Mortgage Loan (or the related REO Property) in the Trust Fund as of the close
of
business on the last day of the preceding calendar month, a per annum rate
of
interest equal to the applicable Maximum Mortgage Rate for such Mortgage Loan
(or the Mortgage Rate in the case of any Fixed Rate Mortgage Loan) as of the
first day of the month preceding the month in which the Distribution Date occurs
(or the Cut-off Date with respect to the first Distribution Date) minus the
sum
of (i) the Trustee Fee Rate and (ii) the Servicing Fee Rate.
“Adjusted
Net Mortgage Rate”: With respect to any Distribution Date and any Mortgage Loan
(or the related REO Property) in the Trust Fund as of the close of business
on
the last day of the preceding prepayment period, a per annum rate of interest
equal to the applicable Mortgage Rate for such Mortgage Loan as of the first
day
of the month preceding the month in which the related Distribution Date occurs
(or the Cut-off Date with respect to the first Distribution Date) minus the
sum
of (i) the Trustee Fee Rate and (ii) the Servicing Fee Rate.
“Adjustment
Date”: With respect to each Adjustable-Rate Mortgage Loan, each adjustment date,
on which the Mortgage Rate of such Mortgage Loan changes pursuant to the related
Mortgage Note. The first Adjustment Date following the Cut-off Date as to each
Adjustable-Rate Mortgage Loan is set forth in the Mortgage Loan
Schedule.
“Advance”:
As to any Mortgage Loan or REO Property, any advance made by the Servicer in
respect of any Distribution Date pursuant to Section 4.04.
“Advancing
Facility”: As defined in Section 3.29 hereof.
“Advancing
Person”: As defined in Section 3.29 hereof.
“Adverse
REMIC Event”: As defined in Section 9.01(f) hereof.
“Affiliate”:
With respect to any Person, any other Person controlling, controlled by or
under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
“Agreement”:
This Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
“Allocated
Realized Loss Amount”: With respect to any Distribution Date and the Mezzanine
Certificates, the sum of (i) any Realized Losses allocated to such Class of
Certificates on such Distribution Date and (ii) the amount of any Allocated
Realized Loss Amount for such Class of Certificates remaining unpaid from the
previous Distribution Date as reduced by an amount equal to the increase in
the
related Certificate Principal Balance due to the receipt of Subsequent
Recoveries.
“Assignment”:
An assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form (excepting therefrom, if applicable, the mortgage recordation
information which has not been required pursuant to Section 2.01 hereof or
returned by the applicable recorder’s office and if the assignment has been
delivered in blank, the name of the Assignee), which is sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located
to
reflect or record the sale of the Mortgage.
“Available
Funds”: With respect to any Distribution Date, an amount equal to the excess of
(i) the sum of (a) the aggregate of the related Monthly Payments received on
or
prior to the related Determination Date, including any Subsequent Recoveries,
(b) Liquidation Proceeds, Insurance Proceeds, Principal Prepayments and other
unscheduled recoveries of principal and interest in respect of the Mortgage
Loans received during the related Prepayment Period, (c) the aggregate of any
amounts received in respect of a related REO Property withdrawn from any REO
Account and deposited in the Collection Account for such Distribution Date,
(d)
the aggregate of any amounts deposited in the Collection Account by the Servicer
in respect of related Prepayment Interest Shortfalls for such Distribution
Date,
(e) the aggregate of any Advances made by the Servicer for such Distribution
Date, (f) the aggregate of any related advances made by the Trustee for such
Distribution Date pursuant to Section 7.02 and (g) the amount of any Prepayment
Charges collected by the Servicer in connection with the full or partial
prepayment of any of the Mortgage Loans and any Servicer Prepayment Charge
Payment Amount over (ii) the sum of (a) amounts reimbursable or payable to
the
Servicer pursuant to Section 3.11(a) or the Trustee pursuant to Section 3.11(b),
(b) amounts deposited in the Collection Account or the Distribution Account
pursuant to clauses (a) through (g) above, as the case may be, in error, (c)
the
amount of any Prepayment Charges collected by the Servicer in connection with
the full or partial prepayment of any of the Mortgage Loans and any Servicer
Prepayment Charge Payment Amount, (d) the Trustee Fee payable from the
Distribution Account pursuant to Section 8.05, (e)
any
Net Swap Payment or Swap Termination Payment owed to the Swap Provider
but
excluding any Swap Termination Payment owed to the Swap Provider resulting
from
a Swap Provider Trigger Event
(after
taking into account any upfront payment received from the counterparty to a
replacement swap agreement) and (f) any indemnification payments or expense
reimbursements made by the Trust Fund pursuant to Section 8.05.
“Back-Up
Certification”: As defined in Section 3.25(a)(ii).
“Bankruptcy
Code”: The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as amended.
“Book-Entry
Certificates”: Any of the Certificates that shall be registered in the name of
the Depository or its nominee, the ownership of which is reflected on the books
of the Depository or on the books of a Person maintaining an account with the
Depository (directly, as a “Depository Participant”, or indirectly, as an
indirect participant in accordance with the rules of the Depository and as
described in Section 5.02 hereof). On the Closing Date, the Class A Certificates
and the Mezzanine Certificates shall be Book-Entry Certificates.
“Business
Day”: Any day other than a Saturday, a Sunday or a day on which banking or
savings institutions in the State of Delaware, the State of New York, the State
of Maryland, the State of California, the Commonwealth of Pennsylvania, the
State of Florida, the State of Minnesota or any city in which the Corporate
Trust Office of the Trustee is located are authorized or obligated by law or
executive order to be closed.
“Certificate”:
Any Regular Certificate or Residual Certificate.
“Certificateholder”:
The Person in whose name a Certificate is registered in the Certificate
Register, except that a Disqualified Organization or non-U.S. Person shall
not
be a Holder of a Residual Certificate for any purpose hereof and, solely for
the
purposes of giving any consent pursuant to this Agreement, any Certificate
registered in the name of the Depositor or the Servicer or any Affiliate thereof
shall be deemed not to be outstanding and the Voting Rights to which it is
entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent has been
obtained, except as otherwise provided in Section 11.01. The Trustee and the
NIMS Insurer may conclusively rely upon a certificate of the Depositor or the
Servicer in determining whether a Certificate is held by an Affiliate thereof.
All references herein to “Certificateholders” shall reflect the rights of
Certificate Owners as they may indirectly exercise such rights through the
Depository and participating members thereof, except as otherwise specified
herein; provided, however, that the Trustee and the NIMS Insurer shall be
required to recognize as a “Certificateholder” only the Person in whose name a
Certificate is registered in the Certificate Register.
“Certificate
Margin”: With respect to each Class of Adjustable-Rate Certificates and for
purposes of the Marker Rate and the Maximum LTZZ Uncertificated Interest
Deferral Amount, the specified REMIC 2 Regular Interest, as
follows:
|
Class
|
REMIC
2 Regular Interest
|
Certificate
Margin
|
|
|
(1)
(%)
|
(2)
(%)
|
||
|
I-A-1
|
LTIA1
|
0.220%
|
0.440%
|
|
XX-X-0
|
XXXXX0
|
0.090%
|
0.180%
|
|
XX-X-0
|
XXXXX0
|
0.180%
|
0.360%
|
|
XX-X-0
|
XXXXX0
|
0.240%
|
0.480%
|
|
XX-X-0
|
XXXXX0
|
0.310%
|
0.620%
|
|
M-1
|
LTM1
|
0.370%
|
0.555%
|
|
M-2
|
LTM2
|
0.450%
|
0.675%
|
|
M-3
|
LTM3
|
0.570%
|
0.855%
|
|
M-4
|
LTM4
|
0.850%
|
1.275%
|
|
M-5
|
LTM5
|
1.150%
|
1.725%
|
|
M-6
|
LTM6
|
1.600%
|
2.400%
|
|
M-7
|
LTM7
|
2.500%
|
3.750%
|
|
M-8
|
LTM8
|
2.500%
|
3.750%
|
|
M-9
|
LTM9
|
2.500%
|
3.750%
|
__________
|
(1)
|
For
the Accrual Period for each Distribution Date on or prior to the
Optional
Termination Date.
|
|
(2)
|
For
each other Accrual Period.
|
“Certificate
Owner”: With respect to each Book-Entry Certificate, any beneficial owner
thereof.
“Certificate
Principal Balance”: With respect to any Class of Regular Certificates (other
than the Class C Certificates) immediately prior to any Distribution Date,
will
be equal to the Initial Certificate Principal Balance thereof (A) increased,
in
the case of a Mezzanine Certificate by the amount of any Subsequent Recoveries
added to the Certificate Principal Balance of such Class pursuant to Section
4.01, (B) reduced by the sum of all amounts actually distributed in respect
of
principal of such Class and (C) further reduced, in the case of a Mezzanine
Certificate by Realized Losses allocated thereto on all prior Distribution
Dates. With respect to the Class C Certificates as of any date of determination,
an amount equal to the excess, if any, of (A) the then aggregate Uncertificated
Principal Balance of the REMIC 2 Regular Interests over (B) the then aggregate
Certificate Principal Balances of the Class A, the Mezzanine and the Class
P
Certificates then outstanding.
“Certificate
Register” and “Certificate Registrar”: The register maintained and registrar
appointed pursuant to Section 5.02 hereof.
“Certification
Parties”: As defined in Section 3.25(a)(ii).
“Certifying
Person”: As defined in Section 3.25 (a)(ii).
“Class”:
Collectively, Certificates which have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
A
Certificateholder”: Any Holder of a Class A Certificate.
“Class
A
Certificates”: Any Class I-A-1 Certificate, Class II-A-1 Certificate, Class
II-A-2 Certificate, Class II-A-3 Certificate or Class II-A-4
Certificate.
“Class
A
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of (i) the Group I Senior Principal Distribution Amount and (ii) the Group
II
Senior Principal Distribution Amount.
“Class
I-A-1 Certificate”: Any one of the Class I-A-1 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-1, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-1 Certificate”: Any one of the Class II-A-1 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-2, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-2 Certificate”: Any one of the Class II-A-2 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-3, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-3 Certificate”: Any one of the Class II-A-3 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-4, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-4 Certificate”: Any one of the Class II-A-4 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-5, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
C
Certificate”: Any one of the Class C Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-15, representing (i) a Regular Interest in
REMIC 4, (ii) beneficial ownership of the Net WAC Rate Carryover Reserve Account
and (iii) beneficial ownership of the Supplemental Interest Trust.
“Class
C
Interest”: An uncertificated interest in the Trust held by the Trustee on behalf
of the Holders of the Class C Certificates, evidencing a Regular Interest in
REMIC 3 for purposes of the REMIC Provisions.
“Class
IO
Distribution Amount”: As defined in Section 4.08 hereof. For purposes of
clarity, the Class IO Distribution Amount for any Distribution Date shall equal
the amount payable to the Swap Administrator on such Distribution Date in excess
of the amount payable on the Class Swap-IO Interest on such Distribution Date,
all as further provided in Section 4.08 hereof.
“Class
Swap-IO Interest”: An uncertificated interest in the Trust Fund evidencing a
Regular Interest in REMIC 3.
“Class
M-1 Certificate”: Any one of the Class M-1 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-6, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-1 Principal Distribution Amount”: An amount, not less than zero, equal to the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Class
A
Principal Distribution Amount on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class M-1 Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 57.10%
and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the positive difference, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
“Class
M-2 Certificate”: Any one of the Class M-2 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-7, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-2 Principal Distribution Amount”: An amount, not less than zero, equal to the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Class
A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date) and (iii) the Certificate Principal Balance of the Class M-2 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 65.90% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the positive difference, if any,
of the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus the Overcollateralization Floor.
“Class
M-3 Certificate”: Any one of the Class M-3 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-8, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-3 Principal Distribution Amount”: An amount, not less than zero, equal to the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Class
A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date) and (iv) the Certificate
Principal Balance of the Class M-3 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 70.10%
and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the positive difference, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
“Class
M-4 Certificate”: Any one of the Class M-4 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-9, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-4 Principal Distribution Amount”: An amount, not less than zero, equal to the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Class
A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (v) the Certificate Principal Balance of the Class M-4 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 74.40%
and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the positive difference, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
“Class
M-5 Certificate”: Any one of the Class M-5 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-10, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-5 Principal Distribution Amount”: An amount, not less than zero, equal to the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Class
A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date) and (vi) the Certificate
Principal Balance of the Class M-5 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 78.20%
and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the positive difference, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
“Class
M-6 Certificate”: Any one of the Class M-6 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-11, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-6 Principal Distribution Amount”: An amount, not less than zero, equal to the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Class
A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date) and (vii) the Certificate Principal Balance of the Class M-6 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 80.60%
and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the positive difference, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
“Class
M-7 Certificate”: Any one of the Class M-7 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-12, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-7 Principal Distribution Amount”: An amount, not less than zero, equal to the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Class
A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date) and (viii) the Certificate
Principal Balance of the Class M-7 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 83.50%
and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the positive difference, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
“Class
M-8 Certificate”: Any one of the Class M-8 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-13, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-8 Principal Distribution Amount”: An amount, not less than zero, equal to the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Class
A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date) and (ix) the Certificate Principal Balance of the Class M-8 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 85.60%
and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the positive difference, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
“Class
M-9 Certificate”: Any one of the Class M-9 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-14, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-9 Principal Distribution Amount”: An amount, not less than zero, equal to the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Class
A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date) and (x) the Certificate Principal
Balance of the Class M-9 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 89.10%
and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the positive difference, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
“Class
P
Certificate”: Any one of the Class P Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-16, representing the right to distributions
as
set forth herein and therein and evidencing a regular interest in REMIC
5.
“Class
P
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class P Certificates, evidencing a Regular Interest
in REMIC 3 for purposes of the REMIC Provisions.
“Class
R
Certificate”: The Class R Certificate executed by the Trustee, and authenticated
and delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit A-17 and evidencing the ownership of the Class R-1 Interest,
the Class R-2 Interest and the Class R-3 Interest.
“Class
R-X Certificate”: The Class R-X Certificate executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-18 and evidencing the ownership of the Class
R-4 Interest, the Class R-5 Interest and the Class R-6 Interest.
“Class
R-1 Interest”: The uncertificated Residual Interest in REMIC 1.
“Class
R-2 Interest”: The uncertificated Residual Interest in REMIC 2.
“Class
R-3 Interest”: The uncertificated Residual Interest in REMIC 3.
“Class
R-4 Interest”: The uncertificated Residual Interest in REMIC 4.
“Class
R-5 Interest”: The uncertificated Residual Interest in REMIC 5.
“Class
R-6 Interest”: The uncertificated Residual Interest in REMIC 6.
“Close
of
Business”: As used herein, with respect to any Business Day, 5:00 p.m. (New York
time).
“Closing
Date”: April 19, 2007.
“Code”:
The Internal Revenue Code of 1986, as amended.
“Collection
Account”: The segregated account or accounts created and maintained by the
Servicer pursuant to Section 3.10(a), which shall be entitled “Xxxxx Fargo Bank,
N.A., as Trustee, in trust for registered Holders of Option One Mortgage Loan
Trust 2007-4, Asset-Backed Certificates, Series 2007-4,” which must be an
Eligible Account.
“Commission”:
The U.S. Securities and Exchange Commission.
“Compensating
Interest”: As defined in Section 3.24 hereof.
“Convertible
Mortgage Loan”: Any Adjustable-Rate Mortgage Loan which allows the Mortgagor
thereunder to convert the Mortgage Rate thereon to a fixed Mortgage
Rate.
“Corporate
Trust Office”: The principal corporate trust office of the Trustee at which at
any particular time its corporate trust business in connection with this
Agreement shall be administered, which office at the date of the execution
of
this instrument is located at (i) for certificate transfer purposes, Xxxxx
Fargo
Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000,
Attention: Client Manager Option One Series 2007-4, and, (ii) for all other
purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, 00000, Attention: Client
Manager Option One Series 2007-4, or at such other address as the Trustee may
designate from time to time by notice to the Certificateholders, the Depositor,
the Servicer, the Originator and the Seller.
“Corresponding
Certificate”: With respect to each REMIC 2 Regular Interest set forth below, the
corresponding Regular Certificate set forth in the table below:
|
REMIC
2 Regular Interest
|
Regular
Certificate
|
|
LTIA1
|
Class
I-A-1
|
|
LTIIA1
|
Class
II-A-1
|
|
LTIIA2
|
Class
II-A-2
|
|
LTIIA3
|
Class
II-A-3
|
|
LTIIA4
|
Class
II-A-4
|
|
LTM1
|
Class
M-1
|
|
LTM2
|
Class
M-2
|
|
LTM3
|
Class
M-3
|
|
LTM4
|
Class
M-4
|
|
LTM5
|
Class
M-5
|
|
LTM6
|
Class
M-6
|
|
LTM7
|
Class
M-7
|
|
LTM8
|
Class
M-8
|
|
LTM9
|
Class
M-9
|
|
LTP
|
Class
P
|
“Custodian”:
Xxxxx Fargo Bank, N.A., as custodian of the Mortgage Files, and any successor
thereto.
“Cut-off
Date”: With respect to any Mortgage Loan, April 1, 2007. With respect to all
Qualified Substitute Mortgage Loans, their respective dates of substitution.
References herein to the “Cut-off Date,” when used with respect to more than one
Mortgage Loan, shall be to the respective Cut-off Dates for such Mortgage
Loans.
“Cut-off
Date Principal Balance”: With respect to any Mortgage Loan, the unpaid principal
balance thereof as of the Cut-off Date (or as of the applicable date of
substitution with respect to a Qualified Substitute Mortgage Loan), after
application of scheduled payments due thereon, whether or not
received.
“Debt
Service Reduction”: With respect to any Mortgage Loan, a reduction in the
scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
resulting from a Deficient Valuation.
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount less than
the then outstanding principal balance of the Mortgage Loan, which valuation
results from a proceeding initiated under the Bankruptcy Code.
“Definitive
Certificates”: As defined in Section 5.02(c) hereof.
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced by one or more
Qualified Substitute Mortgage Loans.
“Delinquency
Servicer Termination Trigger”: A Delinquency Servicer Termination Trigger will
have occurred with respect to the Certificates on a Distribution Date if the
Three Month Rolling Delinquency Percentage for the Mortgage Loans exceeds
25.00%.
“Delinquency
Percentage”: For any Distribution Date, the percentage obtained by dividing (x)
the aggregate Stated Principal Balance of Mortgage Loans (not including any
Liquidated Mortgage Loan as of the end of the related Prepayment Period)
Delinquent 60 days or more (including Mortgage Loans that are REO Properties,
in
foreclosure or in bankruptcy and that are also Delinquent 60 days or more)
by
(y) the aggregate Stated Principal Balance of the Mortgage Loans (not including
any Liquidated Mortgage Loan as of the end of the related Prepayment Period),
in
each case, as of the last day of the previous calendar month.
“Delinquent”:
Any Mortgage Loan, the Monthly Payment due on a Due Date which is not made
by
the Close of Business on the next scheduled Due Date for such Mortgage Loan.
For
example, a Mortgage Loan is 60 or more days Delinquent if the Monthly Payment
due on a Due Date is not made by the Close of Business on the second scheduled
Due Date after such Due Date.
“Depositor”:
Option One Mortgage Acceptance Corporation, a Delaware corporation, or any
successor in interest.
“Depository”:
The initial Depository shall be The Depository Trust Company and upon request,
Clearstream Banking Luxembourg and the Euroclear System, whose nominee is 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(3) of the Uniform Commercial Code of the State of
New
York.
“Depository
Participant”: A broker, dealer, bank or other financial institution or other
person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
“Determination
Date”: With respect to any Distribution Date, the 15th day of the calendar month
in which such Distribution Date occurs or, if such 15th day is not a Business
Day, the Business Day immediately preceding such 15th day.
“Directly
Operate”: With respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers,
the
performance of any construction work thereon or any use of such REO Property
in
a trade or business conducted by the REMIC other than through an Independent
Contractor; provided, however, that the Trustee (or the Servicer on behalf
of
the Trustee) shall not be considered to Directly Operate an REO Property solely
because the Trustee (or the Servicer on behalf of the Trustee) establishes
rental terms, chooses tenants, enters into or renews leases, deals with taxes
and insurance, or makes decisions as to repairs or capital expenditures with
respect to such REO Property.
“Disqualified
Organization”: A “disqualified organization” under Section 860E of the Code,
which as of the Closing Date is any of: (i) the United States, any state or
political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (ii)
any
organization (other than certain farmers cooperatives described in Section
521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
unless such organization is subject to the tax imposed by Section 511 of the
Code, (iii) any organization described in Section 1381(a)(2)(C) of the Code,
(iv) an “electing large partnership” within the meaning of Section 775 of the
Code or (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel provided by nationally recognized counsel to the Trustee that the
holding of an ownership interest in a Residual Certificate by such Person may
cause any REMIC formed hereunder or any Person having an ownership interest
in
any Class of Certificates (other than such Person) to incur liability for any
federal tax imposed under the Code that would not otherwise be imposed but
for
the transfer of an ownership interest in the Residual Certificate to such
Person. A corporation will not be treated as an instrumentality of the United
States or of any state or political subdivision thereof, if all of its
activities are subject to tax and, a majority of its board of directors is
not
selected by a governmental unit. The terms “United States,” “state” and
“international organizations” shall have the meanings set forth in Section 7701
of the Code.
“Distribution
Account”: The segregated trust account or accounts created and maintained by the
Trustee pursuant to Section 3.10(b) which shall be entitled “Distribution
Account, Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered
Certificateholders of Option One Mortgage Loan Trust 2007-4, Asset-Backed
Certificates, Series 2007-4” and which must be an Eligible Account.
“Distribution
Date”: The 25th
day of
any calendar month, or if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day,
commencing in May 2007.
“Due
Date”: With respect to each Mortgage Loan and any Distribution Date, the first
day of the calendar month in which such Distribution Date occurs on which the
Monthly Payment for such Mortgage Loan was due (or, in the case of any Mortgage
Loan under the terms of which the Monthly Payment for such Mortgage Loan was
due
on a day other than the first day of the calendar month in which such
Distribution Date occurs, the day during the related Due Period on which such
Monthly Payment was due), exclusive of any days of grace.
“Due
Period”: With respect to any Distribution Date, the period commencing on the
second day of the month preceding the month in which such Distribution Date
occurs and ending on the first day of the month in which such Distribution
Date
occurs.
“Eligible
Account”: Any of (i) an account or accounts maintained with a federal or state
chartered depository institution or trust company 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 short-term
unsecured debt obligations of such holding company) are rated P-1 by Xxxxx’x and
A-1+ by S&P (or comparable ratings if Xxxxx’x and S&P are not the Rating
Agencies) at the time any amounts are held on deposit therein, (ii) an account
or accounts the deposits in which are fully insured by the FDIC (to the limits
established by such corporation), the uninsured deposits in which account are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered
to
the NIMS Insurer, the Trustee and to each Rating Agency, the Certificateholders
will have a claim with respect to the funds in such account or a perfected
first
priority security interest against such collateral (which shall be limited
to
Permitted Investments) securing such funds that is superior to claims of any
other depositors or creditors of the depository institution with which such
account is maintained, (iii) a trust account or accounts maintained with the
trust department of a federal or state chartered depository institution,
national banking association or trust company acting in its fiduciary capacity
or (iv) an account otherwise acceptable to each Rating Agency without reduction
or withdrawal of their then current ratings of the Certificates as evidenced
by
a letter from each Rating Agency to the Trustee and the NIMS Insurer. Eligible
Accounts may bear interest.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended.
“Escrow
Payments”: The amounts constituting ground rents, taxes, assessments, water
rates, fire and hazard insurance premiums and other payments required to be
escrowed by the Mortgagor with the mortgagee pursuant to any Mortgage
Loan.
“Estate
in Real Property”: A fee simple estate in a parcel of real
property.
“Estimated
Swap Termination Payment”: As defined in the Interest Rate Swap
Agreement.
“Excess
Overcollateralized Amount”: With respect to the Class A Certificates and the
Mezzanine Certificates and any Distribution Date, the excess, if any, of (i)
the
Overcollateralized Amount for such Distribution Date, assuming that 100% of
the
Principal Remittance Amount is applied as a principal payment on such
Distribution Date over (ii) the Overcollateralization Target Amount for such
Distribution Date.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended.
“Extra
Principal Distribution Amount”: With respect to any Distribution Date, the
lesser of (x) the Monthly Interest Distributable Amount payable on the Class
C
Certificates on such Distribution Date as reduced by Realized Losses allocated
thereto with respect to such Distribution Date pursuant to Section 4.07 and
(y)
the Overcollateralization Deficiency Amount for such Distribution Date.
“Xxxxxx
Xxx”: Federal National Mortgage Association or any successor
thereto.
“FDIC”:
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Recovery Determination”: With respect to any defaulted Mortgage Loan or any REO
Property (other than a Mortgage Loan or REO Property purchased by the Originator
or the Servicer pursuant to or as contemplated by Section 2.03 or 10.01), a
determination made by the Servicer that all Insurance Proceeds, Liquidation
Proceeds and other payments or recoveries which the Servicer, in its reasonable
good faith judgment, expects to be finally recoverable in respect thereof have
been so recovered. The Servicer shall maintain records, prepared by a Servicing
Officer, of each Final Recovery Determination made thereby.
“Fixed-Rate
Mortgage Loan”: A first or second lien Mortgage Loan which provides for a fixed
Mortgage Rate payable with respect thereto. The Fixed-Rate Mortgage Loans are
identified as such on the Mortgage Loan Schedule.
“Fixed
Swap Payment”: With respect to any Distribution Date, the amount calculated
based on a fixed rate as set forth in the Interest Rate Swap
Agreement.
“Floating
Swap Payment”: With respect to any Distribution Date, a floating amount equal to
the product of (i) Swap LIBOR, (ii) the lesser of (a) the product of (I) the
aggregate Certificate Principal Balance of the outstanding Class A and Mezzanine
Certificates immediately prior to such Distribution Date and (II) 1/250 and
(b)
the related Notional Amount (as defined in the Interest Rate Swap Agreement),
(iii) 250 and (iv) a fraction, the numerator of which is the actual number
of
days elapsed from and including the previous Floating Rate Payer Period End
Date
(as defined in the Interest Rate Swap Agreement) to but excluding the current
Floating Rate Payer Period End Date (or, for the first Distribution Date, the
actual number of days elapsed from the Closing Date to but excluding the first
Floating Rate Payer Period End Date), and the denominator of which is
360.
“Form
8-K
Disclosure Information”: As defined in Section 3.25(a)(ii).
“Formula
Rate”: For any Distribution Date and any Class of the Class A Certificates and
the Mezzanine Certificates, the lesser of (i) LIBOR plus the related Certificate
Margin and (ii) the applicable Maximum Cap Rate.
“Xxxxxxx
Mac”: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
“Gross
Margin”: With respect to each Adjustable-Rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the Index
on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Mortgage Loan.
“Group
I
Allocation Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is (i) the Group I Principal
Remittance Amount for such Distribution Date, and the denominator of which
is
(ii) the Principal Remittance Amount for such Distribution Date.
“Group
I
Basic Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Group I Principal Remittance Amount for such Distribution
Date
over the sum of (ii) the Overcollateralization Release Amount, if any, for
such
Distribution Date multiplied by the Group I Allocation Percentage and (iii)
any
part of the Net Swap Payment or Swap Termination Payment due to the Swap
Provider (other than a Swap Termination Payment resulting from a Swap Provider
Trigger Event) not paid on such Distribution Date from the Group I Interest
Remittance Amount.
“Group
I
Certificates”: The Class
I-A-1 Certificates.
“Group
I
Interest Remittance Amount”: With respect to any Distribution Date, that portion
of the Available Funds for such Distribution Date attributable to interest
received or advanced with respect to the Group I Mortgage Loans minus
a pro
rata
portion (based on the aggregate Stated Principal Balance of the Group I Mortgage
Loans over the aggregate Stated Principal Balance of the Mortgage Loans) of
the
sum of any Net Swap Payment owed to the Swap Provider on that Distribution
Date
and any Swap Termination Payment or unpaid portion thereof owed to the Swap
Provider on that Distribution Date (other than a Swap Termination Payment
resulting from a Swap Provider Trigger Event).
“Group
I
Mortgage Loan”: A Mortgage Loan assigned to Loan Group I. The aggregate
Principal Balance of the Group I Mortgage Loans as of the Cut-off Date is equal
to $624,031,175.71.
“Group
I
Overcollateralization Floor”: With respect to the Group I Certificates,
$3,120,155.88.
“Group
I
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of (i) the Group I Basic Principal Distribution Amount for such Distribution
Date and (ii) the Extra Principal Distribution Amount for such Distribution
Date
multiplied by the Group I Allocation Percentage.
“Group
I
Principal Remittance Amount”: With respect to any Distribution Date, the sum of
(i) each scheduled payment of principal collected or advanced on the Group
I
Mortgage Loans by the Servicer that were due during the related Due Period,
(ii)
the principal portion of all partial and full principal prepayments of the
Group
I Mortgage Loans received by the Servicer during the related Prepayment Period,
(iii) the principal portion of all related Net Liquidation Proceeds, Subsequent
Recoveries and Insurance Proceeds received during such Prepayment Period with
respect to the Group I Mortgage Loans, (iv) that portion of the Purchase Price,
representing principal of any repurchased Group I Mortgage Loan, deposited
to
the Collection Account during such Prepayment Period, (v) the principal portion
of any related Substitution Adjustments deposited in the Collection Account
during such Prepayment Period with respect to the Group I Mortgage Loans and
(vi) on the Distribution Date on which the Trust Fund is to be terminated
pursuant to Section 10.01, that portion of the Termination Price, in respect
of
principal on the Group I Mortgage Loans.
“Group
I
Senior Principal Distribution Amount”: An amount, not less than zero, equal to
the excess of (x) the aggregate Certificate Principal Balance of the Group
I
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) 48.10%
and
(ii)
the aggregate Stated Principal Balance of the Group I Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the positive difference, if any, of the aggregate Stated
Principal Balance of the Group I Mortgage Loans as of the last day of the
related Due Period (after giving effect to scheduled payments of principal
due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) minus the Group I Overcollateralization Floor.
“Group
II
Allocation Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is (i) the Group II Principal
Remittance Amount for such Distribution Date, and the denominator of which
is
(ii) the Principal Remittance Amount for such Distribution Date.
“Group
II
Basic Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Group II Principal Remittance Amount for such Distribution
Date over the sum of (ii) the Overcollateralization Release Amount, if any,
for
such Distribution Date multiplied by the Group II Allocation Percentage and
(iii) any part of the Net Swap Payment or Swap Termination Payment due to the
Swap Provider (other than a Swap Termination Payment resulting from a Swap
Provider Trigger Event) not paid on such Distribution Date from the Group II
Interest Remittance Amount.
“Group
II
Certificates”: Any Class II-A-1 Certificates, Class II-A-2 Certificates, Class
II-A-3 Certificates and Class II-A-4 Certificates.
“Group
II
Interest Remittance Amount”: With respect to any Distribution Date, that portion
of the Available Funds for such Distribution Date attributable to interest
received or advanced with respect to the Group II Mortgage Loans minus a pro
rata portion (based
on the aggregate Stated Principal Balance of the Group II Mortgage Loans over
the aggregate Stated Principal Balance of the Mortgage Loans)
of the
sum of any Net Swap Payment owed to the Swap Provider on that Distribution
Date
and any Swap Termination Payment or unpaid portion thereof owed to the Swap
Provider on that Distribution Date (other than a Swap Termination Payment
resulting from a Swap Provider Trigger Event).
“Group
II
Mortgage Loan”: A Mortgage Loan assigned to Loan Group II. The aggregate
Principal Balance of the Group II Mortgage Loans as of the Cut-off Date is
equal
to $575,968,827.95.
“Group
II
Overcollateralization Floor”: With respect to the Group II Certificates,
$2,879,844.14.
“Group
II
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of (i) the Group II Basic Principal Distribution Amount for such Distribution
Date and (ii) the Extra Principal Distribution Amount for such Distribution
Date
multiplied by the Group II Allocation Percentage.
“Group
II
Principal Remittance Amount”: With respect to any Distribution Date, the sum of
(i) each scheduled payment of principal collected or advanced on the Group
II
Mortgage Loans by the Servicer that were due during the related Due Period,
(ii)
the principal portion of all partial and full principal prepayments of the
Group
II Mortgage Loans received by the Servicer during the related Prepayment Period,
(iii) the principal portion of all related Net Liquidation Proceeds, Subsequent
Recoveries and Insurance Proceeds received during such Prepayment Period with
respect to the Group II Mortgage Loans, (iv) that portion of the Purchase Price,
representing principal of any repurchased Group II Mortgage Loan, deposited
to
the Collection Account during such Prepayment Period, (v) the principal portion
of any related Substitution Adjustments deposited in the Collection Account
during such Prepayment Period with respect to the Group II Mortgage Loans and
(vi) on the Distribution Date on which the Trust Fund is to be terminated
pursuant to Section 10.01, that portion of the Termination Price, in respect
of
principal on the Group II Mortgage Loans.
“Group
II
Senior Principal Distribution Amount”: An amount, not less than zero, equal to
the excess of (x) the Certificate Principal Balance of the Group II Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 48.10%
and
(ii)
the aggregate Stated Principal Balance of the Group II Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the positive difference, if any, of the aggregate Stated
Principal Balance of the Group II Mortgage Loans as of the last day of the
related Due Period (after giving effect to scheduled payments of principal
due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) minus the Group II Overcollateralization Floor.
“Highest
Priority”: As of any date of determination, the Class of Mezzanine Certificates
then outstanding with a Certificate Principal Balance greater than zero, with
the highest priority for payments pursuant to Section 4.01, in the following
order: Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates.
“Holder”:
See “Certificateholder.”
“Independent”:
When used with respect to any specified Person, any such Person who (a) is
in
fact independent of the Depositor, the Servicer and their respective Affiliates,
(b) does not have any direct financial interest in or any material indirect
financial interest in the Depositor or the Servicer or any Affiliate thereof,
and (c) is not connected with the Depositor or the Servicer or any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided,
however,
that a
Person shall not fail to be Independent of the Depositor or the Servicer or
any
Affiliate thereof merely because such Person is the beneficial owner of 1%
or
less of any class of securities issued by the Depositor or the Servicer or
any
Affiliate thereof, as the case may be.
“Independent
Contractor”: Either (i) any Person (other than the Servicer) that would be an
“independent contractor” with respect to any of the REMICs created hereunder
within the meaning of Section 856(d)(3) of the Code if such REMIC were a real
estate investment trust (except that the ownership tests set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates), so long as each such
REMIC does not receive or derive any income from such Person and provided that
the relationship between such Person and such REMIC is at arm’s length, all
within the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any
other Person (including the Servicer) if the Trustee has received an Opinion
of
Counsel to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that
is
otherwise herein contemplated to be taken by an Independent Contractor will
not
cause such REO Property to cease to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code), or cause
any
income realized in respect of such REO Property to fail to qualify as Rents
from
Real Property.
“Indenture”:
An indenture relating to the issuance of notes secured by the Class C
Certificates, the Class P Certificates and/or Residual Certificates (or any
portion thereof) which may or may not be guaranteed by the NIMS
Insurer.
“Index”:
With respect to each Adjustable-Rate Mortgage Loan and each related Adjustment
Date, the index as specified in the related Mortgage Note.
“Initial
Certificate Principal Balance”: With respect to any Regular Certificate, the
amount designated “Initial Certificate Principal Balance” on the face
thereof.
“Insurance
Proceeds”: Proceeds of any title policy, hazard policy or other insurance policy
covering a Mortgage Loan,
to the
extent such proceeds are received by the Servicer and are not to be applied
to
the restoration of the related Mortgaged Property or released to the Mortgagor
in accordance with the procedures that the Servicer would follow in servicing
mortgage loans held for its own account, subject to the terms and conditions
of
the related Mortgage Note and Mortgage.
“Interest
Determination Date”: With respect to the Class A Certificates and the Mezzanine
Certificates and each related Accrual Period, the second LIBOR Business Day
preceding the commencement of such Accrual Period.
“Interest
Rate Swap Agreement”: The interest rate swap agreement, dated the Closing Date,
between the Supplemental Interest Trust Trustee and the Swap Provider, including
any schedule, confirmations, credit support annex or other credit support
document relating thereto, and attached hereto as Exhibit I.
“Late
Collections”: With respect to any Mortgage Loan, all amounts received subsequent
to the Determination Date immediately following any related Due Period, whether
as late payments of Monthly Payments or as Insurance Proceeds, Liquidation
Proceeds, Subsequent Recoveries or otherwise, which represent late payments
or
collections of principal and/or interest due (without regard to any acceleration
of payments under the related Mortgage and Mortgage Note) but delinquent on
a
contractual basis for such Due Period and not previously recovered.
“Latest
Possible Maturity Date”: As to each Class of Certificates, the date set forth as
such in the Preliminary Statement.
“LIBOR”:
With respect to each Accrual Period for the Class A Certificates and the
Mezzanine Certificates, the rate determined by the Trustee on the related
Interest Determination Date on the basis of the London interbank offered rate
for one-month United States dollar deposits, as such rate appears on the Reuters
Screen LIBOR01 Page, as of 11:00 a.m. (London time) on such Interest
Determination Date. If such rate does not appear on the Reuters Screen LIBOR01
Page, the rate for such Interest Determination Date will be determined on the
basis of the offered rates of the Reference Banks for one-month United States
dollar deposits, as of 11:00 a.m. (London time) on such Interest Determination
Date. The Trustee will request the principal London office of each of the
Reference Banks to provide a quotation of its rate. On such Interest
Determination Date, LIBOR for the related Accrual Period for the Class A
Certificates and the Mezzanine Certificates will be established by the Trustee
as follows:
(i) If
on
such Interest Determination Date two or more Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the arithmetic
mean of such offered quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16 of 1%); and
(ii) If
on
such Interest Determination Date fewer than two Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the higher
of
(i) LIBOR as determined on the previous Interest Determination Date and (ii)
the
Reserve Interest Rate.
“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.
“Liquidated
Mortgage Loan”: As to any Distribution Date, any Mortgage Loan in respect of
which the Servicer has determined, in accordance with the servicing procedures
specified herein, as of the end of the related Prepayment Period, that all
Liquidation Proceeds which it expects to recover with respect to the liquidation
of the Mortgage Loan or disposition of the related REO Property have been
recovered.
“Liquidation
Event”: With respect to any Mortgage Loan, any of the following events: (i) such
Mortgage Loan is paid in full, (ii) a Final Recovery Determination is made
as to
such Mortgage Loan or (iii) such Mortgage Loan is removed from the Trust Fund
by
reason of its being purchased, sold or replaced pursuant to or as contemplated
by Section 2.03 or Section 10.01. With respect to any REO Property, either
of
the following events: (i) a Final Recovery Determination is made as to such
REO
Property or (ii) such REO Property is removed from the Trust Fund by reason
of
its being sold or purchased pursuant to Section 3.23 or Section
10.01.
“Liquidation
Proceeds”: The amount (other than amounts received in respect of the rental of
any REO Property prior to REO Disposition) received by the Servicer in
connection with (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation, (ii) the liquidation
of
a defaulted Mortgage Loan by means of a trustee’s sale, foreclosure sale or
otherwise or (iii) the repurchase, substitution or sale of a Mortgage Loan
or an
REO Property pursuant to or as contemplated by Section 2.03, Section 3.23 or
Section 10.01.
“Loan-to-Value
Ratio”: As of any date and as to any Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Principal Balance of the Mortgage
Loan
(and, with respect to any second lien Mortgage Loan, the Principal Balance
of
the related first lien Mortgage Loan plus the Principal Balance of such second
lien Mortgage Loan), and the denominator of which is the Value of the related
Mortgaged Property.
“Loan
Group”: Any of Loan Group I or Loan Group II, as the context
requires.
“Loan
Group I”: The group of Mortgage Loans with principal balances that conform to
Xxxxxx Xxx and Xxxxxxx Mac guidelines identified in the Mortgage Loan Schedule
as having been assigned to Loan Group I.
“Loan
Group II”: The group of Mortgage Loans with principal balances that may or may
not conform to Xxxxxx Mae and Xxxxxxx Mac guidelines identified in the Mortgage
Loan Schedule as having been assigned to Loan Group II.
“Loss
Mitigation Procedures”: The policies and procedures set forth in Exhibit G
hereto relating to the realization on delinquent Mortgage Loans.
“Losses”:
As defined in Section 9.03.
“Lost
Note Affidavit”: With respect to any Mortgage Loan as to which the original
Mortgage Note has been permanently lost, misplaced or destroyed and has not
been
replaced, an affidavit from the Originator certifying that the original Mortgage
Note has been lost, misplaced or destroyed (together with a copy of the related
Mortgage Note) and indemnifying the Trust against any loss, cost or liability
resulting from the failure to deliver the original Mortgage Note in the form
of
Exhibit H hereto.
“Majority
Certificateholders”: The Holders of Certificates evidencing at least 51% of the
Voting Rights.
“Marker
Rate”: With respect to the Class C Interest and any Distribution Date, a per
annum rate equal to two (2) times the weighted average of the Uncertificated
REMIC 2 Pass-Through Rates for REMIC
2
Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC
2
Regular Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC 2 Regular
Interest LTIIA4,
REMIC 2
Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest
LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2
Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest
LTM8, REMIC 2 Regular Interest LTM9, and REMIC 2 Regular Interest
LTZZ,
with
the rates on such REMIC 2 Regular Interests (other than REMIC 2 Regular Interest
LTZZ) subject to a cap equal to lesser of (i) LIBOR plus the related Certificate
Margin and (ii) the Net WAC Rate for the purpose of this calculation; and with
the rate on REMIC 2 Regular Interest LTZZ subject to a cap of zero for the
purpose of this calculation; provided, however, that for this purpose,
calculations of the Uncertificated REMIC 2 Pass-Through Rate and the related
caps with respect to each such REMIC 2 Regular Interest shall be multiplied
by a
fraction, the numerator of which is the actual number of days in the Accrual
Period and the denominator of which is 30.
“Maximum
Cap Rate”: With
respect to any Class of Class A Certificates and Mezzanine Certificates and
any
Distribution Date, a per annum rate equal to the product of (1) the sum of
(a)
the weighted average of the Adjusted Net Maximum Mortgage Rates of the Mortgage
Loans for such Distribution Date (weighted based on the Stated Principal
Balances of the Mortgage Loans as of the first day of the related Due Period,
or, in the case of the first Distribution Date, the Cut-off Date, adjusted,
except in the case of the first Distribution Date, to reflect unscheduled
principal payments made thereafter during the Prepayment Period that includes
such first day of the related Due Period) minus the Swap Expense Rate and (b)
a
per annum rate equal to an amount, expressed as a percentage, equal to a
fraction, the numerator of which is the Net Swap Payment made by the Swap
Provider and the denominator of which is the aggregate Stated Principal Balance
of the Mortgage Loans as of the first day of the related Due Period or, in
the
case of the first Distribution Date, the Cut-off Date (adjusted, except in
the
case of the first Distribution Date, to reflect unscheduled principal payments
made thereafter during the Prepayment Period that includes such first day of
the
related Due Period), multiplied by 12, and (2) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days elapsed
in
the related Accrual Period.
“Maximum
LTZZ Uncertificated Accrued Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (i) accrued interest at the Uncertificated
REMIC 2 Pass-Through Rate applicable to REMIC 2 Regular Interest LTZZ for such
Distribution Date on a balance equal to the Uncertificated Principal Balance
of
REMIC 2 Regular Interest LTZZ minus the REMIC 2 Overcollateralization Amount,
in
each case for such Distribution Date, over (ii) Uncertificated Interest on
REMIC
2 Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC 2 Regular Interest
LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC
2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular Interest LTM9 for such Distribution
Date,
with the rate on each such REMIC 2 Regular Interest subject to a cap equal
to
the lesser of (i) LIBOR plus the related Certificate Margin and (ii) the related
Net WAC Rate provided, however, that solely for this purpose, calculations
of
the Uncertificated REMIC 2 Pass-Through Rate and the related caps with respect
to each such REMIC 2 Regular Interest shall be multiplied by a fraction, the
numerator of which is the actual number of days in the Accrual Period and the
denominator of which is 30.
“Maximum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Mortgage Rate
thereunder.
“Mezzanine
Certificate”: Any Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates and Class M-9
Certificates.
“Minimum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
“Monthly
Interest Distributable Amount”: With respect to the Class A Certificates, the
Mezzanine Certificates and the Class C Certificates and any Distribution Date
the amount of interest accrued during the related Accrual Period at the related
Pass-Through Rate on the Certificate Principal Balance (or Notional Amount
in
the case of the Class C Certificates) of such Class immediately prior to such
Distribution Date, reduced by any Net Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls as allocated to such Certificate as provided in Section
1.03 and based on its respective entitlements to interest irrespective of any
Net Prepayment Interest Shortfalls and Relief Act Interest Shortfalls for such
Distribution Date).
“Monthly
Payment”: With respect to any Mortgage Loan, the scheduled monthly payment of
principal and interest on such Mortgage Loan which is payable by the related
Mortgagor from time to time under the related Mortgage Note, determined: (a)
after giving effect to (i) any Deficient Valuation and/or Debt Service Reduction
with respect to such Mortgage Loan and (ii) any reduction in the amount of
interest collectible from the related Mortgagor pursuant to the Relief Act;
(b)
without giving effect to any extension granted or agreed to by the Servicer
pursuant to Section 3.01; and (c) on the assumption that all other amounts,
if
any, due under such Mortgage Loan are paid when due.
“Monthly
Statement”: As defined in Section 4.03(a) hereof.
“Moody’s”:
Xxxxx’x Investors Service, Inc. or its successor in interest.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first lien or second
lien on, or first or second priority security interest in, a Mortgaged Property
securing a Mortgage Note.
“Mortgage
File”: The mortgage documents listed in Section 2.01 pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
“Mortgage
Loan”: Each mortgage loan transferred and assigned to the Trustee pursuant to
Section 2.01, Section 2.03(d) or Section 2.08 as from time to time held as
a
part of the Trust Fund, the Mortgage Loans so held being identified in the
Mortgage Loan Schedule.
“Mortgage
Loan Purchase Agreement”: The agreement among the Originator, the Sellers and
the Depositor, regarding the transfer of the Mortgage Loans by the Sellers
to or
at the direction of the Depositor, substantially in the form attached hereto
as
Exhibit C.
“Mortgage
Loan Schedule”: As of any date, the list of Mortgage Loans included in REMIC 1
on such date, separately identifying the Group I Mortgage Loans and the Group
II
Mortgage Loans, attached hereto as Exhibit D. The Mortgage Loan Schedule shall
be prepared by the Originator and shall set forth the following information
with
respect to each Mortgage Loan, as applicable:
|
(1)
|
the
Mortgage Loan identifying number;
|
|
(2)
|
[reserved];
|
|
(3)
|
the
state and zip code of the Mortgaged
Property;
|
|
(4)
|
a
code indicating whether the Mortgaged Property was represented
by the
borrower, at the time of origination, as being
owner-occupied;
|
|
(5)
|
the
type of Residential Dwelling constituting the Mortgaged
Property;
|
|
(6)
|
the
original months to maturity;
|
|
(7)
|
the
stated remaining months to maturity from the Cut-off Date based
on the
original amortization schedule;
|
|
(8)
|
the
Loan-to-Value Ratio at origination;
|
|
(9)
|
the
Mortgage Rate in effect immediately following the Cut-off
Date;
|
|
(10)
|
the
date on which the first Monthly Payment was due on the Mortgage
Loan;
|
|
(11)
|
the
stated maturity date;
|
|
(12)
|
the
amount of the Monthly Payment at
origination;
|
|
(13)
|
the
amount of the Monthly Payment due on the first Due Date after the
Cut-off
Date;
|
|
(14)
|
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
|
(15)
|
the
original principal amount of the Mortgage
Loan;
|
|
(16)
|
the
Stated Principal Balance of the Mortgage Loan as of the Close of
Business
on the Cut-off Date;
|
|
(17)
|
a
code indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, rate/term refinancing, cash-out
refinancing);
|
|
(18)
|
the
Mortgage Rate at origination;
|
|
(19)
|
a
code indicating the documentation program (i.e.,
full documentation, limited documentation, stated income
documentation);
|
|
(20)
|
the
risk grade;
|
|
(21)
|
the
Value of the Mortgaged Property;
|
|
(22)
|
the
sale price of the Mortgaged Property, if
applicable;
|
|
(23)
|
the
actual unpaid principal balance of the Mortgage Loan as of the
Cut-off
Date;
|
|
(24)
|
the
type and term of the related Prepayment
Charge;
|
|
(25)
|
the
rounding code;
|
|
(26)
|
the
program code;
|
|
(27)
|
a
code indicating the lien priority for Mortgage
Loans;
|
|
(28)
|
with
respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage
Rate;
|
|
(29)
|
with
respect to each Adjustable Rate Mortgage Loan, the Maximum Mortgage
Rate;
|
|
(30)
|
with
respect to each Adjustable Rate Mortgage Loan, the Gross
Margin;
|
|
(31)
|
with
respect to each Adjustable Rate Mortgage Loan, the next Adjustment
Date;
|
|
(32)
|
with
respect to each Adjustable Rate Mortgage Loan, the Periodic Rate
Cap;
|
|
(33)
|
the
credit score (“FICO”) of such Mortgage Loan;
and
|
|
(34)
|
the
total amount of points and fees charged such Mortgage
Loan.
|
The
Mortgage Loan Schedule shall set forth the following information, with respect
to the Mortgage Loans in the aggregate and for each Loan Group as of the Cut-off
Date: (1) the number of Mortgage Loans (separately identifying the number of
Fixed-Rate Mortgage Loans and the number of Adjustable-Rate Mortgage Loans);
(2)
the current Stated Principal Balance of the Mortgage Loans; (3) the weighted
average Mortgage Rate of the Mortgage Loans and (4) the weighted average
maturity of the Mortgage Loans. The Mortgage Loan Schedule shall be amended
from
time to time by the Originator in accordance with the provisions of this
Agreement. With respect to any Qualified Substitute Mortgage Loan, the Cut-off
Date shall refer to the related Cut-off Date for such Mortgage Loan, determined
in accordance with the definition of Cut-off Date herein.
“Mortgage
Note”: The original executed note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgage
Pool”: The pool of Mortgage Loans, identified on Exhibit D from time to time,
and any REO Properties acquired in respect thereof.
“Mortgage
Rate”: With respect to each Fixed Rate Mortgage Loan, the rate set forth in the
related Mortgage Note. With respect to each Adjustable Rate Mortgage Loan,
the
annual rate at which interest accrues on such Mortgage Loan from time to time
in
accordance with the provisions of the related Mortgage Note, which rate (A)
as
of any date of determination until the first Adjustment Date following the
Cut-off Date shall be the rate set forth in the Mortgage Loan Schedule as the
Mortgage Rate in effect immediately following the Cut-off Date and (B) as of
any
date of determination thereafter shall be the rate as adjusted on the most
recent Adjustment Date, to equal the sum, rounded to the next highest or nearest
0.125% (as provided in the Mortgage Note), of the Index, determined as set
forth
in the related Mortgage Note, plus the related Gross Margin subject to the
limitations set forth in the related Mortgage Note. With respect to each
Mortgage Loan that becomes an REO Property, as of any date of determination,
the
annual rate determined in accordance with the immediately preceding sentence
as
of the date such Mortgage Loan became an REO Property.
“Mortgaged
Property”: The underlying property securing a Mortgage Loan, including any REO
Property, consisting of an Estate in Real Property improved by a Residential
Dwelling.
“Mortgagor”:
The obligor on a Mortgage Note.
“Net
Liquidation Proceeds”: With respect to any Liquidated Mortgage Loan or any other
disposition of related Mortgaged Property (including REO Property) the related
Liquidation Proceeds and Insurance Proceeds net of Advances, Servicing 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”: With respect to each Distribution Date, the sum of (a)
any Overcollateralization Release Amount for such Distribution Date and (b)
the
excess of (x) Available Funds for such Distribution Date over (y) the sum for
such Distribution Date of (A) the Monthly Interest Distributable Amounts for
the
Class A Certificates and the Mezzanine Certificates, (B) the Unpaid Interest
Shortfall Amounts for the Class A Certificates and (C) the Principal Remittance
Amount.
“Net
Mortgage Rate”: With respect to any Mortgage Loan (or the related REO Property),
as of any date of determination, a per annum rate of interest equal to the
then
applicable Mortgage Rate for such Mortgage Loan minus the Servicing Fee
Rate.
“Net
Swap
Payment”: In the case of payments made by the Trust, the excess, if any, of (x)
the Fixed Swap Payment over (y) the Floating Swap Payment, and in the case
of
payments made by the Swap Provider, the excess, if any, of (x) the Floating
Swap
Payment over (y) the Fixed Swap Payment. In each case, the Net Swap Payment
shall not be less than zero.
“Net
Prepayment Interest Shortfall”: With respect to any Distribution Date, the
excess, if any, of any Prepayment Interest Shortfalls for such date over the
related Compensating Interest.
“Net
WAC
Rate”: With respect to any Class of Class A Certificates and Mezzanine
Certificates and any Distribution Date, the per annum rate equal to the
product of (i) the weighted average of the Adjusted Net Mortgage Rates of the
Mortgage Loans for such Distribution Date (weighted based on the Stated
Principal Balances of the Mortgage Loans as of the first
day
of the related Due Period or, in the case of the first Distribution Date, the
Cut-off Date, adjusted, except in the case of the first Distribution Date,
to
reflect unscheduled principal payments made thereafter during
the Prepayment Period that includes such first day of the related Due Period)
minus the Swap Expense Rate and (ii) a fraction, the numerator of which is
30
and the denominator of which is the actual number of days elapsed in the related
Accrual Period. For federal income tax purposes, such rate shall be expressed
as
the product of (x) the weighted average of the Uncertificated REMIC 2
Pass-Through Rates on the REMIC 2 Regular Interests (other than REMIC 2 Regular
Interest LTIO) and (y) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the related Accrual
Period.
“Net
WAC
Rate Carryover Amount”: With respect to any Class of Class A Certificates and
Mezzanine Certificates and any Distribution Date, the sum of (A) the positive
excess of (i) the amount of interest accrued on such Class of Certificates
for
such Distribution Date calculated at the related Formula Rate over (ii) the
amount of interest accrued on such Class of Certificates at the related Net
WAC
Rate for such Distribution Date and (B) the related Net WAC Rate Carryover
Amount for the previous Distribution Date not previously paid, together with
interest thereon at a rate equal to the related Formula Rate, in each case
for
such Distribution Date and for such related Accrual Period.
“Net
WAC
Rate Carryover Reserve Account”: The reserve account established and maintained
pursuant to Section 4.05.
“New
Lease”: Any lease of REO Property entered into on behalf of the Trust, including
any lease renewed or extended on behalf of the Trust if the Trust has the right
to renegotiate the terms of such lease.
“NIMS
Insurer”: Any insurer that is guaranteeing certain payments under notes secured
by collateral which includes all or a portion of the Class C Certificates,
the
Class P Certificates and/or the Residual Certificates.
“Nonrecoverable
Advance”: Any Advance or Servicing Advance previously made or proposed to be
made in respect of a Mortgage Loan or REO Property that, in the good faith
business judgment of the Servicer, will not be ultimately recoverable from
Late
Collections, Insurance Proceeds, Liquidation Proceeds or condemnation proceeds
on such Mortgage Loan or REO Property as provided herein.
“Notional
Amount”: Immediately prior to any Distribution Date, with respect to the Class C
Interest, the aggregate of the Uncertificated Principal Balances of the REMIC
2
Regular Interests (other than REMIC 2 Regular Interest LTIO and REMIC 2 Regular
Interest LTP).
“Offered
Certificates”: The Class A Certificates and the Mezzanine Certificates offered
to the public pursuant to the Prospectus Supplement.
“Officers’
Certificate”: A certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President or a vice president (however denominated),
and by the Treasurer, the Secretary, or one of the assistant treasurers or
assistant secretaries or Servicing Officers of the Servicer, the Originator
or
the Depositor, as applicable.
“Opinion
of Counsel”: A written opinion of counsel, who may, without limitation, be a
salaried counsel for the Depositor or the Servicer, acceptable to the Trustee,
except that any opinion of counsel relating to (a) the qualification of any
REMIC as a REMIC or (b) compliance with the REMIC Provisions must be an opinion
of Independent counsel.
“Optional
Termination Date”: The first Distribution Date on which the Servicer or the NIMS
Insurer may opt to terminate the Trust Fund pursuant to Section
10.01.
“Original
Class Certificate Principal Balance”: With respect to the Class A Certificates,
the Mezzanine Certificates, the Class C Interest, the Class C Certificates,
the
Class P Interest and the Class P Certificates, the corresponding amounts set
forth opposite such Class above in the Preliminary Statement.
“Original
Notional Amount”: With respect to the Class C Interest,
$1,199,999,903.66.
“Originator”:
Option One Mortgage Corporation, a California corporation, or its successor
in
interest, in its capacity as originator under the Mortgage Loan Purchase
Agreement.
“OTS
Method”: As defined in Section 4.03(a) hereof.
“Overcollateralization
Deficiency Amount”: With respect to any Distribution Date, the amount, if any,
by which the Overcollateralization Target Amount exceeds the Overcollateralized
Amount on such Distribution Date (after giving effect to distributions in
respect of the Group I Basic Principal Distribution Amount and the Group II
Basic Principal Distribution Amount on such Distribution Date).
“Overcollateralization
Floor”: $6,000,000.02.
“Overcollateralization
Release Amount”: With respect to any Distribution Date, the lesser of (x) the
Principal Remittance Amount for such Distribution Date and (y) the Excess
Overcollateralized Amount.
“Overcollateralization
Target Amount”: With respect to any Distribution Date, (a) prior to the Stepdown
Date, 5.45% of the aggregate Principal Balance of the Mortgage Loans as of
the
Cut-off Date and (b) on or after the Stepdown Date, the lesser of the amount
set
forth in clause (a) and 10.90% of the aggregate Stated Principal Balance of
the
Mortgage Loans for the related Distribution Date, subject to a floor equal
to
the Overcollateralization Floor; provided, however, if a Trigger Event is in
effect on the related Distribution Date, the Overcollateralization Target Amount
will be equal to the Overcollateralization Target Amount for the previous
Distribution Date. Notwithstanding the foregoing, on and after any Distribution
Date following the reduction of the aggregate Certificate Principal Balance
of
the Class A Certificates and the Mezzanine Certificates to zero, the
Overcollateralization Target Amount shall be zero.
“Overcollateralized
Amount”: For any Distribution Date, an amount equal to (i) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
(ii) the aggregate Certificate Principal Balance of the Class A Certificates,
the Mezzanine Certificates and the Class P Certificates as of such Distribution
Date (after giving effect to distributions to be made on such Distribution
Date).
“Ownership
Interest”: As to any Certificate, any ownership or security interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
“Pass-Through
Rate”: With respect to any Class of Class A and Mezzanine Certificates and any
Distribution Date, the lesser of (x) the related Formula Rate for such
Distribution Date and (y) the Net WAC Rate for such Distribution Date.
With
respect to the Class C Interest and any Distribution Date, a per annum rate
equal to the percentage equivalent of a fraction, the numerator of which is
(x)
the sum of (i) 100% of the interest on REMIC 2 Regular Interest LTP and (ii)
interest on the Uncertificated Principal Balance of each REMIC 2 Regular
Interest listed in clause (y) at a rate equal to the related Uncertificated
REMIC 2 Pass-Through Rate minus the Marker Rate and the denominator of which
is
(y) the aggregate Uncertificated Principal Balance of REMIC 2 Regular Interests
XXXX, XXXX0, XXXXX0, LTIIA2, LTIIA3, LTIIA4, LTM1, LTM2, LTM3, LTM4, LTM5,
LTM6,
LTM7, LTM8, LTM9 and LTZZ.
With
respect to the Class C Certificates, 100% of the interest distributable to
the
Class C Interest, expressed as a per annum rate on its Notional
Amount.
With
respect to the Class SWAP-IO Interest, the Class SWAP-IO Interest shall not
have
a Pass-Through Rate, but interest for such Regular Interest and each
Distribution Date shall be an amount equal to 100% of the amounts distributable
to REMIC 2 Regular Interest LTIO for such Distribution Date.
REMIC
6
Regular Interest SWAP-IO shall not have a Pass-Through Rate, but interest for
such Regular Interest and each Distribution Date shall be an amount equal to
100% of the amounts distributable to the Class SWAP-IO Interest for such
Distribution Date.
The
Class
P Certificates, Class R Certificates and Class R-X Certificates will not accrue
interest and therefore will not have a Pass-Through Rate.
“Paying
Agent”: Any paying agent appointed pursuant to Section 5.05.
“Percentage
Interest”: With respect to any Certificate (other than a Residual Certificate),
a fraction, expressed as a percentage, the numerator of which is the Initial
Certificate Principal Balance or Notional Amount represented by such Certificate
and the denominator of which is the Original Class Certificate Principal Balance
or initial Notional Amount of the related Class. With respect to a Residual
Certificate, the portion of the Class evidenced thereby, expressed as a
percentage, as stated on the face of such Certificate; provided,
however,
that
the sum of all such percentages for each such Class totals 100%.
“Periodic
Rate Cap”: With respect to each Adjustable-Rate Mortgage Loan and any Adjustment
Date therefor, the fixed percentage set forth in the related Mortgage Note,
which is the maximum amount by which the Mortgage Rate for such Mortgage Loan
may increase or decrease (without regard to the Maximum Mortgage Rate or the
Minimum Mortgage Rate) on such Adjustment Date from the Mortgage Rate in effect
immediately prior to such Adjustment Date.
“Permitted
Investments”: Any one or more of the following obligations or securities
acquired at a purchase price of not greater than par, regardless of whether
issued or managed by the Depositor, the Servicer, the NIMS Insurer, the Trustee
or any of their respective Affiliates or for which an Affiliate of the NIMS
Insurer or Trustee serves as an advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee or its agent acting in their respective commercial
capacities) incorporated under the laws of the United States of America or
any
state thereof and subject to supervision and examination by federal and/or
state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution or trust
company (or, if the only Rating Agency is S&P, in the case of the principal
depository institution in a depository institution holding company, debt
obligations of the depository institution holding company) or its ultimate
parent has a short-term uninsured debt rating in the highest available rating
category of Xxxxx’x and S&P and provided that each such investment has an
original maturity of no more than 365 days; and provided further that, if the
only Rating Agency is S&P and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations of
such
subsidiary are not separately rated, the applicable rating shall be that of
the
bank holding company; and, provided further that, if the original maturity
of
such short-term obligations of a domestic branch of a foreign depository
institution or trust company shall exceed 30 days, the short-term rating of
such
institution shall be A-1+ in the case of S&P if S&P is the Rating
Agency; and (B) any other demand or time deposit or deposit which is fully
insured by the FDIC;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as principal) rated A-1+ by S&P and A2 or higher by
Xxxxx’x, provided, however, that collateral transferred pursuant to such
repurchase obligation must be of the type described in clause (i) above and
must
(A) be valued daily at current market prices plus accrued interest, (B) pursuant
to such valuation, be equal, at all times, to 105% of the cash transferred
by
the Trustee in exchange for such collateral and (C) be delivered to the Trustee
or, if the Trustee is supplying the collateral, an agent for the Trustee, in
such a manner as to accomplish perfection of a security interest in the
collateral by possession of certificated securities;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any State thereof
and that are rated by a Rating Agency in its highest long-term unsecured rating
category at the time of such investment or contractual commitment providing
for
such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by a Rating
Agency in its highest short-term unsecured debt rating available at the time
of
such investment;
(vi) units
of
money market funds, including those managed or advised by the Trustee or its
Affiliates, that have been rated “AAA” by S&P and “Aaa” by Xxxxx’x;
and
(vii) if
previously confirmed in writing to the Trustee, any other demand, money market
or time deposit, or any other obligation, security or investment, as may be
acceptable to the Rating Agencies in writing as a permitted investment of funds
backing securities having ratings equivalent to its highest initial rating
of
the Class A Certificates;
provided,
that no instrument described hereunder shall evidence either the right to
receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations.
“Permitted
Transferee”: Any transferee of a Residual Certificate other than a Disqualified
Organization or a non-U.S. Person.
“Person”:
Any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Plan”:
Any employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
“Pool
Balance”: As of any date of determination, the aggregate Stated Principal
Balance of the Mortgage Loans in both Loan Groups as of such date.
“Prepayment
Assumption”: As defined in the Prospectus Supplement.
“Prepayment
Charge”: With respect to any Mortgage Loan, the charges, fees, penalties or
premiums, if any, due in connection with a full or partial prepayment of such
Mortgage Loan in accordance with the terms thereof (other than any Servicer
Prepayment Charge Payment Amount).
“Prepayment
Charge Schedule”: As of any date, the list of Prepayment Charges on the Mortgage
Loans included in the Trust Fund on such date, attached hereto as Schedule
I
(including the prepayment charge summary attached thereto). The Prepayment
Charge Schedule shall be prepared by the Servicer (in its capacity as
Originator) and set forth the following information with respect to each
Prepayment Charge:
| (viii) |
the
Mortgage Loan identifying number;
|
| (ix) |
a
code indicating the type of Prepayment
Charge;
|
| (x) |
the
state of origination of the related Mortgage
Loan;
|
| (xi) |
the
date on which the first monthly payment was due on the related Mortgage
Loan;
|
| (xii) |
the
term of the related Prepayment Charge;
and
|
| (xiii) |
the
principal balance of the related Mortgage Loan as of the Cut-off
Date.
|
The
Prepayment Charge Schedule shall be amended from time to time by the Servicer
in
accordance with the provisions of this Agreement and a copy of such amended
Prepayment Charge Schedule shall be furnished by the Servicer to the Trustee
and
the NIMS Insurer.
“Prepayment
Interest Excess”: With respect to any Distribution Date, for each Mortgage Loan
that was the subject of a Principal Prepayment in full during the portion of
the
related Prepayment Period occurring between the first day and the Determination
Date of the calendar month in which such Distribution Date occurs, an amount
equal to interest (to the extent received) at the applicable Net Mortgage Rate
on the amount of such Principal Prepayment for the number of days commencing
on
the first day of the calendar month in which such Distribution Date occurs
and
ending on the date on which such prepayment is so applied.
“Prepayment
Interest Shortfall”: With respect to any Distribution Date, for each Mortgage
Loan that was the subject of a Principal Prepayment in full during the portion
of the related Prepayment Period occurring between the first day of the related
Prepayment Period and the last day of the calendar month preceding the month
in
which such Distribution Date occurs, an amount equal to one month’s interest on
the Mortgage Loan less any payments made by the Mortgagor. The obligations
of
the Servicer in respect of any Prepayment Interest Shortfall are set forth
in
Section 3.24.
“Prepayment
Period”: With respect to any Distribution Date, the period commencing on the day
after the Determination Date in the calendar month preceding the calendar month
in which such Distribution Date occurs (or, in the case of the first
Distribution Date, commencing on April 1, 2007) and ending on the Determination
Date of the calendar month in which such Distribution Date occurs.
“Principal
Balance”: As to any Mortgage Loan other than a Liquidated Mortgage Loan, and any
day, the related Cut-off Date Principal Balance, minus
all
collections credited against the Principal Balance of any such Mortgage Loan.
For purposes of this definition, a Liquidated Mortgage Loan shall be deemed
to
have a Principal Balance equal to the Principal Balance of the related Mortgage
Loan as of the final recovery of related Liquidation Proceeds and a Principal
Balance of zero thereafter. As to any REO Property and any day, the Principal
Balance of the related Mortgage Loan immediately prior to such Mortgage Loan
becoming REO Property minus any REO Principal Amortization received with respect
thereto on or prior to such day.
“Principal
Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan
which is received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing the full amount of scheduled
interest due on any Due Date in any month or months subsequent to the month
of
prepayment.
“Principal
Remittance Amount”: With respect to any Distribution Date, the sum of (i) the
Group I Principal Remittance Amount and (ii) the Group II Principal Remittance
Amount.
“Prospectus
Supplement”: That certain Prospectus Supplement dated April 11, 2007 relating to
the public offering of the Offered Certificates.
“Purchase
Price”: With respect to any Mortgage Loan or REO Property to be purchased
pursuant to or as contemplated by Section 2.03, and as confirmed by an Officers’
Certificate from the Servicer to the Trustee, an amount equal to the sum of
(i)
100% of the Stated Principal Balance thereof as of the date of purchase, (ii)
in
the case of (x) a Mortgage Loan, accrued interest on such Stated Principal
Balance at the applicable Mortgage Rate in effect from time to time from the
Due
Date as to which interest was last covered by a payment by the Mortgagor or
an
advance by the Servicer, which payment or advance had as of the date of purchase
been distributed pursuant to Section 4.01, through the end of the calendar
month
in which the purchase is to be effected, and (y) an REO Property, the sum of
(1)
accrued interest on such Stated Principal Balance at the applicable Mortgage
Rate in effect from time to time from the Due Date as to which interest was
last
covered by a payment by the Mortgagor or an advance by the Servicer through
the
end of the calendar month immediately preceding the calendar month in which
such
REO Property was acquired, plus (2) REO Imputed Interest for such REO Property
for each calendar month commencing with the calendar month in which such REO
Property was acquired and ending with the calendar month in which such purchase
is to be effected, net of the total of all net rental income, Insurance
Proceeds, Liquidation Proceeds and Advances that as of the date of purchase
had
been distributed as or to cover REO Imputed Interest pursuant to Section 4.04,
(iii) any unreimbursed Servicing Advances and Advances and any unpaid Servicing
Fees allocable to such Mortgage Loan or REO Property, (iv) any amounts
previously withdrawn from the Collection Account in respect of such Mortgage
Loan or REO Property pursuant to Section 3.23 and (v) in the case of a Mortgage
Loan required to be purchased pursuant to Section 2.03, expenses reasonably
incurred or to be incurred by the Servicer, the NIMS Insurer or the Trustee
in
respect of the breach or defect giving rise to the purchase obligation including
any costs and damages incurred by the Trust in connection with any violation
by
such loan of any predatory or abusive lending law.
“Qualified
Insurer”: Any insurance company acceptable to Xxxxxx Xxx.
“Qualified
Substitute Mortgage Loan”: A mortgage loan substituted for a Deleted Mortgage
Loan pursuant to the terms of this Agreement or the Mortgage Loan Purchase
Agreement which must, on the date of such substitution, (i) have an outstanding
principal balance (or in the case of a substitution of more than one mortgage
loan for a Deleted Mortgage Loan, an aggregate Principal Balance), after
application of all scheduled payments of principal and interest due during
or
prior to the month of substitution, not in excess of, and not more than 5%
less
than, the outstanding principal balance of the Deleted Mortgage Loan as of
the
Due Date in the calendar month during which the substitution occurs, (ii) have
a
Mortgage Rate not less than (and not more than one percentage point in excess
of) the Mortgage Rate of the Deleted Mortgage Loan, (iii) if the Qualified
Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have a Maximum
Mortgage Rate not less than the Maximum Mortgage Rate on the Deleted Mortgage
Loan, (iv) if the Qualified Substitute Mortgage Loan is an Adjustable-Rate
Mortgage Loan, have a Minimum Mortgage Rate not less than the Minimum Mortgage
Rate of the Deleted Mortgage Loan, (v) if the Qualified Substitute Mortgage
Loan
is an Adjustable-Rate Mortgage Loan, have a Gross Margin equal to or greater
than the Gross Margin of the Deleted Mortgage Loan, (vi) if the Qualified
Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have a next
Adjustment Date not more than two months later than the next Adjustment Date
on
the Deleted Mortgage Loan, (vii) have a remaining term to maturity not greater
than (and not more than one year less than) that of the Deleted Mortgage Loan,
(viii) be current as of the date of substitution, (ix) have a Loan-to-Value
Ratio as of the date of substitution equal to or lower than the Loan-to-Value
Ratio of the Deleted Mortgage Loan as of such date, (x) have a risk grading
determined by the Originator at least equal to the risk grading assigned on
the
Deleted Mortgage Loan, (xi) have been underwritten or reunderwritten by the
Originator in accordance with the same underwriting criteria and guidelines
as
the Deleted Mortgage Loan, (xii) have a Prepayment Charge provision at least
equal to the Prepayment Charge provision of the Deleted Mortgage Loan, (xiii)
conform to each representation and warranty set forth in Section 3.01 of the
Mortgage Loan Purchase Agreement applicable to the Deleted Mortgage Loan, (xiv)
have the same Due Date as the Deleted Mortgage Loan, (xv) [reserved]
and
(xvi) not be a Convertible Mortgage Loan unless that Deleted Mortgage Loan
was a
Convertible Mortgage Loan. In the event that one or more mortgage loans are
substituted for one or more Deleted Mortgage Loans, the amounts described in
clause (i) hereof shall be determined on the basis of aggregate Principal
Balances, the Mortgage Rates described in clauses (ii) through (vi) hereof
shall
be satisfied for each such mortgage loan, the risk gradings described in clause
(x) hereof shall be satisfied as to each such mortgage loan, the terms described
in clause (vii) hereof shall be determined on the basis of weighted average
remaining term to maturity (provided that no such mortgage loan may have a
remaining term to maturity longer than the Deleted Mortgage Loan), the
Loan-to-Value Ratios described in clause (ix) hereof shall be satisfied as
to
each such mortgage loan and, except to the extent otherwise provided in this
sentence, the representations and warranties described in clause (xii) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or in the
aggregate, as the case may be.
“Rating
Agency or Rating Agencies”: Xxxxx’x and S&P or their successors. If such
agencies or their successors are no longer in existence, “Rating Agencies” shall
be such nationally recognized statistical rating agencies, or other comparable
Persons, designated by the Depositor, notice of which designation shall be
given
to the Trustee and Servicer.
“Realized
Loss”: With respect to any Liquidated Mortgage Loan, the amount of loss realized
equal to the portion of the Stated Principal Balance remaining unpaid after
application of all Net Liquidation Proceeds in respect of such Mortgage
Loan.
“Record
Date”: With respect to (i) the Class P Certificates, the Class C Certificates
and the Residual Certificates, the Close of Business on the last Business Day
of
the calendar month preceding the month in which the related Distribution Date
occurs and (ii) with respect to the Class A Certificates and the Mezzanine
Certificates, the Close of Business on the Business Day immediately preceding
the related Distribution Date; provided,
however,
that
following the date on which Definitive Certificates for a Class A Certificate
or
a Mezzanine Certificate are available pursuant to Section 5.02, the Record
Date
for such Certificates shall be the last Business Day of the calendar month
preceding the month in which the related Distribution Date occurs.
“Relevant
Servicing Criteria”: The
Servicing Criteria applicable to the various parties, as set forth on Exhibit
S
attached hereto. For clarification purposes, multiple parties can have
responsibility for the same Relevant Servicing Criteria.
“Reference
Banks”: Those banks (i) with an established place of business in London,
England, (ii) not controlling, under the control of or under common control
with
the Depositor, the Originator or the Servicer or any affiliate thereof and
(iii)
which have been designated as such by the Depositor; provided,
however,
that if
fewer than two of such banks provide a LIBOR rate, then any leading banks
selected by the Depositor which are engaged in transactions in United States
dollar deposits in the international Eurocurrency market.
“Regular
Certificate”: Any of the Class A Certificates, Mezzanine Certificates, Class C
Certificates or Class P Certificates.
“Regulation
AB”: Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Relief
Act”: The Servicemembers Civil Relief Act.
“Relief
Act Interest Shortfall”: With respect to any Distribution Date, for any Mortgage
Loan with respect to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended Due Period as a result of the
application of the Relief Act or any similar state law, the amount by which
(i)
interest collectible on such Mortgage Loan during such Due Period is less than
(ii) one month’s interest on the Stated Principal Balance of such Mortgage Loan
at the Mortgage Rate for such Mortgage Loan before giving effect to the
application of the Relief Act.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
“REMIC
1”: The segregated pool of assets subject hereto, constituting the primary trust
created hereby and to be administered hereunder, with respect to which a REMIC
election is to be made consisting of: (i) such Mortgage Loans as from time
to
time are subject to this Agreement, together with the Mortgage Files relating
thereto, and together with all collections thereon and proceeds thereof, (ii)
any REO Property, together with all collections thereon and proceeds thereof,
(iii) the Trustee’s rights with respect to the Mortgage Loans under all
insurance policies, required to be maintained pursuant to this Agreement and
any
proceeds thereof, (iv) the Depositor’s rights under the Mortgage Loan Purchase
Agreement (including any security interest created thereby) and (v) the
Collection Account, the Distribution Account (subject to the last sentence
of
this definition) and any REO Account and such assets that are deposited therein
from time to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto. Notwithstanding the foregoing,
however, a REMIC election will not be made with respect to the Net WAC Rate
Carryover Reserve Account, any Servicer Prepayment Charge Payment Amounts,
the
Swap Account, the Supplemental Interest Trust and the Interest Rate Swap
Agreement.
“REMIC
1
Regular Interests”: One of the separate non-certificated beneficial ownership
interests in REMIC 1 issued hereunder and designated as a Regular Interest
in
REMIC 1. Each REMIC 1 Regular Interest shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
“REMIC
2”: The segregated pool of assets consisting of all of the REMIC 1 Regular
Interests and conveyed in trust to the Trustee, for the benefit of REMIC 3,
as
holder of the REMIC 2 Regular Interests, and the Class R Certificateholders,
as
Holders of the Class R-2 Interest, pursuant to Article II hereunder, and all
amounts deposited therein, with respect to which a separate REMIC election
is to
be made.
“REMIC
2
Interest Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the sum of the aggregate Stated Principal
Balance of the Mortgage Loans and (ii) the Uncertificated REMIC 2 Pass-Through
Rate for REMIC 2 Regular Interest LTAA minus the Marker Rate, divided by (b)
12.
“REMIC
2
Overcollateralization Target Amount”: 1.00% of the Overcollateralization Target
Amount.
“REMIC
2
Overcollateralized Amount”: With respect to any date of determination, (i) 1.00%
of the aggregate Uncertificated Principal Balance of the REMIC 2 Regular
Interests (other than REMIC 2 Regular Interest LTP) minus (ii) the aggregate
of
the Uncertificated Principal Balances of REMIC 2 Regular Interest LTIA1, REMIC
2
Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8 and REMIC 2 Regular
Interest LTM9, in each case as of such date of determination.
“REMIC
2
Principal Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the sum of the aggregate Stated Principal
Balance of the Mortgage Loans and related REO Properties then outstanding and
(ii) 1 minus a fraction, the numerator of which is two times the aggregate
of
the Uncertificated Principal Balances of REMIC 2 Regular Interest LTIA1, REMIC
2
Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9 and the denominator of which is the aggregate of the
Uncertificated Principal Balances of REMIC 2 Regular Interest LTIA1, REMIC
2
Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9 and REMIC 2 Regular Interest LTZZ.
“REMIC
2
Regular Interests”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. Each REMIC 2 Regular Interest shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal (other than REMIC 2 Regular Interest
LTIO), subject to the terms and conditions hereof, in an aggregate amount equal
to its initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto. The following is a list of each of the REMIC 2 Regular
Interests: REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTIA1, REMIC
2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest LTZZ, REMIC 2 Regular Interest LTP
and
REMIC 2 Regular Interest LTIO, each of which is a separate non-certificated
beneficial ownership interests in REMIC 2.
“REMIC
3”: The segregated pool of assets consisting of all of the REMIC 2 Regular
Interests conveyed in trust to the Trustee, for the benefit of the Holders
of
the Regular Certificates and the Class R Certificate (in respect of the Class
R-3 Interest), pursuant to Article II hereunder, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
“REMIC
3
Regular Interests”: Any Class A Certificate, Mezzanine Certificate, Class C
Interest, Class P Interest or Class SWAP-IO Interest.
“REMIC
4”: The segregated pool of assets consisting of the Class C Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class C Certificates
and the Class R-X Certificates (in respect of the Class R-4 Interest), pursuant
to Section 2.07, and all amounts deposited therein, with respect to which a
separate REMIC election is to be made.
“REMIC
5”: The segregated pool of assets consisting of the Class P Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class P Certificates
and the Class R-X Certificates (in respect of the Class R-5 Interest),
pursuant
to Section 2.07, and all amounts deposited therein, with respect to which a
separate REMIC election is to be made.
“REMIC
6”: The segregated pool of assets consisting of the Class SWAP-IO Interest
conveyed in trust to the Trustee, for the benefit of the Holders of REMIC 6
Regular Interest SWAP-IO and the Class R-X Certificate (in respect of the Class
R-6 Interest), pursuant to Section 2.07, and all amounts deposited therein,
with
respect to which a separate REMIC election is to be made.
“REMIC
6
Regular Interest”: REMIC 6 Regular Interest SWAP-IO.
“REMIC
6
Regular Interest SWAP-IO”: The non-certificated beneficial ownership interest in
REMIC 6 issued hereunder and designated as a Regular Interest in REMIC 6. REMIC
6 Regular Interest SWAP-IO shall be entitled to 100% of amounts distributed
in
respect of the Class SWAP-IO Interest.
“REMIC
Provisions”: Provisions of the federal income tax law relating to real estate
mortgage investment conduits which appear at Section 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
and rulings promulgated thereunder, as the foregoing may be in effect from
time
to time.
“REMIC
Regular Interests”: The REMIC 1 Regular Interests, REMIC 2 Regular Interests,
the Class C Interest, Class P Interest or Class SWAP-IO Interest.
“Remittance
Report”: A report prepared by the Servicer and delivered to the Trustee and the
NIMS Insurer pursuant to Section 4.04.
“Rents
from Real Property”: With respect to any REO Property, gross income of the
character described in Section 856(d) of the Code.
“REO
Account”: The account or accounts maintained by the Servicer in respect of an
REO Property pursuant to Section 3.23.
“REO
Disposition”: The sale or other disposition of an REO Property on behalf of the
Trust Fund.
“REO
Imputed Interest”: As to any REO Property, for any calendar month during which
such REO Property was at any time part of the Trust Fund, one month’s interest
at the applicable Net Mortgage Rate on the Stated Principal Balance of such
REO
Property (or, in the case of the first such calendar month, of the related
Mortgage Loan if appropriate) as of the Close of Business on the Distribution
Date in such calendar month.
“REO
Principal Amortization”: With respect to any REO Property, for any calendar
month, the excess, if any, of (a) the aggregate of all amounts received in
respect of such REO Property during such calendar month, whether in the form
of
rental income, sale proceeds (including, without limitation, that portion of
the
Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 10.01 that is allocable to such
REO
Property) or otherwise, net of any portion of such amounts (i) payable pursuant
to Section 3.23 in respect of the proper operation, management and maintenance
of such REO Property or (ii) payable or reimbursable to the Servicer pursuant
to
Section 3.23 for unpaid Servicing Fees in respect of the related Mortgage Loan
and unreimbursed Servicing Advances and Advances in respect of such REO Property
or the related Mortgage Loan, over (b) the REO Imputed Interest in respect
of
such REO Property for such calendar month.
“REO
Property”: A Mortgaged Property acquired by the Servicer on behalf of the Trust
Fund through foreclosure or deed-in-lieu of foreclosure, as described in Section
3.23.
“Reportable
Event”: As defined in Section 3.25(a)(ii).
“Request
for Release”: A release signed by a Servicing Officer, in the form of Exhibit E
attached hereto.
“Reserve
Interest Rate”: With respect to any Interest Determination Date, the rate per
annum that the Trustee determines to be either (i) the arithmetic mean (rounded
upwards if necessary to the nearest whole multiple of 1/16 of 1%) of the
one-month United States dollar lending rates which banks in The City of New
York
selected by the Depositor are quoting on the relevant Interest Determination
Date to the principal London offices of leading banks in the London interbank
market or (ii) in the event that the Trustee can determine no such arithmetic
mean, in the case of any Interest Determination Date after the initial Interest
Determination Date, the lowest one-month United States dollar lending rate
which
such New York banks selected by the Depositor are quoting on such Interest
Determination Date to leading European banks.
“Residential
Dwelling”: Any one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a
Xxxxxx Xxx eligible condominium project, (iv) a manufactured home, or (v) a
detached one-family dwelling in a planned unit development, none of which is
a
mobile home.
“Residual
Certificate”: Any Class R Certificates or Class R-X Certificates.
“Residual
Interest”: The sole class of “residual interests” in a REMIC within the meaning
of Section 860G(a)(2) of the Code.
“Responsible
Officer”: When used with respect to the Trustee, the Chairman or Vice Chairman
of the Board of Directors or Trustees, the Chairman or Vice Chairman of the
Executive or Standing Committee of the Board of Directors or Trustees, the
President, any vice president, any assistant vice president, the Secretary,
any
assistant secretary, the Treasurer, any assistant treasurer, the Cashier, any
assistant cashier, any trust officer or assistant trust officer, the Controller
and any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and, with respect to a particular matter, to whom such matter is
referred because of such officer’s knowledge of and familiarity with the
particular subject.
“Responsible
Party”: Option One Mortgage Capital Corporation, a Delaware corporation, or its
successor in interest.
“S&P”:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or its successor in interest.
“Xxxxxxxx-Xxxxx
Act”: The Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the
Commission promulgated thereunder (including any published interpretations
thereof by the Commission’s staff).
“Xxxxxxxx-Xxxxx
Certification”: As defined in Section 3.25(a)(iii).
“Seller”:
Any one or all of: (i) Option One Mortgage Corporation, a California
corporation, (ii) Option One Mortgage Capital Corporation, a Delaware
corporation, or (iii) Option One Owner Trust 2001-1A, Option One Owner Trust
2001-1B, Option One Owner Trust 2001-2, Option One Owner Trust 2002-3, Option
One Owner Trust 2003-4, Option One Owner Trust 2003-5, Option One Owner Trust
2005-6, Option One Owner Trust 2005-7, Option One Owner Trust 2005-8, Option
One
Owner Trust 2005-9 and/or Option One Owner Trust 2007-5A, each a Delaware
statutory trust.
“Senior
Credit Enhancement Percentage”: For any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate Certificate
Principal Balance of the Mezzanine Certificates and the Class C Certificates,
and the denominator of which is the aggregate Stated Principal Balance of the
Mortgage Loans, calculated prior to taking into account payments of principal
on
the Mortgage Loans and distribution of the Group I Principal Distribution Amount
and the Group II Principal Distribution Amount to the Holders of the
Certificates then entitled to distributions of principal on such Distribution
Date.
“Servicer”:
Option One Mortgage Corporation, a California corporation, or any successor
servicer appointed as herein provided, in its capacity as Servicer
hereunder.
“Servicer
Affiliate”: A Person (i) controlling, controlled by or under common control with
the Servicer or which is 50% or more owned by the Servicer and (ii) which is
qualified to service residential mortgage loans.
“Servicer
Event of Termination”: One or more of the events described in Section
7.01.
“Servicer
Optional Purchase Delinquency Trigger”: A Servicer Optional Purchase Delinquency
Trigger has occurred with respect to a Distribution Date if the Delinquency
Percentage exceeds 25.00% of the Senior Credit Enhancement
Percentage.
“Servicer
Prepayment Charge Payment Amount”: The amounts payable by the Servicer in
respect of any Prepayment Charges pursuant to Section 2.05 or Section
3.01.
“Servicer
Remittance Date”: With respect to any Distribution Date, the Business Day prior
to such Distribution Date.
“Servicing
Account”: The account or accounts created and maintained pursuant to Section
3.09.
“Servicing
Advances”: All customary, reasonable and necessary “out of pocket” costs and
expenses (including reasonable attorneys’ fees and expenses) incurred by the
Servicer in the performance of its servicing obligations, including, but not
limited to, the cost of (i) the preservation, restoration, inspection and
protection of the Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of
the
REO Property and (iv) compliance with the obligations under Sections 3.01,
3.09,
3.16, and 3.23.
“Servicing
Criteria”: As set forth in Exhibit S hereto.
“Servicing
Fee”: With respect to each Mortgage Loan and for any calendar month, an amount
equal to one month’s interest (or in the event of any payment of interest which
accompanies a Principal Prepayment in full or in part made by the Mortgagor
during such calendar month, interest for the number of days covered by such
payment of interest) at the Servicing Fee Rate on the same principal amount
on
which interest on such Mortgage Loan accrues for such calendar month. A portion
of such Servicing Fee may be retained by any Sub-Servicer as its servicing
compensation.
“Servicing
Fee Rate”: 0.30% per annum for the first 10 Due Periods, 0.40% per annum for the
11th
through
30th
Due
Periods and 0.65% per annum for all Due Periods thereafter.
“Servicing
Officer”: Any employee or officer of the Servicer involved in, or responsible
for, the administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the Servicer
to
the Trustee and the Depositor on the Closing Date, as such list may from time
to
time be amended.
“Servicing
Rights Pledgee”: One or more lenders, selected by the Servicer, to which the
Servicer may pledge and assign all of its right, title and interest in, to
and
under this Agreement.
“Servicing
Transfer Costs”: All reasonable costs and expenses incurred by the Trustee in
connection with the transfer of servicing from a predecessor servicer,
including, without limitation, any reasonable costs or expenses associated
with
the complete transfer of all servicing data and the completion, correction
or
manipulation of such servicing data as may be required by the Trustee to correct
any errors or insufficiencies in the servicing data or otherwise to enable
the
Trustee to service the Mortgage Loans properly and effectively.
“Significance
Percentage”: The percentage equivalent of a fraction, the numerator of which is
(I) the present value (such calculation of present value using the two-year
swaps rate made available at Bloomberg Financial Markets, L.P.) of the aggregate
amount payable under the Interest Rate Swap Agreement (assuming that one-month
LIBOR for each remaining Calculation Period (as defined in the Interest Rate
Swap Agreement) beginning with the Calculation Period immediately following
the
related Distribution Date is equal to the sum of (a) the one-month LIBOR rate
for each remaining Calculation Period made available at Bloomberg Financial
Markets, L.P. by taking the following steps: (1) typing in the following
keystrokes: fwcv <go>, us <go>, 3 <go>; (2) the Forwards shall
be set to “1-Mo”; (3) the Intervals shall be set to “1-Mo”; and (4) the Points
shall be set to equal the remaining term of the Interest Rate Swap Agreement
in
months and the Trustee shall click <go> (provided that the Depositor shall
notify the Trustee in writing of any changes to such keystrokes), (b) the
percentage equivalent of a fraction, the numerator of which is 5.00% and the
denominator of which is the initial number of Distribution Dates on which the
Trustee is entitled to receive payments under the Interest Rate Swap Agreement
(the “Add-On Amount”) and (c) the Add-On Amount for each previous period) and
the denominator of which is (II) the aggregate Certificate Principal Balance
of
the Class A Certificates and the Mezzanine Certificates on such Distribution
Date (after giving effect to all distributions on such Distribution
Date).
“Special
Servicer Trigger Event”: As defined in Section 3.13.
“Startup
Day”: As defined in Section 9.01(b) hereof.
“Stated
Principal Balance”: With respect to any Mortgage Loan: (a) as of any date of
determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the outstanding principal balance of such Mortgage Loan
as
of the Cut-off Date, as shown in the Mortgage Loan Schedule, minus the sum
of
(i) the principal portion of each Monthly Payment due on a Due Date subsequent
to the Cut-off Date, to the extent received from the Mortgagor or advanced
by
the Servicer and distributed pursuant to Section 4.01 on or before such date
of
determination, (ii) all Principal Prepayments received after the Cut-off Date,
to the extent distributed pursuant to Section 4.01 on or before such date of
determination, (iii) all Liquidation Proceeds and Insurance Proceeds to the
extent distributed pursuant to Section 4.01 on or before such date of
determination, and (iv) any Realized Loss incurred with respect thereto as
a
result of a Deficient Valuation made during or prior to the Due Period for
the
most recent Distribution Date coinciding with or preceding such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such Mortgage Loan would be distributed,
zero.
With respect to any REO Property: (a) as of any date of determination up to
but
not including the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, an
amount (not less than zero) equal to the Stated Principal Balance of the related
Mortgage Loan as of the date on which such REO Property was acquired on behalf
of the Trust Fund, minus the aggregate amount of REO Principal Amortization
in
respect of such REO Property for all previously ended calendar months, to the
extent distributed pursuant to Section 4.01 on or before such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed,
zero.
“Stepdown
Date”: The earlier to occur of (a) the first Distribution Date after the
Distribution Date on which the aggregate Certificate Principal Balance of the
Class A Certificates has been reduced to zero and (b) the later to occur of
(i)
the Distribution Date occurring in May 2010 and
(ii)
the first Distribution Date on which the Senior Credit Enhancement Percentage
(calculated for this purpose only after taking into account payments of
principal on the Mortgage Loans and distribution of the Group I Principal
Distribution Amount and the Group II Principal Distribution Amount to the
Certificates then entitled to distributions of principal on such Distribution
Date) is equal to or greater than 51.90%.
“Subordinate
Certificates”: The Mezzanine Certificates and the Class C
Certificate.
“Subsequent
Recoveries”: As of any Distribution Date, unexpected amounts received by the
Servicer (net of any related expenses permitted to be reimbursed pursuant to
Section 3.10) specifically related to a Mortgage Loan that was the subject
of a
liquidation or an REO Disposition prior to the related Prepayment Period that
resulted in a Realized Loss.
“Sub-Servicer”:
Any Person with which the Servicer has entered into a Sub-Servicing Agreement
and which meets the qualifications of a Sub-Servicer pursuant to Section
3.02.
“Sub-Servicing
Account”: An account established by a Sub-Servicer which meets the requirements
set forth in Section 3.08 and is otherwise acceptable to the applicable
Servicer.
“Sub-Servicing
Agreement”: The written contract between the Servicer and a Sub-Servicer
relating to servicing and administration of certain Mortgage Loans as provided
in Section 3.02.
“Substitution
Adjustment”: As defined in Section 2.03(d) hereof.
“Supplemental
Interest Trust”: As defined in Section 4.08(a).
“Swap
Administration Agreement”: As defined in Section 4.08(b).
“Swap
Account”: The account or accounts created and maintained pursuant to Section
4.08. The Swap Account must be an Eligible Account.
“Swap
Administrator”: Xxxxx Fargo Bank, N.A., a national banking association, or its
successor in interest, or any successor Swap Administrator appointed pursuant
to
the Swap Administration Agreement.
“Swap
Collateral Account”: The account or accounts created and maintained pursuant to
Section 4.10. The Swap Collateral Account must be an Eligible
Account.
“Swap
Credit Support Annex”: The credit support annex, dated the Closing Date, between
the Supplemental Interest Trust Trustee and the Interest Rate Swap Provider,
which is annexed to and forms part of the Interest Rate Swap
Agreement.
“Swap
Custodian”: As defined in Section 4.10(b).
“Swap
Expense Rate”: For any Distribution Date and the Class A Certificates and the
Mezzanine Certificates, a fraction, expressed as a percentage, (i) the numerator
of which is the product of twelve multiplied by the amount of any Net Swap
Payment and Swap Termination Payment (other than a Swap Termination Payment
resulting from a Swap Provider Trigger Event) made to the Swap Provider, and
(ii) the denominator of which is the aggregate Stated Principal Balance of
the
Mortgage Loans as of the first day of the related Due Period or, in the case
of
the first Distribution Date, the Cut-off Date (adjusted, except in the case
of
the first Distribution Date, to reflect unscheduled principal payments made
thereafter during the Prepayment Period that includes such first day of the
related Due Period).
“Swap
Interest Shortfall Amount”: Any shortfall of interest with respect to any Class
of Certificates resulting from the application of the Net WAC Rate due to a
discrepancy between the Uncertificated Notional Amount of the Class Swap-IO
Interest and the scheduled notional amount pursuant to the Interest Rate Swap
Agreement.
“Swap
LIBOR”: A per annum rate equal to the floating rate payable by the Swap Provider
under the Interest Rate Swap Agreement.
“Swap
Provider”: The swap provider under the Interest Rate Swap Agreement. Initially,
the Swap Provider shall be Xxxxxx
Brothers Special Financing Inc.
“Swap
Provider Trigger Event”: A Swap Termination Payment that is triggered upon: (i)
an Event of Default under the Interest Rate Swap Agreement with respect to
which
the Swap Provider is a Defaulting Party (as defined in the Interest Rate Swap
Agreement), (ii) a Termination Event under the Interest Rate Swap Agreement
with
respect to which the Swap Provider is the sole Affected Party (as defined in
the
Interest Rate Swap Agreement) or (iii) an Additional Termination Event under
the
Interest Rate Swap Agreement with respect to which the Swap Provider is the
sole
Affected Party.
“Swap
Termination Payment”: The payment due to either party under the Interest Rate
Swap Agreement upon the early termination of the Interest Rate Swap
Agreement.
“Tax
Matters Person”: The tax matters person appointed pursuant to Section 9.01(e)
hereof.
“Tax
Prepayment Assumption”: The prepayment assumption provided by the Depositor and
as disclosed in the Prospectus Supplement.
“Tax
Returns”: The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of the REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed
by
the Trustee on behalf of each REMIC, together with any and all other information
reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
“Termination
Price”: As defined in Section 10.01(a) hereof.
“Terminator”:
As defined in Section 10.01 hereof.
“Three
Month Rolling Delinquency Percentage”: With respect to the Mortgage Loans and
any Distribution Date, the average for the three most recent calendar months
of
the fraction, expressed as a percentage, the numerator of which is (x) the
sum
(without duplication) of the aggregate of the Stated Principal Balances of
all
Mortgage Loans that are (i) 60 or more days Delinquent, (ii) in bankruptcy
and
60 or more days Delinquent, (iii) in foreclosure and 60 or more days Delinquent
or (iv) REO Properties, and the denominator of which is (y) the sum of the
Stated Principal Balances of the Mortgage Loans, in the case of both (x) and
(y), as of the Close of Business on the last Business Day of each of the three
most recent calendar months.
“Trigger
Event”: A Trigger Event is in effect with respect to any Distribution Date on or
after the Stepdown Date if:
(a) the
Delinquency Percentage exceeds 30.80%
of the
Senior Credit Enhancement Percentage or
(b) the
aggregate amount of Realized Losses incurred since the Cut-off Date through
the
last day of the related Due Period (after reduction for all Subsequent
Recoveries received from the Cut-off Date through the Prepayment Period) divided
by the aggregate Cut-off Date Principal Balance exceeds the applicable
percentages set forth below with respect to such Distribution Date:
|
Distribution
Date Occurring In
|
Percentage
|
|
May
2009 - April 2010
|
1.70%
for May
2009,
plus 1/12 of 2.10% for each month thereafter
|
|
May
2010 - April 2011
|
3.80%
for May 2010, plus 1/12 of 2.15% for each month
thereafter
|
|
May
2011 - April 2012
|
5.95%
for May 2011, plus 1/12 of 1.70% for each month
thereafter
|
|
May
2012 - April 2013
|
7.65%
for May 2012, plus 1/12 of 0.90% for each month
thereafter
|
|
May
2013 and thereafter
|
8.55%
|
“Trust”:
Option One Mortgage Loan Trust 2007-4, the trust created hereunder.
“Trust
Fund”: All of the assets of the Trust, which the trust created hereunder
consisting of REMIC 2, REMIC 3, REMIC 4, REMIC 5, REMIC 6, the Net WAC Rate
Carryover Reserve Account, the Servicer Prepayment Charge Payment Amounts,
distributions made to the Trustee by the Swap Administrator under the Swap
Administration Agreement, the Swap Account, the Supplemental Interest Trust
and
the Interest Rate Swap Agreement.
“Trust
REMIC”: Each of REMIC 1, REMIC 2, REMIC 3, REMIC 4, REMIC 5 and REMIC
6.
“Trustee”:
Xxxxx Fargo Bank, N.A., a national banking association, or any successor trustee
appointed as herein provided.
“Trustee
Fee”: The amount payable to the Trustee on each Distribution Date pursuant to
Section 8.05 as compensation for all services rendered by it in the execution
of
the trust hereby created and in the exercise and performance of any of the
powers and duties of the Trustee hereunder, which amount shall equal one twelfth
of the product of (i) the Trustee Fee Rate, multiplied by (ii) the aggregate
Stated Principal Balance of the Mortgage Loans and any REO Properties (after
giving effect to scheduled payments of principal due during the Due Period
relating to the previous Distribution Date, to the extent received or advanced)
as of the first day of the calendar month prior to the month of such
Distribution Date (or, in the case of the initial Distribution Date, as of
the
Cut-off Date).
“Trustee
Fee Rate”: 0.0030%
per annum.
“Uncertificated
Accrued Interest”: With respect to each REMIC Regular Interest on each
Distribution Date, an amount equal to one month’s interest at the related
Uncertificated Pass-Through Rate on the Uncertificated Principal Balance of
such
REMIC Regular Interest. In each case, Uncertificated Accrued Interest will
be
reduced by any Net Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls (allocated to such REMIC Regular Interests based on their respective
entitlements to interest irrespective of any Net Prepayment Interest Shortfalls
and Relief Act Interest Shortfalls for such Distribution Date).
“Uncertificated
Notional Amount”: With respect to REMIC 2 Regular Interest LTIO and each
Distribution Date listed below, the aggregate Uncertificated Principal Balance
of the REMIC 1 Regular Interests ending with the designation “A” listed
below:
|
Distribution
Date
|
REMIC
1 Regular Interests
|
|
1st
and 2nd
|
I-1-A
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through I-71-A
|
|
11
|
I-10-A
through I-71-A
|
|
12
|
I-11-A
through I-71-A
|
|
13
|
I-12-A
through I-71-A
|
|
14
|
I-13-A
through I-71-A
|
|
15
|
I-14-A
through I-71-A
|
|
16
|
I-15-A
through I-71-A
|
|
17
|
I-16-A
through I-71-A
|
|
18
|
I-17-A
through I-71-A
|
|
19
|
I-18-A
through I-71-A
|
|
20
|
I-19-A
through I-71-A
|
|
21
|
I-20-A
through I-71-A
|
|
22
|
I-21-A
through I-71-A
|
|
23
|
I-22-A
through I-71-A
|
|
24
|
I-23-A
through I-71-A
|
|
25
|
I-24-A
through I-71-A
|
|
26
|
I-25-A
through I-71-A
|
|
27
|
I-26-A
through I-71-A
|
|
28
|
I-27-A
through I-71-A
|
|
29
|
I-28-A
through I-71-A
|
|
30
|
I-29-A
through I-71-A
|
|
31
|
I-30-A
through I-71-A
|
|
32
|
I-31-A
through I-71-A
|
|
33
|
I-32-A
through I-71-A
|
|
34
|
I-33-A
through I-71-A
|
|
35
|
I-34-A
through I-71-A
|
|
36
|
I-35-A
through I-71-A
|
|
37th
through 39th
|
I-36-A
through I-71-A
|
|
40
|
I-37-A
through I-71-A
|
|
41
|
I-38-A
through I-71-A
|
|
42
|
I-39-A
through I-71-A
|
|
43
|
I-40-A
through I-71-A
|
|
44
|
I-41-A
through I-71-A
|
|
45
|
I-42-A
through I-71-A
|
|
46
|
I-43-A
through I-71-A
|
|
47
|
I-44-A
through I-71-A
|
|
48
|
I-45-A
through I-71-A
|
|
49
|
I-46-A
through I-71-A
|
|
50
|
I-47-A
through I-71-A
|
|
51
|
I-48-A
through I-71-A
|
|
52
|
I-49-A
through I-71-A
|
|
53
|
I-50-A
through I-71-A
|
|
54
|
I-51-A
through I-71-A
|
|
55
|
I-52-A
through I-71-A
|
|
56
|
I-53-A
through I-71-A
|
|
57
|
I-54-A
through I-71-A
|
|
58
|
I-55-A
through I-71-A
|
|
59
|
I-56-A
through I-71-A
|
|
60
|
I-57-A
through I-71-A
|
|
61
|
I-58-A
through I-71-A
|
|
62
|
I-59-A
through I-71-A
|
|
63
|
I-60-A
through I-71-A
|
|
64
|
I-61-A
through I-71-A
|
|
65
|
I-62-A
through I-71-A
|
|
66
|
I-63-A
through I-71-A
|
|
67
|
I-64-A
through I-71-A
|
|
68
|
I-65-A
through I-71-A
|
|
69
|
I-66-A
through I-71-A
|
|
70
|
I-67-A
through I-71-A
|
|
71
|
I-68-A
through I-71-A
|
|
72
|
I-69-A
through I-71-A
|
|
73
|
I-70-A
and I-71-A
|
|
74
|
I-71-A
|
|
thereafter
|
$0.00
|
With
respect to the Class SWAP-IO Interest and any Distribution Date, an amount
equal
to the Uncertificated Notional Amount of the REMIC 2 Regular Interest
LTIO.
“Uncertificated
Pass-Through Rate”: The Uncertificated REMIC 1 Pass-Through Rate or
Uncertificated REMIC 2 Pass-Through Rate.
“Uncertificated
Principal Balance”: With respect to each REMIC Regular Interest (other than
REMIC 2 Regular Interest LTIO), the amount of such REMIC Regular Interest
outstanding as of any date of determination. As of the Closing Date, the
Uncertificated Principal Balance of each REMIC Regular Interest (other than
REMIC 2 Regular Interest LTIO) shall equal the amount set forth in the
Preliminary Statement hereto as its initial Uncertificated Principal Balance.
On
each Distribution Date, the Uncertificated Principal Balance of each REMIC
Regular Interest shall be reduced by all distributions of principal made on
such
REMIC Regular Interest on such Distribution Date pursuant to Section 4.08 and,
if and to the extent necessary and appropriate, shall be further reduced on
such
Distribution Date by Realized Losses as provided in Section 4.08, and the
Uncertificated Principal Balances of REMIC 2 Regular Interest LTZZ shall be
increased by interest deferrals as provided in Section 4.08. The Uncertificated
Principal Balance of each REMIC Regular Interest shall never be less than zero.
With respect to the Class C Interest, as of any date of determination, an amount
equal to the excess, if any, of (A) the then aggregate Uncertificated Principal
Balance of the REMIC 2 Regular Interest over (B) the then aggregate Certificate
Principal Balance of the Class A Certificates, Mezzanine Certificates and the
Class P Interest then outstanding.
“Uncertificated
REMIC 1 Pass-Through Rate”: With
respect to REMIC 1 Regular Interest I and REMIC 1 Regular Interest II, a per
annum rate equal to the weighted average of the Adjusted Net Mortgage Rates
of
the Mortgage Loans for such Distribution Date (weighted based on the Stated
Principal Balances of the Mortgage Loans as of the first day of the related
Due
Period or, in the case of the first Distribution Date, the Cut-off Date,
adjusted, except in the case of the first Distribution Date, to reflect
unscheduled principal payments made thereafter during the Prepayment Period
that
includes such first day of the related Due Period). With respect to each REMIC
1
Regular Interest ending with the designation “A”, a per annum rate equal to the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage Loans for
such Distribution Date (weighted based on the Stated Principal Balances of
the
Mortgage Loans as of the first day of the related Due Period or, in the case
of
the first Distribution Date, the Cut-off Date, adjusted, except in the case
of
the first Distribution Date, to reflect unscheduled principal payments made
thereafter during the Prepayment Period that includes such first day of the
related Due Period) multiplied by 2, subject to a maximum rate of 9.900%. With
respect to each REMIC 1 Regular Interest ending with the designation “B”, the
greater of (x) a per annum rate equal to the excess, if any, of (i) 2 multiplied
by the weighted average of the Adjusted Net Mortgage Rates of the Mortgage
Loans
for such Distribution Date (weighted based on the Stated Principal Balances
of
the Mortgage Loans as of the first day of the related Due Period or, in the
case
of the first Distribution Date, the Cut-off Date, adjusted, except in the case
of the first Distribution Date, to reflect unscheduled principal payments made
thereafter during the Prepayment Period that includes such first day of the
related Due Period) over (ii) 9.900% and (y) 0.00%.
“Uncertificated
REMIC 2 Pass-Through Rate”: With respect to REMIC 2 Regular Interest LTAA, REMIC
2 Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC 2 Regular Interest
LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC
2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular Interest LTM9 and REMIC 2 Regular
Interest LTZZ, a
per
annum rate (but not less than zero) equal to the weighted average of (v) with
respect to REMIC 1 Regular Interest I and REMIC 1 Regular Interest II, the
Uncertificated REMIC 1 Pass-Through Rates for such REMIC 1 Regular Interests
for
each such Distribution Date, (w) with respect to REMIC 1 Regular Interests
ending with the designation “B”, the weighted average of the Uncertificated
REMIC 1 Pass-Through Rates for such REMIC 1 Regular Interests, weighted on
the
basis of the Uncertificated Principal Balance of such REMIC 1 Regular Interests
for each such Distribution Date and (x) with respect to REMIC 1 Regular
Interests ending with the designation “A”, for each Distribution Date listed
below, the weighted average of the rates listed below for each such REMIC 1
Regular Interest listed below, weighted on the basis of the Uncertificated
Principal Balance of each such REMIC 1 Regular Interest for each such
Distribution Date:
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-71-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
2
|
I-1-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
3
|
I-2-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
4
|
I-3-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
5
|
I-4-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
6
|
I-5-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
7
|
I-6-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
8
|
I-7-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
9
|
I-8-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
10
|
I-9-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
11
|
I-10-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
12
|
I-11-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
13
|
I-12-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
14
|
I-13-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
15
|
I-14-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
16
|
I-15-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
17
|
I-16-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
18
|
I-17-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
19
|
I-18-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
20
|
I-19-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
21
|
I-20-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
22
|
I-21-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
23
|
I-22-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
24
|
I-23-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
25
|
I-24-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
26
|
I-25-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
27
|
I-26-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
28
|
I-27-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
29
|
I-28-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
30
|
I-29-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
31
|
I-30-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
32
|
I-31-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
33
|
I-32-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
34
|
I-33-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
35
|
I-34-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
36
|
I-35-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
37th
through 39th
|
I-36-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
40
|
I-37-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
41
|
I-38-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
42
|
I-39-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
43
|
I-40-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-39-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
44
|
I-41-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-40-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
45
|
I-42-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-41-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
46
|
I-43-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-42-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
47
|
I-44-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-43-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
48
|
I-45-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-44-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
49
|
I-46-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-45-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
50
|
I-47-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-46-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
51
|
I-48-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-47-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
52
|
I-49-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-48-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
53
|
I-50-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-49-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
54
|
I-51-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-50-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
55
|
I-52-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
56
|
I-53-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-52-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
57
|
I-54-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-53-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
58
|
I-55-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-54-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
59
|
I-56-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-55-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
60
|
I-57-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-56-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
61
|
I-58-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-57-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
62
|
I-59-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-58-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
63
|
I-60-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-59-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
64
|
I-61-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-60-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
65
|
I-62-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-61-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
66
|
I-63-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-62-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
67
|
I-64-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-63-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
68
|
I-65-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-64-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
69
|
I-66-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-65-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
70
|
I-67-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-66-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
71
|
I-68-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-67-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
72
|
I-69-A
through I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-68-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
73
|
I-70-A
and I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-69-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
74
|
I-71-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-70-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-71-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
With
respect to REMIC 2 Regular Interest LTIO, and (a) the first Distribution Date,
the excess of (i) the weighted average of the Uncertificated REMIC 1
Pass-Through Rates for REMIC 1 Regular Interests ending with the designation
“A”
over (ii) the weighted average of the Uncertificated REMIC 1 Pass-Through Rates
for REMIC 1 Regular Interests ending with the designation “A”, and (b) the
2nd
Distribution Date through the 74th
Distribution Date, the excess of (i) the weighted average of the Uncertificated
REMIC 1 Pass-Through Rates for REMIC 1 Regular Interests ending with the
designation “A” over (ii) 2 multiplied by Swap LIBOR, and (c) thereafter 0.00%.
“Underwriters”:
Each of Greenwich Capital Markets, Inc., Banc of America Securities LLC,
Citigroup Global Markets Inc., Deutsche Bank Securities Inc., X.X. Xxxxxx
Securities Inc. and H&R Block Financial Advisors, Inc.
“Uninsured
Cause”: Any cause of damage to a Mortgaged Property such that the complete
restoration of such property is not fully reimbursable by the hazard insurance
policies required to be maintained pursuant to Section 3.14.
“United
States Person” or “U.S. Person”: A citizen or resident of the United States, a
corporation, partnership (or other entity treated as a corporation or
partnership for United States federal income tax purposes) created or organized
in, or under the laws of, the United States, any state thereof, or the District
of Columbia (except in the case of a partnership, to the extent provided in
Treasury regulations) provided that, for purposes solely of the restrictions
on
the transfer of Residual Certificates, no partnership or other entity treated
as
a partnership for United States federal income tax purposes shall be treated
as
a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation
for
United States federal income tax purposes are required by the applicable
operative agreement to be United States Persons, or an estate the income of
which from sources without the United States is includible in gross income
for
United States federal income tax purposes regardless of its connection with
the
conduct of a trade or business within the United States, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have authority
to control all substantial decisions of the trust. The term “United States”
shall have the meaning set forth in Section 7701 of the Code or successor
provisions.
“Unpaid
Interest Shortfall Amount”: With respect to the Class A Certificates and the
Mezzanine Certificates and (i) the first Distribution Date, zero, and (ii)
any
Distribution Date after the first Distribution Date, the amount, if any, by
which (a) the sum of (1) the Monthly Interest Distributable Amount for such
Class for the immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for such Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on such Class
in
respect of interest pursuant to clause (a) of this definition on such preceding
Distribution Date, plus interest on the amount of interest due but not paid
on
the Certificates of such Class on such preceding Distribution Date, to the
extent permitted by law, at the Pass-Through Rate for such Class for the related
Accrual Period.
“Value”:
With respect to any Mortgage Loan, and the related Mortgaged Property, the
lesser of:
(i) with
respect to a Mortgage Loan the proceeds of which were used to purchase the
related mortgaged property, the lesser of (x) the appraised value of such
mortgaged property based on an appraisal made for the originator by an
independent fee appraiser at the time of the origination of the related Mortgage
Loan; provided however, that in accordance with Option One Underwriting
Guidelines, such value may be reduced to reflect the results of a review
appraisal and (y) the sales price of such mortgaged property at such time of
origination; and
(ii) with
respect to a Mortgage Loan the proceeds of which were used to refinance an
existing Mortgage Loan, the appraised value of such mortgaged property based
on
an appraisal made for the originator by an independent fee appraiser at the
time
of the origination of the related Mortgage Loan; provided however, that in
accordance with Option One Underwriting Guidelines, such value may be reduced
to
reflect the results of a review appraisal.
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. At all times the Class A Certificates, the
Mezzanine Certificates and the Class C Certificates shall have 98% of the Voting
Rights (allocated among the Holders of the Class A Certificates, the Mezzanine
Certificates and the Class C Certificates in proportion to the then outstanding
Certificate Principal Balances of their respective Certificates), the Class
P
Certificates shall have 1% of the Voting Rights and the Residual Certificates
shall have 1% of the Voting Rights. The Voting Rights allocated to any Class
of
Certificates (other than the Class P Certificates and the Residual Certificates)
shall be allocated among all Holders of each such Class in proportion to the
outstanding Certificate Principal Balance or Notional Amount of such
Certificates and the Voting Rights allocated to the Class P Certificates and
the
Residual Certificates shall be allocated among all Holders of each such Class
in
proportion to such Holders’ respective Percentage Interest; provided,
however,
that
when none of the Regular Certificates are outstanding, 100% of the Voting Rights
shall be allocated among Holders of the Residual Certificates in accordance
with
such Holders’ respective Percentage Interests in the Certificates of such
Class.
| SECTION 1.02. |
Accounting.
|
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication
of
such functions.
| SECTION 1.03. |
Allocation
of Certain Interest Shortfalls.
|
For
purposes of calculating the amount of the Monthly Interest Distributable Amount
for each of the Class A Certificates, the Mezzanine Certificates and the Class
C
Certificates for any Distribution Date, (1) the aggregate amount of any Net
Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls incurred
in respect of the Mortgage Loans for any Distribution Date shall be allocated
first, among the Class C Certificates on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate and,
thereafter, among the Class A Certificates and the Mezzanine Certificates,
on a
pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
of
each such Certificate and (2) the aggregate amount of any Realized Losses and
Net WAC Rate Carryover Amounts incurred for any Distribution Date shall be
allocated among the Class C Certificates on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate after the
allocation thereto in clause (1).
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 1 Regular Interests for any Distribution Date the aggregate amount of
any
Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls incurred
in respect of the Mortgage Loans shall be allocated first, to REMIC 1 Regular
Interest I, to REMIC 1 Regular Interest II and to the REMIC 1 Regular Interests
ending with the designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 1 Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC 1 Regular Interest, and then, to REMIC
1
Regular Interests ending with the designation “A”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 1 Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC 1 Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 2 Regular Interests for any Distribution Date, the aggregate amount of
any
Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls incurred
in respect of the Mortgage Loans for any Distribution Date shall be
allocated
among
REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTIA1, REMIC 2 Regular
Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular Interest
LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC
2
Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest
LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2
Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest
LTM9 and REMIC 2 Regular Interest LTZZ, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 2 Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC 2 Regular Interest.
| SECTION 1.04. |
Rights
of the NIMS Insurer.
|
Each
of
the rights of the NIMS Insurer set forth in this Agreement shall exist so long
as (i) the NIMS Insurer has undertaken to guarantee certain payments of notes
issued pursuant to an Indenture and (ii) any series of notes issued pursuant
to
one or more Indentures remain outstanding or the NIMS Insurer is owed amounts
in
respect of its guarantee of payment on such notes; provided, however, the NIMS
Insurer shall not have any rights hereunder (except pursuant to Section 11.01
in
the case of clause (ii) below) so long as (i) the NIMS Insurer has not
undertaken to guarantee certain payments of notes issued pursuant to the
Indenture or (ii) any default has occurred and is continuing under the insurance
policy issued by the NIMS Insurer with respect to such notes.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
| SECTION 2.01. |
Conveyance
of Mortgage Loans.
|
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse for the benefit of the Certificateholders all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in and to (i) each Mortgage Loan identified on the
Mortgage Loan Schedule, including the related Cut-off Date Principal Balance,
all interest accruing thereon on and after the Cut-off Date and all collections
in respect of interest and principal due after the Cut-off Date; (ii) property
which secured each such Mortgage Loan and which has been acquired by foreclosure
or deed in lieu of foreclosure; (iii) its interest in any insurance policies
in
respect of the Mortgage Loans; (iv) the rights of the Depositor under the
Mortgage Loan Purchase Agreement, (v) all other assets included or to be
included in the Trust Fund, (vi) payments made to the Trustee by the Swap
Administrator under the Swap Administration Agreement and the Swap Account
and
(vii) all proceeds of any of the foregoing. Such assignment includes all
interest and principal due and collected by the Depositor or the Servicer after
the Cut-off Date with respect to the Mortgage Loans.
In
connection with such transfer and assignment, the Depositor, does hereby deliver
to, and deposit with the Trustee, or its designated agent (the “Custodian”), the
following documents or instruments with respect to each Mortgage Loan so
transferred and assigned by the Originator, on behalf of the
Depositor:
(i) the
original Mortgage Note, endorsed either (A) in blank, in which case the Trustee
shall cause the endorsement to be completed or (B) in the following form: “Pay
to the order of Xxxxx Fargo Bank, N.A., as Trustee, without recourse”, or with
respect to any lost Mortgage Note, an original Lost Note Affidavit stating
that
the original mortgage note was lost, misplaced or destroyed, together with
a
copy of the related mortgage note; provided,
however,
that
such substitutions of Lost Note Affidavits for original Mortgage Notes may
occur
only with respect to Mortgage Loans, the aggregate Cut-off Date Principal
Balance of which is less than or equal to 3.00% of the Pool Balance as of the
Cut-off Date;
(ii) the
original Mortgage with evidence of recording thereon, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power of attorney,
with evidence of recording thereon;
(iii) an
original Assignment. The Mortgage shall be assigned either (A) in blank or
(B)
to “Xxxxx Fargo Bank, N.A., as Trustee, without recourse”;
(iv) an
original of any intervening assignment of Mortgage showing a complete chain
of
assignments;
(v) the
original or a certified copy of lender’s title insurance policy;
and
(vi) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any.
The
Trustee agrees to execute and deliver (or cause the Custodian to execute and
deliver) to the Depositor and the NIMS Insurer on or prior to the Closing Date
an acknowledgment of receipt of the original Mortgage Note (with any exceptions
noted), substantially in the form attached as Exhibit F-3 hereto.
If
any of
the documents referred to in Section 2.01(ii), (iii) or (iv) above has as of
the
Closing Date been submitted for recording but either (x) has not been returned
from the applicable public recording office or (y) has been lost or such public
recording office has retained the original of such document, the obligations
of
the Depositor to deliver such documents shall be deemed to be satisfied upon
(1)
delivery to the Trustee or the Custodian no later than the Closing Date, of
a
copy of each such document certified by the Servicer, in its capacity as
Originator, in the case of (x) above or the applicable public recording office
in the case of (y) above to be a true and complete copy of the original that
was
submitted for recording and (2) if such copy is certified by the Servicer,
in
its capacity as Originator, delivery to the Trustee or the Custodian, promptly
upon receipt thereof of either the original or a copy of such document certified
by the applicable public recording office to be a true and complete copy of
the
original. If the original lender’s title insurance policy, or a certified copy
thereof, was not delivered pursuant to Section 2.01(v) above, the Servicer,
in
its capacity as Originator, shall deliver or cause to be delivered to the
Trustee or the Custodian, the original or a copy of a written commitment or
interim binder or preliminary report of title issued by the title insurance
or
escrow company or an original attorney’s opinion of title, with the original or
a certified copy thereof to be delivered to the Trustee or the Custodian,
promptly upon receipt thereof. The Servicer or the Depositor shall deliver
or
cause to be delivered to the Trustee or the Custodian promptly upon receipt
thereof any other documents constituting a part of a Mortgage File received
with
respect to any Mortgage Loan, including, but not limited to, any original
documents evidencing an assumption or modification of any Mortgage
Loan.
Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File, the Servicer, in its capacity
as
Originator, shall have 120 days to cure such defect or deliver such missing
document to the Trustee or the Custodian. If the Originator does not cure such
defect or deliver such missing document within such time period, the Servicer,
in its capacity as Originator, shall either repurchase or substitute for such
Mortgage Loan in accordance with Section 2.03.
The
Depositor (at the expense of the Servicer, in its capacity as Originator) shall
cause the Assignments which were delivered in blank to be completed and shall
cause all Assignments referred to in Section 2.01(iii) hereof and, to the extent
necessary, in Section 2.01(iv) hereof to be recorded. The Depositor shall be
required to deliver such Assignments for recording within 90 days of the Closing
Date. Notwithstanding the foregoing, however, for administrative convenience
and
facilitation of servicing and to reduce closing costs, the Assignments of
Mortgage shall not be required to be submitted for recording (except with
respect to any Mortgage Loan located in Maryland) unless the Trustee and the
Depositor receive notice that such failure to record would result in a
withdrawal or a downgrading by any Rating Agency of the rating on any Class
of
Certificates; provided, however, each Assignment shall be submitted for
recording by the Depositor in the manner described above, at no expense to
the
Trust Fund or Trustee, upon the earliest to occur of: (i) reasonable direction
by Holders of Certificates entitled to at least 25% of the Voting Rights, (ii)
the occurrence of a Servicer Event of Termination, (iii) the occurrence of
a
bankruptcy, insolvency or foreclosure relating to the Servicer, (iv) the
occurrence of a servicing transfer as described in Section 7.02 hereof, (v)
if
the Originator is not the Servicer and with respect to any one Assignment the
occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor
under the related Mortgage, (vi) any Mortgage Loan that is 90 days or more
Delinquent and such recordation would be necessary to facilitate conversion
of
the Mortgaged Property in accordance with Section 3.16 and (vii) reasonable
direction by the NIMS Insurer. Upon (a) receipt of written notice from the
Trustee that recording of the Assignments is required pursuant to one or more
of
the conditions (excluding (v) and (vi) above) set forth in the preceding
sentence or (b) upon the occurrence of condition (v) or (vi) in the preceding
sentence, the Depositor shall be required to deliver such Assignments for
recording as provided above, promptly and in any event within 30 days following
receipt of such notice. Notwithstanding the foregoing, if the Originator fails
to pay the cost of recording the Assignments, such expense will be paid by
the
Trustee and the Trustee shall be reimbursed for such expenses by the Trust.
To
the extent not previously delivered to the Trustee by the Depositor, the
Depositor shall furnish the Trustee, or its designated agent, with a copy of
each Assignment submitted for recording. In the event that any such Assignment
is lost or returned unrecorded because of a defect therein, the Depositor shall
promptly have a substitute Assignment prepared or have such defect cured, as
the
case may be, and thereafter cause each such Assignment to be duly
recorded.
The
Depositor herewith delivers to the Trustee an executed copy of the Mortgage
Loan
Purchase Agreement.
The
Servicer shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution; provided, however, that the Servicer shall provide the Custodian
with
a certified true copy of any such document submitted for recordation within
two
weeks of its execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within 365
days
of its submission for recordation. In the event that the Servicer cannot provide
a copy of such document certified by the public recording office within such
365
day period, an Officers’ Certificate of the Servicer which shall (A) identify
the recorded document, (B) state that the recorded document has not been
delivered to the Custodian due solely to a delay caused by the public recording
office, (C) state the amount of time generally required by the applicable
recording office to record and return a document submitted for recordation,
if
known and (D) specify the date the applicable recorded document is expected
to
be delivered to the Custodian, and, upon receipt of a copy of such document
certified by the public recording office, the Servicer shall immediately deliver
such document to the Custodian. In the event the appropriate public recording
office will not certify as to the accuracy of such document, the Servicer shall
deliver a copy of such document certified by an officer of the Servicer to
be a
true and complete copy of the original to the Custodian.
The
parties hereto understand and agree that it is not intended that any mortgage
loan be included in the Trust that is a high-cost home loan as defined by the
HOEPA or any other applicable predatory or abusive lending laws.
| SECTION 2.02. |
Acceptance
by Trustee.
|
Subject
to the provisions of Section 2.01 and subject to the review described below
and
any exceptions noted on the exception report described in the next paragraph
below, the Trustee acknowledges receipt of the documents referred to in Section
2.01 above and all other assets included in the definition of “Trust Fund” and
declares that it holds and will hold such documents and the other documents
delivered to it constituting a Mortgage File, and that it holds or will hold
all
such assets and such other assets included in the definition of “Trust Fund” in
trust for the exclusive use and benefit of all present and future
Certificateholders.
The
Trustee agrees, for the benefit of the Certificateholders, to review, or that
it
has reviewed pursuant to Section 2.01 (or to cause the Custodian to review
or
that it has caused the Custodian to have reviewed) each Mortgage File on or
prior to the Closing Date, with respect to each Mortgage Loan (or, with respect
to any document delivered after the Startup Day, within 45 days of receipt
and
with respect to any Qualified Substitute Mortgage, within 45 days after the
assignment thereof). The Trustee further agrees, for the benefit of the
Certificateholders, to certify to the Depositor, the Servicer and the NIMS
Insurer in substantially the form attached hereto as Exhibit F-1, within 45
days
after the Closing Date, with respect to each Mortgage Loan (or, with respect
to
any document delivered after the Startup Day, within 45 days of receipt and
with
respect to any Qualified Substitute Mortgage, within 45 days after the
assignment thereof) that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in the exception report annexed thereto as not being
covered by such certification), (i) all documents required to be delivered
to it
pursuant Section 2.01 of this Agreement are in its possession, (ii) such
documents have been reviewed by it and have not been mutilated, damaged or
torn
and relate to such Mortgage Loan and (iii) based on its examination and only
as
to the foregoing, the information set forth in the Mortgage Loan Schedule that
corresponds to items (1) and (2) of the Mortgage Loan Schedule accurately
reflects information set forth in the Mortgage File. It is herein acknowledged
that, in conducting such review, the Trustee (or the Custodian, as applicable)
is under no duty or obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that they are genuine,
enforceable, or appropriate for the represented purpose or that they have
actually been recorded or that they are other than what they purport to be
on
their face.
Prior
to
the first anniversary date of this Agreement the Trustee shall deliver (or
cause
the Custodian to deliver) to the Depositor, the Servicer and the NIMS Insurer
a
final certification in the form annexed hereto as Exhibit F-2 evidencing the
completeness of the Mortgage Files, with any applicable exceptions noted
thereon.
If
in the
process of reviewing the Mortgage Files and making or preparing, as the case
may
be, the certifications referred to above, the Trustee (or the Custodian, as
applicable) finds any document or documents constituting a part of a Mortgage
File to be missing or defective in any material respect, at the conclusion
of
its review the Trustee shall so notify the Originator, the Depositor, the NIMS
Insurer and the Servicer. In addition, upon the discovery by the Originator,
the
Depositor, the NIMS Insurer or the Servicer (or upon receipt by the Trustee
of
written notification of such breach) of a breach of any of the representations
and warranties made by the Originator in the Mortgage Loan Purchase Agreement
in
respect of any Mortgage Loan which materially adversely affects such Mortgage
Loan or the interests of the related Certificateholders in such Mortgage Loan,
the party discovering such breach shall give prompt written notice to the other
parties to this Agreement.
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute a sale of the Mortgage Loans, the related Mortgage
Notes
and the related documents, conveying good title thereto free and clear of any
liens and encumbrances, from the Depositor to the Trustee in trust for the
benefit of the Certificateholders and that such property not be part of the
Depositor’s estate or property of the Depositor in the event of any insolvency
by the Depositor. In the event that such conveyance is deemed to be, or to
be
made as security for, a loan, the parties intend that the Depositor shall be
deemed to have granted and does hereby grant to the Trustee a first priority
perfected security interest in all of the Depositor’s right, title and interest
in and to the Mortgage Loans, the related Mortgage Notes and the related
documents, and that this Agreement shall constitute a security agreement under
applicable law.
| SECTION 2.03. |
Repurchase
or Substitution of Mortgage Loans by the Originator or Responsible
Party.
|
(a) Upon
discovery or receipt of written notice of any materially defective document
in,
or that a document is missing from, a Mortgage File or of the breach by the
Originator or the Responsible Party of any representation, warranty or covenant
under the Mortgage Loan Purchase Agreement in respect of any Mortgage Loan
which
materially adversely affects the value of such Mortgage Loan or the interest
therein of the Certificateholders, the Trustee shall promptly notify the
Originator, the Responsible Party, the NIMS Insurer and the Servicer of such
defect, missing document or breach and request that the Originator or the
Responsible Party, as applicable and as set forth in the Mortgage Loan Purchase
Agreement, deliver such missing document or cure such defect or breach within
120 days from the date the Originator or the Responsible Party, as applicable,
was notified of such missing document, defect or breach, and if the Originator
or the Responsible Party, 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 Originator’s or the Responsible Party’s obligation
under the Mortgage Loan Purchase Agreement and cause the Originator or the
Responsible Party, as applicable, to repurchase such Mortgage Loan from the
Trust Fund at the Purchase Price on or prior to the Determination Date following
the expiration of such 120 day period (subject to Section 2.03(e)). The Purchase
Price for the repurchased Mortgage Loan shall be deposited in the Collection
Account, and the Trustee, upon receipt of written certification from the
Servicer of such deposit, shall release to the Originator or the Responsible
Party, as applicable, the related Mortgage File and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
as
the Originator or the Responsible Party, as applicable, shall furnish to it
and
as shall be necessary to vest in the Originator or the Responsible Party, as
applicable, any Mortgage Loan released pursuant hereto and the Trustee shall
have no further responsibility with regard to such Mortgage File (it being
understood that the Trustee shall have no responsibility for determining the
sufficiency of such assignment for its intended purpose). In lieu of
repurchasing any such Mortgage Loan as provided above, the Originator or the
Responsible Party, as applicable, 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 Qualified Substitute Mortgage Loans in the manner and
subject to the limitations set forth in Section 2.03(d). It is understood and
agreed that the obligation of the Originator or the Responsible Party, as
applicable, to cure or to repurchase (or to substitute for) any 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 Originator or the Responsible Party,
as
applicable, respecting such omission, defect or breach available to the Trustee
on behalf of the Certificateholders.
(b) Within
90
days of the earlier of discovery by the Depositor or receipt of notice by the
Depositor of the breach of any representation, warranty or covenant of the
Depositor set forth in Section 2.06 which materially and adversely affects
the
interests of the Certificateholders in any Mortgage Loan, the Depositor shall
cure such breach in all material respects.
(c) Within
90
days of the earlier of discovery by the Servicer or receipt of notice by the
Servicer of the breach of any representation, warranty or covenant of the
Servicer set forth in Section 2.05 which materially and adversely affects the
interests of the Certificateholders in any Mortgage Loan, the Servicer shall
cure such breach in all material respects.
(d) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) 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 Originator or the Responsible Party, as applicable, substitutes
a
Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected
by the Originator or the Responsible Party, as applicable, delivering to the
Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage
Note, the Mortgage and the Assignment to the Trustee, and such other documents
and agreements, with all necessary endorsements thereon, as are required by
Section 2.01, together with an Officers’ Certificate providing that each such
Qualified Substitute Mortgage Loan satisfies the definition thereof and
specifying the Substitution Adjustment (as described below), if any, in
connection with such substitution. The Trustee shall acknowledge receipt for
such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days
thereafter, shall review such documents as specified in Section 2.02 and deliver
to the Servicer and the NIMS Insurer, with respect to such Qualified Substitute
Mortgage Loan or Loans, a certification substantially in the form attached
hereto as Exhibit F-1, with any applicable exceptions noted thereon. Within
one
year of the date of substitution, the Trustee shall deliver to the Servicer
and
the NIMS Insurer a certification substantially in the form of Exhibit F-2 hereto
with respect to such Qualified Substitute Mortgage Loan or Loans, with any
applicable exceptions noted thereon. Monthly Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution are not part
of
the Trust Fund and will be retained by the Originator or the Responsible Party,
as applicable. For the month of substitution, distributions to
Certificateholders will reflect the collections and recoveries in respect of
such Deleted Mortgage Loan in the Due Period preceding the month of substitution
and the Originator or the Responsible Party, as applicable, shall thereafter
be
entitled to retain all amounts subsequently received in respect of such Deleted
Mortgage Loan. The Originator or the Responsible Party, as applicable, shall
give or cause to be given written notice to the Certificateholders and the
NIMS
Insurer that such substitution has taken place, shall amend the Mortgage Loan
Schedule to reflect the removal of such Deleted Mortgage Loan from the terms
of
this Agreement and the substitution of the Qualified Substitute Mortgage Loan
or
Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the
NIMS Insurer and the Trustee. Upon such substitution by the Originator or the
Responsible Party, as applicable, such Qualified Substitute Mortgage Loan or
Loans shall constitute part of the Mortgage Pool and shall be subject in all
respects to the terms of this Agreement and the Mortgage Loan Purchase
Agreement, including all applicable representations and warranties thereof
included in the Mortgage Loan Purchase Agreement as of the date of
substitution.
For
any
month in which the Originator or the Responsible Party, as applicable,
substitutes one or more Qualified Substitute Mortgage Loans for one or more
Deleted Mortgage Loans, the Servicer will determine the amount (the
“Substitution Adjustment”), if any, by which the aggregate Purchase Price of all
such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified
Substitute Mortgage Loan, of the principal balance thereof as of the date of
substitution, together with one month’s interest on such principal balance at
the applicable Net Mortgage Rate. On the date of such substitution, the
Originator or the Responsible Party, as applicable, will deliver or cause to
be
delivered to the Servicer for deposit in the Collection Account an amount equal
to the Substitution Adjustment, if any, and the Trustee, upon receipt of the
related Qualified Substitute Mortgage Loan or Loans and certification by the
Servicer of such deposit, shall release to the Originator or the Responsible
Party, as applicable, the related Mortgage File or Files and shall execute
and
deliver such instruments of transfer or assignment, in each case without
recourse, as the Originator or the Responsible Party, as applicable, shall
deliver to it and as shall be necessary to vest therein any Deleted Mortgage
Loan released pursuant hereto.
In
addition, the Originator or the Responsible Party, as applicable, shall obtain
at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion
of
Counsel to the effect that such substitution will not cause (a) any federal
tax
to be imposed on the Trust Fund, including without limitation, any federal
tax
imposed on “prohibited transactions” under Section 860F(a)(l) of the Code or on
“contributions after the startup date” under Section 860G(d)(l) of the Code or
(b) any REMIC to fail to qualify as a REMIC at any time that any Certificate
is
outstanding. 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.
Upon
discovery by the Originator, the Servicer, the NIMS Insurer 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 Originator, the Responsible Party or the Depositor,
as
the case may be, shall repurchase or, subject to the limitations set forth
in
Section 2.03(d), substitute one or more Qualified Substitute 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. Such repurchase
or
substitution shall be made (i) by the Originator or the Responsible Party,
as
applicable, if the affected Mortgage Loan’s status as a non-qualified mortgage
is or results from a breach of any representation, warranty or covenant made
by
the Originator or the Responsible Party under the Mortgage Loan Purchase
Agreement or (ii) the Depositor, if the affected Mortgage Loan’s status as a
non-qualified mortgage is a breach of any representation or warranty of the
Depositor set forth in Section 2.06, or if its status as a non-qualified
mortgage is a breach of no representation or warranty. Any such repurchase
or
substitution shall be made in the same manner as set forth in Section 2.03(a),
if made by the Originator or the Responsible Party, or Section 2.03(b), if
made
by the Depositor. The Trustee shall reconvey to the Depositor, the Originator
or
the Responsible Party, as the case may be, 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.
| SECTION 2.04. |
Intentionally
Omitted.
|
| SECTION 2.05. |
Representations,
Warranties and Covenants of the
Servicer.
|
The
Servicer hereby represents, warrants and covenants to the Trustee, for the
benefit of each of the Trustee and the Certificateholders, and to the Depositor
that as of the Closing Date or as of such date specifically provided
herein:
(i) The
Servicer is duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its formation and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and
in
good standing in the states where the Mortgaged Property is located if the
laws
of such state require licensing or qualification in order to conduct business
of
the type conducted by the Servicer or to ensure the enforceability or validity
of each Mortgage Loan; the Servicer has the power and authority to execute
and
deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Servicer, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of
creditors’ rights generally; and all requisite corporate action has been taken
by the Servicer to make this Agreement valid and binding upon the Servicer
in
accordance with its terms;
(ii) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer and will not result in the breach
of
any term or provision of the charter or by-laws of the Servicer or result in
the
breach of any term or provision of, or conflict with or constitute a default
under or result in the acceleration of any obligation under, any agreement,
indenture or loan or credit agreement or other instrument to which the Servicer
or its property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its property
is
subject;
(iii) The
execution and delivery of this Agreement by the Servicer and the performance
and
compliance with its obligations and covenants hereunder do not require the
consent or approval of any governmental authority or, if such consent or
approval is required, it has been obtained;
(iv) This
Agreement, and all documents and instruments contemplated hereby which are
executed and delivered by the Servicer, constitute and will constitute valid,
legal and binding obligations of the Servicer, enforceable in accordance with
their respective terms, except as the enforcement thereof may be limited by
applicable bankruptcy laws and general principles of equity;
(v) [Reserved];
(vi) The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(vii) There
is
no action, suit, proceeding or investigation pending or, to its knowledge,
threatened against the Servicer that, either individually or in the aggregate,
(A) may result in any change in the business, operations, financial condition,
properties or assets of the Servicer that might prohibit or materially and
adversely affect the performance by such Servicer of its obligations under,
or
validity or enforceability of, this Agreement, or (B) may result in any material
impairment of the right or ability of the Servicer to carry on its business
substantially as now conducted, or (C) may result in any material liability
on
the part of the Servicer, or (D) would draw into question the validity or
enforceability of this Agreement or of any action taken or to be taken in
connection with the obligations of the Servicer contemplated herein, or (E)
would otherwise be likely to impair materially the ability of the Servicer
to
perform under the terms of this Agreement;
(viii) Neither
this Agreement nor any information, certificate of an officer, statement
furnished in writing or report delivered to the Trustee by the Servicer in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact;
(ix) The
Servicer covenants that its computer and other systems used in servicing the
Mortgage Loans operate in a manner such that the Servicer can service the
Mortgage Loans in accordance with the terms of this Agreement;
(x) The
information set forth in the Prepayment Charge Schedule (including the
Prepayment Charge Summary attached thereto) is complete, true and correct in
all
material respects on the date or dates when such information is furnished and
each Prepayment Charge is permissible and enforceable in accordance with its
terms (except to the extent that the enforceability thereof may be limited
by
bankruptcy, insolvency, moratorium, receivership and other similar laws
affecting creditor’s rights generally or the collectability thereof may be
limited due to acceleration in connection with a foreclosure) under applicable
federal, state and local law;
(xi) The
Servicer will not waive any Prepayment Charge unless it is waived in accordance
with the standard set forth in Section 3.01; and
(xii) The
Servicer has accurately and fully reported, and will continue to accurately
and
fully report, its borrower credit files to each of the credit repositories
in a
timely manner.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the
Trustee and shall inure to the benefit of the Trustee, the Depositor and the
Certificateholders. Upon discovery by any of the Depositor, the NIMS Insurer,
the Servicer, the Originator or the Trustee of a breach of any of the foregoing
representations, warranties and covenants which materially and adversely affects
the value of any Mortgage Loan, Prepayment Charge or the interests therein
of
the Certificateholders, the party discovering such breach shall give prompt
written notice (but in no event later than two Business Days following such
discovery) to the Servicer, the Originator, the NIMS Insurer and the Trustee.
Notwithstanding the foregoing, within 90 days of the earlier of discovery by
the
Servicer or receipt of notice by the Servicer of the breach of the
representation or covenant of the Servicer (in its capacity as Originator)
set
forth in Sections 2.05(x) or 2.05(xi) above which materially and adversely
affects the interests of the Holders of the Class P Certificates in any
Prepayment Charge, the Servicer shall remedy such breach as follows: (a) if
the
representation made by the Servicer (in its capacity as Originator) in Section
2.05(x) above is breached and a Principal Prepayment has occurred in the
applicable Prepayment Period or if a change of law subsequent to the Closing
Date limits the enforceability of a Prepayment Charge (other than in the
circumstances provided in Section 2.05(x) above), the Servicer (in its capacity
as Originator) must pay the amount of the scheduled Prepayment Charge, for
the
benefit of the Holders of the Class P Certificates, by depositing such amount
into the Collection Account, net of any amount previously collected by the
Servicer and paid by the Servicer, for the benefit of the Holders of the Class
P
Certificates, in respect of such Prepayment Charge; and (b) if any of the
covenants made by the Servicer in Section 2.05(xi) above is breached, the
Servicer must pay the amount of such waived Prepayment Charge, for the benefit
of the Holders of the Class P Certificates, by depositing such amount into
the
Collection Account. The foregoing shall not, however, limit any remedies
available to the Certificateholders, the Depositor or the Trustee on behalf
of
the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed
by the Servicer in its capacity as Originator, respecting a breach of the
representations, warranties and covenants of the Servicer in its capacity as
Originator contained in the Mortgage Loan Purchase Agreement.
| SECTION 2.06. |
Representations
and Warranties of the Depositor.
|
The
Depositor represents and warrants to the Trust and the Trustee on behalf of
the
Certificateholders as follows:
(i) This
Agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) Immediately
prior to the sale and assignment by the Depositor to the Trustee on behalf
of
the Trust of each Mortgage Loan, the Depositor had good and marketable title
to
each Mortgage Loan (insofar as such title was conveyed to it by the Seller)
subject to no prior lien, claim, participation interest, mortgage, security
interest, pledge, charge or other encumbrance or other interest of any
nature;
(iii) 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;
(iv) The
Depositor has not transferred the Mortgage Loans to the Trustee on behalf of
the
Trust with any intent to hinder, delay or defraud any of its
creditors;
(v) The
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) The
Depositor is not in violation of its articles of incorporation or by-laws or
in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is a party
or
by which it or its properties may be bound, which default might result in any
material adverse changes in the financial condition, earnings, affairs or
business of the Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor;
(vii) The
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated thereby, do not and will not
result in a material breach or violation of any of the terms or provisions
of,
or, to the knowledge of the Depositor, constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party or by which the Depositor is bound
or to which any of the property or assets of the Depositor is subject, nor
will
such actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Depositor or, to the best of the Depositor’s
knowledge without independent investigation, any statute or any order, rule
or
regulation of any court or governmental agency or body having jurisdiction
over
the Depositor or any of its properties or assets (except for such conflicts,
breaches, violations and defaults as would not have a material adverse effect
on
the ability of the Depositor to perform its obligations under this
Agreement);
(viii) To
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities or Blue Sky laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this
Agreement;
(ix) There
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement, as
the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement; and
(x) The
beneficial owner of the payments made under the Interest Rate Swap Agreement
is
either (i) a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii)
of United States Treasury Regulations) for United States federal income tax
purposes or (ii) a “non-U.S. branch of a foreign person” as that term is used in
section 1.1441-4(a)(3)(ii) of the United States Treasury Regulations (the
“Regulations”) for United States federal income tax purposes, and it is a
“foreign person” as that term is used in section 1.6041-4(a)(4) of the
Regulations for United States federal income tax purposes. As of the Closing
Date, Option One Mortgage Capital Corporation is the beneficial owner of the
payments made under the Interest Rate Swap Agreement.
| SECTION 2.07. |
Issuance
of Certificates.
|
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it of the Mortgage Files, subject to the provisions of Sections 2.01 and
2.02, together with the assignment to it of all other assets included in the
Trust Fund, receipt of which is hereby acknowledged. Concurrently with such
assignment and delivery and in exchange therefor, the Trustee, pursuant to
the
written request of the Depositor executed by an officer of the Depositor, has
executed, authenticated and delivered to or upon the order of the Depositor,
the
Certificates in authorized denominations. The interests evidenced by the
Certificates, constitute the entire beneficial ownership interest in the Trust
Fund.
| SECTION 2.08. |
Authorization
to Enter into Interest Rate Swap
Agreement.
|
(a) The
Trustee, not in its individual capacity but solely in its separate capacity
as
Supplemental Interest Trust Trustee, is hereby directed to exercise the rights,
perform the obligations, and make any representations to be exercised,
performed, or made by the Supplemental Interest Trust Trustee, as described
herein. The Supplemental Interest Trust Trustee is hereby directed to execute
and deliver the Interest Rate Swap Agreement on behalf of Party B (as defined
therein) and to exercise the rights, perform the obligations, and make the
representations of Party B thereunder, solely in its capacity as Supplemental
Interest Trust Trustee on behalf of Party B (as defined therein) and not in
its
individual capacity. The Servicer, the Depositor and the Certificateholders
(by
acceptance of their Certificates) acknowledge and agree that (i) the
Supplemental Interest Trust Trustee shall execute and deliver the Interest
Rate
Swap Agreement on behalf of Party B (as defined therein), (ii) the Supplemental
Interest Trust Trustee shall exercise the rights, perform the obligations,
and
make the representations of Party B thereunder, solely in its capacity as
Supplemental Interest Trust Trustee on behalf of Party B (as defined therein)
and not in its individual capacity and (iii) the Swap Administrator shall also
be entitled to exercise the rights and obligated to perform the obligations
of
Party B under the Interest Rate Swap Agreement.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall apply to the Supplemental
Interest Trust Trustee’s execution of the Interest Rate Swap Agreement, and the
performance of its duties and satisfaction of its obligations
thereunder.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall apply to the Swap
Administrator’s performance of its duties and satisfaction of its obligations
under the Interest Rate Swap Agreement.
| SECTION 2.09. |
Conveyance
of REMIC Regular Interests and Acceptance of REMIC 2, REMIC 3, REMIC
4,
REMIC 5 and REMIC 6 by the Trustee; Issuance of
Certificates.
|
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
described in the definition of REMIC 1 for the benefit of the holders of the
REMIC 1 Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-1 Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC 1 and declares that
it holds and will hold the same in trust for the exclusive use and benefit
of
the holders of the REMIC 1 Regular Interests and the Class R Certificates (in
respect of the Class R-1 Interest). The interests evidenced by the Class R-1
Interest, together with the REMIC 1 Regular Interests, constitute the entire
beneficial ownership interest in REMIC 1.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to REMIC
1
Regular Interests for the benefit of the holders of the REMIC 2 Regular
Interests (which are uncertificated) and the Class R Certificates (in respect
of
the Class R-2 Interest). The Trustee acknowledges receipt of the assets
described in the definition of REMIC 2 and declares that it holds and will
hold
the same in trust for the exclusive use and benefit of the holders of the REMIC
2 Regular Interests and the Class R Certificates (in respect of the Class R-2
Interest). The interests evidenced by the Class R-2 Interest, together with
the
REMIC 2 Regular Interests, constitute the entire beneficial ownership interest
in REMIC 2.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
2 Regular Interests (which are uncertificated) for the benefit of the Holders
of
the REMIC 3 Regular Interests and the Class R Certificates (in respect of the
Class R-3 Interest). The Trustee acknowledges receipt of the REMIC 3 Regular
Interests and declares that it holds and will hold the same in trust for the
exclusive use and benefit of the Holders of the REMIC 3 Regular Certificates,
the Class C Interest, Class P Interest and Class SWAP-IO Interest and the Class
R Certificates (in respect of the Class R-3 Interest). The interests evidenced
by the Class R-3 Interest, together with the REMIC 3 Regular Certificates,
the
Class C Interest, Class P Interest and Class SWAP-IO Interest, constitute the
entire beneficial ownership interest in REMIC 3.
(d) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
C Interest (which is uncertificated) for the benefit of the Holders of the
Class
C Certificates and the Class R-X Certificates (in respect of the Class R-4
Interest). The Trustee acknowledges receipt of the Class C Interest and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the Holders of the Class C Certificates and the Class R-X Certificates (in
respect of the Class R-4 Interest). The interests evidenced by the Class R-4
Interest, together with the Class C Certificates, constitute the entire
beneficial ownership interest in REMIC 4.
(e)
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
P Interest (which is uncertificated) for the benefit of the Holders of the
Class
P Certificates and the Class R-X Certificates (in respect of the Class R-5
Interest). The Trustee acknowledges receipt of the Class P Interest and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the Holders of the Class P Certificates and the Class R-X Certificates (in
respect of the Class R-5 Interest). The interests evidenced by the Class R-5
Interest, together with the Class P Certificates, constitute the entire
beneficial ownership interest in REMIC 5.
(f) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
SWAP-IO Interest (which is uncertificated) for the benefit of the Holders of
REMIC 6 Regular Interest SWAP-IO and the Class R-X Certificates (in respect
of
the Class R-6 Interest). The Trustee acknowledges receipt of the Class SWAP-IO
Interest and declares that it holds and will hold the same in trust for the
exclusive use and benefit of the Holders of REMIC 6 Regular Interest SWAP-IO
and
the Class R-X Certificates (in respect of the Class R-6 Interest). The interests
evidenced by the Class R-6 Interest, together with REMIC 6 Regular Interest
SWAP-IO, constitute the entire beneficial ownership interest in REMIC
6.
(g) Concurrently
with (i) the assignment and delivery to the Trustee of REMIC 1 and the
acceptance by the Trustee thereof, pursuant to Section 2.01 and Section 2.02,
(ii) the assignment and delivery to the Trustee of REMIC 2 (including the
Residual Interest therein represented by the Class R-2 Interest) and the
acceptance by the Trustee thereof, pursuant to Section 2.09(b), (iii) the
assignment and delivery to the Trustee of REMIC 3 (including the Residual
Interest therein represented by the Class R-3 Interest) and the acceptance
by
the Trustee thereof, pursuant to Section 2.09(c), (iv) the assignment and
delivery to the Trustee of REMIC 4 (including the Residual Interest therein
represented by the Class R-4 Interest), and the acceptance by the Trustee
thereof, pursuant to Section 2.09(d), (v) the assignment and delivery to the
Trustee of REMIC 5 (including the Residual Interest therein represented by
the
Class R-5 Interest) and the acceptance by the Trustee thereof, pursuant to
Section 2.09(e) and (vi) the assignment and delivery to the Trustee of REMIC
6
(including the Residual Interest therein represented by the Class R-6 Interest)
and the acceptance by the Trustee thereof, pursuant to Section 2.09(f), the
Trustee, pursuant to the written request of the Depositor executed by an officer
of the Depositor, has executed, authenticated and delivered to or upon the
order
of the Depositor, (A) the Class R Certificates in authorized denominations
evidencing the Class R-1 Interest, Class R-2 Interest and the Class R-3 Interest
and (B) the Class R-X Certificates in authorized denominations evidencing the
Class R-4 Interest, the Class R-5 Interest and the Class R-6
Interest.
| SECTION 2.10. |
Negative
Covenants of the Trustee and the
Servicer.
|
Except
as
otherwise expressly permitted by this Agreement, the Trustee and the Servicer
shall not cause the Trust Fund to:
(i) sell,
transfer, exchange or otherwise dispose of any of the assets of the Trust
Fund;
(ii) dissolve
or liquidate the Trust Fund in whole or in part;
(iii) engage,
directly or indirectly, in any business other than that arising out of the
issue
of the Certificates, and the actions contemplated or required to be performed
under this Agreement;
(iv) incur,
create or assume any indebtedness for borrowed money;
(v) voluntarily
file a petition for bankruptcy, reorganization, assignment for the benefit
of
creditors or similar proceeding; or
(vi) merge,
convert or consolidate with any other Person.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
| SECTION 3.01. |
Servicer
to Act as Servicer.
|
The
Servicer shall service and administer the Mortgage Loans on behalf of the Trust
and in the best interests of and for the benefit of the Certificateholders
(as
determined by the Servicer in its reasonable judgment) in accordance with the
terms of this Agreement and the Mortgage Loans and, to the extent consistent
with such terms, in the same manner in which it services and administers similar
mortgage loans for its own portfolio, giving due consideration to customary
and
usual standards of practice of mortgage lenders and loan servicers administering
similar mortgage loans but without regard to:
(A) any
relationship that the Servicer, any Sub-Servicer or any Affiliate of the
Servicer or any Sub-Servicer may have with the related Mortgagor;
(B) the
ownership or non-ownership of any Certificate by the Servicer or any Affiliate
of the Servicer;
(C) the
Servicer’s obligation to make Advances or Servicing Advances; or
(D) the
Servicer’s or any Sub-Servicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
To
the
extent consistent with the foregoing, the Servicer (a) shall seek the timely
and
complete recovery of principal and interest on the Mortgage Notes and (b) shall
waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the
following circumstances: (i) such waiver is standard and customary in servicing
similar Mortgage Loans and (ii) either (A) such waiver relates to a default
or a
reasonably foreseeable default and would, in the reasonable judgment of the
Servicer, maximize recovery of total proceeds taking into account the value
of
such Prepayment Charge and the related Mortgage Loan or (B) such waiver is
made
in connection with a refinancing of the related Mortgage Loan unrelated to
a
default or a reasonably foreseeable default where (x) the related Mortgagor
has
stated to the Servicer or an applicable Sub-Servicer an intention to refinance
the related Mortgage Loan and (y) the Servicer has concluded in its reasonable
judgment that the waiver of such Prepayment Charge would induce such mortgagor
to refinance with the Servicer; provided, however, that the Servicer shall
waive
no more than 5.00% of the Prepayment Charges (by number of Prepayment Charges)
set forth on the Prepayment Charge Schedule in accordance with clause (ii)(B)
above. If a Prepayment Charge is waived as permitted by meeting the standards
described in clauses (i) and (ii)(B) above, then the Servicer is required to
pay
the amount of such waived Prepayment Charge, for the benefit of the Holders
of
the Class P Certificates, by depositing such amount into the Collection Account
together with and at the time that the amount prepaid on the related Mortgage
Loan is required to be deposited into the Collection Account. Notwithstanding
any other provisions of this Agreement, any payments made by the Servicer in
respect of any waived Prepayment Charges pursuant to clauses (i) and (ii)(B)
above shall be deemed to be paid outside of the Trust Fund. Subject only to
the
above-described servicing standards and the terms of this Agreement and of
the
Mortgage Loans, the Servicer shall have full power and authority, acting alone
or through Sub-Servicers as provided in Section 3.02, to do or cause to be
done
any and all things in connection with such servicing and administration which
it
may deem necessary or desirable. Without limiting the generality of the
foregoing, the Servicer in its own name or in the name of a Sub-Servicer is
hereby authorized and empowered by the Trustee when the Servicer believes it
appropriate in its best judgment in accordance with the servicing standards
set
forth above, to execute and deliver, on behalf of the Certificateholders and
the
Trustee, and upon notice to the Trustee, any and all instruments of satisfaction
or cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Mortgage Loans and the Mortgaged
Properties and to institute foreclosure proceedings or obtain a deed-in-lieu
of
foreclosure so as to convert the ownership of such properties, and to hold
or
cause to be held title to such properties, on behalf of the Trustee and
Certificateholders. The Servicer shall service and administer the Mortgage
Loans
in accordance with applicable state and federal law and shall provide to the
Mortgagors any reports required to be provided to them thereby. The Servicer
shall also comply in the performance of this Agreement with all reasonable
rules
and requirements of each insurer under any standard hazard insurance policy.
Subject to Section 3.17, within 15 days of the Closing Date, the Trustee shall
execute, at the written request of the Servicer, and furnish to the Servicer
and
any Sub-Servicer any special or limited powers of attorney for each county
in
which a Mortgaged Property is located and other documents necessary or
appropriate to enable the Servicer or any Sub-Servicer to carry out their
servicing and administrative duties hereunder; provided,
such
limited powers of attorney or other documents shall be prepared by the Servicer
and submitted to the Trustee for execution. The Trustee shall not be liable
for
the actions of the Servicer or any Sub-Servicers under such powers of
attorney.
Subject
to Section 3.09 hereof, in accordance with the standards of the preceding
paragraph, the Servicer shall advance or cause to be advanced funds as necessary
for the purpose of effecting the payment of taxes and assessments on the
Mortgaged Properties, which advances shall be Servicing Advances reimbursable
in
the first instance from related collections from the Mortgagors pursuant to
Section 3.09, and further as provided in Section 3.11. Any cost incurred by
the
Servicer or by Sub-Servicers in effecting the payment of taxes and assessments
on a Mortgaged Property shall not, for the purpose of calculating distributions
to Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so
permit.
Notwithstanding
anything in this Agreement to the contrary, the Servicer may not make any future
advances with respect to a Mortgage Loan (except as provided in Section 4.04)
and the Servicer shall not (i) permit any modification with respect to any
Mortgage Loan that would change the Mortgage Rate, reduce or increase the
Principal Balance (except for reductions resulting from actual payments of
principal) or change the final maturity date on such Mortgage Loan (unless,
as
provided in Section 3.07, the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Servicer, reasonably
foreseeable) or (ii) permit any modification, waiver or amendment of any term
of
any Mortgage Loan that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or Treasury regulations
promulgated thereunder) and (B) cause any REMIC created hereunder to fail to
qualify as a REMIC under the Code or the imposition of any tax on “prohibited
transactions” or “contributions after the startup date” under the REMIC
Provisions.
| SECTION 3.02. |
Sub-Servicing
Agreements Between Servicer and
Sub-Servicers.
|
(a) The
Servicer may enter into Sub-Servicing Agreements with Sub-Servicers for the
servicing and administration of the Mortgage Loans; provided,
however,
that
(i) such agreements would not result in a withdrawal or a downgrading by any
Rating Agency of the rating on any Class of Certificates and (ii) the NIMS
Insurer shall have consented to such Sub-Servicing Agreement. The Trustee is
hereby authorized to acknowledge, at the request of the Servicer, any
Sub-Servicing Agreement that meets the requirements applicable to Sub-Servicing
Agreements set forth in this Agreement and that is otherwise permitted under
this Agreement.
Each
Sub-Servicer shall be (i) authorized to transact business in the state or states
where the related Mortgaged Properties it is to service are situated, if and
to
the extent required by applicable law to enable the Sub-Servicer to perform
its
obligations hereunder and under the Sub-Servicing Agreement and (ii) a Xxxxxxx
Mac or Xxxxxx Mae approved mortgage servicer. Each Sub-Servicing Agreement
must
impose on the Sub-Servicer requirements conforming to the provisions set forth
in Section 3.08 and provide for servicing of the Mortgage Loans consistent
with
the terms of this Agreement. The Servicer will examine each Sub-Servicing
Agreement and will be familiar with the terms thereof. The terms of any
Sub-Servicing Agreement will not be inconsistent with any of the provisions
of
this Agreement. The Servicer and the Sub-Servicers may enter into and make
amendments to the Sub-Servicing Agreements or enter into different forms of
Sub-Servicing Agreements; provided,
however,
that
any such amendments or different forms shall be consistent with and not violate
the provisions of this Agreement, and that no such amendment or different form
shall be made or entered into which could be reasonably expected to be
materially adverse to the interests of the Certificateholders without the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights; provided,
further,
that
the consent of the Holders of Certificates entitled to at least 66% of the
Voting Rights shall not be required (i) to cure any ambiguity or defect in
a
Sub-Servicing Agreement, (ii) to correct, modify or supplement any provisions
of
a Sub-Servicing Agreement, or (iii) to make any other provisions with respect
to
matters or questions arising under a Sub-Servicing Agreement, which, in each
case, shall not be inconsistent with the provisions of this Agreement. Any
variation without the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights from the provisions set forth in Section 3.08
relating to insurance or priority requirements of Sub-Servicing Accounts, or
credits and charges to the Sub-Servicing Accounts or the timing and amount
of
remittances by the Sub-Servicers to the Servicer, are conclusively deemed to
be
inconsistent with this Agreement and therefore prohibited. The Servicer shall
deliver to the NIMS Insurer and the Trustee copies of all Sub-Servicing
Agreements, and any amendments or modifications thereof, promptly upon the
Servicer’s execution and delivery of such instruments.
(b) As
part
of its servicing activities hereunder, the Servicer, for the benefit of the
Trustee and the Certificateholders, shall enforce the obligations of each
Sub-Servicer under the related Sub-Servicing Agreement and of the Originator
under the Mortgage Loan Purchase Agreement, including, without limitation,
any
obligation to make advances in respect of delinquent payments as required by
a
Sub-Servicing Agreement, or to purchase a Mortgage Loan on account of missing
or
defective documentation or on account of a breach of a representation, warranty
or covenant, as described in Section 2.03(a). Such enforcement, including,
without limitation, the legal prosecution of claims, termination of
Sub-Servicing Agreements, and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans. The Servicer shall pay the costs of such
enforcement at its own expense, and shall be reimbursed therefor only (i) from
a
general recovery resulting from such enforcement, to the extent, if any, that
such recovery exceeds all amounts due in respect of the related Mortgage Loans,
or (ii) from a specific recovery of costs, expenses or attorneys’ fees against
the party against whom such enforcement is directed. Enforcement of the Mortgage
Loan Purchase Agreement against the Originator shall be effected by the Servicer
to the extent it is not the Originator, and otherwise by the Trustee in
accordance with the foregoing provisions of this paragraph.
| SECTION 3.03. |
Successor
Sub-Servicers.
|
The
Servicer, with the consent of the NIMS Insurer, shall be entitled to terminate
any Sub-Servicing Agreement and the rights and obligations of any Sub-Servicer
pursuant to any Sub-Servicing Agreement in accordance with the terms and
conditions of such Sub-Servicing Agreement. In the event of termination of
any
Sub-Servicer, all servicing obligations of such Sub-Servicer shall be assumed
simultaneously by the Servicer without any act or deed on the part of such
Sub-Servicer or the Servicer, and the Servicer either shall service directly
the
related Mortgage Loans or shall enter into a Sub-Servicing Agreement with a
successor Sub-Servicer which qualifies under Section 3.02.
Any
Sub-Servicing Agreement shall include the provision that such agreement may
be
immediately terminated by the Servicer or the Trustee (if the Trustee is acting
as Servicer) without fee, in accordance with the terms of this Agreement, in
the
event that the Servicer (or the Trustee, if such party is then acting as
Servicer) shall, for any reason, no longer be the Servicer (including
termination due to a Servicer Event of Termination).
| SECTION 3.04. |
Liability
of the Servicer.
|
Notwithstanding
any Sub-Servicing Agreement or the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Sub-Servicer or reference
to actions taken through a Sub-Servicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee and the Certificateholders for
the
servicing and administering of the Mortgage Loans in accordance with the
provisions of Section 3.01 without diminution of such obligation or liability
by
virtue of such Sub-Servicing Agreements or arrangements or by virtue of
indemnification from the Sub-Servicer and to the same extent and under the
same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans. The Servicer shall be entitled to enter into any agreement
with a Sub-Servicer for indemnification of the Servicer by such Sub-Servicer
and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
| SECTION 3.05. |
No
Contractual Relationship Between Sub-Servicers and the NIMS Insurer,
the
Trustee or Certificateholders.
|
Any
Sub-Servicing Agreement that may be entered into and any transactions or
services relating to the Mortgage Loans involving a Sub-Servicer in its capacity
as such shall be deemed to be between the Sub-Servicer and the Servicer alone,
and the NIMS Insurer, the Trustee or Certificateholders shall not be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Sub-Servicer except as set forth in Section
3.06. The Servicer shall be solely liable for all fees owed by it to any
Sub-Servicer, irrespective of whether the Servicer’s compensation pursuant to
this Agreement is sufficient to pay such fees.
| SECTION 3.06. |
Assumption
or Termination of Sub-Servicing Agreements by
Trustee.
|
In
the
event the Servicer shall for any reason no longer be the servicer (including
by
reason of the occurrence of a Servicer Event of Termination), the Trustee shall
thereupon assume all of the rights and obligations of the Servicer under each
Sub-Servicing Agreement that the Servicer may have entered into, unless the
Trustee elects to terminate any Sub-Servicing Agreement in accordance with
its
terms as provided in Section 3.03. Upon such assumption, the Trustee (or the
successor servicer appointed pursuant to Section 7.02) shall be deemed, subject
to Section 3.03, to have assumed all of the departing Servicer’s interest
therein and to have replaced the departing Servicer as a party to each
Sub-Servicing Agreement to the same extent as if each Sub-Servicing Agreement
had been assigned to the assuming party, except that (i) the departing Servicer
shall not thereby be relieved of any liability or obligations under any
Sub-Servicing Agreement that arose before it ceased to be the Servicer and
(ii)
neither the Trustee nor any successor Servicer shall be deemed to have assumed
any liability or obligation of the Servicer that arose before it ceased to
be
the Servicer.
The
Servicer at its expense shall, upon request of Trustee, deliver to the assuming
party all documents and records relating to each Sub-Servicing Agreement and
the
Mortgage Loans then being serviced and an accounting of amounts collected and
held by or on behalf of it, and otherwise use its best efforts to effect the
orderly and efficient transfer of the Sub-Servicing Agreements to the assuming
party. All Servicing Transfer Costs shall be paid by the predecessor Servicer
upon presentation of reasonable documentation of such costs, and if such
predecessor Servicer defaults in its obligation to pay such costs, such costs
shall be paid by the successor Servicer or the Trustee (in which case the
successor Servicer or the Trustee, as applicable, shall be entitled to
reimbursement therefor from the assets of the Trust).
| SECTION 3.07. |
Collection
of Certain Mortgage Loan Payments.
|
The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans, and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable insurance policies, follow such collection procedures as
it
would follow with respect to mortgage loans comparable to the Mortgage Loans
and
held for its own account. Consistent with the foregoing, the Servicer may in
its
discretion (i) waive any late payment charge or, if applicable, any penalty
interest, or (ii) extend the due dates for the Monthly Payments due on a
Mortgage Note for a period of not greater than 180 days; provided,
however,
that
any extension pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder, except
as provided below. In the event of any such arrangement pursuant to clause
(ii)
above, the Servicer shall make timely Advances on such Mortgage Loan during
such
extension pursuant to Section 4.04 and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangement.
Notwithstanding
the foregoing, in the event that any Mortgage Loan is in default or, in the
judgment of the Servicer, such default is reasonably foreseeable, the Servicer,
consistent with the standards set forth in Section 3.01, may also waive, modify
or vary any term of such Mortgage Loan (including modifications that would
change the Mortgage Rate, forgive the payment of principal or interest,
capitalize the interest portion of past due Monthly Payments and outstanding
Servicing Advances, or extend the final maturity date of such Mortgage Loan),
accept payment from the related Mortgagor of an amount less than the Stated
Principal Balance in final satisfaction of such Mortgage Loan, or consent to
the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor (any and all such waivers, modifications, variances,
forgiveness of principal or interest, postponements, or indulgences collectively
referred to herein as “forbearance”), provided,
however,
that in
no event shall the Servicer grant any such forbearance (other than as permitted
by the second sentence of this Section) with respect to any one Mortgage Loan
more than once in any 12 month period or more than three times over the life
of
such Mortgage Loan, provided,
further,
that in
determining which course of action permitted by this sentence it shall pursue,
the Servicer shall adhere to the Loss Mitigation Procedures and provided,
further,
that
the NIMS Insurer’s prior written consent shall be required for any modification,
waiver or amendment if the aggregate number of outstanding Mortgage Loans which
have been modified, waived or amended exceeds 5% of the number of Mortgage
Loans
as of the Cut-off Date. The Servicer’s analysis supporting any forbearance and
the conclusion that any forbearance meets the standards of Section 3.01 and
the
Loss Mitigation Procedures shall be reflected in writing in the Mortgage
File.
| SECTION 3.08. |
Sub-Servicing
Accounts.
|
In
those
cases where a Sub-Servicer is servicing a Mortgage Loan pursuant to a
Sub-Servicing Agreement, the Sub-Servicer will be required to establish and
maintain one or more accounts (collectively, the “Sub-Servicing Account”). The
Sub-Servicing Account shall be an Eligible Account and shall comply with all
requirements of this Agreement relating to the Collection Account. The
Sub-Servicer shall deposit in the clearing account in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after the Sub-Servicer’s receipt thereof, all proceeds of
Mortgage Loans received by the Sub-Servicer less its servicing compensation
to
the extent permitted by the Sub-Servicing Agreement, and shall thereafter
deposit such amounts in the Sub-Servicing Account, in no event more than two
Business Days after the receipt of such amounts. The Sub-Servicer shall
thereafter deposit such proceeds in the Collection Account or remit such
proceeds to the Servicer for deposit in the Collection Account not later than
two Business Days after the deposit of such amounts in the Sub-Servicing
Account. For purposes of this Agreement, the Servicer shall be deemed to have
received payments on the Mortgage Loans when the Sub-Servicer receives such
payments.
| SECTION 3.09. |
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
The
Servicer shall establish and maintain, or cause to be established and
maintained, one or more accounts (the “Servicing Accounts”), into which all
Escrow Payments shall be deposited and retained. Servicing Accounts shall be
Eligible Accounts. The Servicer shall deposit in the clearing account in which
it customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Servicer’s receipt thereof, all Escrow
Payments collected on account of the Mortgage Loans and shall thereafter deposit
such Escrow Payments in the Servicing Accounts, in no event more than two
Business Days after the deposit of such funds in the clearing account, all
Escrow Payments collected on account of the Mortgage Loans for the purpose
of
effecting the timely payment of any such items as required under the terms
of
this Agreement. Withdrawals of amounts from a Servicing Account may be made
only
to (i) effect payment of taxes, assessments, hazard insurance premiums, and
comparable items in a manner and at a time that assures that the lien priority
of the Mortgage is not jeopardized (or, with respect to the payment of taxes,
in
a manner and at a time that avoids the loss of the Mortgaged Property due to
a
tax sale or the foreclosure as a result of a tax lien); (ii) reimburse the
Servicer (or a Sub-Servicer to the extent provided in the related Sub-Servicing
Agreement) out of related collections for any Servicing Advances made pursuant
to Section 3.01 (with respect to taxes and assessments) and Section 3.14 (with
respect to hazard insurance); (iii) refund to Mortgagors any sums as may be
determined to be overages; (iv) pay interest to the Servicer or, if required
and
as described below, to Mortgagors on balances in the Servicing Account; or
(v)
clear and terminate the Servicing Account at the termination of the Servicer’s
obligations and responsibilities in respect of the Mortgage Loans under this
Agreement in accordance with Article X. In the event the Servicer deposits
in a
Servicing Account any amount not required to be deposited therein, it may at
any
time withdraw such amount from such Servicing Account, any provision herein
to
the contrary notwithstanding. The Servicer will be responsible for the
administration of the Servicing Accounts and will be obligated to make Servicing
Advances to such accounts when and as necessary to avoid the lapse of insurance
coverage on the Mortgaged Property, or which the Servicer knows, or in the
exercise of the required standard of care of the Servicer hereunder should
know,
is necessary to avoid the loss of the Mortgaged Property due to a tax sale
or
the foreclosure as a result of a tax lien. If any such payment has not been
made
and the Servicer receives notice of a tax lien with respect to the Mortgage
being imposed, the Servicer shall, within 10 business days of such notice,
advance or cause to be advanced funds necessary to discharge such lien on the
Mortgaged Property. As part of its servicing duties, the Servicer or
Sub-Servicers shall pay to the Mortgagors interest on funds in the Servicing
Accounts, to the extent required by law and, to the extent that interest earned
on funds in the Servicing Accounts is insufficient, to pay such interest from
its or their own funds, without any reimbursement therefor. The Servicer may
pay
to itself any excess interest on funds in the Servicing Accounts, to the extent
such action is in conformity with the Servicing Standard, is permitted by law
and such amounts are not required to be paid to Mortgagors or used for any
of
the other purposes set forth above.
| SECTION 3.10. |
Collection
Account and Distribution Account.
|
(a) On
behalf
of the Trust Fund, the Servicer shall establish and maintain, or cause to be
established and maintained, one or more accounts (such account or accounts,
the
“Collection Account”), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the Servicer shall deposit
or
cause to be deposited in the clearing account in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage
loan
servicing activities on a daily basis, and in no event more than one Business
Day after the Servicer’s receipt thereof, and shall thereafter deposit in the
Collection Account, in no event more than two Business Days after the deposit
of
such funds in the clearing account, as and when received or as otherwise
required hereunder, the following payments and collections received or made
by
it subsequent to the Cut-off Date (other than in respect of principal or
interest on the Mortgage Loans due on or before the Cut-off Date) or payments
(other than Principal Prepayments) received by it on or prior to the Cut-off
Date but allocable to a Due Period subsequent thereto:
(i) all
payments on account of principal, including Principal Prepayments (but not
Prepayment Charges), on the Mortgage Loans;
(ii) all
payments on account of interest (net of the related Servicing Fee) on each
Mortgage Loan;
(iii) all
Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries and condemnation
proceeds (other than proceeds collected in respect of any particular REO
Property and amounts paid in connection with a purchase of Mortgage Loans and
REO Properties pursuant to Section 10.01);
(iv) any
amounts required to be deposited pursuant to Section 3.12 in connection with
any
losses realized on Permitted Investments with respect to funds held in the
Collection Account;
(v) any
amounts required to be deposited by the Servicer pursuant to the second
paragraph of Section 3.14(a) in respect of any blanket policy
deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in accordance with
Section 2.03 or Section 10.01;
(vii) all
amounts required to be deposited in connection with Substitution Adjustments
pursuant to Section 2.03;
(viii) all
Prepayment Charges collected by the Servicer and any Servicer Prepayment Charge
Payment Amounts in connection with the Principal Prepayment of any of the
Mortgage Loans; and
(ix) [reserved].
The
foregoing requirements for deposit in the Collection Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of Servicing Fees, late payment charges,
assumption fees, insufficient funds charges and ancillary income (other than
Prepayment Charges) need not be deposited by the Servicer in the Collection
Account and may be retained by the Servicer as additional compensation. In
the
event the Servicer shall deposit in the Collection Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Collection Account, any provision herein to the contrary
notwithstanding.
(b) On
behalf
of the Trust Fund, the Trustee shall establish and maintain one or more accounts
(such account or accounts, the “Distribution Account”), held in trust for the
benefit of the Trustee and the Certificateholders. On behalf of the Trust Fund,
the Servicer shall deliver to the Trustee in immediately available funds for
deposit in the Distribution Account on or before 1:00 p.m. New York time (i)
on
the Servicer Remittance Date, that portion of the Available Funds (calculated
without regard to the references in the definition thereof to amounts that
may
be withdrawn from the Distribution Account) for the related Distribution Date
then on deposit in the Collection Account, the amount of all Prepayment Charges
collected during the applicable Prepayment Period by the Servicer and Servicer
Prepayment Charge Payment Amounts in connection with the Principal Prepayment
of
any of the Mortgage Loans then on deposit in the Collection Account for
the related Distribution Date, then on deposit in the Collection Account
and
the
amount of any funds reimbursable to an Advancing Person pursuant to Section
3.29, and (ii) on each Business Day as of the commencement of which the balance
on deposit in the Collection Account exceeds $75,000 following any withdrawals
pursuant to the next succeeding sentence, the amount of such excess, but only
if
the Collection Account constitutes an Eligible Account solely pursuant to clause
(ii) of the definition of “Eligible Account.” If the balance on deposit in the
Collection Account exceeds $75,000 as of the commencement of business on any
Business Day and the Collection Account constitutes an Eligible Account solely
pursuant to clause (ii) of the definition of “Eligible Account,” the Servicer
shall, on or before 1:00 p.m. New York time on such Business Day, withdraw
from
the Collection Account any and all amounts payable or reimbursable to the
Servicer, the Trustee, the Originator or any Sub-Servicer pursuant to Section
3.11 and shall pay such amounts to the Persons entitled thereto.
(c) Funds
in
the Collection Account and the Distribution Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. The
Servicer shall give notice to the NIMS Insurer and the Trustee of the location
of the Collection Account maintained by it when established and prior to any
change thereof. The Trustee shall give notice to the NIMS Insurer, the Servicer
and the Depositor of the location of the Distribution Account when established
and prior to any change thereof.
(d) Funds
held in the Collection Account at any time may be delivered by the Servicer
to
the Trustee for deposit in an account (which may be the Distribution Account
and
must satisfy the standards for the Distribution Account as set forth in the
definition thereof) and for all purposes of this Agreement shall be deemed
to be
a part of the Collection Account; provided,
however,
that
the Trustee shall have the sole authority to withdraw any funds held pursuant
to
this subsection (d). In the event the Servicer shall deliver to the Trustee
for
deposit in the Distribution Account any amount not required to be deposited
therein, it may at any time request that the Trustee withdraw such amount from
the Distribution Account and remit to it any such amount, any provision herein
to the contrary notwithstanding. In addition, the Servicer, with respect to
items (i) through (iv) below, shall deliver to the Trustee from time to time
for
deposit, and the Trustee, with respect to items (i) through (iv) below, shall
so
deposit, in the Distribution Account:
(i) any
Advances, as required pursuant to Section 4.04;
(ii) any
amounts required to be deposited pursuant to Section 3.23(d) or (f) in
connection with any REO Property;
(iii) any
amounts to be paid in connection with a purchase of Mortgage Loans and REO
Properties pursuant to Section 10.01;
(iv) any
Compensating Interest to be deposited pursuant to Section 3.24 in connection
with any Prepayment Interest Shortfall; and
(v) any
amounts required to be paid to the Trustee pursuant to the Agreement, including,
but not limited to Section 3.06, Section 3.26 and Section 7.02.
(e) [Reserved].
(f) The
Servicer shall deposit in the Collection Account any amounts required to be
deposited pursuant to Section 3.12(b) in connection with losses realized on
Permitted Investments with respect to funds held in the Collection
Account.
| SECTION 3.11. |
Withdrawals
from the Collection Account and Distribution
Account.
|
(a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 4.04:
(i) to
remit
to the Trustee for deposit in the Distribution Account the amounts required
to
be so remitted pursuant to Section 3.10(b) or permitted to be so remitted
pursuant to the first sentence of Section 3.10(d);
(ii) subject
to Section 3.16(d), to reimburse the Servicer for (a) any unreimbursed Advances
to the extent of amounts received which represent Late Collections (net of
the
related Servicing Fees) of Monthly Payments or Liquidation Proceeds and
Insurance Proceeds on Mortgage Loans with respect to which such Advances were
made in accordance with the provisions of Section 4.04; (b) any unreimbursed
Advances with respect to the final liquidation of a Mortgage Loan that are
Nonrecoverable Advances, but only to the extent that Late Collections,
including, Liquidation Proceeds and Insurance Proceeds received with respect
to
such Mortgage Loan are insufficient to reimburse the Servicer for such
unreimbursed Advances; or (c) subject to Section 4.04(b), any unreimbursed
Advances to the extent of funds held in the Collection Account for future
distribution that were not included in Available Funds for the preceding
Distribution Date;
(iii) subject
to Section 3.16(d), to pay the Servicer or any Sub-Servicer (a) any unpaid
Servicing Fees, but only to the extent of the interest portion of any Late
Collections, including Liquidation Proceeds, Insurance Proceeds and condemnation
proceeds received with respect to such Mortgage Loan, (b) any unreimbursed
Servicing Advances with respect to each Mortgage Loan, but only to the extent
of
any Late Collections, including, Liquidation Proceeds, Insurance Proceeds and
condemnation proceeds received with respect to such Mortgage Loan, (c) any
Servicing Fees with respect to the final liquidation of a Mortgage Loan, but
only to the extent that Late Collections, including, Liquidation Proceeds and
Insurance Proceeds received with respect to such Mortgage Loan are insufficient
to pay the Servicer or any Sub-Servicer for unpaid Servicing Fees, and (d)
any
Servicing Advances with respect to the final liquidation of a Mortgage Loan
that
are Nonrecoverable Advances, but only to the extent that Late
Collections,
including, Liquidation Proceeds and Insurance Proceeds received with respect
to
such Mortgage Loan are insufficient to reimburse the Servicer or any
Sub-Servicer for Servicing Advances;
(iv) to
pay to
the Servicer as servicing compensation (in addition to the Servicing Fee) on
the
Servicer Remittance Date any interest or investment income earned on funds
deposited in the Collection Account;
(v) to
pay to
the Originator, with respect to each Mortgage Loan that has previously been
purchased or replaced pursuant to Section 2.03 or Section 3.16(c) all amounts
received thereon subsequent to the date of purchase or substitution, as the
case
may be;
(vi) to
reimburse the Servicer for any Advance or Servicing Advance previously made
which the Servicer has determined to be a Nonrecoverable Advance in accordance
with the provisions of Section 4.04;
(vii) to
pay,
or to reimburse the Servicer for Servicing Advances in respect of, expenses
incurred in connection with any Mortgage Loan pursuant to Section
3.16(b);
(viii) to
reimburse the Servicer for expenses incurred by or reimbursable to the Servicer
pursuant to Section 6.03;
(ix) to
reimburse the NIMS Insurer, the Servicer (if the Servicer is not an Affiliate
of
the Originator) or the Trustee, as the case may be, for enforcement expenses
reasonably incurred in respect of the breach or defect giving rise to the
purchase obligation under Section 2.03 of this Agreement that were included
in
the Purchase Price of the Mortgage Loan, including any expenses arising out
of
the enforcement of the purchase obligation;
(x) to
pay
itself any Prepayment Interest Excess;
(xi) to
clear
and terminate the Collection Account pursuant to Section 10.01.
The
foregoing requirements for withdrawal from the Collection Account shall be
exclusive. In the event the Servicer shall deposit in the Collection Account
any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Collection Account, any provision herein to the contrary
notwithstanding.
The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Collection Account, to the extent held by or on behalf of it, pursuant to
subclauses (ii), (iii), (v), (vi), (ix) and (x) above. The Servicer shall
provide written notification to the NIMS Insurer and the Trustee, on or prior
to
the next succeeding Servicer Remittance Date, upon making any withdrawals from
the Collection Account pursuant to subclause (vi) above; provided
that an
Officers’ Certificate in the form described under Section 4.04(d) shall suffice
for such written notification to the Trustee in respect hereof.
(b) The
Trustee shall, from time to time, make withdrawals from the Distribution
Account, for any of the following purposes, without priority:
(i) to
make
distributions to the Swap Account in accordance with Section 4.08;
(ii) to
make
distributions in accordance with Section 4.01;
(iii) to
pay
itself the Trustee Fee and any other amounts owed to it pursuant to Section
8.05;
(iv) to
pay
any amounts in respect of taxes pursuant to Section 9.01(g);
(v) to
clear
and terminate the Distribution Account pursuant to Section 10.01;
(vi) to
pay
any amounts required to be paid to the Trustee pursuant to this Agreement,
including but not limited to funds required to be paid pursuant to Section
3.06
and Section 7.02;
(vii) to
pay to
the Trustee, any interest or investment income earned on funds deposited in
the
Distribution Account; and
(viii) to
pay to
an Advancing Person reimbursements for Advances and/or Servicing Advances
pursuant to Section 3.29.
| SECTION 3.12. |
Investment
of Funds in the Collection Account and the Distribution
Account.
|
(a) The
Servicer may direct any depository institution maintaining the Collection
Account to invest the funds on deposit in such accounts, and the Trustee may
invest the funds on deposit in the Distribution Account (each such account,
for
the purposes of this Section 3.12 an “Investment Account”). All investments
pursuant to this Section 3.12 shall be in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
(i) no later than the Business Day immediately preceding the date on which
such
funds are required to be withdrawn from such account pursuant to this Agreement,
if a Person other than the Trustee is the obligor thereon or if such investment
is managed or advised by a Person other than the Trustee or an Affiliate of
the
Trustee, and (ii) no later than the date on which such funds are required to
be
withdrawn from such account pursuant to this Agreement, if the Trustee is the
obligor thereon or if such investment is managed or advised by the Trustee
or
any Affiliate. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such), or in the name of
a
nominee of the Trustee. The Trustee shall be entitled to sole possession (except
with respect to investment direction of funds held in the Collection Account
and
any income and gain realized thereon) over each such investment, and any
certificate or other instrument evidencing any such investment shall be
delivered directly to the Trustee or its agent, together with any document
of
transfer necessary to transfer title to such investment to the Trustee or its
nominee. In the event amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Trustee
shall:
|
(x)
|
consistent
with any notice required to be given thereunder, demand that payment
thereon be made on the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of (1) all amounts
then
payable thereunder and (2) the amount required to be withdrawn on
such
date; and
|
|
(y)
|
demand
payment of all amounts due thereunder promptly upon determination
by a
Responsible Officer of the Trustee that such Permitted Investment
would
not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Investment Account.
|
(b) All
income and gain realized from the investment of funds deposited in the
Collection Account and any REO Account held by or on behalf of the Servicer
shall be for the benefit of the Servicer and shall be subject to its withdrawal
in accordance with Section 3.11 or Section 3.23, as applicable. The Servicer
shall deposit in the Collection Account or any REO Account, as applicable,
the
amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such account immediately upon realization of
such
loss.
(c) All
income and gain realized from the investment of funds deposited in the
Distribution Account shall be for the benefit of the Trustee. The Trustee shall
deposit in the Distribution Account the amount of any loss of principal incurred
in respect of any such Permitted Investment made with funds in such accounts
immediately upon realization of such loss.
(d) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Trustee
may and, subject to Section 8.01 and Section 8.02(a)(v), upon the request of
the
NIMS Insurer or the Holders of Certificates representing more than 50% of the
Voting Rights allocated to any Class of Certificates, shall take such action
as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings.
| SECTION 3.13. |
Rights
of the Class C Certificateholder.
|
(a) Notwithstanding
anything to the contrary contained in this Agreement, (i) the majority Holder
of
the Class C Certificates (as long as such majority Holder is not the Servicer
or
an Affiliate of the Servicer or if the Class C Certificates are secured by
an
Indenture, as long as the Servicer or an Affiliate of the Servicer is not the
majority equity holder in such transaction) shall have the right (with the
consent of the Servicing Rights Pledgee) to direct the Trustee to appoint a
qualified successor servicer who will act as successor in all respects to the
Servicer in the event of a Servicer Event of Termination pursuant to Article
VII
and (ii) the majority Holder of the Class C Certificates (as long as such
majority Holder is not the Servicer or an Affiliate of the Servicer or if the
Class C Certificates are secured by an Indenture, as long as the Servicer or
an
Affiliate of the Servicer is not the majority equity holder in such transaction)
shall have the right to direct the Servicer to transfer the servicing of any
Mortgage Loans Delinquent 120 days or more to a special servicer in the event
of
a Special Servicer Trigger Event, for so long as the appointment of such special
servicer (i) shall not cause a downgrade or withdrawal of the ratings on the
Class A and Mezzanine Certificates, (ii) shall meet the eligibility requirements
of a servicer under Section 7.02 and (iii) shall service in accordance with
this
Agreement. A special servicer shall be entitled to the Servicing Fee for the
Mortgage Loans serviced by it and any excess fees due to such special servicer
shall be paid by the majority Holder of the Class C Certificates.
A
Special
Servicer Trigger Event (“Special Servicer Trigger Event”) shall be in effect
with respect to any Distribution Date if:
(a)
the
Servicer’s primary servicer rating for the servicing of residential mortgage
loans is reduced by more than one full level or withdrawn, in each case by
at
least two of the Rating Agencies; or
(b)
the
Delinquency Percentage exceeds 30.00%;
or
(c)
the
aggregate amount of Realized Losses incurred since the Cut-off Date through
the
last day of the related Due Period (after reduction for all Subsequent
Recoveries received from the Cut-off Date through the Prepayment Period) divided
by the aggregate Cut-off Date Principal Balance exceeds 4.00% with respect
to
such Distribution Date.
| SECTION 3.14. |
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
(a) The
Servicer shall cause to be maintained for each Mortgage Loan hazard insurance
with extended coverage on the Mortgaged Property in an amount which is at least
equal to the lesser of (i) the current Principal Balance of such Mortgage Loan
and (ii) the amount necessary to fully compensate for any damage or loss to
the
improvements that are a part of such property on a replacement cost basis,
in
each case in an amount not less than such amount as is necessary to avoid the
application of any coinsurance clause contained in the related hazard insurance
policy. The Servicer shall also cause to be maintained hazard insurance with
extended coverage on each REO Property in an amount which is at least equal
to
the lesser of (i) the maximum insurable value of the improvements which are
a
part of such property and (ii) the outstanding Principal Balance of the related
Mortgage Loan at the time it became an REO Property. The Servicer will comply
in
the performance of this Agreement with all reasonable rules and requirements
of
each insurer under any such hazard policies. Any amounts to be collected by
the
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or amounts
to be released to the Mortgagor in accordance with the procedures that the
Servicer would follow in servicing loans held for its own account, subject
to
the terms and conditions of the related Mortgage and Mortgage Note) shall be
deposited in the Collection Account, subject to withdrawal pursuant to Section
3.11, if received in respect of a Mortgage Loan, or in the REO Account, subject
to withdrawal pursuant to Section 3.23, if received in respect of an REO
Property. Any cost incurred by the Servicer in maintaining any such insurance
shall not, for the purpose of calculating distributions to Certificateholders,
be added to the unpaid Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit. It is understood
and agreed that no earthquake or other additional insurance is to be required
of
any Mortgagor other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance.
If
the Mortgaged Property or REO Property is at any time in an area identified
in
the Federal Register by the Federal Emergency Management Agency as having
special flood hazards and flood insurance has been made available, the Servicer
will cause to be maintained a flood insurance policy in respect thereof. Such
flood insurance shall be in an amount equal to the lesser of (i) the unpaid
Principal Balance of the related Mortgage Loan and (ii) the maximum amount
of
such insurance available for the related Mortgaged Property under the national
flood insurance program (assuming that the area in which such Mortgaged Property
is located is participating in such program).
In
the
event that the Servicer shall obtain and maintain a blanket policy with an
insurer having a General Policy Rating of B:III or better in Best’s Key Rating
Guide (or such other rating that is comparable to such rating) insuring against
hazard losses on all of the Mortgage Loans, it shall conclusively be deemed
to
have satisfied its obligations as set forth in the first two sentences of this
Section 3.14, it being understood and agreed that such policy may contain a
deductible clause, in which case the Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property or REO Property
a policy complying with the first two sentences of this Section 3.14, and there
shall have been one or more losses which would have been covered by such policy,
deposit to the Collection Account from its own funds the amount not otherwise
payable under the blanket policy because of such deductible clause. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Servicer agrees to prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket policy in a timely
fashion in accordance with the terms of such policy.
(b) The
Servicer shall keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions for failure in the
performance of the Servicer’s obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements
of
Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans, unless
the Servicer has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. The Servicer shall provide the Trustee and the NIMS Insurer, upon
request, with copies of such insurance policies and fidelity bond. The Servicer
shall also maintain a fidelity bond in the form and amount that would meet
the
requirements of Xxxxxx Xxx or Xxxxxxx Mac, unless the Servicer has obtained
a
waiver of such requirements from Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall
be deemed to have complied with this provision if an Affiliate of the Servicer
has such errors and omissions and fidelity bond coverage and, by the terms
of
such insurance policy or fidelity bond, the coverage afforded thereunder extends
to the Servicer. Any such errors and omissions policy and fidelity bond shall
by
its terms not be cancelable without thirty days’ prior written notice to the
Trustee and the NIMS Insurer. The Servicer shall also cause each Sub-Servicer
to
maintain a policy of insurance covering errors and omissions and a fidelity
bond
which would meet such requirements.
| SECTION 3.15. |
Enforcement
of Due-On-Sale Clauses; Assumption
Agreements.
|
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto; provided,
however,
that
the Servicer shall not be required to take such action if in its sole business
judgment the Servicer believes it is not in the best interests of the Trust
Fund
and shall not exercise any such rights if prohibited by law from doing so.
If
the Servicer reasonably believes it is unable under applicable law to enforce
such “due-on-sale” clause, or if any of the other conditions set forth in the
proviso to the preceding sentence apply, the Servicer will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which
such
person becomes liable under the Mortgage Note and, to the extent permitted
by
applicable state law, the Mortgagor remains liable thereon. The Servicer is
also
authorized to enter into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability and such
person is substituted as the Mortgagor and becomes liable under the Mortgage
Note, provided that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Servicer and has a credit risk rating
at least equal to that of the original Mortgagor. In connection with any
assumption or substitution, the Servicer shall apply such underwriting standards
and follow such practices and procedures as shall be normal and usual in its
general mortgage servicing activities and as it applies to other mortgage loans
owned solely by it. The Servicer shall not take or enter into any assumption
and
modification agreement, however, unless (to the extent practicable in the
circumstances) it shall have received confirmation, in writing, of the continued
effectiveness of any applicable hazard insurance policy. Any fee collected
by
the Servicer in respect of an assumption, modification or substitution of
liability agreement shall be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Rate and the
amount of the Monthly Payment) may be amended or modified, except as otherwise
required pursuant to the terms thereof. The Servicer shall notify the Trustee
that any such substitution, modification or assumption agreement has been
completed by forwarding to the Trustee the executed original of such
substitution, modification or assumption agreement, which document shall be
added to the related Mortgage File and shall, for all purposes, be considered
a
part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the Servicer may be restricted by law from preventing, for any reason whatever.
For purposes of this Section 3.15, the term “assumption” is deemed to also
include a sale (of the Mortgaged Property) subject to the Mortgage that is
not
accompanied by an assumption or substitution of liability
agreement.
| SECTION 3.16. |
Realization
Upon Defaulted Mortgage Loans.
|
(a) The
Servicer shall use its best efforts, in as practical a time frame as possible
and consistent with Servicing Standard, to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07. The Servicer shall be responsible for all costs and expenses
incurred by it in any such proceedings; provided,
however,
that
such costs and expenses will be recoverable as Servicing Advances by the
Servicer as contemplated in Section 3.11 and Section 3.23. The foregoing is
subject to the provision that, in any case in which a Mortgaged Property shall
have suffered damage from an Uninsured Cause, the Servicer shall not be required
to expend its own funds toward the restoration of such property unless it shall
determine in its discretion that such restoration will increase the proceeds
of
liquidation of the related Mortgage Loan after reimbursement to itself for
such
expenses.
(b) Notwithstanding
the foregoing provisions of this Section 3.16 or any other provision of this
Agreement, with respect to any Mortgage Loan as to which the Servicer has
received actual notice of, or has actual knowledge of, the presence of any
toxic
or hazardous substance on the related Mortgaged Property, the Servicer shall
not, on behalf of the Trustee, either (i) obtain title to such Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, or (ii)
otherwise acquire possession of, or take any other action with respect to,
such
Mortgaged Property, if, as a result of any such action, the Trustee, the Trust
Fund or the Certificateholders would be considered to hold title to, to be
a
“mortgagee-in-possession” of, or to be an “owner” or “operator” of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer has also previously determined,
based
on its reasonable judgment and a report prepared by a Person who regularly
conducts environmental audits using customary industry standards,
that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Trust Fund to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect to the
affected Mortgaged Property.
Notwithstanding
the foregoing, if such environmental audit reveals, or if the Servicer has
actual knowledge or notice, that such Mortgaged Property contains such wastes
or
substances, the Servicer shall not foreclose or accept a deed in lieu of
foreclosure without the prior written consent of the NIMS Insurer.
The
cost
of the environmental audit report contemplated by this Section 3.16 shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Section 3.11(a)(vii), such
right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Collection Account received in respect of the affected
Mortgage Loan or other Mortgage Loans.
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Trust Fund;
provided
that any
amounts disbursed by the Servicer pursuant to this Section 3.16(b) shall
constitute Servicing Advances, subject to Section 4.04(d). The cost of any
such
compliance, containment, cleanup or remediation shall be advanced by the
Servicer, subject to the Servicer’s right to be reimbursed therefor from the
Collection Account as provided in Section 3.11(a)(iii) and (a)(vii), such right
of reimbursement being prior to the rights of Certificateholders to receive
any
amount in the Collection Account received in respect of the affected Mortgage
Loan or other Mortgage Loans.
(c)
(i) The
NIMS
Insurer may, at its option, purchase a Mortgage Loan which has become 90 or
more
days delinquent or for which the Servicer has accepted a deed in lieu of
foreclosure. Prior to purchase pursuant to this Section 3.16(c)(i), the Servicer
shall be required to continue to make Advances pursuant to Section 4.04. The
NIMS Insurer shall not use any procedure in selecting Mortgage Loans to be
repurchased which is materially adverse to the interests of the
Certificateholders. The NIMS Insurer shall purchase such delinquent Mortgage
Loan at a price equal to the Purchase Price of such Mortgage Loan. Any such
purchase of a Mortgage Loan pursuant to this Section 3.16(c)(i) shall be
accomplished by remittance to the Servicer for deposit in the Collection Account
of the amount of the Purchase Price. The Trustee shall immediately effectuate
the conveyance of such delinquent Mortgage Loan to the NIMS Insurer to the
extent necessary, including the prompt delivery of all documentation to the
NIMS
Insurer.
(ii) If
the
Servicer Optional Purchase Delinquency Trigger has been met, the Servicer may,
at its option, purchase a Mortgage Loan which has become 90 or more days
delinquent or for which the Servicer has accepted a deed in lieu of foreclosure.
Prior to purchase pursuant to this Section 3.16(c)(ii), the Servicer shall
be
required to continue to make Advances pursuant to Section 4.04. The Servicer
shall purchase such delinquent Mortgage Loan at a price equal to the Purchase
Price of such Mortgage Loan. Any such purchase of a Mortgage Loan pursuant
to
this Section 3.16(c)(ii) shall be accomplished by deposit in the Collection
Account of the amount of the Purchase Price. The Trustee shall immediately
effectuate the conveyance of such delinquent Mortgage Loan to the Servicer
to
the extent necessary, including the prompt delivery of all documentation to
the
Servicer.
Notwithstanding
the foregoing: (A) the Servicer shall have the option to purchase pursuant
to
this Section 3.16(c)(ii) only such delinquent Mortgage Loans having an aggregate
Stated Principal Balance such that, if such delinquent Mortgage Loans were
not
in the Trust, the Servicer Optional Purchase Delinquency Trigger would not
be
met; (B) if the Servicer purchases any delinquent Mortgage Loans pursuant to
this Section 3.16(c)(ii), it must purchase Mortgage Loans that are delinquent
the greatest number of days before it may purchase any that are delinquent
any
fewer number of days; (C) if the Servicer purchases some but not all Mortgage
Loans that are delinquent any given number of days, it must purchase Mortgage
Loans having the same delinquency status in the order of lowest Stated Principal
Balance to highest Stated Principal Balance; (D) the Servicer may at any time
relinquish its rights to purchase delinquent Mortgage Loans pursuant to this
Section 3.16(C)(ii) in writing delivered to the Trustee, and from and after
the
taking of such action by the Servicer, the provisions of this Section
3.16(c)(ii) shall no longer be of any force or effect.
(d) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds, Liquidation
Proceeds or condemnation proceeds, in respect of any Mortgage Loan, will be
applied in the following order of priority: first,
to
unpaid Servicing Fees; second,
to
reimburse the Servicer or any Sub-Servicer for any related unreimbursed
Servicing Advances pursuant to Section 3.11(a)(iii) and Advances pursuant to
Section 3.11(a)(ii); third,
to
accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and fourth,
as a
recovery of principal of the Mortgage Loan. The portion of the recovery so
allocated to unpaid Servicing Fees shall be reimbursed to the Servicer or any
Sub-Servicer pursuant to Section 3.11(a)(iii).
| SECTION 3.17. |
Trustee
to Cooperate; Release of Mortgage
Files.
|
(a) Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Servicer shall deliver to the Trustee and the Custodian,
in
written (with two executed copies) or electronic format, a Request for Release
in the form of Exhibit E (which certification shall include a statement to
the
effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant
to
Section 3.10 have been or will be so deposited) signed by a Servicing Officer
(or in a mutually agreeable electronic format that will, in lieu of a signature
on its face, originate from a Servicing Officer) and shall request delivery
to
it of the Mortgage File. Upon receipt of such certification and request, the
Trustee (or the Custodian on behalf of the Trustee) shall, within three Business
Days, release and send by overnight mail, at the expense of the Servicer, the
related Mortgage File to the Servicer. The Trustee (or the Custodian on behalf
of the Trustee) agrees to indemnify the Servicer, out of its own funds, for
any
loss, liability or expense (other than special, indirect, punitive or
consequential damages which will not be paid by the Trustee (or the Custodian
on
behalf of the Trustee)) incurred by the Servicer as a proximate result of the
Trustee’s or the Custodian’s breach of its obligations pursuant to this Section
3.17. No expenses incurred in connection with any instrument of satisfaction
or
deed of reconveyance shall be chargeable to the Collection Account or the
Distribution Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any insurance policy
relating to the Mortgage Loans, the Trustee (or the Custodian on behalf of
the
Trustee) shall, upon any request made by or on behalf of the Servicer and
delivery to the Trustee and the Custodian, in written (with two executed copies)
or electronic format, of a Request for Release in the form of Exhibit E signed
by a Servicing Officer (or in a mutually agreeable electronic format that will,
in lieu of a signature on its face, originate from a Servicing Officer), release
the related Mortgage File to the Servicer within three Business Days, and the
Trustee shall, at the direction of the Servicer, execute such documents as
shall
be necessary to the prosecution of any such proceedings. Such Request for
Release shall obligate the Servicer to return each and every document previously
requested from the Mortgage File to the Trustee (or the Custodian on behalf
of
the Trustee) when the need therefor by the Servicer no longer exists, unless
the
Mortgage Loan has been liquidated and the Liquidation Proceeds relating to
the
Mortgage Loan have been deposited in the Collection Account or the Mortgage
File
or such document has been delivered to an attorney, or to a public trustee
or
other public official as required by law, for purposes of initiating or pursuing
legal action or other proceedings for the foreclosure of the Mortgaged Property
either judicially or non-judicially, and the Servicer has delivered, or caused
to be delivered, to the Trustee and the Custodian an additional Request for
Release certifying as to such liquidation or action or proceedings. Upon the
request of the Trustee or the Custodian, the Servicer shall provide notice
to
the Trustee or the Custodian, as the case may be, of the name and address of
the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a Request for Release,
in
written (with two executed copies) or electronic format, from a Servicing
Officer stating that such Mortgage Loan was liquidated and that all amounts
received or to be received in connection with such liquidation that are required
to be deposited into the Collection Account have been so deposited, or that
such
Mortgage Loan has become an REO Property, such Mortgage Loan shall be released
by the Trustee (or the Custodian on behalf of the Trustee) to the Servicer
or
its designee.
(c) Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the Servicer or the Sub-Servicer, as the case may be, copies of,
any
court pleadings, requests for trustee’s sale or other documents necessary to the
foreclosure or trustee’s sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note
or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies
or
rights provided by the Mortgage Note or Mortgage or otherwise available at
law
or in equity. Each such certification shall include a request that such
pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the
lien
of the Mortgage, except for the termination of such a lien upon completion
of
the foreclosure or trustee’s sale.
| SECTION 3.18. |
Servicing
Compensation.
|
As
compensation for the activities of the Servicer hereunder, the Servicer shall
be
entitled to the Servicing Fee with respect to each Mortgage Loan payable solely
from payments of interest in respect of such Mortgage Loan, subject to Section
3.24. In addition, the Servicer shall be entitled to recover unpaid Servicing
Fees out of Insurance Proceeds, Liquidation Proceeds or condemnation proceeds
to
the extent permitted by Section 3.11(a)(iii) and out of amounts derived from
the
operation and sale of an REO Property to the extent permitted by Section 3.23.
Except as provided in Section 3.29, the right to receive the Servicing Fee
may
not be transferred in whole or in part except in connection with the transfer
of
all of the Servicer’s responsibilities and obligations under this Agreement;
provided,
however,
that
the Servicer may pay from the Servicing Fee any amounts due to a Sub-Servicer
pursuant to a Sub-Servicing Agreement entered into under Section
3.02.
Additional
servicing compensation in the form of assumption fees, late payment charges,
insufficient funds charges, ancillary income or otherwise (other than Prepayment
Charges) shall be retained by the Servicer only to the extent such fees or
charges are received by the Servicer. The Servicer shall also be entitled
pursuant to Section 3.11(a)(iv) to withdraw from the Collection Account and
pursuant to Section 3.23(b) to withdraw from any REO Account, as additional
servicing compensation, interest or other income earned on deposits therein,
subject to Section 3.12 and Section 3.24. The Servicer shall be required to
pay
all expenses incurred by it in connection with its servicing activities
hereunder (including premiums for the insurance required by Section 3.14, to
the
extent such premiums are not paid by the related Mortgagors or by a Sub-Servicer
and servicing compensation of each Sub-Servicer) and shall not be entitled
to
reimbursement therefor except as specifically provided herein.
The
Servicer shall be entitled to any Prepayment Interest Excess, which it may
withdraw from the Collection Account pursuant to Section
3.11(a)(ix).
| SECTION 3.19. |
Reports
to the Trustee; Collection Account
Statements.
|
Not
later
than ten days after each Distribution Date, the Servicer shall forward to the
NIMS Insurer and, upon request, to the Trustee and the Depositor the most
current available bank statement for the Collection Account. Copies of such
statement shall be provided by the Trustee to any Certificateholder and to
any
Person identified to the Trustee as a prospective transferee of a Certificate,
upon request at the expense of the requesting party, provided such statement
is
delivered by the Servicer to the Trustee.
| SECTION 3.20. |
Statement
as to Compliance.
|
Each
of
the Servicer and the Trustee shall deliver (or otherwise make available if
notice of such other means of delivery is provided) to the Depositor and the
Trustee, not later than March 15th
of each
calendar year beginning in 2008, an Officers’ Certificate (an “Annual Statement
of Compliance”) stating, as to each signatory thereof, that (i) a review of the
activities of such party during the preceding calendar year and of performance
under this Agreement or other applicable servicing agreement has been made
under
such officers’ supervision and (ii) to the best of such officers’ knowledge,
based on such review, such party has fulfilled all of its obligations under
this
Agreement or other applicable 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 of cure provisions thereof. Each such Annual
Statement of Compliance shall contain no restrictions or limitations on its
use.
The
Servicer and the Trustee shall deliver a similar Annual Statement of Compliance
by any Sub-Servicer, subcontractor or other Person engaged by it and satisfying
any of the criteria set forth in Item 1108(a)(2)(i) - (iii) of Regulation AB
with respect to the Mortgage Loans, to the Trustee as described above as and
when required with respect to the Servicer.
In
the
event the Servicer or the Trustee is terminated or resigns pursuant to the
terms
of this Agreement, such party shall provide, and shall use its reasonable
efforts to cause any Sub-Servicer, subcontractor or other Person engaged by
it
and satisfying any of the criteria set forth in Item 1108(a)(2)(i) - (iii)
of
Regulation AB with respect to the Mortgage Loans that resigns or is terminated
under any applicable agreement to provide, an Annual Statement of Compliance
pursuant to this Section 3.20 with respect to the period of time that such
party
was subject to this Agreement or such other agreement, as applicable.
For
so
long as a Form 10-K is required to be filed with respect to the Trust for the
preceding calendar year, failure by the Servicer to timely comply with this
Section 3.20 shall be deemed a Servicer Event of Termination, and the Trustee
may (with the consent of the Depositor), in addition to whatever rights the
Trustee may have under this Agreement and at law or in equity, including
injunctive relief and specific performance, upon notice immediately terminate
all the rights and obligations of the Servicer under this Agreement and in
and
to the Mortgage Loans and the proceeds thereof without compensating the Servicer
for the same. This paragraph shall supersede any other provision in this
Agreement or any other agreement to the contrary.
| SECTION 3.21. |
Assessment
of Compliance and Attestation
Report.
|
Pursuant
to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB,
the Servicer, the Trustee and the Custodian shall deliver (or otherwise make
available if notice of such other means of delivery is provided) to the Trustee
and the Depositor on or before March 15th
of each
calendar year beginning in 2008, a report regarding such party’s assessment of
compliance (an “Assessment of Compliance”) with the Relevant Servicing Criteria
(as set forth in Exhibit S hereto) during the preceding calendar year. As set
forth in Regulation AB, the Assessment of Compliance must contain the
following:
(a) A
statement by such officer of its responsibility for assessing compliance with
the Relevant Servicing Criteria applicable to such party;
(b) A
statement by such officer that such officer used the Relevant Servicing
Criteria, and which will also be attached to the Assessment of Compliance,
to
assess compliance with the Relevant Servicing Criteria applicable to such
party;
(c) An
assessment by such officer of such party’s compliance with the applicable
Relevant Servicing Criteria for the period consisting of the preceding calendar
year, including disclosure of any material instance of noncompliance with
respect thereto during such period and a discussion of the nature and status
of
each such failure, which assessment shall be based on the activities it performs
with respect to asset-backed securities transactions taken as a whole involving
such party, that are backed by the same asset type as the Mortgage
Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on such party’s Assessment of Compliance with the Relevant Servicing
Criteria for the period consisting of the preceding calendar year;
and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Servicer, which statement shall be based on the activities it performs
with
respect to asset-backed securities transactions taken as a whole involving
the
Servicer, that are backed by the same asset type as the Mortgage
Loans.
In
the
event the Servicer or the Trustee is terminated or resigns pursuant to the
terms
of this Agreement, such party shall provide, and each such party shall cause
each Sub-Servicer and subcontractor engaged by it and determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB that resigns or is terminated under any applicable agreement
to
provide, an annual Assessment of Compliance pursuant to this Section 3.21,
coupled with an attestation as required hereunder with respect to the period
of
time that such party was subject to this Agreement or the period of time such
party was subject to such other agreement.
Such
report at a minimum shall address each of the Relevant Servicing Criteria
specified on Exhibit S hereto which are indicated as applicable to the Servicer
or the Trustee.
On
or
before March 15th
of each
calendar year beginning in 2008, the Servicer, the Trustee and the Custodian,
each at its own expense, shall cause a registered public accounting firm to
furnish to the Trustee and the Depositor a report (an “Attestation Report”) by
such registered public accounting firm that attests to, and reports on, the
Assessment of Compliance made by such party, as required by Rules 13a-18 and
15d-18 of the Exchange Act and Item 1122(b) of Regulation AB, which Attestation
Report must be made in accordance with standards for attestation reports issued
or adopted by the Public Company Accounting Oversight Board.
The
Servicer and the Trustee shall cause any Sub-Servicer and each subcontractor
engaged by it and determined to be “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB, to deliver to the Trustee
and
the Depositor an Assessment of Compliance and Attestation Report as and when
provided above setting forth the Servicing Criteria addressed in such
assessment.
Such
Assessment of Compliance, as to each Sub-Servicer and subcontractor determined
to be “participating in the servicing function” within the meaning of Item 1122
of Regulation AB, shall address each of the Servicing Criteria applicable to
it,
as specified on Exhibit S hereto. The Trustee shall confirm that the
assessments, taken individually, address the Servicing Criteria for each
attesting party as set forth on Exhibit S and notify the Depositor of any
exceptions. Notwithstanding the foregoing, as to any subcontractor, an
Assessment of Compliance is not required to be delivered unless it is required
as part of a Form 10-K with respect to the Trust Fund.
Promptly
after receipt of each such assessment of compliance and attestation report,
the
Trustee shall confirm that each assessment submitted pursuant to this Section
3.21 is coupled with an attestation meeting the requirements of this Section
and
notify the Depositor of any exceptions.
In
the
event the Servicer, the Trustee, the Custodian, or any Sub-servicer or
subcontractor determined to be “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB engaged by any such party, is
terminated, assigns its rights and duties under, or resigns pursuant to the
terms of, this Agreement, or any applicable custodial agreement, or
sub-servicing agreement, as the case may be, such party shall cause a registered
public accounting firm to provide an attestation pursuant to this Section 3.21,
or such other applicable agreement, notwithstanding any such termination,
assignment or resignation.
For
so
long as a Form 10-K is required to be filed with respect to the Trust for the
preceding calendar year, failure of the Servicer to comply with this Section
3.21 shall be deemed a Servicer Event of Termination, and the Trustee may (with
the consent of the Depositor), in addition to whatever rights the Trustee may
have under this Agreement and at law or in equity, including injunctive relief
and specific performance,
give notice to Certificateholders that they have ten Business Days to object.
If
no such objection is received, the Trustee shall
immediately terminate all the rights and obligations of the Servicer under
this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Servicer for the same. This paragraph shall supersede any
other
provision in this Agreement or any other agreement to the contrary.
| SECTION 3.22. |
Access
to Certain Documentation.
|
The
Servicer shall provide to the Office of Thrift Supervision, the FDIC, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder or Certificate Owner, access
to
the documentation regarding the Mortgage Loans required by applicable laws
and
regulations. Such access shall be afforded without charge, but only upon
reasonable request and during normal business hours at the offices of the
Servicer designated by it. In addition, access to the documentation regarding
the Mortgage Loans will be provided to any Certificateholder or Certificate
Owner, the Trustee, the NIMS Insurer and to any Person identified to the
Servicer as a prospective transferee of a Certificate, upon reasonable request
during normal business hours at the offices of the Servicer designated by it
at
the expense of the Person requesting such access.
| SECTION 3.23. |
Title,
Management and Disposition of REO
Property.
|
(a) The
deed
or certificate of sale of any REO Property shall be taken in the name of the
Trustee, or its nominee, in trust for the benefit of the Certificateholders.
The
Servicer, on behalf of REMIC 1, shall sell any REO Property as soon as practical
and in any event no later than the end of the third full taxable year after
the
taxable year in which such REMIC acquires ownership of such REO Property for
purposes of Section 860G(a)(8) of the Code or request from the Internal Revenue
Service, no later than 60 days before the day on which the three-year grace
period would otherwise expire, an extension of such three-year period, unless
the Servicer shall have delivered to the Trustee and the NIMS Insurer an Opinion
of Counsel acceptable to the NIMS Insurer and addressed to the Trustee, the
NIMS
Insurer and the Depositor, to the effect that the holding by the REMIC of such
REO Property subsequent to three years after its acquisition will not result
in
the imposition on the REMIC of taxes on “prohibited transactions” thereof, as
defined in Section 860F of the Code, or cause any of the REMICs created
hereunder to fail to qualify as a REMIC under Federal law at any time that
any
Certificates are outstanding. The Servicer shall manage, conserve, protect
and
operate each REO Property for the Certificateholders solely for the purpose
of
its prompt disposition and sale in a manner which does not cause such REO
Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by any of the REMICs
created hereunder of any “income from non-permitted assets” within the meaning
of Section 860F(a)(2)(B) of the Code, or any “net income from foreclosure
property” which is subject to taxation under the REMIC Provisions.
(b) The
Servicer shall separately account for all funds collected and received in
connection with the operation of any REO Property and shall establish and
maintain, or cause to be established and maintained, with respect to REO
Properties an account held in trust for the Trustee for the benefit of the
Certificateholders (the “REO Account”), which shall be an Eligible Account. The
Servicer shall be permitted to allow the Collection Account to serve as the
REO
Account, subject to separate ledgers for each REO Property. The Servicer shall
be entitled to retain or withdraw any interest income paid on funds deposited
in
the REO Account.
(c) The
Servicer shall have full power and authority, subject only to the specific
requirements and prohibitions of this Agreement, to do any and all things in
connection with any REO Property as are consistent with the manner in which
the
Servicer manages and operates similar property owned by the Servicer or any
of
its Affiliates, all on such terms and for such period (subject to the
requirement of prompt disposition set forth in Section 3.23(a)) as the Servicer
deems to be in the best interests of Certificateholders. In connection
therewith, the Servicer shall deposit, or cause to be deposited in the clearing
account in which it customarily deposits payments and collections on mortgage
loans in connection with its mortgage loan servicing activities on a daily
basis, and in no event more than one Business Day after the Servicer’s receipt
thereof, and shall thereafter deposit in the REO Account, in no event more
than
two Business Days after the Servicer’s receipt thereof, all revenues received by
it with respect to an REO Property and shall withdraw therefrom funds necessary
for the proper operation, management and maintenance of such REO Property
including, without limitation:
(i) all
insurance premiums due and payable in respect of such REO Property;
(ii) all
real
estate taxes and assessments in respect of such REO Property that may result
in
the imposition of a lien thereon; and
(iii) all
costs
and expenses necessary to maintain such REO Property.
To
the
extent that amounts on deposit in the REO Account with respect to an REO
Property are insufficient for the purposes set forth in clauses (i) through
(iii) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes if, but only if,
the
Servicer would make such advances if the Servicer owned the REO Property and
if
in the Servicer’s judgment, the payment of such amounts will be recoverable from
the rental or sale of the REO Property.
Notwithstanding
the foregoing, neither the Servicer nor the Trustee shall:
(A) authorize
the Trust Fund to enter into, renew or extend any New Lease with respect to
any
REO Property, if the New Lease by its terms will give rise to any income that
does not constitute Rents from Real Property;
(B) authorize
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(C) authorize
any construction on any REO Property, other than the completion of a building
or
other improvement thereon, and then only if more than ten percent of the
construction of such building or other improvement was completed before default
on the related Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(D) authorize
any Person to Directly Operate any REO Property on any date more than 90 days
after its date of acquisition by the Trust Fund;
unless,
in any such case, the Servicer has obtained an Opinion of Counsel, provided
to
the Trustee and the NIMS Insurer, to the effect that such action will not cause
such REO Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code at any time that it is held by the
REMIC, in which case the Servicer may take such actions as are specified in
such
Opinion of Counsel.
The
Servicer may contract with any Independent Contractor for the operation and
management of any REO Property, provided that:
(1) the
terms
and conditions of any such contract shall not be inconsistent
herewith;
(2) any
such
contract shall require, or shall be administered to require, that the
Independent Contractor pay all costs and expenses incurred in connection with
the operation and management of such REO Property, including those listed above
and remit all related revenues (net of such costs and expenses) to the Servicer
as soon as practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(3) none
of
the provisions of this Section 3.23(c) relating to any such contract or to
actions taken through any such Independent Contractor shall be deemed to relieve
the Servicer of any of its duties and obligations to the Trustee on behalf
of
the Certificateholders with respect to the operation and management of any
such
REO Property; and
(4) the
Servicer shall be obligated with respect thereto to the same extent as if it
alone were performing all duties and obligations in connection with the
operation and management of such REO Property.
The
Servicer shall be entitled to enter into any agreement with any Independent
Contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be solely liable for all fees owed by it
to
any such Independent Contractor, irrespective of whether the Servicer’s
compensation pursuant to Section 3.18 is sufficient to pay such fees;
provided,
however,
that to
the extent that any payments made by such Independent Contractor would
constitute Servicing Advances if made by the Servicer, such amounts shall be
reimbursable as Servicing Advances made by the Servicer.
(d) In
addition to the withdrawals permitted under Section 3.23(c), the Servicer may
from time to time make withdrawals from the REO Account for any REO Property:
(i) to pay itself or any Sub-Servicer unpaid Servicing Fees in respect of the
related Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer for
unreimbursed Servicing Advances and Advances made in respect of such REO
Property or the related Mortgage Loan. On the Servicer Remittance Date, the
Servicer shall withdraw from each REO Account maintained by it and deposit
into
the Distribution Account in accordance with Section 3.10(d)(ii), for
distribution on the related Distribution Date in accordance with Section 4.01,
the income from the related REO Property received during the related Prepayment
Period, net of any withdrawals made pursuant to Section 3.23(c) or this Section
3.23(d).
(e) Subject
to the time constraints set forth in Section 3.23(a), each REO Disposition
shall
be carried out by the Servicer in a manner, at such price and upon such terms
and conditions as shall be in conformity with the requirements of the Loss
Mitigation Procedures and as shall be normal and usual in its Servicing
Standard.
(f) The
proceeds from the REO Disposition, net of any amount required by law to be
remitted to the Mortgagor under the related Mortgage Loan and net of any payment
or reimbursement to the Servicer or any Sub-Servicer as provided above, shall
be
deposited in the Distribution Account in accordance with Section 3.10(d)(ii)
on
the Servicer Remittance Date in the month following the receipt thereof for
distribution on the related Distribution Date in accordance with Section 4.01.
Any REO Disposition shall be for cash only (unless changes in the REMIC
Provisions made subsequent to the Startup Day allow a sale for other
consideration).
(g) The
Servicer shall file information returns with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and cancellation of indebtedness income
with respect to any Mortgaged Property as required by Sections 6050H, 6050J
and
6050P of the Code, respectively. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by such Sections 6050H,
6050J and 6050P of the Code.
| SECTION 3.24. |
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls.
|
Not
later
than 1:00 p.m. New York time on each Servicer Remittance Date, the Servicer
shall remit to the Distribution Account an amount (“Compensating Interest”)
equal to the lesser of (A) the aggregate of the Prepayment Interest Shortfalls
for the related Distribution Date and (B) its aggregate Servicing Fee for the
related Due Period and any Prepayment Interest Excess for the related
Distribution Date. The Servicer shall not have the right to reimbursement for
any amounts remitted to the Trustee in respect of Compensating Interest. Such
amounts so remitted shall be included in the Available Funds and distributed
therewith on the next Distribution Date. The Servicer shall not be obligated
to
pay Compensating Interest with respect to Relief Act Interest
Shortfalls.
| SECTION 3.25. |
Reports
Filed with Securities and Exchange
Commission.
|
(a) (i)
Within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act), the Trustee shall, on behalf of the Trust and in
accordance with industry standards, prepare and file with the Commission via
the
Electronic Data Gathering and Retrieval System (“XXXXX”), the report on Form
10-D, signed by the Depositor, with a copy of the Monthly Statement to be
furnished by the Trustee to the Certificateholders for such Distribution Date
and such other information required to be reported by the Trust on Form 10-D
as
set forth in this Section 3.25; provided that the Trustee shall have received
no
later than 5 calendar days after the related Distribution Date, all information
required to be provided to the Trustee as described in clause (a)(ii) below.
Any
disclosure in addition to the Monthly Statement that is required to be included
on Form 10-D (“Additional Form 10-D Disclosure”) shall, pursuant to the
paragraph immediately below, be reported to the Depositor and the Trustee by
the
parties set forth on Exhibit T, approved by the Depositor, and the Trustee
will
have no duty or liability for any failure hereunder to determine or prepare
any
Additional Form 10-D Disclosure information absent such reporting, direction
and
approval.
(ii) Within
5 calendar days
after the related Distribution Date, (i) the parties set forth in Exhibit T
shall be required to provide, pursuant to Section 3.25(a)(v) below, to the
Trustee (at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx,
with a
copy by facsimile to 410-715-2380) and the Depositor, to the extent known,
in
XXXXX-compatible format, or in such other format as otherwise agreed upon by
the
Trustee and such party, the form and substance of any Additional Form 10-D
Disclosure, if applicable, (ii) the parties listed on Exhibit T hereto shall
include with such Additional Form 10-D Disclosure, an Additional Disclosure
Notification in the form attached hereto as Exhibit U, and (iii) the Depositor
will approve, as to form and substance, or disapprove, as the case may be,
the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Trustee
has
no duty under this Agreement to monitor or enforce the performance by the
parties listed on Exhibit T of their duties under this paragraph or proactively
solicit or procure from such parties any Additional Form 10-D Disclosure
information. The Depositor will be responsible for any reasonable fees and
expenses assessed or incurred by the Trustee in connection with including any
Additional Form 10-D Disclosure on Form 10-D pursuant to this
Section.
After
preparing the Form 10-D, the Trustee shall forward electronically a draft copy
of the Form 10-D to the Depositor for review (provided that such Form 10-D
includes any Additional Form 10-D Disclosure) and execution. Within two Business
Days after receipt of such copy, but no later than the 12th
calendar
day after the Distribution Date, the Depositor shall notify the Trustee in
writing (which may be furnished electronically) of any changes to or approval
of
such Form 10-D. A duly authorized representative of the Depositor shall sign
the
Form 10-D no later than the close of business on the 13th
calendar
day after the Distribution Date and return an electronic or fax copy of such
signed Form 10-D (with an original executed hard copy to follow by overnight
mail) to the Trustee. If a Form 10-D cannot be filed on time or if a previously
filed Form 10-D needs to be amended, the Trustee will follow the procedures
set
forth in Section 3.25(a)(vi). Promptly (but no later than 1 Business Day) after
filing with the Commission, the Trustee will make available on its internet
website a final executed copy of each Form 10-D prepared and filed by the
Trustee. Form 10-D requires the registrant to indicate (by checking “yes” or
“no”) that it “(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been
subject to such filing requirements for the past 90 days.” The Depositor hereby
represents to the Trustee that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trustee in
writing, no later than the fifth calendar day after the related Distribution
Date with respect to the filing of a report on Form 10-D, if the answer to
the
questions should be “no.” The Trustee shall be entitled to rely on such
representations in preparing and/or filing any such Form 10-D. The parties
to
this Agreement acknowledge that the performance by the Trustee of its duties
under Sections 3.25(a)(i) and (vi) related to the timely preparation,
arrangement for execution and filing of Form 10-D is contingent upon such
parties strictly observing all applicable deadlines in the performance of their
duties under such Sections. The Trustee shall have no liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 10-D, where such failure results
from the Trustee’s inability or failure to receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 10-D, not resulting from its own negligence, bad faith or
willful misconduct.
(iii) (A)
Within four (4) Business Days after the occurrence of an event requiring
disclosure on Form 8-K (each such event, a “Reportable Event”), the Trustee
shall prepare and file on behalf of the Trust a Form 8-K, as required by the
Exchange Act, provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included
on
Form 8-K (“Form 8-K Disclosure Information”) shall, pursuant to the paragraph
immediately below, be reported to the Depositor and the Trustee by the parties
set forth on Exhibit T, approved by the Depositor, and the Trustee will have
no
duty or liability for any failure hereunder to determine or prepare any Form
8-K
Disclosure Information absent such reporting, direction and
approval.
For
so
long as the Trust is subject to the Exchange Act reporting requirements, no
later than 12:00 noon New York City time on the 2nd Business Day after the
occurrence of a Reportable Event (i) the parties set forth in Exhibit T shall
be
required pursuant to Section 3.25(a)(v) below to provide to the Trustee (at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx,
with a
copy by facsimile to 410-715-2380) and the Depositor, to the extent known,
in
XXXXX-compatible format, or in such other format as otherwise agreed upon by
the
Trustee and such party, the form and substance of any Form 8-K Disclosure
Information, if applicable, (ii) the parties listed on Exhibit T hereto shall
include with such Form 8-K Disclosure Information, an Additional Disclosure
Notification in the form attached hereto as Exhibit U, and (iii) the Depositor
will approve, as to form and substance, or disapprove, as the case may be,
the
inclusion of the Form 8-K Disclosure Information on Form 8-K. The Trustee has
no
duty under this Agreement to monitor or enforce the performance by the parties
listed on Exhibit T of their duties under this paragraph or proactively solicit
or procure from such parties any Form 8-K Disclosure Information. The Depositor
will be responsible for any reasonable fees and expenses assessed or incurred
by
the Trustee in connection with including any Form 8-K Disclosure Information
on
Form 8-K pursuant to this Section.
After
preparing the Form 8-K, the Trustee shall forward electronically a draft copy
of
the Form 8-K to the Depositor for review. No later than the close of business
on
the third Business Day after the Reportable Event, the Depositor shall notify
the Trustee in writing (which may be furnished electronically) of any changes
to
or approval of such Form 8-K. A duly authorized representative of the Depositor
shall sign the Form 8-K by noon on the 4th
Business
Day after the Reportable Event and return an electronic or fax copy of such
signed Form 8-K (with an original executed hard copy to follow by overnight
mail) to the Trustee. If a Form 8-K cannot be filed on time or if a previously
filed Form 8-K needs to be amended, the Trustee will follow the procedures
set
forth in Section 3.25(a)(vi). Promptly (but no later than 1 Business Day) after
filing with the Commission, the Trustee will make available on its internet
website a final executed copy of each Form 8-K prepared and filed by the
Trustee. The parties to this Agreement acknowledge that the performance by
the
Trustee of its duties under this Section 3.25(a)(iii) related to the timely
preparation, arrangement for 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 3.25(a)(iii). The Trustee shall have no
liability for any loss, expense, damage, claim arising out of or with respect
to
any failure to properly prepare and/or timely file such Form 8-K, where such
failure results from the Trustee’s inability or failure to receive, on a timely
basis, any information from any other party hereto needed to prepare, arrange
for execution or file such Form 8-K, not resulting from its own negligence,
bad
faith or willful misconduct.
(iv) (A)
On or
before 90 days after the end of each fiscal year of the Trust or such earlier
date as may be required by the Exchange Act (the “10-K Filing Deadline”) (it
being understood that the fiscal year for the Trust ends on December 31st of
each year), commencing in March 2008, the Trustee shall prepare and file on
behalf of the Trust a Form 10-K, in form and substance as required by the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Trustee within the applicable
time frames set forth in this Agreement, (I) the annual compliance statements
required under Section 3.20, (II)(A) the annual reports on assessment of
compliance with Servicing Criteria required under Section 3.21, and (B) any
such
report on assessment of compliance with servicing criteria described under
Section 3.21 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such report on assessment
of compliance with Servicing Criteria described under Section 3.21 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 reports required under Section
3.21, and (B) if any registered public accounting firm attestation report
described under Section 3.21 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
(“Xxxxxxxx-Xxxxx Certification”) as described in this Section 3.25 (a)(iv)(D)
below. 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, pursuant to the paragraph immediately below, be reported by the parties
set forth on Exhibit T, approved by the Depositor, and the Trustee will have
no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-K Disclosure absent such reporting, direction and
approval.
No
later
than March 1 (with a 10 calendar day cure period) of each year that the Trust
is
subject to the Exchange Act reporting requirements, commencing in 2008, (i)
the
parties set forth in Exhibit T shall be required to provide pursuant to Section
3.25(a)(v) below to the Trustee (at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx,
with a
copy by facsimile to 410-715-2380) and the Depositor, to the extent known,
in
XXXXX-compatible format, or in such other format as otherwise agreed upon by
the
Trustee and such party, the form and substance of any Additional Form 10-K
Disclosure, if applicable, (ii) the parties listed on Exhibit T hereto shall
include with such Additional Form 10-K Disclosure, an Additional Disclosure
Notification in the form attached hereto as Exhibit U, and (iii) the Depositor
will approve, as to form and substance, or disapprove, as the case may be,
the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Trustee
has
no duty under this Agreement to monitor or enforce the performance by the
parties listed on Exhibit T of their duties under this paragraph or proactively
solicit or procure from such parties any Form 10-K Disclosure Information.
The
Depositor will be responsible for any reasonable fees and expenses assessed
or
incurred by the Trustee in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this Section.
After
preparing the Form 10-K, the Trustee shall forward electronically a draft copy
of the Form 10-K to the Depositor for review. Within three (3) Business Days
after receipt of such copy, but no later than March 25th,
the
Depositor shall notify the Trustee of any changes to or approval of such Form
10-K. The Depositor shall cause a senior officer of the Depositor to sign the
Form 10-K no later than four (4) Business Days prior to the 10-K Filing Deadline
and return an electronic or fax copy of such signed Form 10-K (with an original
executed hard copy to follow by overnight mail) to the Trustee. If a Form 10-K
cannot be filed on time or if a previously filed Form 10-K needs to be amended,
the Trustee will follow the procedures set forth in Section 3.25(a)(vi).
Promptly (but no later than 1 Business Day) after filing with the Commission,
the Trustee will make available on its internet website a final executed copy
of
each Form 10-K prepared and filed by the Trustee. Form 10-K requires the
registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all
reports required to be filed by Section 13 or 15(d) of the Exchange Act during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.” The Depositor hereby represents to the
Trustee that the Depositor has filed all such required reports during the
preceding 12 months and that it has been subject to such filing requirement
for
the past 90 days. The Depositor shall notify the Trustee in writing, no later
than the 15th calendar day of March in any year in which the Trust is subject
to
the reporting requirements of the Exchange Act, if the answer to the questions
should be “no.” The Trustee shall be entitled to rely on such representations in
preparing and/or filing any such Form 10-K. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under Sections
3.25(a)(iv) and (vi) related to the timely preparation and filing of Form 10-K
is contingent upon such parties strictly observing all applicable deadlines
in
the performance of their duties under such Sections, Section 3.20 and Section
3.21. The Trustee shall have no liability for any loss, expense, damage or
claim
arising out of or with respect to any failure to properly prepare and/or timely
file such Form 10-K, where such failure results from the Trustee’s inability or
failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx Certification”), exactly
as set forth in Exhibit R-1 attached hereto, required to be included therewith
pursuant to the Xxxxxxxx-Xxxxx Act. The Trustee shall provide to the Person
who
signs the Xxxxxxxx-Xxxxx Certification (the “Certifying Person”), by March
15th
of each
year in which the Trust is subject to the reporting requirements of the Exchange
Act and otherwise within a reasonable period of time upon request, a
certification (each, a “Back-Up Certification”), in the form attached hereto as
Exhibit R-2, upon which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity’s officers, directors and
Affiliates (collectively with the Certifying Person, “Certification Parties”)
can reasonably rely. The senior officer of the Depositor shall serve as the
Certifying Person on behalf of the Trust. In the event the Trustee is terminated
or resigns pursuant to the terms of this Agreement, the Trustee shall provide
a
Back-Up Certification to the Certifying Person pursuant to this Section
3.25(a)(iv) with respect to the period of time it was subject to this
Agreement.
(v) With
respect to any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure
or any Form 8-K Disclosure Information (collectively, the “Additional
Disclosure”) relating to the Trust Fund, the Trustee’s obligation to include
such Additional Information in the applicable Exchange Act report is subject
to
receipt from the entity that is indicated in Exhibit T as the responsible party
for providing that information, if other than the Trustee, as and when required
as described in Section 3.25(a)(i) through (iv) above. Each of the Servicer,
the
Seller and Depositor hereby agree to notify and provide to the extent known
to
the Trustee and the Depositor all Additional Disclosure relating to the Trust
Fund, with respect to which such party is indicated in Exhibit T as the
responsible party for providing that information. The Swap Provider will be
obligated pursuant to the Swap Agreement to provide to the Trustee any
information that may be required to be included in any Form 10-D, Form 8-K
or
Form 10-K. The Servicer shall be responsible for determining the pool
concentration applicable to any Sub-Servicer or originator at any time, for
purposes of disclosure as required by Items 1117 and 1119 of Regulation
AB.
(vi) On
or
prior to January 30 of the first year in which the Trustee is able to do so
under applicable law, the Trustee shall prepare and file a Form 15 Suspension
Notification relating to the automatic suspension of reporting in respect of
the
Trust under the Exchange Act.
In
the
event that the Trustee is unable to timely file 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 Trustee will promptly notify the
Depositor. In the case of Form 10-D and Form 10-K, the Depositor, Servicer
and
Trustee will cooperate to prepare and file a Form 12b-25, a Form 10-D/A and
a
Form 10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange Act. In
the
case of Form 8-K, the Trustee will, upon receipt of all required Form 8-K
Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next Form 10-D. In the event that
any
previously filed Form 8-K, Form 10-D or Form 10-K needs to be amended in
connection with any Additional Form 10-D Disclosure (other than, in the case
of
Form 10-D, for the purpose of restating any Monthly Statement), Additional
Form
10-K Disclosure or Form 8-K Disclosure Information, the Trustee will notify
the
Depositor and the Servicer and such parties will cooperate to prepare any
necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any Form 15, Form 12b-25
or
any amendment to Form 8-K, Form 10-D or Form 10-K shall be signed by a duly
authorized representative or senior officer in charge of securitization, as
applicable, of the Depositor. The Depositor and Servicer acknowledge that the
performance by the Trustee of its duties under this Section 3.25(a)(vi) related
to the timely preparation, arrangement for execution and filing of Form 15,
a
Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is contingent
upon the Servicer and the Depositor performing their duties under this Section.
The Trustee shall have no liability for any loss, expense, damage, claim arising
out of or with respect to any failure to properly prepare, arrange for execution
and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms
8-K,
Form 10-D or Form 10-K, where such failure results from the Trustee’s inability
or failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
The
Depositor agrees to promptly furnish to the Trustee, from time to time upon
request, such further information, reports and financial statements within
its
control related to this Agreement, the Mortgage Loans as the Trustee reasonably
deems appropriate to prepare and file all necessary reports with the Commission.
The Trustee shall have no responsibility to file any items other than those
specified in this Section 3.25; provided, however, the Trustee will cooperate
with the Depositor in connection with any additional filings with respect to
the
Trust Fund as the Depositor deems necessary under the Exchange Act. Fees and
expenses incurred by the Trustee in connection with this Section 3.25 shall
not
be reimbursable from the Trust Fund.
(b) In
connection with the filing of any Form 10-K hereunder, the Trustee shall sign
a
certification (a “Form of Back-Up Certification for Form 10K Certificate,”
substantially in the form attached hereto as Exhibit R-2) for the Depositor
regarding certain aspects of the Form 10-K certification signed by the
Depositor, provided, however, that the Trustee shall not be required to
undertake an analysis of any accountant’s report attached as an exhibit to the
Form 10-K.
(c) The
Trustee shall indemnify and hold harmless the Depositor and its officers,
directors and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon (i) a breach of the
Trustee’s obligations under this Section 3.25 or the Trustee’s negligence, bad
faith or willful misconduct in connection therewith and (ii) any material
misstatement or omission in the Annual Statement of Compliance delivered by
the
Trustee pursuant to Section 3.20 or the Assessment of Compliance delivered
by
the Trustee pursuant to Section 3.21.
The
Depositor shall indemnify and hold harmless the Trustee and the Custodian and
the officers, directors and affiliates of each from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the obligations of the Depositor under this Section
3.25.
The
Servicer shall indemnify and hold harmless the Trustee and the Custodian and
the
respective officers, directors and affiliates of each from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out
of or
based upon (i) a breach of the obligations of the Servicer under this Section
3.25 and (ii) any material misstatement or omission in the Annual Statement
of
Compliance delivered by the Servicer pursuant to Section 3.20 or the Assessment
of Compliance delivered by the Servicer pursuant to Section 3.21.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, the Trustee or the Custodian, as applicable, then the
defaulting party, in connection with a breach of its respective obligations
under this Section 3.25, agrees that it shall contribute to the amount paid
or
payable by each such party as a result of the losses, claims, damages or
liabilities of such party in such proportion as is appropriate to reflect the
relative fault of the defaulting party on the one hand and each such
non-defaulting party on the other.
(d) Nothing
shall be construed from the foregoing subsections (a), (b) and (c) to require
the Trustee or any officer, director or Affiliate thereof to sign any Form
10-K
or any certification contained therein. Furthermore, the inability of the
Trustee to file a Form 10-K as a result of the lack of required information
as
set forth in Section 3.25(a) or required signatures on such Form 10-K or any
certification contained therein shall not be regarded as a breach by the Trustee
of any obligation under this Agreement.
(e) Notwithstanding
the provisions of Section 11.01, this Section 3.25 may be amended without the
consent of the Certificateholders.
| SECTION 3.26. |
Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments.
|
In
the
event that a shortfall in any collection on or liability with respect to the
Mortgage Loans in the aggregate results from or is attributable to adjustments
to Mortgage Rates, Monthly Payments or Stated Principal Balances that were
made
by the Servicer in a manner not consistent with the terms of the related
Mortgage Note and this Agreement, the Servicer, upon discovery or receipt of
notice thereof, immediately shall deposit in the Collection Account from its
own
funds the amount of any such shortfall and shall indemnify and hold harmless
the
Trust Fund, the Trustee, the Depositor and any successor servicer in respect
of
any such liability. Such indemnities shall survive the termination or discharge
of this Agreement. Notwithstanding the foregoing, this Section 3.26 shall not
limit the ability of the Servicer to seek recovery of any such amounts from
the
related Mortgagor under the terms of the related Mortgage Note, as permitted
by
law.
| SECTION 3.27. |
Solicitations.
|
From
and
after the Closing Date, the Servicer agrees that it will not take any action
or
permit or cause any action to be taken by any of its agents and Affiliates,
or
by any independent contractors or independent mortgage brokerage companies
on
the Servicer’s behalf, to personally, by telephone, mail or electronic mail,
solicit
the Mortgagor under any Mortgage Loan for the purpose of refinancing such
Mortgage Loan;
provided,
that
the Servicer may solicit any Mortgagor for whom the Servicer has received a
request for verification of mortgage, a request for demand for payoff, a
mortgagor initiated written or verbal communication indicating a desire to
prepay the related Mortgage Loan, another mortgage company has pulled a credit
report on the mortgagor or the mortgagor initiates a title search; provided
further, it is understood and agreed that promotions undertaken by the Servicer
or any of its Affiliates which (i) concern optional insurance products or other
additional products or (ii) are directed to the general public at large,
including, without limitation, mass mailings based on commercially acquired
mailing lists, newspaper, radio and television advertisements shall not
constitute solicitation under this Section, nor is the Servicer prohibited
from
responding to unsolicited requests or inquiries made by a Mortgagor or an agent
of a Mortgagor. Furthermore, the Servicer shall be permitted to include in
its
monthly statements to borrowers or otherwise, statements regarding the
availability of the Servicer’s counseling services with respect to refinancing
mortgage loans.
Notwithstanding
the foregoing, with respect to any Fixed-Rate Mortgage Loan, the Servicer may
solicit the Mortgagor for the purpose of refinancing such Mortgage Loan,
beginning 60 days prior to the later of (i) the expiration of the related
Prepayment Charge term, if applicable and (ii) 24 months following origination
of such Mortgage Loan and with respect to any Adjustable-Rate Mortgage Loan,
the
Servicer may solicit the Mortgagor for the purpose of refinancing such Mortgage
Loan, beginning 60 days prior to the later of (i) the expiration of the related
Prepayment Charge term, if applicable and (ii) the expiration of any applicable
fixed-rate period.
| SECTION 3.28. |
[Reserved].
|
| SECTION 3.29. |
Advancing
Facility.
|
(a) The
Servicer and/or the Trustee on behalf of the Trust Fund, in either case, with
the consent of the NIMS Insurer and the Servicer in the case of the Trustee,
is
hereby authorized to enter into a facility (the “Advancing Facility”) with any
Person which provides that such Person (an “Advancing Person”) may fund Advances
and/or Servicing Advances to the Trust Fund under this Agreement, although
no
such facility shall reduce or otherwise affect the Servicer’s obligation to fund
such Advances and/or Servicing Advances. If the Servicer enters into such an
Advancing Facility pursuant to this Section 3.29, upon reasonable request of
the
Advancing Person, the Trustee shall execute a letter of acknowledgment,
confirming its receipt of notice of the existence of such Advancing Facility.
To
the extent that an Advancing Person funds any Advance or any Servicing Advance
and provides the Trustee with notice acknowledged by the Servicer that such
Advancing Person is entitled to reimbursement, such Advancing Person shall
be
entitled to receive reimbursement pursuant to this Agreement for such amount
to
the extent provided in Section 3.29(b). Such notice from the Advancing Person
must specify the amount of the reimbursement, the Section of this Agreement
that
permits the applicable Advance or Servicing Advance to be reimbursed and the
section(s) of the Advancing Facility that entitle the Advancing Person to
request reimbursement from the Trustee, rather than the Servicer, and include
the Servicer’s acknowledgment thereto or proof of an Event of Default under the
Advancing Facility. The Trustee shall have no duty or liability with respect
to
any calculation of any reimbursement to be paid to an Advancing Person and
shall
be entitled to rely without independent investigation on the Advancing Person’s
notice provided pursuant to this Section 3.29. An Advancing Person whose
obligations hereunder are limited to the funding of Advances and/or Servicing
Advances shall not be required to meet the qualifications of a Servicer or
a
Sub-Servicer pursuant to Section 6.06 hereof and will not be deemed to be a
Sub-Servicer under this Agreement. If the terms of a facility proposed to be
entered into with an Advancing Person by the Trust Fund would not materially
and
adversely affect the interests of any Certificateholder, then the NIMS Insurer
shall not withhold its consent to the Trust Fund’s entering such
facility.
(b) If
an
Advancing Facility is entered into, then the Servicer shall not be permitted
to
reimburse itself therefor under Section 3.11(a)(ii), Section 3.11(a)(iii),
Section 3.11(a)(vi), Section 3.11(a)(vii), Section 3.11(a)(viii) and Section
4.04(b) prior to the remittance to the Trust Fund, but instead the Servicer
shall include such amounts in the applicable remittance to the Trustee made
pursuant to Section 3.10(a). The Trustee is hereby authorized to pay to the
Advancing Person, reimbursements for Advances and Servicing Advances from the
Distribution Account to the same extent the Servicer would have been permitted
to reimburse itself for such Advances and/or Servicing Advances in accordance
with Section 3.11(a)(ii), Section 3.11(a)(iii), Section 3.11(a)(vi), Section
3.11(a)(vii), Section 3.11(a)(viii) or Section 4.04(b), as the case may be,
had
the Servicer itself funded such Advance or Servicing Advance. The Trustee is
hereby authorized to pay directly to the Advancing Person such portion of the
Servicing Fee as the parties to any advancing facility agree.
(c) All
Advances and Servicing Advances made pursuant to the terms of this Agreement
shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO)
basis.
(d) Any
amendment to this Section 3.29 or to any other provision of this Agreement
that
may be necessary or appropriate to effect the terms of an Advancing Facility
as
described generally in this Section 3.29, including amendments to add provisions
relating to a successor servicer, may be entered into by the Trustee and the
Servicer without the consent of any Certificateholder but with the consent
of
the NIMS Insurer, notwithstanding anything to the contrary in this
Agreement.
ARTICLE
IV
FLOW
OF
FUNDS
| SECTION 4.01. |
Distributions.
|
(a) (I) On
each
Distribution Date, the Trustee shall withdraw from the Distribution Account
that
portion of Available Funds for such Distribution Date consisting of the Group
I
Interest Remittance Amount for such Distribution Date, and make the following
disbursements and transfers in the order described below, in each case to the
extent of the Group I Interest Remittance Amount remaining for such Distribution
Date:
(i) to
the
Holders of the Group I Certificates, the
Monthly Interest Distributable Amount and the Unpaid Interest
Shortfall Amount, if any, allocable to such Certificates for such Distribution
Date; and
(ii) concurrently,
to the Holders of each Class of Group II Certificates, on a pro
rata
basis
based on the entitlement of each such Class, an amount equal to the excess,
if
any, of (x) the amount required to be distributed pursuant to Sections
4.01(a)(II)(i) below for such Distribution Date over (y) the amount actually
distributed pursuant to such section from the Group II Interest Remittance
Amount.
(II) On
each
Distribution Date the Trustee shall withdraw from the Distribution Account
that
portion of Available Funds for such Distribution Date consisting of the Group
II
Interest Remittance Amount for such Distribution Date, and make the following
disbursements and transfers in the order described below, in each case to the
extent of the Group II Interest Remittance Amount remaining for such
Distribution Date:
(i) concurrently,
to the Holders of each Class of Group II Certificates, on a pro
rata
basis
based on the entitlement of each such Class, the Monthly Interest Distributable
Amount and the Unpaid Interest Shortfall Amount, if any, allocable to such
Certificates for such Distribution Date; and
(ii) to
the
Holders of the Group I Certificates, an amount equal to the excess, if any,
of
(x) the amount required to be distributed pursuant to Section 4.01(a)(I)(i)
above for such Distribution Date over (y) the amount actually distributed
pursuant to such section from the Group I Interest Remittance
Amount.
(III) On
each
Distribution Date, following the distributions made pursuant to Sections
4.01(a)(I) and 4.01(a)(II) above, the sum of the Group I Interest Remittance
Amount and the Group II Interest Remittance Amount remaining undistributed
for
such Distribution Date, will be distributed sequentially to the Class X-0,
Xxxxx
X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8 and Class
M-9 Certificates, in that order, in an amount equal to the Monthly Interest
Distributable Amount allocable to each such Class of Certificates.
(b) (I)
On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, distributions in respect of principal to the extent of the Group
I
Principal Distribution Amount shall be made in the following amounts and
order:
(i) to
the
Holders of the Group I Certificates,
until the Certificate Principal Balance thereof has been reduced to zero;
and
(ii) after
taking into account the amount distributed to the Holders of the Group II
Certificates pursuant to Section 4.01(b)(II)(i) below on such Distribution
Date,
to the Holders of each Class of Group II Certificates (allocated among the
Group
II Certificates as described below), until the Certificate Principal Balances
thereof have been reduced to zero.
(II) On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, distributions in respect of principal to the extent of the Group
II Principal Distribution Amount shall be made in the following amounts and
order:
(i) to
the
Holders of the Group II Certificates (allocated among the Group II Certificates
as described below), until the Certificate Principal Balances thereof have
been
reduced to zero; and
(ii) after
taking into account the amount distributed to the Holders of the Group I
Certificates pursuant to Section 4.01(b)(I)(i) above on such Distribution Date,
to the Holders of the Group I Certificates, until the Certificate Principal
Balance thereof has been reduced to zero.
(III) On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, distributions in respect of principal to the extent of the sum
of
the Group I Principal Distribution Amount and the Group II Principal
Distribution Amount remaining undistributed for such Distribution Date shall
be
made sequentially to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class
M-5,
Class M-6, Class M-7, Class M-8 and Class M-9 Certificates, in that order,
in
each case, until the Certificate Principal Balance of each such Class has been
reduced to zero.
(c) (I)
On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the Group I Principal Distribution Amount shall be made in the following amounts
and order:
(i) to
the
Holders of the Group I Certificates, the Group I Senior Principal Distribution
Amount, until the Certificate Principal Balance thereof has been reduced to
zero; and
(ii) to
the
Holders of each Class of Group II Certificates (allocated among the Group II
Certificates as described below), an amount equal to the excess, if any, of
(x)
the amount required to be distributed pursuant to Section 4.01(c)(II)(i) below
for such Distribution Date over (y) the amount actually distributed pursuant
to
such section from the Group II Principal Distribution Amount on such
Distribution Date.
(II) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the Group II Principal Distribution Amount shall be made in the following
amounts and order:
(i) to
the
Holders of the Group II Certificates (allocated among the Group II Certificates
as described below), the Group II Senior Principal Distribution Amount until
the
Certificate Principal Balances thereof have been reduced to zero;
and
(ii) to
the
Holders of the Group I Certificates, an amount equal to the excess, if any,
of
(x) the amount required to be distributed pursuant to Section 4.01(c)(I)(i)
above for such Distribution Date over (y) the amount actually distributed
pursuant to such section from the Group I Principal Distribution Amount on
such
Distribution Date.
(III) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the sum of the Group I Principal Distribution Amount and the Group II Principal
Distribution Amount remaining undistributed for such Distribution Date shall
be
made in the following amounts and order:
(i) to
the
Holders of the Class M-1 Certificates, the Class M-1 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(ii) to
the
Holders of the Class M-2 Certificates, the Class M-2 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(iii) to
the
Holders of the Class M-3 Certificates, the Class M-3 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(iv) to
the
Holders of the Class M-4 Certificates, the Class M-4 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(v) to
the
Holders of the Class M-5 Certificates, the Class M-5 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(vi) to
the
Holders of the Class M-6 Certificates, the Class M-6 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(vii) to
the
Holders of the Class M-7 Certificates, the Class M-7 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(viii) to
the
Holders of the Class M-8 Certificates, the Class M-8 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
and
(ix) to
the
Holders of the Class M-9 Certificates, the Class M-9 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero.
With
respect to the Group II Certificates, all principal distributions will be
distributed sequentially to the Class II-A-1, Class II-A-2, Class II-A-3 and
Class II-A-4 Certificates, in that order, until the Certificate Principal
Balance of each such Class of Certificates has been reduced to zero; provided,
however, on any Distribution Date on which the aggregate Certificate Principal
Balance of the Subordinate Certificates has been reduced to zero, all principal
distributions will be distributed concurrently to each Class of the Group II
Certificates pro
rata
based on
the Certificate Principal Balance of each such Class.
(d) On
each
Distribution Date, the Net Monthly Excess Cashflow shall be distributed as
follows:
(i) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, distributable to such Holders as part of the Group I
Principal Distribution Amount and/or the Group II Principal Distribution Amount
as described under Section 4.01(b) and Section 4.01(c) above;
(ii) sequentially,
to the Holders of the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8 and Class M-9 Certificates, in that order,
in
each case, first up to the Unpaid Interest Shortfall Amount for each such Class
and second up to the Allocated Realized Loss Amount for each such
Class;
(iii) to
the
Net WAC Rate Carryover Reserve Account, the amount of any Net WAC Rate Carryover
Amounts on the Class A and Mezzanine Certificates for such Distribution
Date;
(iv) to
the
Swap Provider, any Swap Termination Payments resulting from a Swap Provider
Trigger Event;
(v) to
the
Holders of the Class C Certificates, (a) the Monthly Interest Distributable
Amount and any remaining Overcollateralization Release Amount for such
Distribution Date and (b) on any Distribution Date on which the Certificate
Principal Balances of the Class A Certificates and the Mezzanine Certificates
have been reduced to zero, any remaining amounts in reduction of the Certificate
Principal Balance of the Class C Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(vi) if
such
Distribution Date follows the Prepayment Period during which occurs the latest
date on which a Prepayment Charge may be required to be paid in respect of
any
Mortgage Loans, to the Holders of the Class P Certificates, in reduction of
the
Certificate Principal Balance thereof, until the Certificate Principal Balance
thereof is reduced to zero; and
(vii) any
remaining amounts to the Holders of the Residual Certificates (in respect of
the
appropriate Class R Interest).
On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Mortgage Loans received during the related Prepayment Period and any Servicer
Prepayment Charge Amounts paid by the Servicer during the related Prepayment
Period will be withdrawn from the Distribution Account and distributed by the
Trustee to the Holders of the Class P Certificates and shall not be available
for distribution to the Holders of any other Class of Certificates. The payment
of the foregoing amounts to the Holders of the Class P Certificates shall not
reduce the Certificate Principal Balances thereof.
(e) On
each
Distribution Date, after making the distributions of the Available Funds as
set
forth above, the Trustee will withdraw from the Net WAC Rate Carryover Reserve
Account, to the extent of amounts on deposit therein, the amount of any Net
WAC
Rate Carryover Amount for such Distribution Date and distribute such amount
in
the following order:
(i) concurrently,
to each Class of Class A Certificates, on a pro
rata
basis
based on the related Net WAC Rate Carryover Amount for each such Class, the
related Net WAC Rate Carryover Amount; and
(ii) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, the related Net WAC
Rate Carryover Amount.
(f) On
or
before each Distribution Date, Net Swap Payments (whether payable to the Swap
Provider or to the Supplemental Interest Trust Trustee), any Swap Termination
Payment owed to the Swap Provider not resulting from a Swap Provider Trigger
Event pursuant to the Swap Agreement and any Swap Termination Payments owed
to
the Supplemental Interest Trust Trustee will be deposited by the Supplemental
Interest Trust Trustee into the Swap Account. On each Distribution Date and
prior to any distribution to any Certificate, the Swap Administrator shall
withdraw and distribute from amounts on deposit in the Swap Account (other
than
amounts representing Swap Termination Payments received by the Supplemental
Interest Trust Trustee) the following amounts:
(i) to
the
Swap Provider, any Net Swap Payment owed to the Swap Provider pursuant to the
Interest Rate Swap Agreement for such Distribution Date; and
(ii) to
the
Swap Provider, any Swap Termination Payment owed to the Swap Provider not due
to
a Swap Provider Trigger Event pursuant to the Interest Rate Swap Agreement
and
to the extent not paid by the Supplemental Interest Trust Trustee from any
upfront payment received pursuant to any replacement interest rate swap
agreement.
On
each
Distribution Date, after making the distributions of the Available Funds, Net
Monthly Excess Cashflow and amounts on deposit in the Net WAC Rate Carryover
Reserve Account as set forth above, the Trustee, in
its
capacity as Supplemental Interest Trust Trustee,
shall
distribute the amount on deposit in the Swap Account as follows:
(i) concurrently,
to each Class of Class A Certificates, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount remaining
undistributed, on a pro
rata
basis
based on such respective remaining Monthly Interest Distributable
Amount;
(ii) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, the related Monthly
Interest Distributable Amount and Unpaid Interest Shortfall Amount, to the
extent remaining undistributed;
(iii) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to the difference
between (x) the Overcollateralization Deficiency Amount, if any, and (y) the
amount distributed pursuant to Section 4.01(d)(i) of this
Agreement;
(iv) sequentially
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, in each case up to
the
related Allocated Realized Loss Amount related to such Certificates for such
Distribution Date remaining undistributed;
(v) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover Amount
remaining undistributed, on a pro
rata
basis
based on such respective remaining Net WAC Rate Carryover Amounts;
and
(vi) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, the related Net WAC
Rate Carryover Amount remaining undistributed.
Notwithstanding
any of the foregoing, the aggregate amount distributed under clause (iii) above
on such Distribution Date, when added to the cumulative amount distributed
under
clause (iii) above on all prior Distribution Dates, will not be permitted to
exceed the cumulative amount of Realized Losses incurred on the Mortgage Loans
since the Cut-off Date through the last day of the Prepayment Period (reduced
by
the aggregate amount of Subsequent Recoveries received since the Cut-off Date
through the last day of the Prepayment Period). Any amounts that would otherwise
be distributable from the Supplemental Interest Trust on any Distribution Date
under clause (iii) above, but for the foregoing proviso, will be retained in
the
Supplemental Interest Trust and will be included in amounts available for
distribution from the Supplemental Interest Trust on the next succeeding
Distribution Date, subject to the foregoing proviso in the case of amounts
to be
distributed under clause (iii) above.
(g) [Reserved].
(h) Method
of Distribution.
The
Trustee shall make distributions in respect of a Distribution Date to each
Certificateholder of record on the related Record Date (other than as provided
in Section 10.01 respecting the final distribution), in the case of
Certificateholders of the Regular Certificates, by check or money order mailed
to such Certificateholder at the address appearing in the Certificate Register,
or by wire transfer. Distributions among Certificateholders shall be made in
proportion to the Percentage Interests evidenced by the Certificates held by
such Certificateholders.
(i) Distributions
on Book-Entry Certificates.
Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, which shall credit the amount of such distribution to the accounts
of its Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution
to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. All such credits and disbursements
with respect to a Book-Entry Certificate are to be made by the Depository and
the Depository Participants in accordance with the provisions of the
Certificates. None of the Trustee, the Depositor, the Servicer or the Originator
shall have any responsibility therefor except as otherwise provided by
applicable law.
(j) Subsequent
Recoveries.
On each
Distribution Date, following all distributions on the Certificates pursuant
to
Section 4.01, an amount equal to the amount of Subsequent Recoveries deposited
into the Collection Account pursuant to Section 3.10 and included in the
Available Funds for such Distribution Date will be applied to increase the
Certificate Principal Balance of the Class of Certificates with the Highest
Priority up to the extent of such Realized Losses previously allocated to that
Class of Certificates pursuant to Section 4.08. An amount equal to the amount
of
any remaining Subsequent Recoveries will be applied to increase the Certificate
Principal Balance of the Class of Certificates with the next Highest Priority,
up to the amount of such Realized Losses previously allocated to that Class
of
Certificates pursuant to Section 4.08, and so on. Holders of such Certificates
will not be entitled to any distribution in respect of interest on the amount
of
such increases for any Accrual Period preceding the Distribution Date on which
such increase occurs. Any such increases shall be applied to the Certificate
Principal Balance of each Certificate of such Class in accordance with its
respective Percentage Interest.
(k) It
is the
intention of all of the parties hereto that the Class C Certificates receive
all
principal and interest received by the Trust on the Mortgage Loans that is
not
otherwise distributable to any other Class of Regular Certificates or REMIC
Regular Interests. If the Trustee determines that the Residual Certificates
are
entitled to any distributions, the Trustee, prior to any such distribution
to
any Residual Certificate, shall notify the Depositor of such impending
distribution. Upon such notification, the Depositor will request an amendment
to
the Pooling and Servicing Agreement to revise such mistake in the distribution
provisions. The Residual Certificate Holders, by acceptance of their
Certificates, and the Servicer(s) hereby agree and no further consent shall
be
necessary, notwithstanding anything to the contrary in Section 11.01 of the
Pooling and Servicing Agreement.
| SECTION 4.02. |
[Reserved].
|
| SECTION 4.03. |
Statements.
|
(a) On
each
Distribution Date, based, as applicable, on information provided to it by the
Servicer, the Trustee shall prepare and make available to each Holder of the
Regular Certificates, the Swap Provider, the Servicer and the Rating Agencies,
a
statement as to the distributions made on such Distribution Date (the “Monthly
Statement”):
(i) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Regular Certificates allocable to principal and the amount of the
distribution made to the Holders of the Class P Certificates allocable to
Prepayment Charges and Servicer Prepayment Charge Payment Amounts;
(ii) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Regular Certificates (other than the Class P Certificates) allocable
to
interest, separately identified;
(iii) Net
Monthly Excess Cashflow, the Overcollateralized Amount, the
Overcollateralization Release Amount, the Overcollateralization Deficiency
Amount and the Overcollateralization Target Amount as of such Distribution
Date
and the Excess Overcollateralized Amount for the Mortgage Pool for such
Distribution Date;
(iv) any
fees
and expenses of the Trust accrued and paid on such Distribution Date and to
whom
such fees and expenses were paid;
(v) the
aggregate amount of Advances for the related Due Period (including the general
purpose of such Advances);
(vi) the
aggregate amount of interest and scheduled principal received or advanced by
the
Servicer with respect to the related Due Period;
(vii) with
respect to each Loan Group, the related group balance at the Close of Business
at the end of the related Due Period;
(viii) the
number, aggregate Principal Balance, weighted average remaining term to maturity
and weighted average Mortgage Rate of the Mortgage Loans as of the related
Determination Date;
(ix) the
number and aggregate unpaid principal balance of Mortgage Loans (except those
Mortgage Loans that are liquidated as of the end of the related Prepayment
Period) that were (as determined using the OTS method) (A) Delinquent (exclusive
of Mortgage Loans in bankruptcy or foreclosure and REO Properties) (1) 30 to
59
days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which foreclosure
proceedings have been commenced and Delinquent (1) 30 to 59 days, (2) 60 to
89
days and (3) 90 or more days, (C) in bankruptcy and Delinquent (1) 30 to 59
days, (2) 60 to 89 days and (3) 90 or more days, in each case as of the Close
of
Business on the last day of the calendar month preceding such Distribution
Date
and (D) REO Properties;
(x) the
Delinquency Percentage;
(xi) the
total
number and cumulative principal balance of all Liquidated Mortgage Loans as
of
the Close of Business of the last day of the preceding Prepayment Period, prior
to the reduction of each principal balance to zero;
(xii) the
total
number and cumulative principal balance of all REO Properties as of the Close
of
Business of the last day of the preceding Prepayment Period;
(xiii) the
aggregate amount of Principal Prepayments in full, the aggregate amount of
Principal Prepayments in part and Net Liquidation Proceeds made during the
related Prepayment Period;
(xiv) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period and the cumulative amount of Realized Losses;
(xv) the
aggregate amount of extraordinary Trust Fund expenses withdrawn from the
Collection Account for such Distribution Date;
(xvi) the
Certificate Principal Balance of each Class of Class A Certificates, each class
of Mezzanine Certificates and the Class C Certificates, before and after giving
effect to the distributions made on such Distribution Date;
(xvii) the
Monthly Interest Distributable Amount in respect of each Class of Class A
Certificates, each class of Mezzanine Certificates and the Class C Certificates
for such Distribution Date and the Unpaid Interest Shortfall Amount, if any,
with respect to the Class A Certificates, the Mezzanine Certificates and the
Class C Certificates for such Distribution Date;
(xviii) the
aggregate amount of any Prepayment Interest Shortfalls for such Distribution
Date, to the extent not covered by payments by the Servicer pursuant to Section
3.26;
(xix) the
Senior Credit Enhancement Percentage for such Distribution Date;
(xx) the
Net
WAC Rate Carryover Amount for each class of Class A Certificates and each class
of Mezzanine Certificates, if any, for such Distribution Date and the amount
remaining unpaid after reimbursements therefor on such Distribution
Date;
(xxi) the
amount of any Net Swap Payments or Swap Termination Payments (a) due from the
Trust and (b) due from the Swap Provider;
(xxii) whether
the Stepdown Date or a Trigger Event is in effect;
(xxiii) the
total
cashflows received (including amounts received from the Supplemental Interest
Trust Trustee under the Interest Rate Swap Agreement);
(xxiv) the
respective Pass-Through Rates applicable to each Class of Class A and Mezzanine
Certificates for such Distribution Date and the Pass-Through Rate applicable
to
each Class of Class A Certificates and Mezzanine Certificates for the
immediately succeeding Distribution Date;
(xxv) the
amount on deposit Net WAC Rate Carryover Reserve Account; and
(xxvi) the
applicable Record Date, Accrual Period and Determination Date for calculating
distributions for such Distribution Date.
The
Trustee will make such statement (and, at its option, any additional files
containing the same information in an alternative format) available each month
to Certificateholders, the NIMS Insurer, the Swap Provider and the Rating
Agencies via the Trustee’s internet website. The Trustee’s internet website
shall initially be located at “xxx.xxxxxxx.xxx”. Assistance in using the website
can be obtained by calling the Trustee’s customer service desk at (000)
000-0000. Parties that are unable to use the above distribution option are
entitled to have a paper copy mailed to them via first class mail by calling
the
customer service desk and indicating such. The Trustee shall have the right
to
change the way such statements are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and
the
Trustee shall provide timely and adequate notification to all above parties
regarding any such changes. As a condition to access the Trustee’s internet
website, the Trustee may require registration and the acceptance of a
disclaimer. The Trustee will not be liable for the dissemination of information
in accordance with this Agreement. The Trustee shall also be entitled to rely
on
but shall not be responsible for the content or accuracy of any information
provided by third parties for purposes of preparing the distribution date
statement and may affix thereto any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party thereto).
In
the
case of information furnished pursuant to subclauses (i) through (iii) above,
the amounts shall be expressed in a separate section of the report as a dollar
amount for each Class for each $1,000 original dollar amount as of the Cut-off
Date.
In
addition, the Trustee will report on Form 10-D any material breaches of
representations and warranties regarding the Mortgage Loans to the extent known
to the Trustee and if applicable, material modifications, extensions or waivers
to Mortgage Loan terms, fees, penalties or payments during the preceding
calendar month or that have become material over time.
For
all
purposes of this Agreement, with respect to any Mortgage Loan, delinquencies
shall be determined by the Trustee from information provided by the Servicer
and
reported by the Trustee based on the OTS methodology for determining
delinquencies on mortgage loans similar to the Mortgage Loans. By way of
example, a Mortgage Loan would be Delinquent with respect to a Monthly Payment
due on a Due Date if such Monthly Payment is not made by the close of business
on the Mortgage Loan's next succeeding Due Date, and a Mortgage Loan would
be
more than 30-days Delinquent with respect to such Monthly Payment if such
Monthly Payment were not made by the close of business on the Mortgage Loan’s
second succeeding Due Date (the “OTS Method”). The Servicer hereby represents
and warrants to the Depositor that it is not subject to any delinquency
recognition policy established by its safety and soundness
regulators.
(b) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall, upon written request, furnish to the NIMS Insurer and each Person who
at
any time during the calendar year was a Certificateholder of a Regular
Certificate, if requested in writing by such Person, such information as is
reasonably necessary to provide to such Person a statement containing the
information set forth in subclauses (i) through (iii) above, aggregated for
such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
prepared and furnished by the Trustee to Certificateholders pursuant to any
requirements of the Code as are in force from time to time.
(c) On
each
Distribution Date, the Trustee shall make available to the NIMS Insurer and
the
Residual Certificateholders a copy of the reports forwarded to the Regular
Certificateholders in respect of such Distribution Date with such other
information as the Trustee deems necessary or appropriate.
(d) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
deliver to the NIMS Insurer and each Person who at any time during the calendar
year was a Residual Certificateholder, if requested in writing by such Person,
such information as is reasonably necessary to provide to such Person a
statement containing the information provided pursuant to the previous paragraph
aggregated for such calendar year or applicable portion thereof during which
such Person was a Residual Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be prepared and furnished to Certificateholders
by
the Trustee pursuant to any requirements of the Code as from time to time in
force.
(e) For
each
Distribution Date, through and including the Distribution Date in December
2007,
the Trustee shall calculate the Significance Percentage of the Interest Rate
Swap Agreement. If on any such Distribution Date, the Significance Percentage
is
equal to or greater than 9%, the Trustee shall promptly notify the Depositor
and
the Depositor, on behalf of the Trustee, shall obtain the financial information
required to be delivered by the Swap Provider pursuant to the terms of the
Interest Rate Swap Agreement. If, on any succeeding Distribution Date through
and including the Distribution Date in December 2007, the Significance
Percentage is equal to or greater than 10%, the Trustee shall promptly notify
the Depositor and the Depositor shall, within 5 Business Days of such
Distribution Date, deliver to the Trustee the financial information provided
to
it by the Swap Provider for inclusion in the Form 10-D relating to such
Distribution Date. If on any Distribution Date after December 2007, the
Significance Percentage is greater than 10%, the Trustee shall include the
Significance Percentage on the statement to Certificateholders for the related
Distribution Date.
| SECTION 4.04. |
Remittance
Reports; Advances.
|
(a) On
the
second Business Day following each Determination Date but in no event later
than
the earlier of (i) such date which would allow the indenture trustee to submit
a
claim to the NIMS Insurer under the Indenture so as to allow a timely payment
by
the NIMS Insurer under the insurance policy related to the notes insured by
the
NIMS Insurer and (ii) the 20th
day of
each month (or if such 20th
day is
not a Business Day, the preceding Business Day), the Servicer shall deliver
to
the Trustee by telecopy or electronic mail (or by such other means as the
Servicer and the Trustee may agree from time to time) a Remittance Report in
the
form of Exhibit O hereto (or such form mutually agreed upon) with respect to
the
related Distribution Date. Not later than the 20th
day of
each month (or if such 20th
day is
not a Business Day, the preceding Business Day), the Servicer shall deliver
or
cause to be delivered to the Trustee in addition to the information provided
on
the Remittance Report, such other information reasonably available to it with
respect to the Mortgage Loans as the Trustee may reasonably require to perform
the calculations necessary to make the distributions contemplated by Section
4.01 and to prepare the statements to Certificateholders contemplated by Section
4.03. The Trustee shall not be responsible to recompute, recalculate or verify
any information provided to it by the Servicer.
(b) The
amount of Advances to be made by the Servicer for any Distribution Date shall
equal, subject to Section 4.04(d), the sum of (i) the aggregate amount of
Monthly Payments (net of the related Servicing Fee), due during the related
Due
Period in respect of the Mortgage Loans, which Monthly Payments were delinquent
on a contractual basis as of the Close of Business on the related Determination
Date and (ii) with respect to each REO Property, which REO Property was acquired
during or prior to the related Due Period and as to which REO Property an REO
Disposition did not occur during the related Due Period, an amount equal to
the
excess, if any, of the REO Imputed Interest on such REO Property for the most
recently ended calendar month, over the net income from such REO Property
transferred to the Distribution Account pursuant to Section 3.23 for
distribution on such Distribution Date.
(c) On
or
before 1:00 p.m. New York time on the Servicer Remittance Date, the Servicer
shall remit in immediately available funds to the Trustee for deposit in the
Distribution Account an amount equal to the aggregate amount of Advances, if
any, to be made in respect of the Mortgage Loans and REO Properties for the
related Distribution Date either (i) from its own funds or (ii) from the
Collection Account, to the extent of funds held therein for future distribution
(in which case it will cause to be made an appropriate entry in the records
of
Collection Account that amounts held for future distribution have been, as
permitted by this Section 4.04, used by the Servicer in discharge of any such
Advance) or (iii) in the form of any combination of (i) and (ii) aggregating
the
total amount of Advances to be made by the Servicer with respect to the Mortgage
Loans and REO Properties. Any amounts held for future distribution used by
the
Servicer to make an Advance as permitted in the preceding sentence or withdrawn
by the Servicer as permitted in Section 3.11(a)(ii) in reimbursement of Advances
previously made shall be appropriately reflected in the Servicer’s records and
replaced by the Servicer by deposit in the Collection Account on or before
any
future Servicer Remittance Date to the extent that the Available Funds for
the
related Distribution Date (determined without regard to Advances to be made
on
the Servicer Remittance Date) shall be less than the total amount that would
be
distributed to the Classes of Certificateholders pursuant to Section 4.01 on
such Distribution Date if such amounts held for future distributions had not
been so used to make Advances or reimburse for previously made Advances. The
Trustee will provide notice to the NIMS Insurer and the Servicer by telecopy
by
the Close of Business on any Servicer Remittance Date in the event that the
amount remitted by the Servicer to the Trustee on such date is less than the
Advances required to be made by the Servicer for the related Distribution Date,
as set forth in the related Remittance Report.
(d) The
obligation of the Servicer to make such Advances is mandatory, notwithstanding
any other provision of this Agreement but subject to (e) below, and, with
respect to any Mortgage Loan, shall continue until the Mortgage Loan is paid
in
full or until the recovery of all Liquidation Proceeds thereon.
(e) Notwithstanding
anything herein to the contrary, no Advance or Servicing Advance shall be
required to be made hereunder by the Servicer if such Advance or Servicing
Advance would, if made, constitute a Nonrecoverable Advance. The determination
by the Servicer that it has made a Nonrecoverable Advance or that any proposed
Advance or Servicing Advance, if made, would constitute a Nonrecoverable
Advance, shall be evidenced by an Officers’ Certificate of the Servicer
delivered to the NIMS Insurer, the Depositor and the Trustee.
| SECTION 4.05. |
Net
WAC Rate Carryover Reserve Account.
|
No
later
than the Closing Date, the Trustee shall establish and maintain with itself
a
separate, segregated trust account titled, “Net WAC Rate Carryover Reserve
Account, Xxxxx Fargo Bank, N.A., as Trustee, in trust for registered Holders
of
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series 2007-4”
which shall be an Eligible Account.
On
each
Distribution Date as to which there is a Net WAC Rate Carryover Amount payable
to the Class A Certificates and/or the Mezzanine Certificates, the Trustee
has
been directed by the Class C Certificateholders to, and therefore will, deposit
into the Net WAC Rate Carryover Reserve Account the amounts described in Section
4.01(d)(iii), rather than distributing such amounts to the Class C
Certificateholders. On each such Distribution Date, the Trustee shall hold
all
such amounts for the benefit of the Holders of the Class A Certificates and
the
Mezzanine Certificates, and will distribute such amounts to the Holders of
the
Class A Certificates and/or the Mezzanine Certificates in the amounts and
priorities set forth in Section 4.01(e).
On
or
after any Distribution Date following the reduction of the aggregate Certificate
Principal Balance of the Class A and Mezzanine Certificates to zero, any amounts
remaining in the Net WAC Rate Carryover Reserve Account after the payment of
any
Net WAC Rate Carryover Amounts on the Class A Certificates and the Mezzanine
Certificates for such Distribution Date, shall be distributed to the Class
C
Certificateholder or their designee.
It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Net WAC Rate Carryover Reserve Account be
disregarded as an entity separate from the Holder of the Class C Certificates
unless and until the date when either (a) there is more than one Class C
Certificateholder or (b) any Class of Certificates in addition to the Class
C
Certificates is recharacterized as an equity interest in the Net WAC Rate
Carryover Reserve Account for federal income tax purposes, in which case it
is
the intention of the parties hereto that, for federal and state income and
state
and local franchise tax purposes, the Net WAC Rate Carryover Reserve Account
be
treated as a partnership; provided, that the Trustee shall not be required
to
prepare and file partnership tax returns in respect of such partnership unless
it receives additional reasonable compensation (not to exceed $10,000 per year)
for the preparation of such filings, written notification recognizing the
creation of a partnership agreement or comparable documentation evidencing
the
partnership, if any. The Net WAC Rate Carryover Reserve Account will be an
“outside reserve fund” within the meaning of Treasury Regulation Section
1.860G-2(h). All amounts deposited into the Net WAC Rate Carryover Reserve
Account shall be treated as amounts distributed by REMIC 3 to the Holder of
the
Class C Interest and by REMIC 4 to the Holders of the Class C Certificates.
Upon
the termination of the Trust, or the payment in full of the Class A Certificates
and the Mezzanine Certificates, all amounts remaining on deposit in the Net
WAC
Rate Carryover Reserve Account will be released by the Trust and distributed
to
the Class C Certificateholders or their designees. The Net WAC Rate Carryover
Reserve Account will be part of the Trust but not part of any REMIC and any
payments to the Holders of the Class A Certificates or the Mezzanine
Certificates of Net WAC Rate Carryover Amounts will not be payments with respect
to a “regular interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
By
accepting a Class C Certificate, each Class C Certificateholder hereby agrees
to
direct the Trustee, and the Trustee hereby is directed, to deposit into the
Net
WAC Rate Carryover Reserve Account the amounts described above on each
Distribution Date as to which there is any Net WAC Rate Carryover Amount rather
than distributing such amounts to the Class C Certificateholders. By accepting a
Class C Certificate, each Class C Certificateholder further agrees that such
direction is given for good and valuable consideration, the receipt and
sufficiency of which is acknowledged by such acceptance.
Amounts
on deposit in the Net WAC Rate Carryover Reserve Account shall remain
uninvested.
For
federal tax return and information reporting, the value of the right of the
Holders of the Class A and the Mezzanine Certificates to receive payments from
the Net WAC Rate Carryover Reserve Account in respect of any Net WAC Rate
Carryover Amount shall be de
minimis.
| SECTION 4.06. |
Distributions
on the REMIC Regular Interests.
|
(a) On
each
Distribution Date, the Trustee shall cause in the following order of priority,
the following amounts to be distributed by REMIC 1 to REMIC 2 on account of
the
REMIC 1 Regular Interests or withdrawn from the Distribution Account and
distributed to the Holders of the Class R Certificates (in respect of the Class
R-1 Interest), as the case may be:
(i) to
Holders of each of REMIC 1 Regular Interest I, REMIC 1 Regular Interest II
and
REMIC 1 Regular Interest I-1-A through I-71-B, pro rata, in an amount equal
to
(A) Uncertificated Accrued Interest for such REMIC 1 Regular Interests for
such
Distribution Date, plus (B) any amounts payable in respect thereof remaining
unpaid from previous Distribution Dates;
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
above, payments of principal shall be allocated as follows: first, to REMIC
1
Regular Interest II in an amount equal to the aggregate principal distributions
made on the Class A Certificates and the Mezzanine Certificates until the
Uncertificated Principal Balance REMIC 1 Regular Interest II has been reduced
to
zero, second, to REMIC 1 Regular Interest I in an amount equal to the aggregate
principal distributions made on the Certificates other than the Class A
Certificates, the Mezzanine Certificates and the Class P Certificates until
the
Uncertificated Principal Balance of REMIC 1 Regular Interest I has been reduced
to zero and third, to REMIC 1 Regular Interest I-1-A through I-71-B, starting
with the lowest numerical denomination until each such REMIC 1 Regular Interest
has been reduced to zero, provided that, for REMIC 1 Regular Interests with
the
same numerical denomination, such distributions shall be allocated pro rata
between such REMIC 1 Regular Interests; and
(iii) to
the
Holders of REMIC 1 Regular Interest I-71-A and REMIC 1 Regular Interest I-71-B,
pro
rata,
on each
Distribution Date, 100% of the amount paid in respect of Prepayment
Charges.
(b) On
each
Distribution Date, the Trustee shall cause in the following order of priority,
the following amounts to be distributed by REMIC 2 to REMIC 3 on account of
the
REMIC 2 Regular Interests or withdrawn from the Distribution Account and
distributed to the Holders of the Class R Certificates (in respect of the Class
R-2 Interest), as the case may be:
(i) to
the
Holders of REMIC 2 Regular Interest LTIO, in an amount equal to (A)
Uncertificated Accrued Interest for such REMIC 2 Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates;
(ii) first,
to
Holders of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTIA1, REMIC
2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest LTZZ and REMIC 2 Regular Interest LTP,
pro
rata,
in an
amount equal to (A) the Uncertificated Accrued Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates. Amounts payable as Uncertificated Accrued Interest in
respect of REMIC 2 Regular Interest LTZZ shall be reduced and deferred when
the
REMIC 2 Overcollateralized Amount is less than the REMIC 2 Overcollateralization
Target Amount, by the lesser of (x) the amount of such difference and (y) the
Maximum LTZZ Uncertificated Interest Deferral Amount and such amount shall
be
payable to the Holders of REMIC 2 Regular Interest LTIA1, REMIC 2 Regular
Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular Interest
LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC
2
Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest
LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2
Regular Interest LTM7, REMIC 2 Regular Interest LTM8 and REMIC 2 Regular
Interest LTM9 in the same proportion as the Overcollateralization Increase
Amount is allocated to the Corresponding Certificates and the Uncertificated
Principal Balance of REMIC 2 Regular Interest LTZZ shall be increased by such
amount;
(iii) to
the
Holders of REMIC 2 Regular Interests, in an amount equal to the remainder of
the
Available Funds for such Distribution Date after the distributions made pursuant
to clause (i) above, allocated as follows:
(a) 98.00%
of
such remainder (other than amounts payable under clause (c) below), to the
Holders of REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest LTP,
until
the Uncertificated Principal Balance of such REMIC 2 Regular Interest is reduced
to zero, provided, however, that REMIC 2 Regular Interest LTP shall not be
reduced until the Distribution Date immediately following the expiration of
the
latest Prepayment Charge as identified on the Prepayment Charge Schedule or
any
Distribution Date thereafter, at which point such amount shall be distributed
to
REMIC 2 Regular Interest LTP, until $100 has been distributed pursuant to this
clause;
(b) 2.00%
of
such remainder (other than amounts payable under clause (c) below), first,
to
the Holders of REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1,
REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC 2
Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest
LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2
Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest
LTM7, REMIC 2 Regular Interest LTM8 and REMIC 2 Regular Interest LTM9, 1.00%
of
and, in the same proportion as principal payments are allocated to the
Corresponding Certificates, until the Uncertificated Principal Balances of
such
REMIC 2 Regular Interests are reduced to zero and second, to the Holders of
REMIC 2 Regular Interest LTZZ, 1.00% of such remainder, until the Uncertificated
Principal Balance of such REMIC 2 Regular Interest is reduced to zero;
and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-2 Interest);
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to an Overcollateralization Reduction Amount shall be allocated
to
Holders of (i) REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest LTP,
in that order and (ii) REMIC 2 Regular Interest LTZZ, respectively; provided
that REMIC 2 Regular Interest LTP shall not be reduced until the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date
thereafter, at which point such amount shall be distributed to REMIC 2 Regular
Interest LTP, until $100 has been distributed pursuant to this clause;
and
(iv) Notwithstanding
the distributions described in this Section 4.07, distribution of funds shall
be
made only in accordance with Section 4.01.
On
each
Distribution Date, 100% of the amounts distributed on REMIC 2 Regular Interest
LTIO shall be deemed distributed by REMIC 2 to REMIC 3 in respect of the Class
SWAP-IO Interest. Such amounts shall be deemed distributed by REMIC 3 to REMIC
6
in respect of REMIC 6 Regular Interest SWAP-IO. Such amounts shall be deemed
distributed by REMIC 6 to the Swap Administrator for deposit into the Swap
Account.
On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Mortgage Loans received during the related Prepayment Period will be distributed
by REMIC 2 to the Holders of REMIC 2 Regular Interest LTP. The payment of the
foregoing amounts to the Holders of REMIC 2 Regular Interest LTP shall not
reduce the Uncertificated Principal Balance thereof.
| SECTION 4.07. |
Allocation
of Realized Losses.
|
(a) All
Realized Losses on the Mortgage Loans allocated to any Regular Certificate
shall
be allocated by the Trustee on each Distribution Date as follows: first, as
provided in Section 1.03, to the interest accrued on the Class C Certificates
after the allocation thereto of certain interest shortfalls as provided in
Section 1.03; second, to the Class C Certificates (determined for purposes
of
this Section 4.07 as the amount by which (A) the aggregate Uncertificated
Principal Balance of the REMIC 1 Regular Interests immediately preceding such
Distribution Date exceeds (B) the aggregate Certificate Principal Balance of
the
Class A Certificates, the Mezzanine Certificates and the Class P Certificates
immediately preceding such Distribution Date), until the Certificate Principal
Balance thereof has been reduced to zero; third, to the Class M-9 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero;
fourth, to the Class M-8 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; fifth, to the Class M-7 Certificates, until
the Certificate Principal Balance thereof has been reduced to zero; sixth,
to
the Class M-6 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; seventh, to the Class M-5 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; eighth, to
the
Class M-4 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; ninth,
to
the Class M-3 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero;
tenth,
to the Class M-2 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; and eleventh, to the Class M-1 Certificates, until
the
Certificate Principal Balance thereof has been reduced to zero. All Realized
Losses to be allocated to the Certificate Principal Balances of all Classes
on
any Distribution Date shall be so allocated after the actual distributions
to be
made on such date as provided above. All references above to the Certificate
Principal Balance of any Class of Certificates shall be to the Certificate
Principal Balance of such Class immediately prior to the relevant Distribution
Date, before reduction thereof by any Realized Losses, in each case to be
allocated to such Class of Certificates, on such Distribution Date.
Any
allocation of Realized Losses to a Mezzanine Certificate on any Distribution
Date shall be made by reducing the Certificate Principal Balance thereof by
the
amount so allocated; any allocation of Realized Losses to a Class C Certificate
shall be made by reducing the amount otherwise payable in respect thereof
pursuant to Section 4.01(d)(v). No allocations of any Realized Losses shall
be
made to the Certificate Principal Balances of the Class A Certificates or the
Class P Certificates.
(b) All
Realized Losses on the Mortgage Loans shall be deemed to have been allocated
first, to REMIC 1 Regular Interest II in an amount equal to the aggregate
Realized Losses allocated to the Class A Certificates and the Mezzanine
Certificates until the Uncertificated Principal Balance REMIC 1 Regular Interest
II has been reduced to zero, second, to REMIC 2 Regular Interest I in an amount
equal to the aggregate Realized Losses allocated to the Certificates other
than
the Class A Certificates and the Mezzanine Certificates until the Uncertificated
Principal Balance of REMIC 2 Regular Interest I has been reduced to zero and
third, to REMIC 2 Regular Interest I-1-A through I-71-B, starting with the
lowest numerical denomination until each such REMIC 1 Regular Interest has
been
reduced to zero, provided that, for REMIC 1 Regular Interests with the same
numerical denomination, such Realized Losses shall be allocated pro rata between
such REMIC 1 Regular Interests.
(b) All
Realized Losses on the Mortgage Loans shall be allocated by the Trustee on
each
Distribution Date to the following REMIC 2 Regular Interests in the specified
percentages, as follows: first, to Uncertificated Accrued Interest payable
to
the REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest LTZZ up to an
aggregate amount equal to the REMIC 2 Interest Loss Allocation Amount, 98%
and
2%, respectively; second, to the Uncertificated Principal Balances of the REMIC
2 Regular Interest LTAA and REMIC 2 Regular Interest LTZZ up to an aggregate
amount equal to the REMIC 2 Principal Loss Allocation Amount, 98% and 2%,
respectively; third, to the Uncertificated Principal Balances of REMIC 2 Regular
Interest LTAA, REMIC 2 Regular Interest LTM9 and REMIC 2 Regular Interest LTZZ,
98%, 1.00%, and 1%, respectively, until the Uncertificated Principal Balance
of
REMIC 2 Regular Interest LTM9 has been reduced to zero; fourth, to the
Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2
Regular Interest LTM8 and REMIC 2 Regular Interest LTZZ, 98%, 1.00%, and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM8 has been reduced to zero; fifth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTM7 and
REMIC 2 Regular Interest LTZZ, 98%, 1.00%, and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM7 has been
reduced to zero; sixth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM6 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM6 has been reduced to zero; seventh,
to
the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC
2
Regular Interest LTM5 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM5 has been reduced to zero; eighth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTM4 and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM4 has been
reduced to zero; ninth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM3 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM3 has been reduced to zero; tenth, to
the
Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2
Regular Interest LTM2 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM2 has been reduced to zero and eleventh, to the Uncertificated
Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest
LTM1 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until
the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM1 has been
reduced to zero.
| SECTION 4.08. |
Swap
Account.
|
(a) On
the
Closing Date, there is hereby established a separate trust (the “Supplemental
Interest Trust”), into which the Depositor shall deposit: (i) the Interest Rate
Swap Agreement and (ii) the Swap Administration Agreement. The Supplemental
Interest Trust shall be maintained by the Supplemental Interest Trust Trustee.
No later than the Closing Date, the Supplemental Interest Trust Trustee shall
establish and maintain a separate, segregated trust account to be held in the
Supplemental Interest Trust, titled, “Swap Account, Xxxxx Fargo Bank, N.A., as
Supplemental Interest Trust Trustee, in trust for the Swap Provider and the
registered holders of Option
One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4.”
Such
account shall be an Eligible Account and funds on deposit therein shall be
held
separate and apart from, and shall not be commingled with, any other moneys,
including, without limitation, other moneys of the Trustee, in its capacity
as
Supplemental Interest Trust Trustee, held pursuant to this Agreement. Amounts
therein shall be held uninvested.
(b) On
each
Distribution Date, prior to any distribution to any Certificate, the Trustee
shall deliver to the Supplemental Interest Trust Trustee for deposit into the
Swap Account: (i) the amount of any Net Swap Payment or Swap Termination Payment
(other than any Swap Termination Payment resulting from a Swap Provider Trigger
Event) owed to the Swap Provider (after taking into account any upfront payment
received from the counterparty to a replacement swap agreement) from funds
collected and received with respect to the Mortgage Loans prior to the
determination of Available Funds and (ii) amounts received by the Trustee from
the Swap Administrator, for distribution in accordance with Section 4.01(f),
pursuant to the Swap Administration Agreement, dated as of the Closing Date
(the
“Swap Administration Agreement”), among Xxxxx Fargo Bank, N.A. in its capacity
as Supplemental Interest Trustee, Trustee and Swap Administrator and Option
One
Mortgage Corporation (in substantially the form attached hereto as Exhibit
N).
For federal income tax purposes, any amounts paid to the Swap Provider on each
Distribution Date shall first be deemed paid to the Swap Provider in respect
of
the Class SWAP-IO Interest to the extent of the amount distributable on such
Class SWAP-IO Interest on such Distribution Date, and any remaining amount
shall
be deemed paid to the Swap Provider in respect of a Class IO Distribution Amount
(as defined below).
(c) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the Holder of the Class C Certificates unless and until
the date when either (a) there is more than one Class C Certificateholder or
(b)
any Class of Certificates in addition to the Class C Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust for
federal income tax purposes, in which case it is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Supplemental Interest Trust be treated as a partnership; provided,
that the Trustee shall not be required to prepare and file partnership tax
returns in respect of such partnership unless it receives additional reasonable
compensation (not to exceed $10,000 per year) for the preparation of such
filings, written notification recognizing the creation of a partnership
agreement or comparable documentation evidencing the partnership, if any. The
Supplemental Interest Trust will be an “outside reserve fund” within the meaning
of Treasury Regulation Section 1.860G-2(h).
(d) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Supplemental Interest Trust Trustee, any obligation of the
Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement
shall
be deemed to be an obligation of the Supplemental Interest Trust.
(e) The
Trustee shall treat the Holders of Certificates (other than the Class P, Class
C, Class R and Class R-X Certificates) as having entered into a notional
principal contract with respect to the Holders of the Class C Certificates.
Pursuant to each such notional principal contract, all Holders of Certificates
(other than the Class P, Class C, Class R and Class R-X Certificates) shall
be
treated as having agreed to pay, on each Distribution Date, to the Holder of
the
Class C Certificates an aggregate amount equal to the excess, if any, of (i)
the
amount payable on such Distribution Date on the REMIC 3 Regular Interest
corresponding to such Class of Certificates over (ii) the amount payable on
such
Class of Certificates on such Distribution Date (such excess, a “Class IO
Distribution Amount”). A Class IO Distribution Amount payable from interest
collections shall be allocated pro
rata
among
such Certificates based on the amount of interest otherwise payable to such
Certificates, and a Class IO Distribution Amount payable from principal
collections shall be allocated to the most subordinate Class of Certificates
with an outstanding principal balance to the extent of such balance. In
addition, pursuant to such notional principal contract, the Holder of the Class
C Certificates shall be treated as having agreed to pay Net WAC Rate Carryover
Amounts to the Holders of the Certificates (other than the Class C, Class P,
Class R and Class R-X Certificates) in accordance with the terms of this
Agreement. Any payments to the Certificates from amounts deemed received in
respect of this notional principal contract shall not be payments with respect
to a Regular Interest in a REMIC within the meaning of Code Section 860G(a)(1).
However, any payment from the Certificates (other than the Class C, Class P,
Class R and Class R-X Certificates) of a Class IO Distribution Amount shall
be
treated for tax purposes as having been received by the Holders of such
Certificates in respect of their interests in REMIC 3 and as having been paid
by
such Holders to the Swap Administrator pursuant to the notional principal
contract. Thus, each Certificate (other than the Class P, Class R and Class
R-X
Certificates) shall be treated as representing not only ownership of Regular
Interests in REMIC 3, but also ownership of an interest in, and obligations
with
respect to, a notional principal contract.
| SECTION 4.09. |
Tax
Treatment of Swap Payments and Swap Termination
Payments
|
For
federal income tax purposes, each holder of a Class A or Mezzanine Certificate
is deemed to own an undivided beneficial ownership interest in a REMIC regular
interest and the right to receive payments from either the Basis Risk Shortfall
Reserve Fund or the Supplemental Interest Trust in respect of any Basis Risk
Shortfall Carry-Forward Amounts or the obligation to make payments to the
Supplemental Interest Trust. For federal income tax purposes, the Trustee will
account for payments to each Class A and Mezzanine Certificates as follows:
each
Class A and Mezzanine Certificate will be treated as receiving their entire
payment from REMIC 3 (regardless of any Swap Termination Payment or obligation
under the Swap Agreement) and subsequently paying their portion of any Swap
Termination Payment in respect of each such Class’ obligation under the Swap
Agreement. In the event that any such Class is resecuritized in a REMIC, the
obligation under the Swap Agreement to pay any such Swap Termination Payment
(or
any shortfall in Swap Provider Fee), will be made by one or more of the REMIC
Regular Interests issued by the resecuritization REMIC subsequent to such REMIC
Regular Interest receiving its full payment from any such Class A or Mezzanine
Certificate. Resecuritization of any Class A or Mezzanine Certificate in a
REMIC
will be permissible only if the Trustee hereunder is the trustee in such
resecuritization.
The
REMIC
regular interest corresponding to a Class A or Mezzanine Certificate will be
entitled to receive interest and principal payments at the times and in the
amounts equal to those made on the certificate to which it corresponds, except
that (i) the maximum interest rate of that REMIC regular interest will equal
the
Net WAC Rate computed for this purpose by limiting the Notional Amount of the
Swap Agreement to the aggregate Principal Balance of the Mortgage Loans and
(ii)
any Swap Termination Payment will be treated as being payable solely from Net
Monthly Excess Cashflow. As a result of the foregoing, the amount of
distributions and taxable income on the REMIC regular interest corresponding
to
a Class A or Mezzanine Certificate may exceed the actual amount of distributions
on the Class A or Mezzanine Certificate.
| SECTION 4.10. |
Swap
Collateral Account
|
The
Trustee (in its capacity as Supplemental Interest Trust Trustee) is hereby
directed to perform the obligations of the Custodian as defined under the Swap
Credit Support Annex (the “Swap Custodian”). On or before the Closing Date, the
Swap Custodian shall establish a Swap Collateral Account. The Swap Collateral
Account shall be held in the name of the Swap Custodian in trust for the benefit
of the Certificateholders. The Swap Collateral Account must be an Eligible
Account and shall be titled “Swap Collateral Account, Xxxxx Fargo Bank, N.A., as
Swap Custodian for registered Certificateholders of Option One Mortgage Loan
Trust 2007-4, Asset-Backed Certificates, Series 2007-4.”
The
Swap
Custodian shall credit to Swap Collateral Account all collateral (whether in
the
form of cash or securities) posted by the Swap Provider to secure the
obligations of the Swap Provider in accordance with the terms of the Interest
Rate Swap Agreement. Except for investment earnings, the Swap Provider shall
not
have any legal, equitable or beneficial interest in the Swap Collateral Account
other than in accordance with this Agreement, the Interest Rate Swap Agreement
and applicable law. The Swap Custodian shall maintain and apply all collateral
and earnings thereon on deposit in the Swap Collateral Account in accordance
with Swap Credit Support Annex.
Cash
collateral posted by the Swap Provider in accordance with the Swap Credit
Support Annex shall be invested at the direction of the Swap Provider in
Permitted Investments in accordance with the requirements of the Swap Credit
Support Annex. All amounts earned on amounts on deposit in the Swap Collateral
Account (whether cash collateral or securities) shall be for the account of
and
taxable to the Swap Provider. If no investment direction is provided, such
amounts shall remain uninvested.
Upon
the
occurrence of an Event of Default or Specified Condition (each as defined in
the
Interest Rate Swap Agreement) with respect to the Swap Provider or upon
occurrence or designation of an Early Termination Date (as defined in the
Interest Rate Swap Agreement) as a result of any such Event of Default or
Specified Condition with respect to the Swap Provider, and, in either such
case,
unless the Swap Provider has paid in full all of its Obligations (as defined
in
the Swap Credit Support Annex) that are then due, then any collateral posted
by
the Swap Provider in accordance with the Swap Credit Support Annex shall be
applied to the payment of any Obligations due to Party B (as defined in the
Interest Rate Swap Agreement) in accordance with the Swap Credit Support Annex.
To the extent the Swap Custodian is required to return any of the Posted
Collateral (as defined in the Swap Credit Support Annex) to the Swap Provider
under the terms of the Swap Credit Support Annex, the Swap Custodian shall
return such collateral in accordance with the terms of the Swap Credit Support
Annex.
| SECTION 4.11. |
Rights
and Obligations Under the Interest Rate Swap
Agreement.
|
In
the
event that the Swap Provider fails to perform any of its obligations under
the
Interest Rate Swap Agreement (including, without limitation, its obligation
to
make any payment or transfer collateral), or breaches any of its representations
and warranties thereunder, or in the event that any Event of Default,
Termination Event, or Additional Termination Event (each as defined in the
Interest Rate Swap Agreement) occurs with respect to the Interest Rate Swap
Agreement, the Trustee (in its capacity as Supplemental Interest Trust Trustee)
shall, promptly following actual notice of such failure, breach or event, notify
the Depositor and send any notices and make any demands, on behalf of the
Supplemental Interest Trust, required to enforce the rights of the Supplemental
Interest Trust under the Interest Rate Swap Agreement.
In
the
event that the Swap Provider’s obligations are guaranteed by a third party under
a guaranty relating to the Interest Rate Swap Agreement (such guaranty the
“Guaranty” and such third party the “Guarantor”), then to the extent that the
Swap Provider fails to make any payment by the close of business on the day
it
is required to make payment under the terms of the Interest Rate Swap Agreement,
the Trustee (in its capacity as Supplemental Interest Trust Trustee) shall,
promptly following actual notice of the Swap Provider’s failure to pay, demand
that the Guarantor make any and all payments then required to be made by the
Guarantor pursuant to such Guaranty; provided, that the Trustee (in its capacity
as Supplemental Interest Trust Trustee) shall in no event be liable for any
failure or delay in the performance by the Swap Provider or any Guarantor of
its
obligations hereunder or pursuant to the Interest Rate Swap Agreement and the
Guaranty, nor for any special, indirect or consequential loss or damage of
any
kind whatsoever (including but not limited to lost profits) in connection
therewith.
Upon
an
early termination of the Interest Rate Swap Agreement other than in connection
with the optional termination of the Trust, the Trustee (in its capacity as
Supplemental Interest Trust Trustee), at the direction of the Depositor, will
use reasonable efforts to appoint a successor swap provider to enter into a
new
interest rate swap agreement on terms substantially similar to the Interest
Rate
Swap Agreement, with a successor swap provider meeting all applicable
eligibility requirements. If the Trustee (in its capacity as Supplemental
Interest Trust Trustee) receives a termination payment from the Swap Provider
in
connection with such early termination, the Trustee (in its capacity as
Supplemental Interest Trust Trustee) will apply such termination payment to
any
upfront payment required to appoint the successor swap provider. If the Trustee
(in its capacity as Supplemental Interest Trust Trustee) is required to pay
a
termination payment to the Swap Provider in connection with such early
termination, the Trustee (in its capacity as Supplemental Interest Trust
Trustee) will apply any upfront payment received from the successor swap
provider to pay such termination payment.
If
the
Trustee (in its capacity as Supplemental Interest Trust Trustee) is unable
to
appoint a successor swap provider within 30 days of the early termination,
then
the Trustee (in its capacity as Supplemental Interest Trust Trustee) will
deposit any termination payment received from the original Swap Provider into
a
separate, non-interest bearing reserve account and will, on each subsequent
Distribution Date, withdraw from the amount then remaining on deposit in such
reserve account an amount equal to the Net Swap Payment, if any, that would
have
been paid to the Trustee (in its capacity as Supplemental Interest Trust
Trustee) by the original Swap Provider calculated in accordance with the terms
of the original Interest Rate Swap Agreement, and distribute such amount in
accordance with the terms of Section 4.01(f).
Upon
an
early termination of the Interest Rate Swap Agreement in connection with the
optional termination of the Trust, if the Trustee (in its capacity as
Supplemental Interest Trust Trustee) receives a termination payment from the
Swap Provider, such termination payment will be distributed in accordance with
Section 4.01(f).
ARTICLE
V
THE
CERTIFICATES
| SECTION 5.01. |
The
Certificates.
|
Each
of
the Class A Certificates, the Mezzanine Certificates, the Class P Certificates,
the Class C Certificates and the Residual Certificates shall be substantially
in
the forms annexed hereto as exhibits, and shall, on original issue, be executed,
authenticated and delivered by the Trustee to or upon the order of the Depositor
concurrently with the sale and assignment to the Trustee of the Trust Fund.
The
Class A Certificates and the Mezzanine Certificates shall be initially evidenced
by one or more Certificates representing a Percentage Interest with a minimum
dollar denomination of $25,000 and integral dollar multiples of $1.00 in excess
thereof, except that one Certificate of each such Class of Certificates may
be
in a different denomination so that the sum of the denominations of all
outstanding Certificates of such Class shall equal the Certificate Principal
Balance or Notional Amount of such Class on the Closing Date. The Class P
Certificates, the Class C Certificates and the Residual Certificates are
issuable in any Percentage Interests; provided,
however,
that
the sum of all such percentages for each such Class totals 100% and no more
than
ten Certificates of each Class may be issued and outstanding at any one
time.
The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature on behalf of the Trustee by a Responsible Officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the
time
when such signatures were affixed, authorized to sign on behalf of the Trustee
shall bind the Trust, notwithstanding that such individuals or any of them
have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificate.
No
Certificate shall be entitled to any benefit under this Agreement or be valid
for any purpose, unless such Certificate shall have been manually authenticated
by the Trustee substantially in the form provided for herein, and such
authentication 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.
Subject to Section 5.02(c), the Class A Certificates and the Mezzanine
Certificates shall be Book-Entry Certificates. The other Classes of Certificates
shall not be Book-Entry Certificates.
| SECTION 5.02. |
Registration
of Transfer and Exchange of
Certificates.
|
(a) The
Certificate Registrar shall cause to be kept at the Corporate Trust Office
a
Certificate Register in which, subject to such reasonable regulations as it
may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee shall initially serve as Certificate Registrar for the purpose
of
registering Certificates and transfers and exchanges of Certificates as herein
provided.
Upon
surrender for registration of transfer of any Certificate at any office or
agency of the Certificate Registrar maintained for such purpose pursuant to
the
foregoing paragraph and, in the case of a Residual Certificate, upon
satisfaction of the conditions set forth below, the Trustee on behalf of the
Trust shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same aggregate
Percentage Interest.
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute on behalf of the Trust and authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall (if so required by the Trustee or the Certificate Registrar)
be duly endorsed by, or be accompanied by a written instrument of transfer
satisfactory to the Trustee and the Certificate Registrar duly executed by,
the
Holder thereof or his attorney duly authorized in writing. In addition, (i)
with
respect to each Class R Certificate, the holder thereof may exchange, in the
manner described above, such Class R Certificate for three separate
certificates, each representing such holder’s respective Percentage Interest in
the Class R-1 Interest, the Class R-2 Interest and the Class R-3 Interest,
respectively, in each case that was evidenced by the Class R Certificate being
exchanged and (ii) with respect to each Class R-X Certificate, the holder
thereof may exchange, in the manner described above, such Class R-X Certificate
for three separate certificates, each representing such holder’s respective
Percentage Interest in the Class R-4 Interest, the Class R-5 Interest and the
Class R-6 Interest, respectively, in each case that was evidenced by the Class
R-X Certificate being exchanged.
(b) Except
as
provided in paragraph (c) below, the Book-Entry Certificates shall at all times
remain registered in the name of the Depository or its nominee and at all times:
(i) registration of such Certificates may not be transferred by the Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership
and
transfers of such Certificates; (iii) ownership and transfers of registration
of
such Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iv) the Depository may collect its usual
and customary fees, charges and expenses from its Depository Participants;
(v)
the Trustee shall for all purposes deal with the Depository as representative
of
the Certificate Owners of the Certificates for purposes of exercising the rights
of Holders under this Agreement, and requests and directions for and votes
of
such representative shall not be deemed to be inconsistent if they are made
with
respect to different Certificate Owners; (vi) the Trustee may rely and shall
be
fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and Persons shown
on
the books of such indirect participating firms as direct or indirect Certificate
Owners; and (vii) the direct participants of the Depository shall have no rights
under this Agreement under or with respect to any of the Certificates held
on
their behalf by the Depository, and the Depository may be treated by the Trustee
and its agents, employees, officers and directors as the absolute owner of
the
Certificates for all purposes whatsoever.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owners. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners that it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute a Letter of Representations with the Depository or take such other
action as may be necessary or desirable to register a Book-Entry Certificate
to
the Depository. In the event of any conflict between the terms of any such
Letter of Representation and this Agreement, the terms of this Agreement shall
control.
(c) If
(i)(x)
the Depository or the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to discharge properly its
responsibilities as Depository and (y) the Trustee or the Depositor is unable
to
locate a qualified successor or (ii) after the occurrence of a Servicer Event
of
Termination, the Certificate Owners of the Book-Entry Certificates representing
Percentage Interests of such Classes aggregating not less than 51% advise the
Trustee and Depository through the Financial Intermediaries and the Depository
Participants in writing that the continuation of a book-entry system through
the
Depository to the exclusion of definitive, fully registered certificates (the
“Definitive Certificates”) to Certificate Owners is no longer in the best
interests of the Certificate Owners. Upon surrender to the Certificate Registrar
of the Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall, at the
Depositor’s expense, in the case of (ii) above, or the Servicer’s expense, in
the case of (i) above, execute on behalf of the Trust and authenticate the
Definitive Certificates. Neither the Depositor nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, the Trustee, the Certificate Registrar, the Servicer,
any Paying Agent and the Depositor shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(d) No
transfer, sale, pledge or other disposition of any Class C, Class P or Residual
Certificate (the “Private Certificates”) shall be made unless such disposition
is exempt from the registration requirements of the Securities Act of 1933,
as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and laws. In the event of any such transfer (other
than in connection with (i) the initial transfer of any such Certificate by
the
Depositor to an Affiliate of the Depositor or, in the case of the Class R-X
Certificates, the first transfer by an Affiliate of the Depositor, (ii) the
transfer of any such Class C, Class P or Residual Certificate to the issuer
under the Indenture or the indenture trustee under the Indenture or (iii) a
transfer of any such Class C, Class P or Residual Certificate from the issuer
under the Indenture or the indenture trustee under the Indenture to the
Depositor or an Affiliate of the Depositor), the Trustee and the Certificate
Registrar shall each require receipt of: (I)(i) if such transfer is purportedly
being made in reliance upon Rule 144A (as evidenced by the investment letter
delivered to the Trustee, in substantially the form attached hereto as Exhibit
J) under the 1933 Act and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
(which Opinion of Counsel shall not be an expense of the Depositor, the Trustee,
the Servicer, in its capacity as such, or the Trust Fund), together with copies
of the written certification(s) of the Certificateholder desiring to effect
the
transfer and/or such Certificateholder’s prospective transferee upon which such
Opinion of Counsel is based, if any; or (II) the Trustee shall require the
transferor to execute a transferor certificate (in substantially the form
attached hereto as Exhibit L) and the transferee to execute an investment letter
(in substantially the form attached hereto as Exhibit J) acceptable to and
in
form and substance reasonably satisfactory to the Depositor and the Trustee
certifying to the Depositor and the Trustee the facts surrounding such transfer,
which investment letter shall not be an expense of the Trustee or the Depositor.
The Holder of a Class C Certificate, Class P Certificate or Residual Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee and the Depositor against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
Notwithstanding
the foregoing, in the event of any such transfer of any Ownership Interest
in
any Private Certificate that is a Book-Entry Certificate, except with respect
to
the initial transfer of any such Ownership Interest by the Depositor, such
transfer shall be required to be made in reliance upon Rule 144A under the
1933
Act, and the transferor will be deemed to have made each of the transferor
representations and warranties set forth Exhibit L hereto in respect of such
interest as if it was evidenced by a Definitive Certificate and the transferee
will be deemed to have made each of the transferee representations and
warranties set forth Exhibit J hereto in respect of such interest as if it
was
evidenced by a Definitive Certificate. The Certificate Owner of any such
Ownership Interest in any such Book-Entry Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No
transfer of a Residual, Class C or Class P Certificate or any interest therein
shall be made to any Plan, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person acquiring such Certificates with “Plan Assets” of
a Plan within the meaning of the Department of Labor regulation promulgated
at
29 C.F.R. § 2510.3-101 (“Plan Assets”), as certified by such transferee in the
form of Exhibit K or M, unless the Trustee is provided with an Opinion of
Counsel for the benefit of the Trust Fund, the Depositor, the Trustee and the
Servicer and on which they may rely, which shall be to the effect that the
purchase and holding of such Certificates is permissible under applicable law,
shall not constitute or result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code and shall not subject the Depositor, the
Servicer, the Trustee or the Trust Fund to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Servicer, the NIMS Insurer, the
Trustee or the Trust Fund. Any transferee of such Book-Entry Certificate which
does not provide such an Opinion of Counsel shall be deemed to represent that
it
is not a Plan or acquiring such Certificates with Plan Assets. Neither an
Opinion of Counsel nor any certification shall be required in connection with
(i) the initial transfer of any such Certificate by the Depositor to an
affiliate of the Depositor or, in the case of the Class R-X Certificates, the
first transfer by an Affiliate of the Depositor, (ii) the transfer of any Class
C, Class P or Residual Certificate to the issuer under the Indenture or the
indenture trustee under the Indenture or (iii) a transfer of any Class C, Class
P or Residual Certificate from the issuer under the Indenture or the indenture
trustee under the Indenture to the Depositor or an Affiliate of the Depositor
(in which case, the Depositor or any Affiliate thereof shall have deemed to
have
represented that it is not purchasing with Plan Assets) and the Trustee shall
be
entitled to conclusively rely upon a representation (which, upon the request
of
the Trustee, shall be a written representation) from the Depositor of the status
of such transferee as an affiliate of the Depositor.
For
so
long as the Supplemental Interest Trust is in existence, each beneficial owner
of a Class A Certificate or a Mezzanine Certificate or any interest therein
shall be deemed to have represented, by virtue of its acquisition or holding
of
the Offered Certificate, or interest therein, that either (i) it is not a Plan
or (ii) (A) it is an accredited investor within the meaning of Prohibited
Transaction Exemption 2007-05, as amended from time to time (the “Exemption”),
and (B) the acquisition and holding of such Certificate and the separate right
to receive payments from the Supplemental Interest Trust are eligible for the
exemptive relief available under Prohibited Transaction Class Exemption (“PTCE”)
95-60 (for transactions by insurance company general accounts), 84-14 (for
transactions by independent “qualified professional asset managers”), 91-38 (for
transactions by bank collective investment funds), 90-1 (for transactions by
insurance company pooled separate accounts) or 96-23 (for transactions effected
by “in-house asset managers”).
Subsequent
to the termination of the Supplemental Interest Trust, each beneficial owner
of
a Mezzanine Certificate or any interest therein shall be deemed to have
represented, by virtue of its acquisition or holding of that certificate or
interest therein, that either (i) it is not a Plan or a trustee or other Person
acting on behalf of a Plan or using “Plan Assets” to effect such acquisition
(including any insurance company using funds in its general or separate accounts
that may constitute “Plan Assets”), (ii) it has acquired and is holding such
certificate in reliance on the Exemption, and that it understands that there
are
certain conditions to the availability of the Exemption, including that the
certificate must be rated, at the time of purchase, not lower than “BBB-”(or its
equivalent) by S&P, Xxxxx’x, Xxxxx Ratings, Dominion Bond Rating Service
Limited (known as DBRS Limited) or Dominion Bond Rating Service, Inc. (known
as
DBRS, Inc.) and the certificate is so rated or (iii) (1) it is an insurance
company, (2) the source of funds used to acquire or hold the certificate or
interest therein is an “insurance company general account,” as such term is
defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE
95-60 have been satisfied.
If
any
Certificate or any interest therein is acquired or held in violation of the
provisions of the preceding paragraphs, the next preceding permitted beneficial
owner shall be treated as the beneficial owner of that Certificate retroactive
to the date of transfer to the purported beneficial owner. Any purported
beneficial owner whose acquisition or holding of any such Certificate or
interest therein was effected in violation of the provisions of the preceding
paragraphs shall indemnify and hold harmless the Depositor, the Servicer, the
Trustee, the NIMS Insurer, and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
No
transfer of any Class C Certificate shall be made unless the proposed transferee
of such Class C Certificate (1) provides to the Trustee
and the
Swap Provider,
the
appropriate tax certification forms that would eliminate any withholding or
deduction for taxes from amounts payable by the Swap Provider, pursuant to
the
Interest Rate Swap Agreement, to the Supplemental Interest Trust Trustee (i.e.,
IRS Form W-9 or IRS Form X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable (or
any
successor form thereto), together with any applicable attachments) and (2)
agrees to update such form (a) upon expiration of any such form, (b) as required
under then applicable U.S. Treasury regulations and (c) promptly upon learning
that such form has become obsolete or incorrect, each as a condition to such
transfer. In addition, no transfer of any Class C Certificate shall be made
if
such transfer would cause the Supplemental Interest Trust to be beneficially
owned by two or more persons for federal income tax purposes, or continue to
be
so treated, unless (i) each proposed transferee of such Class C Certificate
complies with the foregoing conditions, (ii) the proposed majority holder of
the
Class C Certificates (or each holder, if there is or would be no majority
holder) (A) provides, or causes to be provided, on behalf of the Supplemental
Interest Trust, if applicable, the appropriate tax certification form that
would
be required from the Supplemental Interest Trust, as applicable, to eliminate
any withholding or deduction for taxes from amounts payable by the Swap
Provider, pursuant to the Interest Rate Swap Agreement, to the Supplemental
Interest Trust Trustee (i.e., IRS Form W-9 or IRS Form X-0XXX, X-0XXX, X-0XXX
or
W-8ECI, as applicable (or any successor form thereto), together with any
applicable attachments) and (B) agrees to update such form (x) upon expiration
of any such form, (y) as required under then applicable U.S. Treasury
regulations and (z) promptly upon learning that such form has become obsolete
or
incorrect. If, under applicable U.S. Treasury regulations, such tax
certification form may only be signed by a trustee acting on behalf of the
Supplemental Interest Trust, then the Supplemental Interest Trust Trustee,
as
applicable, shall sign such certification form if so requested by a holder
of
the Class C Certificates.
Upon
receipt of any tax certification form pursuant to the preceding conditions
from
a proposed transferee of any Class C Certificate, the Trustee shall forward
each
tax certification form attributable to the Interest Rate Swap Agreement to
the
Swap Provider, upon request of the Swap Provider, solely to the extent the
Swap
Provider has not received such IRS Form directly from the Holder of the Class
C
Certificates. Each Holder of a Class C Certificate by its purchase of such
Certificate is deemed to consent to any such IRS Form being so forwarded. Upon
the request of the Swap Provider, the Trustee shall be required to forward
any
tax certification received by it to the Swap Provider at the last known address
provided to it, and, subject to Section 8.01, shall not be liable for the
receipt of such tax certification by the Swap Provider, nor any action taken
or
not taken by the Swap Provider with respect to such tax certification. Any
purported sales or transfers of any Class C Certificate to a transferee which
does not comply with the requirements of the preceding paragraph shall be deemed
null and void under this Agreement. The Trustee shall have no duty to take
any
action to correct any misstatement or omission in any tax certification provided
to it by the Holder of the Class C Certificates and forwarded to the Swap
Provider.
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
appointed the Depositor or its designee as its attorney-in-fact to negotiate
the
terms of any mandatory sale under clause (v) below and to execute all
instruments of transfer and to do all other things necessary in connection
with
any such sale, and the rights of each Person acquiring any Ownership Interest
in
a Residual Certificate are expressly subject to the following
provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(ii) No
Person
shall acquire an Ownership Interest in a Residual Certificate unless such
Ownership Interest is a pro
rata
undivided interest.
(iii) In
connection with any proposed transfer of any Ownership Interest in a Residual
Certificate, the Trustee shall as a condition to registration of the transfer,
require delivery to it, in form and substance satisfactory to it, of each of
the
following:
(A) an
affidavit in the form of Exhibit K hereto from the proposed transferee to the
effect that such transferee is a Permitted Transferee and that it is not
acquiring its Ownership Interest in the Residual Certificate that is the subject
of the proposed transfer as a nominee, trustee or agent for any Person who
is
not a Permitted Transferee; and
(B) a
covenant of the proposed transferee to the effect that the proposed transferee
agrees to be bound by and to abide by the transfer restrictions applicable
to
the Residual Certificates.
(iv) Any
attempted or purported transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section shall be absolutely
null and void and shall vest no rights in the purported transferee. If any
purported transferee shall, in violation of the provisions of this Section,
become a Holder of a Residual Certificate, then the prior Holder of such
Residual Certificate that is a Permitted Transferee shall, upon discovery that
the registration of transfer of such Residual Certificate was not in fact
permitted by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not permitted
by this Section or for making any distributions due on such Residual 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 Trustee received the
documents specified in clause (iii). The Trustee shall be entitled to recover
from any Holder of a Residual Certificate that was in fact not a Permitted
Transferee at the time such distributions were made all distributions made
on
such Residual Certificate. Any such distributions so recovered by the Trustee
shall be distributed and delivered by the Trustee to the prior Holder of such
Residual Certificate that is a Permitted Transferee.
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Trustee shall have the right but not the obligation, without notice to the
Holder of such Residual Certificate or any other Person having an Ownership
Interest therein, to notify the Depositor to arrange for the sale of such
Residual Certificate. The proceeds of such sale, net of commissions (which
may
include commissions payable to the Depositor or its affiliates in connection
with such sale), expenses and taxes due, if any, will be remitted by the Trustee
to the previous Holder of such Residual Certificate that is a Permitted
Transferee, except that in the event that the Trustee determines that the Holder
of such Residual Certificate may be liable for any amount due under this Section
or any other provisions of this Agreement, the Trustee may withhold a
corresponding amount from such remittance as security for such claim. The terms
and conditions of any sale under this clause (v) shall be determined in the
sole
discretion of the Trustee and it shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of its exercise of
such
discretion.
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Trustee upon receipt of reasonable compensation will provide to the Internal
Revenue Service, and to the persons specified in Sections 860E(e)(3) and (6)
of
the Code, information needed to compute the tax imposed under Section 860E(e)(5)
of the Code on transfers of residual interests to disqualified
organizations.
The
foregoing provisions of this Section shall cease to apply to transfers occurring
on or after the date on which there shall have been delivered to the Trustee
and
the NIMS Insurer, in form and substance satisfactory to the Trustee and the
NIMS
Insurer, (i) written notification from each Rating Agency that the removal
of
the restrictions on transfer set forth in this Section will not cause such
Rating Agency to downgrade its rating of the Certificates and (ii) an Opinion
of
Counsel to the effect that such removal will not cause any REMIC created
hereunder to fail to qualify as a REMIC.
(e) No
service charge shall be made for any registration of transfer or exchange of
Certificates of any Class, 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 transfer or exchange of Certificates.
All
Certificates surrendered for registration of transfer or exchange shall be
canceled by the Certificate Registrar and disposed of pursuant to its standard
procedures.
| SECTION 5.03. |
Mutilated,
Destroyed, Lost or Stolen
Certificates.
|
If
(i)
any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (ii) there is delivered to the Trustee,
the
Depositor, the NIMS Insurer and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in
the
absence of notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute on behalf of the Trust, 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 Percentage Interest. Upon the issuance of any
new
Certificate under this Section, the Trustee 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 and the Certificate Registrar) in
connection therewith. Any duplicate Certificate issued pursuant to this Section,
shall constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
| SECTION 5.04. |
Persons
Deemed Owners.
|
The
Servicer, the Depositor, the Trustee, the NIMS Insurer, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor, the
Trustee, the NIMS Insurer, the Certificate Registrar, any Paying Agent or the
Trustee may treat the Person, including a Depository, in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, and none of the Servicer, the Trust, the Trustee nor any agent
of
any of them shall be affected by notice to the contrary.
| SECTION 5.05. |
Appointment
of Paying Agent.
|
(a) The
Paying Agent shall make distributions to Certificateholders from the
Distribution Account pursuant to Section 4.01 and shall report the amounts
of
such distributions to the Trustee. The duties of the Paying Agent may include
the obligation (i) to withdraw funds from the Collection Account pursuant to
Section 3.11(a) and for the purpose of making the distributions referred to
above and (ii) to distribute statements and provide information to
Certificateholders as required hereunder. The Paying Agent hereunder shall
at
all times be an entity duly incorporated and validly existing under the laws
of
the United States of America or any state thereof, authorized under such laws
to
exercise corporate trust powers and subject to supervision or examination by
federal or state authorities. The Paying Agent shall initially be the Trustee.
The Trustee may appoint a successor to act as Paying Agent, which appointment
shall be reasonably satisfactory to the Depositor and the NIMS
Insurer.
(b) The
Trustee shall cause the Paying Agent (if other than the Trustee) to execute
and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with
the Trustee that such Paying Agent shall hold all sums, if any, held by it
for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall agree that it shall comply with all requirements
of
the Code regarding the withholding of payments in respect of Federal income
taxes due from Certificate Owners and otherwise comply with the provisions
of
this Agreement applicable to it.
ARTICLE
VI
THE
SERVICER AND THE DEPOSITOR
| SECTION 6.01. |
Liability
of the Servicer and the Depositor.
|
The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by Servicer herein. The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the
Depositor.
| SECTION 6.02. |
Merger
or Consolidation of, or Assumption of the Obligations of, the Servicer
or
the Depositor.
|
Any
entity into which the Servicer or Depositor may be merged or consolidated,
or
any entity resulting from any merger, conversion or consolidation to which
the
Servicer or the Depositor shall be a party, or any corporation succeeding to
the
business of the Servicer or the Depositor, shall be the successor of the
Servicer or the Depositor, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided,
however,
that
the successor Servicer shall satisfy all the requirements of Section 7.02 with
respect to the qualifications of a successor Servicer.
| SECTION 6.03. |
Limitation
on Liability of the Servicer and
Others.
|
Neither
the Servicer or the Depositor nor any of the directors or officers or employees
or agents of the Servicer or the Depositor shall be under any liability to
the
Trust or the Certificateholders for any action taken or for refraining from
the
taking of any action by the Servicer or the Depositor in good faith pursuant
to
this Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Servicer, the Depositor or any such Person
against any liability which would otherwise be imposed by reason of its willful
misfeasance, bad faith or gross negligence in the performance of duties of
the
Servicer or the Depositor, as the case may be, or by reason of its reckless
disregard of its obligations and duties of the Servicer or the Depositor, as
the
case may be, hereunder; provided,
further,
that
this provision shall not be construed to entitle the Servicer to indemnity
in
the event that amounts advanced by the Servicer to retire any senior lien exceed
Liquidation Proceeds (in excess of related liquidation expenses) realized with
respect to the related Mortgage Loan. The preceding sentence shall not limit
the
obligations of the Servicer pursuant to Section 8.05. The Servicer and any
director or officer or employee or agent of the 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 Servicer and the Depositor, and any director or officer or employee or
agent
of the Servicer or the Depositor, shall be indemnified by the Trust and held
harmless against any loss, liability or expense incurred in connection with
any
legal action relating to this Agreement or the Certificates, other than any
loss, liability or expense related to any specific Mortgage Loan or Mortgage
Loans (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) and any loss, liability or expense
incurred by reason of its willful misfeasance, bad faith or gross negligence
in
the performance of duties hereunder or by reason of its reckless disregard
of
obligations and duties hereunder. The Servicer or the Depositor may undertake
any such action which it may deem necessary or desirable in respect of this
Agreement, and the rights and duties of the parties hereto and the interests
of
the Certificateholders hereunder. In such event, unless the Depositor or the
Servicer acts without the consent of Holders of Certificates entitled to at
least 51% of the Voting Rights, the reasonable legal expenses and costs of
such
action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust and the Servicer shall be entitled to be reimbursed
therefor from the Collection Account as and to the extent provided in Section
3.11, any such right of reimbursement being prior to the rights of the
Certificateholders to receive any amount in the Collection Account. The
Servicer’s right to indemnity or reimbursement pursuant to this Section shall
survive any resignation or termination of the Servicer pursuant to Section
6.04
or 7.01 with respect to any losses, expenses, costs or liabilities arising
prior
to such resignation or termination (or arising from events that occurred prior
to such resignation or termination). This paragraph shall apply to the Servicer
solely in its capacity as Servicer hereunder and in no other capacities. Without
limiting the foregoing, the Servicer shall undertake to defend any claims
against the Trust Fund, the Trustee and/or itself initiated by a Borrower or
otherwise related to the servicing of any Mortgage Loan.
The
Servicer (except the Trustee if it is required to succeed the Servicer
hereunder) indemnifies and holds the Trustee, the Depositor, the NIMS Insurer
and each Certificateholder harmless against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, fees and expenses that the Trustee, the
Depositor, the NIMS Insurer and any Certificateholder may sustain in any way
related to the failure of the Servicer to perform its duties and service the
Mortgage Loans in compliance with the terms of this Agreement. The Servicer
shall immediately notify the Trustee, the Depositor, the NIMS Insurer and each
Certificateholder if a claim is made that may result in such claims, losses,
penalties, fines, forfeitures, legal fees or related costs, judgments, or any
other costs, fees and expenses, and the Servicer shall assume (with the consent
of the Trustee) the defense of any such claim and pay all expenses in connection
therewith, including reasonable counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against the Servicer, the
Trustee, the Depositor, the NIMS Insurer and/or Certificateholder in respect
of
such claim. The provisions of this paragraph shall survive the termination
of
this Agreement and the payment of the outstanding Certificates.
| SECTION 6.04. |
Servicer
Not to Resign.
|
Subject
to the provisions of Section 7.01 and Section 6.02, the Servicer shall not
resign from the obligations and duties hereby imposed on it except (i) upon
determination that the performance of its obligations or duties hereunder are
no
longer permissible under applicable law or are in material conflict by reason
of
applicable law with any other activities carried on by it or its subsidiaries
or
Affiliates, the other activities of the Servicer so causing such a conflict
being of a type and nature carried on by the Servicer or its subsidiaries or
Affiliates at the date of this Agreement or (ii) upon satisfaction of the
following conditions: (a) the Servicer has proposed a successor servicer to
the
Trustee and the NIMS Insurer in writing and such proposed successor servicer
is
reasonably acceptable to the Trustee and the NIMS Insurer and (b) each Rating
Agency shall have delivered a letter to the Trustee and the NIMS Insurer prior
to the appointment of the successor servicer stating that the proposed
appointment of such successor servicer as Servicer hereunder will not result
in
the reduction or withdrawal of the then current rating of the Certificates;
provided,
however,
that no
such resignation by the Servicer shall become effective until such successor
servicer or, in the case of (i) above, the Trustee shall have assumed the
Servicer’s responsibilities and obligations hereunder or the Trustee shall have
designated, with the consent of the NIMS Insurer, a successor servicer in
accordance with Section 7.02. Any such resignation shall not relieve the
Servicer of responsibility for any of the obligations specified in Sections
7.01
and 7.02 as obligations that survive the resignation or termination of the
Servicer. Any such determination permitting the resignation of the Servicer
pursuant to clause (i) above shall be evidenced by an Opinion of Counsel to
such
effect delivered to the Trustee and the NIMS Insurer. Any such determination
permitting the resignation of the Servicer shall be evidenced by an Opinion
of
Counsel to such effect delivered to the Trustee and the NIMS
Insurer.
Notwithstanding
anything to the contrary which may be set forth above, the Trustee and the
Depositor hereby specifically (i) consent to the pledge and assignment by the
Servicer of all the Servicer’s right, title and interest in, to and under this
Agreement to the Servicing Rights Pledgee, for the benefit of certain lenders,
and (ii) provided that no Servicer Event of Termination exists, agree that
upon
delivery to the Trustee by the Servicing Rights Pledgee of a letter signed
by
the Servicer whereunder the Servicer shall resign as Servicer under this
Agreement, the Trustee shall appoint the Servicing Rights Pledgee or its
designee as successor Servicer, provided that at the time of such appointment,
the Servicing Rights Pledgee or such designee meets the requirements of a
successor Servicer pursuant to Section 7.02(a) and agrees to be subject to
the
terms of this Agreement. If, pursuant to any provision hereof, the duties of
the
Servicer are transferred to a successor, the entire amount of the Servicing
Fee
and other compensation payable to the Servicer pursuant hereto shall thereafter
be payable to such successor.
| SECTION 6.05. |
Delegation
of Duties.
|
In
the
ordinary course of business, the Servicer at any time may delegate any of its
duties hereunder to any Person, including any of its Affiliates, who agrees
to
conduct such duties in accordance with standards comparable to those set forth
in Section 3.01. Such delegation shall not relieve the Servicer of its
liabilities and responsibilities with respect to such duties and shall not
constitute a resignation within the meaning of Section 6.04. Except as provided
in Section 3.02, no such delegation is permitted that results in the delegee
subservicing any Mortgage Loans. The Servicer shall provide the Trustee and
the
NIMS Insurer with 60 days prior written notice prior to the delegation of any
of
its duties to any Person other than any of the Servicer’s Affiliates or their
respective successors and assigns.
| SECTION 6.06. |
[Reserved].
|
| SECTION 6.07. |
Inspection.
|
The
Servicer, in its capacity as Originator and Servicer, shall afford the Trustee
and the NIMS Insurer, upon reasonable advance notice, during normal business
hours, access to all records maintained by the Servicer in respect of its rights
and obligations hereunder and access to officers of the Servicer responsible
for
such obligations. Upon request, the Servicer shall furnish to the Trustee and
the NIMS Insurer its most recent publicly available financial statements and
such other information relating to its capacity to perform its obligations
under
this Agreement.
ARTICLE
VII
DEFAULT
| SECTION 7.01. |
Servicer
Events of Termination.
|
(a) If
any
one of the following events (“Servicer Events of Termination”) shall occur and
be continuing:
(i) (A)
The
failure by the Servicer to make any Advance; or (B) any other failure by the
Servicer to deposit in the Collection Account or Distribution Account any
deposit required to be made under the terms of this Agreement which continues
unremedied for a period of one Business Day after the date upon which written
notice of such failure shall have been given to the Servicer by the Trustee
or
to the Trustee by the NIMS Insurer or any Holders of a Regular Certificate
evidencing at least 25% of the Voting Rights; or
(ii) The
failure by the Servicer to make any required Servicing Advance which failure
continues unremedied for a period of 30 days, or the failure by the Servicer
duly to observe or perform, in any material respect, any other covenants,
obligations or agreements of the Servicer as set forth in this Agreement, which
failure continues unremedied for a period of 30 days, after the date (A) on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by the Trustee or to the Trustee by the NIMS
Insurer or any Holders of a Regular Certificate evidencing at least 25% of
the
Voting Rights or (B) of actual knowledge of such failure by a Servicing Officer
of the Servicer; or
(iii) The
entry
against the Servicer of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator in any insolvency, conservatorship,
receivership, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 60 days; or
(iv) The
Servicer shall voluntarily go into liquidation, consent to the appointment
of a
conservator or receiver or liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property; or a decree or order of a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Servicer and such decree or order shall have remained
in force undischarged, unbonded or unstayed for a period of 60 days; or the
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
(v) A
Delinquency Servicer Termination Trigger has occurred and is
continuing;
then,
and
in each and every such case, so long as a Servicer Event of Termination shall
not have been remedied within the applicable grace period, (x) with respect
solely to clause (i)(A) above, if such Advance is not made by 12:00 P.M., New
York time, on the Business Day immediately following the Servicer Remittance
Date (provided the Trustee shall give the Servicer notice of such failure to
advance by 5:00 P.M. New York time on the Servicer Remittance Date), the Trustee
shall, at the direction of the NIMS Insurer, terminate all of the rights and
obligations of the Servicer under this Agreement and the Trustee, or a successor
servicer appointed in accordance with Section 7.02, shall immediately make
such
Advance and assume, pursuant to Section 7.02, the duties of a successor
Servicer, (y) in the case of (i)(B), (ii), (iii) and (iv) above, the Trustee
shall, at the written direction of the NIMS Insurer or the Holders of each
Class
of Regular Certificates evidencing Percentage Interests aggregating not less
than 51%, by notice then given in writing to the Servicer and to the Trustee
and
(z) in the case of (v) above, the Trustee shall, at the direction of the NIMS
Insurer, by notice then given in writing to the Servicer and to the Trustee,
terminate all of the rights and obligations of the Servicer as servicer under
this Agreement. Any such notice to the Servicer shall also be given to each
Rating Agency, the Depositor and the Originator. On or after the receipt by
the
Servicer (and by the Trustee if such notice is given by the Holders) of such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Certificates or the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee pursuant to and under this Section;
and, without limitation, and the Trustee is hereby authorized and empowered
to
execute and deliver, on behalf of the 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 of
each
Mortgage Loan and related documents or otherwise. The Servicer agrees to
cooperate with the Trustee (or the applicable successor Servicer) in effecting
the termination of the responsibilities and rights of the Servicer hereunder,
including, without limitation, the delivery to the Trustee of all documents
and
records requested by it to enable it to assume the Servicer’s functions under
this Agreement within ten Business Days subsequent to such notice, the transfer
within one Business Day subsequent to such notice to the Trustee (or the
applicable successor Servicer) for the administration by it of all cash amounts
that shall at the time be held by the Servicer and to be deposited by it in
the
Collection Account, the Distribution Account, any REO Account or any Servicing
Account or that have been deposited by the Servicer in such accounts or
thereafter received by the Servicer with respect to the Mortgage Loans or any
REO Property received by the Servicer. All reasonable costs and expenses
(including attorneys’ fees) incurred in connection with transferring the
Mortgage Files to the successor Servicer and amending this Agreement to reflect
such succession as Servicer pursuant to this Section shall be paid by the
predecessor Servicer (or if the predecessor Servicer is the Trustee, the initial
Servicer) upon presentation of reasonable documentation of such costs and
expenses and to the extent not paid by the Servicer, by the Trust.
(b) In
connection with any failure by the Servicer to make any remittance required
to
be made by the Servicer to the Distribution Account pursuant to this Section
7.01 on the day and by the time such remittance is required to be made under
the
terms of this Section 7.01 (without giving effect to any grace or cure period),
the Servicer shall pay to the Trustee for the account of the Trustee interest
at
the Prime Rate on any amount not timely remitted from and including the day
such
remittance was required to be made to, but not including, the day on which
such
remittance was actually made.
| SECTION 7.02. |
Trustee
to Act; Appointment of Successor.
|
(a) From
the
time the Servicer (and the Trustee, if notice is sent by the Holders) receives
a
notice of termination pursuant to Section 7.01 or 6.04, the Trustee (or such
other successor Servicer as is approved in accordance with this Agreement)
shall
be the successor in all respects to the Servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for herein
and
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on the Servicer by the terms and provisions hereof arising on
and
after its succession. Notwithstanding the foregoing, the parties hereto agree
that the Trustee, in its capacity as successor Servicer, immediately will assume
all of the obligations of the Servicer to make advances. Notwithstanding the
foregoing, the Trustee, in its capacity as successor Servicer, shall not be
responsible for the lack of information and/or documents that it cannot obtain
through reasonable efforts. It is understood and acknowledged by the parties
hereto that there will be a period of transition (not to exceed 100 days) before
the transition of servicing obligations is fully effective. As compensation
therefor, the Trustee (or such other successor Servicer) shall be entitled
to
such compensation as the Servicer would have been entitled to hereunder if
no
such notice of termination had been given. Notwithstanding the above, (i) if
the
Trustee is unwilling to act as successor Servicer or (ii) if the Trustee is
legally unable so to act, the Trustee shall appoint or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution, bank or other mortgage loan or home equity loan servicer having
a
net worth of not less than $50,000,000 as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder; provided,
that
the appointment of any such successor Servicer shall be approved by the NIMS
Insurer (such approval not to be unreasonably withheld), as evidenced by the
prior written consent of the NIMS Insurer, and will not result in the
qualification, reduction or withdrawal of the ratings assigned to the
Certificates by the Rating Agencies as evidenced by a letter to such effect
from
the Rating Agencies. Pending appointment of a successor to the Servicer
hereunder, unless the Trustee is prohibited by law from so acting, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the successor shall be entitled to receive
compensation out of payments on Mortgage Loans in an amount equal to the
compensation which the Servicer would otherwise have received pursuant to
Section 3.18 (or such other compensation as the Trustee and such successor
shall
agree, not to exceed the Servicing Fee). The appointment of a successor Servicer
shall not affect any liability of the predecessor Servicer which may have arisen
under this Agreement prior to its termination as Servicer to pay any deductible
under an insurance policy pursuant to Section 3.14 or to indemnify the Trustee
or the NIMS Insurer pursuant to Section 6.03), nor shall any successor Servicer
be liable for any acts or omissions of the predecessor Servicer or for any
breach by such Servicer of any of its representations or warranties contained
herein or in any related document or agreement. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary
to
effectuate any such succession. All Servicing Transfer Costs shall be paid
by
the predecessor Servicer upon presentation of reasonable documentation of such
costs, and if such predecessor Servicer defaults in its obligation to pay such
costs, such costs shall be paid by the successor Servicer or the Trustee (in
which case the successor Servicer or the Trustee, as applicable, shall be
entitled to reimbursement therefor from the assets of the Trust).
Notwithstanding
any provision in this Agreement to the contrary, for a period of 10 days
following the date on which the Servicer shall have received a notice of
termination pursuant to Section 7.01 of this Agreement, the Servicer may appoint
the Servicing Rights Pledgee or its designee as successor Servicer; provided,
that the Servicing Rights Pledgee or such designee satisfies the eligibility
criteria of a successor Servicer set forth below, which appointment shall be
subject to the consent of the Depositor and the Trustee (such consent not to
be
unreasonably withheld or delayed); provided that such successor Servicer agrees
to fully effect the servicing transfer within 100 days following the termination
of the Servicer and to make all Advances that would be otherwise made by the
Trustee under Section 7.01 as of the date of such appointment, and to
immediately upon appointment reimburse the Trustee for any unreimbursed Advances
the Trustee has made and any reimbursable expenses that the Trustee may have
incurred in connection with this Section 7.02. Any proceeds received in
connection with the appointment of such successor Servicer shall be the property
of the Servicer or its designee.
(b) Any
successor to the Servicer, including the Trustee, shall during the term of
its
service as servicer continue to service and administer the Mortgage Loans for
the benefit of Certificateholders, and maintain in force a policy or policies
of
insurance covering errors and omissions in the performance of its obligations
as
Servicer hereunder and a Fidelity Bond in respect of its officers, employees
and
agents to the same extent as the Servicer is so required pursuant to Section
3.14.
| SECTION 7.03. |
Waiver
of Defaults.
|
The
Majority Certificateholders may, on behalf of all Certificateholders and with
the consent of the NIMS Insurer, waive any events permitting removal of the
Servicer as servicer pursuant to this Article VII, provided,
however,
that
the Majority Certificateholders may not waive a default in making a required
distribution on a Certificate without the consent of the Holder of such
Certificate and the consent of the NIMS Insurer. Upon any waiver of a past
default, such default shall cease to exist and any Servicer Event of Termination
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 thereto except to the extent expressly so waived.
Notice of any such waiver shall be given by the Trustee to the Rating Agencies
and the NIMS Insurer.
| SECTION 7.04. |
Notification
to Certificateholders.
|
(a) Upon
any
termination or appointment of a successor to the Servicer pursuant to this
Article VII or Section 6.04, the Trustee shall give prompt written notice
thereof to the Certificateholders at their respective addresses appearing in
the
Certificate Register, the NIMS Insurer and each Rating Agency.
(b) No
later
than 60 days after the occurrence of any event which constitutes or which,
with
notice or a lapse of time or both, would constitute a Servicer Event of
Termination for five Business Days after a Responsible Officer of the Trustee
becomes aware of the occurrence of such an event, the Trustee shall transmit
by
mail to all Certificateholders and to the NIMS Insurer notice of such occurrence
unless such default or Servicer Event of Termination shall have been waived
or
cured.
| SECTION 7.05. |
Survivability
of Servicer Liabilities.
|
Notwithstanding
anything herein to the contrary, upon termination of the Servicer hereunder,
any
liabilities of the Servicer which accrued prior to such termination shall
survive such termination.
ARTICLE
VIII
THE
TRUSTEE
| SECTION 8.01. |
Duties
of Trustee.
|
The
Trustee, prior to the occurrence of a Servicer Event of Termination and after
the curing of all Servicer Events of Termination which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set
forth in this Agreement. If a Servicer Event of Termination has occurred (which
has not been cured) of which a Responsible Officer has knowledge, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement,
and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided, however, that the Trustee will not
be
responsible for the accuracy or content of any such resolutions, certificates,
statements, opinions, reports, documents or other instruments. If any such
instrument is found not to conform to the requirements of this Agreement in
a
material manner the Trustee shall take such action as it deems appropriate
to
have the instrument corrected, and if the instrument is not corrected to the
Trustee’s satisfaction, the Trustee will provide notice thereof to the
Certificateholders and the NIMS Insurer.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own misconduct; provided,
however,
that:
(i) prior
to
the occurrence of a Servicer Event of Termination, and after the curing of
all
such Servicer Events of Termination which may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Agreement, the Trustee shall not be liable except for the performance
of
such duties and obligations as are specifically set forth in this Agreement,
no
implied covenants or obligations shall be read into this Agreement against
the
Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness
of
the opinions expressed therein, upon any certificates or opinions furnished
to
the Trustee and conforming to the requirements of this Agreement;
(ii) the
Trustee shall not be personally liable for an error of judgment made in good
faith by a Responsible Officer of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining or investigating the facts related
thereto;
(iii) 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 the NIMS Insurer or the Majority Certificateholders relating to
the
time, method and place of conducting any proceeding for any remedy available
to
the Trustee, or exercising or omitting to exercise any trust or power conferred
upon the Trustee, under this Agreement; and
(iv) the
Trustee shall not be charged with knowledge of any failure by the Servicer
to
comply with the obligations of the Servicer referred to in clauses (i) and
(ii)
of Section 7.01(a) unless a Responsible Officer of the Trustee at the Corporate
Trust Office obtains actual knowledge of such failure or the Trustee receives
written notice of such failure from the Servicer, the NIMS Insurer or the
Majority Certificateholders.
The
Trustee shall not be required to expend or risk its own funds or otherwise
incur
financial liability in the performance of any of its duties hereunder, or in
the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations
of
the Servicer under this 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 Servicer in accordance with the terms of this
Agreement.
| SECTION 8.02. |
Certain
Matters Affecting the Trustee.
|
Except
as
otherwise provided in Section 8.01:
(a) (i)
the
Trustee may request and rely upon, and shall be protected in acting or
refraining from acting upon, any resolution, Officers’ Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented
by
the proper party or parties, and the manner of obtaining consents and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable regulations as the Trustee may
prescribe;
(ii) the
Trustee may consult with counsel and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such Opinion
of
Counsel;
(iii) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Agreement, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request, order or direction
of any of the Certificateholders or the NIMS Insurer, pursuant to the provisions
of this Agreement, unless such Certificateholders or the NIMS Insurer, as
applicable, shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby; the right of the Trustee to perform any discretionary act enumerated
in
this Agreement shall not be construed as a duty, and the Trustee shall not
be
answerable for other than its negligence or willful misconduct in the
performance of any such act;
(iv) the
Trustee shall not be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(v) prior
to
the occurrence of a Servicer Event of Termination and after the curing of all
Servicer Events of Termination which may have occurred, the Trustee shall not
be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or documents, unless
requested in writing to do so by the NIMS Insurer or the Majority
Certificateholder; provided,
however,
that if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such cost, expense or liability as a condition
to
such proceeding. The reasonable expense of every such examination shall be
paid
by the Servicer or the NIMS Insurer (if requested by the NIMS Insurer) or,
if
paid by the Trustee, shall be reimbursed by the Servicer or the NIMS Insurer
(if
requested by the NIMS Insurer) upon demand and, if not reimbursed by the
Servicer or the NIMS Insurer (if requested by the NIMS Insurer), shall be
reimbursed by the Trust. Nothing in this clause (v) shall derogate from the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Mortgagors;
(vi) the
Trustee shall not be accountable, shall have no liability and makes no
representation as to any acts or omissions hereunder of the Servicer until
such
time as the Trustee may be required to act as Servicer pursuant to Section
7.02
and thereupon only for the acts or omissions of the Trustee as successor
Servicer;
(vii) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys or a custodian;
and
(viii) the
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of such
act.
(b) The
Depositor hereby directs the Trustee to execute, deliver and perform its
obligations under the Interest Rate Swap Agreement (in its capacity as
Supplemental Interest Trust Trustee) and to appoint to the Swap Administrator,
pursuant to the Swap Administration Agreement, any rights to receive payments
from the Swap Provider and the Depositor further directs the Trustee to execute,
deliver and perform its obligation under the Swap Administration Agreement.
The
Seller, the Depositor, the Servicer and the Holders of the Class A Certificates
and the Mezzanine Certificates by their acceptance of such Certificates
acknowledge and agree that the Supplemental Interest Trust Trustee shall
execute, deliver and perform its
obligations under the Interest Rate Swap Agreement and the Swap Administration
Agreement and shall do so solely in its capacity as trustee of the Supplemental
Interest Trust or as Swap Administrator, as the case may be, and not in its
individual capacity. Every provision of this Agreement relating to the conduct
or affecting the liability of or affording protection to the Trustee shall
apply
to the Supplemental Interest Trust Trustee’s execution of the Interest Rate Swap
Agreement and the Swap Administration Agreement, and the performance of its
duties and satisfaction of its obligations thereunder.
(c) [Reserved].
| SECTION 8.03. |
Trustee
Not Liable for Certificates or Mortgage
Loans.
|
The
recitals contained herein and in the Certificates (other than the authentication
of the Trustee on the Certificates) shall be taken as the statements of the
Depositor, and the Trustee assumes no responsibility for the correctness of
the
same. The Trustee makes no representations as to the validity or sufficiency
of
this Agreement or of the Certificates (other than the signature and
authentication of the Trustee on the Certificates) or of any Mortgage Loan
or
related document. The Trustee shall not be accountable for the use or
application by the Servicer, or for the use or application of any funds paid
to
the Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from
the Collection Account by the Servicer. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement, including, without limitation: the existence, condition and ownership
of any Mortgaged Property; the existence and enforceability of any hazard
insurance thereon (other than if the Trustee shall assume the duties of the
Servicer pursuant to Section 7.02); the validity of the assignment of any
Mortgage Loan to the Trustee or of any intervening assignment; the completeness
of any Mortgage Loan; the performance or enforcement of any Mortgage Loan (other
than if the Trustee shall assume the duties of the Servicer pursuant to Section
7.02); the compliance by the Depositor, the Originator, the Seller or the
Servicer with any warranty or representation made under this Agreement or in
any
related document or the accuracy of any such warranty or representation prior
to
the Trustee’s receipt of notice or other discovery of any non-compliance
therewith or any breach thereof; any investment of monies by or at the direction
of the Servicer or any loss resulting therefrom, it being understood that the
Trustee shall remain responsible for any Trust property that it may hold in
its
individual capacity; the acts or omissions of any of the Servicer (other than
if
the Trustee shall assume the duties of the Servicer pursuant to Section 7.02),
any Sub-Servicer or any Mortgagor; any action of the Servicer (other than if
the
Trustee shall assume the duties of the Servicer pursuant to Section 7.02),
or
any Sub-Servicer taken in the name of the Trustee; the failure of the Servicer
or any Sub-Servicer to act or perform any duties required of it as agent of
the
Trustee hereunder; or any action by the Trustee taken at the instruction of
the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02); provided,
however,
that
the foregoing shall not relieve the Trustee of its obligation to perform its
duties under this Agreement, including, without limitation, the Trustee’s duty
to review the Mortgage Files pursuant to Section 2.01. The Trustee shall have
no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder (unless the Trustee shall
have
become the successor Servicer).
| SECTION 8.04. |
Trustee
May Own Certificates.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not Trustee and
may transact any banking and trust business with the Originator, the Servicer,
the Depositor or their Affiliates.
| SECTION 8.05. |
Trustee
Fee and Expenses.
|
(a) The
Trustee shall withdraw from the Distribution Account on each Distribution Date
and pay to itself the Trustee Fee. The Trustee shall be reimbursed from the
Trust Fund for all reasonable expenses, disbursements and advances incurred
or
made by the Trustee in accordance with any of the provisions of this Agreement
(not including expenses, disbursements and advances incurred or made by the
Trustee including the compensation and the expenses and disbursements of its
agents and counsel, in the ordinary course of the Trustee’s performance in
accordance with the provisions of this Agreement) up to a limit of $25,000
per
calendar year except any such expense, disbursement or advance as may arise
from
its negligence or bad faith or which is the responsibility of Certificateholders
or the Trustee hereunder. In addition, the Trustee and its officers, directors,
employees and agents shall be entitled to be indemnified for, and held harmless
by the Trust Fund against, any and all losses, liabilities, damages, claims
or
expenses incurred in connection with any legal action relating to this Agreement
or the Certificates up to a limit of $600,000 per calendar year, other than
(i)
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence of the Trustee in the performance of its duties hereunder
or
by reason of the Trustee’s reckless disregard of obligations and duties
hereunder or (ii) resulting from a breach of the Servicer’s obligations and
duties under this Agreement and the Mortgage Loans (for which the Servicer
shall
indemnify pursuant to Section 8.05(b)). Notwithstanding anything herein to
the
contrary, the Trustee shall be reimbursed from the Trust Fund for all Servicing
Transfer Costs not paid by the Servicer pursuant to Section 7.02(a) and any
expenses related to “high cost home loans” without regard to any annual
limitations. This section shall survive termination of this Agreement or the
resignation or removal of any Trustee hereunder.
(b) The
Servicer agrees to indemnify the Trustee from, and hold it harmless against,
any
loss, liability or expense resulting from a breach of the Servicer’s obligations
and duties under this Agreement. Such indemnity shall survive the termination
or
discharge of this Agreement and the resignation or removal of the Trustee.
Any
payment hereunder made by the Servicer to the Trustee shall be from the
Servicer’s own funds, without reimbursement from the Trust Fund therefor.
(c) Any
amounts payable to the Trustee, or any director, officer, employee or agent
of
the Trustee in respect of the indemnification provided by this Section 8.05,
or
pursuant to any other right of reimbursement from the Trust Fund that the
Trustee, or any director, officer, employee or agent of the Trustee, may have
hereunder in its capacity as such, may be withdrawn by the Trustee from the
Distribution Account at any time.
(d) The
limitations on the indemnification provided to the Trustee set forth in Section
8.05(a) above shall remain in effect for so long as any series of notes issued
pursuant to one or more Indentures, as set forth in Section 1.04 remain
outstanding.
| SECTION 8.06. |
Eligibility
Requirements for Trustee.
|
The
Trustee hereunder shall at all times be an entity duly organized and validly
existing under the laws of 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 and a long-term debt rating of
at
least “A-” and a short-term debt rating of at least “A-1” by S&P, if rated
by S&P, and subject to supervision or examination by federal or state
authority. If such entity publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 8.06, the combined capital
and
surplus of such entity shall be deemed to be its combined capital and surplus
as
set forth in its most recent report of condition so published. The principal
office of the Trustee (other than the initial Trustee) shall be in a state
with
respect to which an Opinion of Counsel has been delivered to such Trustee and
the NIMS Insurer at the time such Trustee is appointed Trustee to the effect
that the Trust will not be a taxable entity under the laws of such state. In
case at any time the Trustee shall cease to be eligible in accordance with
the
provisions of this Section 8.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07.
| SECTION 8.07. |
Resignation
or Removal of Trustee.
|
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the NIMS Insurer, the Depositor, the
Servicer and each Rating Agency. Upon receiving such notice of resignation,
the
Depositor shall promptly appoint a successor Trustee acceptable to the NIMS
Insurer by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor Trustee.
If
no successor Trustee shall have been so appointed and having accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If
at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
Section 8.06 and shall fail to resign after written request therefor by the
Depositor or the NIMS Insurer or if at any time the Trustee shall be legally
unable to act, or shall be adjudged a bankrupt or insolvent, or a receiver
of
the Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Depositor,
the
Servicer or the NIMS Insurer may remove the Trustee. If the Depositor, the
Servicer or the NIMS Insurer removes the Trustee under the authority of the
immediately preceding sentence, the Depositor, with the consent of the NIMS
Insurer, shall promptly appoint a successor Trustee by written instrument,
in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
The
Majority Certificateholders (or the NIMS Insurer upon the failure of the Trustee
to perform its obligations hereunder) may at any time remove the Trustee by
written instrument or instruments delivered to the Servicer, the Depositor
and
the Trustee; the Depositor shall thereupon use its best efforts to appoint
a
successor trustee acceptable to the NIMS Insurer in accordance with this
Section.
Any
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 8.08.
Any
Person appointed as successor trustee pursuant to this Agreement shall also
be
required to serve as successor supplemental interest trust trustee under the
Interest Rate Swap Agreement.
| SECTION 8.08. |
Successor
Trustee.
|
Any
successor Trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the NIMS Insurer, the Depositor, the Servicer and
to
its predecessor Trustee an instrument accepting such appointment hereunder,
and
thereupon the resignation or removal of the predecessor Trustee shall become
effective, and such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee. The Depositor, the Servicer and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Trustee all such rights, powers, duties and obligations.
No
successor Trustee shall accept appointment as provided in this Section 8.08
unless at the time of such acceptance such successor Trustee shall be eligible
under the provisions of Section 8.06 and the appointment of such successor
Trustee shall not result in a downgrading of the Regular Certificates by either
Rating Agency, as evidenced by a letter from each Rating Agency.
Upon
acceptance of appointment by a successor Trustee as provided in this Section
8.08, the successor Trustee shall mail notice of the appointment of a successor
Trustee hereunder to all Holders of Certificates at their addresses as shown
in
the Certificate Register and to each Rating Agency.
| SECTION 8.09. |
Merger
or Consolidation of Trustee.
|
Any
entity into which the Trustee may be merged or converted or with which it may
be
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding
to
the business of the Trustee, shall be the successor of the Trustee hereunder,
provided such entity shall be eligible under the provisions of Section 8.06
and
8.08, 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.
| SECTION 8.10. |
Appointment
of Co-Trustee or Separate Trustee.
|
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust or
any
Mortgaged Property may at the time be located, the Depositor and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee and the
NIMS
Insurer to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust, and
to
vest in such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust, or any part thereof, and, subject
to the other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Servicer and the Trustee may consider necessary or
desirable. Any such co-trustee or separate trustee shall be subject to the
written approval of the Servicer and the NIMS Insurer. If the Servicer and
the
NIMS Insurer shall not have joined in such appointment within 15 days after
the
receipt by it of a request so to do, or in the case a Servicer Event of
Termination shall have occurred and be continuing, the Trustee alone shall
have
the power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06, and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under Section 8.08. The
Servicer shall be responsible for the fees of any co-trustee or separate trustee
appointed hereunder.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall
be incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
(iii) the
Servicer and the Trustee, acting jointly and with the consent of the NIMS
Insurer, may at any time accept the resignation of or remove any separate
trustee or co-trustee except that following the occurrence of a Servicer Event
of Termination, the Trustee acting alone may accept the resignation or remove
any separate trustee or co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Depositor, the Servicer and the NIMS Insurer.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
| SECTION 8.11. |
Limitation
of Liability.
|
The
Certificates are executed by the Trustee, not in its individual capacity but
solely as Trustee of the Trust, in the exercise of the powers and authority
conferred and vested in it by this Agreement. Each of the undertakings and
agreements made on the part of the Trustee in the Certificates is made and
intended not as a personal undertaking or agreement by the Trustee but is made
and intended for the purpose of binding only the Trust.
| SECTION 8.12. |
Trustee
May Enforce Claims Without Possession of
Certificates.
|
(a) All
rights of action and claims under this Agreement or the Certificates may be
prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto,
and
such proceeding instituted by the Trustee shall be brought in its own name
or in
its capacity as Trustee for the benefit of all Holders of such Certificates,
subject to the provisions of this Agreement. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment
has
been recovered.
(b) The
Trustee shall afford the Seller, the Originator, the Depositor, the Servicer,
the NIMS Insurer and each Certificate Owner upon reasonable notice during normal
business hours, access to all records maintained by the Trustee in respect
of
its duties hereunder and access to officers of the Trustee responsible for
performing such duties. Upon request, the Trustee shall furnish the Depositor,
the Servicer, the NIMS Insurer and any requesting Certificate Owner with its
most recent financial statements. The Trustee shall cooperate fully with the
Seller, the Originator the Servicer, the Depositor and such Certificate Owner
and shall make available to the Seller, the Originator, the Servicer, the
Depositor, the NIMS Insurer and such Certificate Owner for review and copying
such books, documents or records as may be requested with respect to the
Trustee’s duties hereunder. The Seller, the Originator, the Depositor, the
Servicer and the Certificate Owners shall not have any responsibility or
liability for any action or failure to act by the Trustee and are not obligated
to supervise the performance of the Trustee under this Agreement or
otherwise.
| SECTION 8.13. |
Suits
for Enforcement.
|
In
case a
Servicer Event of Termination or other default by the Servicer or the Depositor
hereunder shall occur and be continuing, the Trustee, shall, at the direction
of
the Majority Certificateholders or the NIMS Insurer, or may, proceed to protect
and enforce its rights and the rights of the Certificateholders or the NIMS
Insurer under this Agreement by a suit, action or proceeding in equity or at
law
or otherwise, whether for the specific performance of any covenant or agreement
contained in this Agreement or in aid of the execution of any power granted
in
this Agreement or for the enforcement of any other legal, equitable or other
remedy, as the Trustee, being advised by counsel, and subject to the foregoing,
shall deem most effectual to protect and enforce any of the rights of the
Trustee, the NIMS Insurer and the Certificateholders.
| SECTION 8.14. |
Waiver
of Bond Requirement.
|
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee post a bond or other surety with any court, agency
or
body whatsoever.
| SECTION 8.15. |
Waiver
of Inventory, Accounting and Appraisal
Requirement.
|
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee file any inventory, accounting or appraisal of the
Trust with any court, agency or body at any time or in any manner
whatsoever.
ARTICLE
IX
REMIC
ADMINISTRATION
| SECTION 9.01. |
REMIC
Administration.
|
(a) REMIC
elections as set forth in the Preliminary Statement shall be made by the Trustee
on Form 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.
(c) The
Servicer shall pay any and all tax related expenses (not including taxes) of
each REMIC, including but not limited to any professional fees or expenses
related to audits or any administrative or judicial proceedings with respect
to
each 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 gross negligence or willful misconduct of
the
Servicer in fulfilling its duties hereunder. The Servicer shall be entitled
to
reimbursement of expenses to the extent provided in clause (i) above from the
Collection Account.
(d) The
Trustee shall prepare, sign and file, all of the REMICs’ federal and state tax
and information returns as the direct representative each REMIC created
hereunder. The expenses of preparing and filing such returns shall be borne
by
the Trustee. The Trustee shall use the Tax Prepayment Assumption for purposes
of
computing any tax reporting, including, but not limited to, the calculation
of
the original issue discount.
(e) The
Holder of the Residual Certificate at any time holding the largest Percentage
Interest thereof shall be the “tax matters person” as defined in the REMIC
Provisions (the “Tax Matters Person”) with respect to the related REMIC and
shall act as Tax Matters Person for each REMIC. The Trustee, as agent for the
Tax Matters Person, shall perform on behalf of each REMIC all reporting and
other tax compliance duties that are the responsibility of such REMIC under
the
Code, the REMIC Provisions, or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority. Among its other duties,
if required by the Code, the REMIC Provisions, or other such guidance, the
Trustee, as agent for the Tax Matters Person, shall provide (i) to the Treasury
or other governmental authority such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate to
any
disqualified person or organization and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC Provisions. The
Trustee, as agent for the Tax Matters Person, shall represent each REMIC in
any
administrative or judicial proceedings relating to an examination or audit
by
any governmental taxing authority, request an administrative adjustment as
to
any taxable year of any REMIC, enter into settlement agreements with any
government taxing agency, extend any statute of limitations relating to any
item
of any REMIC and otherwise act on behalf of any REMIC in relation to any tax
matter involving the Trust.
(f) The
Trustee, the Servicer and the Holders of Certificates shall take any action
or
cause the REMIC to take any action necessary to create or maintain the status
of
each REMIC as a REMIC under the REMIC Provisions and shall assist each other
as
necessary to create or maintain such status. Neither the Trustee, the Servicer
nor the Holder of any Residual Certificate shall take any action, cause any
REMIC created hereunder 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 (i) endanger the status of such REMIC as a REMIC or
(ii)
result in the imposition of a tax upon such REMIC (including but not limited
to
the tax on prohibited transactions as defined in Code Section 860F(a)(2) and
the
tax on prohibited contributions set forth on Section 860G(d) of the Code)
(either such event, an “Adverse REMIC Event”) unless the Trustee, the NIMS
Insurer and the Servicer have received an Opinion of Counsel (at the expense
of
the party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such a
tax.
In addition, prior to taking any action with respect to any REMIC created
hereunder or the assets therein, or causing such 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 NIMS Insurer and the
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 NIMS Insurer or the Servicer has
advised it in writing that an Adverse REMIC Event could occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
each REMIC created hereunder by federal or state governmental authorities.
To
the extent that such Trust taxes are not paid by a Residual Certificateholder,
the Trustee shall pay any remaining REMIC taxes out of current or future amounts
otherwise distributable to the Holder of the Residual Certificate in the REMICs
or, if no such amounts are available, out of other amounts held in the
Distribution Account, and shall reduce amounts otherwise payable to Holders
of
regular interests in the related REMIC. Subject to the foregoing, in the event
that a REMIC incurs a state or local tax, including franchise taxes, as a result
of a determination that such REMIC is domiciled in the State of California
or
any other state for state tax purposes by virtue of the location of the Servicer
or any subservicer, the Servicer agrees to pay on behalf of such REMIC when
due,
any and all state and local taxes imposed as a result of such a determination,
in the event that the Holder of the related Residual Certificate fails to pay
such taxes, if any, when imposed.
(h) The
Trustee, as agent for the Tax Matters Person, shall, for federal income tax
purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC created hereunder,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither
the Trustee nor the Servicer shall enter into any arrangement by which any
REMIC
created hereunder will receive a fee or other compensation for
services.
(k) On
or
before April 15 of each calendar year beginning in 2008, the Servicer shall
deliver to the NIMS Insurer, the Trustee and each Rating Agency an Officers’
Certificate stating the Servicer’s compliance with the provisions of this
Section 9.01.
(l) The
Trustee will apply for an Employee Identification Number from the Internal
Revenue Service via a Form SS-4 or other acceptable method for all tax entities
and shall complete the Form 8811.
| SECTION 9.02. |
Prohibited
Transactions and Activities.
|
Neither
the Depositor, the 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 any REMIC created hereunder pursuant to Article X
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 either REMIC
after the Closing Date, unless it and the NIMS Insurer have received an Opinion
of Counsel (at the expense of the party causing such sale, disposition, or
substitution) that such disposition, acquisition, substitution, or acceptance
will not (a) affect adversely the status of any REMIC created hereunder as
a
REMIC or of the interests therein other than the Residual Certificates as the
regular interests therein, (b) affect the distribution of interest or principal
on the Certificates, (c) result in the encumbrance of the assets transferred
or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (d) cause any REMIC created hereunder to be subject to a tax on prohibited
transactions or prohibited contributions pursuant to the REMIC
Provisions.
| SECTION 9.03. |
Indemnification
with Respect to Certain Taxes and Loss of REMIC
Status.
|
(a) In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the grossly
negligent performance by the Servicer of its duties and obligations set forth
herein, the Servicer shall indemnify the NIMS Insurer, the Trustee and the
Trust
Fund against any and all losses, claims, damages, liabilities or expenses
(“Losses”) resulting from such negligence; provided,
however,
that
the Servicer shall not be liable for any such Losses attributable to the action
or inaction of the Trustee, the Depositor or the Holder of such Residual
Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which
the
Servicer has relied. The foregoing shall not be deemed to limit or restrict
the
rights and remedies of the Holder of such Residual Certificate now or hereafter
existing at law or in equity. Notwithstanding the foregoing, however, in no
event shall the Servicer 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, (2) for any Losses
other than arising out of a negligent performance by the Servicer of its duties
and obligations set forth herein, and (3) for any special or consequential
damages to Certificateholders (in addition to payment of principal and interest
on the Certificates).
(b) In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Trustee of its duties and obligations set forth herein,
the
Trustee shall indemnify the NIMS Insurer and the Trust Fund against any and
all
Losses resulting from such negligence; provided,
however,
that
the Trustee shall not be liable for any such Losses attributable to the action
or inaction of the Servicer, the Depositor or the Holder of such Residual
Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which
the
Trustee has relied. The foregoing shall not be deemed to limit or restrict
the
rights and remedies of the Holder of such Residual Certificate now or hereafter
existing at law or in equity. Notwithstanding the foregoing, however, in no
event shall the Trustee have any liability (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, (2) for any Losses
other than arising out of a negligent performance by the Trustee of its duties
and obligations set forth herein, and (3) for any special or consequential
damages to Certificateholders (in addition to payment of principal and interest
on the Certificates).
ARTICLE
X
TERMINATION
| SECTION 10.01. |
Termination.
|
(a) The
respective obligations and responsibilities of the Servicer, the Depositor
and
the Trustee created hereby (other than the obligation of the Trustee to make
certain payments to Certificateholders after the final Distribution Date and
the
obligation of the Servicer to send certain notices as hereinafter set forth)
shall terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust and (iii) the optional
purchase by the Servicer or the NIMS Insurer of the Mortgage Loans as described
below. Notwithstanding the foregoing, in no event shall the trust created hereby
continue beyond the earlier of (a) April 2037 or (b) 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.
The
Servicer (or if the Servicer elects not to exercise such option, the NIMS
Insurer) may, at its option (the party exercising such right the “Terminator”),
terminate this Agreement on any date on which the aggregate Stated Principal
Balance of the Mortgage Loans (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) on such date is equal to or less than 10% of the aggregate Cut-off
Date
Principal Balance, by purchasing, on the next succeeding Distribution Date,
all
of the outstanding Mortgage Loans and REO Properties at a price equal to the
fair market value of the Mortgage Loans and REO Properties (as determined by
the
Servicer, if it is the Terminator, the NIMS Insurer, if it is the Terminator
and, to the extent that the Class A Certificates or a Class of Mezzanine
Certificates will not receive all amounts owed to it as a result of the
termination, the Trustee, as of the close of business on the third Business
Day
next preceding the date upon which notice of any such termination is furnished
to the related Certificateholders pursuant to Section 10.01(c)), plus accrued
and unpaid interest thereon at the weighted average of the Mortgage Rates
through the end of the Due Period preceding the final Distribution Date plus
unreimbursed Servicing Advances, Advances, any unpaid Servicing Fees allocable
to such Mortgage Loans and REO Properties, any accrued unpaid Net WAC Rate
Carryover Amount, any previously unpaid Allocated Realized Loss Amounts and
any
Swap Termination Payment to the Swap Provider then remaining unpaid or which
is
due to the exercise of such option (the “Termination Price”); provided, however,
such option may only be exercised if (i) the Termination Price is sufficient
to
pay all interest accrued on, as well as amounts necessary to retire the
principal balance of, each class of notes secured by the Class C Certificates
and the Class P Certificates and issued pursuant to the Indenture and any
amounts owed to the NIMS Insurer at the time the option is exercised, and (ii)
the fair market value of the Mortgage Loans and REO Properties determined as
provided above is at least equal to the Stated Principal Balance of the Mortgage
Loans (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
the
appraised value of the REO Properties. Notwithstanding the foregoing, if the
condition set forth in clause (i) above is satisfied but the condition set
forth
in clause (ii) above is not satisfied, then if the Terminator is the Servicer
or
the NIMS Insurer, such Terminator may nevertheless exercise such option by
paying a higher Termination Price equal to the Stated Principal Balance of
the
Mortgage Loans (after giving effect to scheduled payments of principal due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) and the appraised value of the REO Properties plus accrued and unpaid
interest thereon at the weighted average of the Mortgage Rates through the
end
of the Due Period preceding the final Distribution Date plus unreimbursed
Servicing Advances, Advances, any unpaid Servicing Fees allocable to such
Mortgage Loans and REO Properties, any accrued and unpaid Net WAC Rate Carryover
Amount, any previously unpaid Allocated Realized Loss Amounts, provided that
the
payment of such higher Termination Price is not prohibited by any regulatory
institution under whose supervision such Terminator may be conducting its
business at such time.
In
connection with any such purchase pursuant to the preceding paragraph, the
Servicer or the NIMS Insurer, as applicable, shall deposit in the Distribution
Account all amounts then on deposit in the Collection Account, which deposit
shall be deemed to have occurred immediately preceding such
purchase.
Any
such
purchase shall be accomplished by deposit into the Distribution Account on
the
Determination Date before such Distribution Date of the Termination
Price.
(b) In
connection with any termination pursuant to this Section 10.01(b):
(i) At
least
twenty (20) days prior to the latest date on which notice of such optional
termination is required to be mailed to the Certificateholders pursuant to
Section 10.01(c), the Terminator shall notify
in
writing (in
accordance with the applicable provision of the Interest Rate Swap Agreement
and
which may be done in electronic format) the Swap Provider and the Trustee of
the
final Distribution Date on which the Terminator intends to terminate the Trust
Fund;
(ii) No
later
than 4:00 pm (New York City time) four (4) Business Days prior to the final
Distribution Date specified in the notices required pursuant to Section
10.01(c), the Trustee shall request from the Swap Provider the amount of the
Estimated Swap Termination Payment. The Swap Provider shall, no later than
2:00
pm (New York City time) on the following Business Day, notify in writing (which
may be done in electronic format) both the Terminator and the Trustee of the
amount of the Estimated Swap Termination Payment and the Trustee shall promptly
on the same day notify the Terminator of the amount of the Estimated Swap
Termination Payment; and
(iii) Two
(2)
Business Days prior to the final Distribution Date specified in the notices
required pursuant to Section 10.01(c), (x) the Terminator shall, no
later than 1:00 pm (New
York
City time) on such day, deliver to the Trustee and the Trustee shall deposit
funds in the Distribution Account in an amount equal to the sum of the
Termination Price (which shall be based on the Estimated Swap Termination
Payment), and (y) if the Trustee shall have determined that all of the
requirements for optional termination have been met, including without
limitation the deposit required pursuant to the immediately preceding clause
(x)
as well as the requirements specified in Section 10.01(c), then the Trustee
shall, on the same Business Day, provide written notice (which may be done
in
electronic format) to the Terminator and the Swap Provider (in accordance with
the applicable provision of the Interest Rate Swap Agreement) confirming (a)
its
receipt of the Termination Price (which shall be based on the Estimated Swap
Termination Payment), and (b) that all other requirements of the optional
termination have been met (the “Optional Termination Notice”). Upon the delivery
of the Optional Termination Notice by the Trustee pursuant to the preceding
sentence, (i) the optional termination shall become irrevocable, (ii) the notice
to Certificateholders of such optional termination provided pursuant to Section
10.01(c) shall become unrescindable, (iii) the Swap Provider shall determine
the
Swap Termination Payment in accordance with the Interest Rate Swap Agreement
(which shall not exceed the Estimated Swap Termination Payment), and (iv) the
Swap Provider shall provide to the Trustee written notice of the amount of
the
Swap Termination Payment not later than two (2) Business Days prior to the
final
Distribution Date specified in the notices required pursuant to Section
10.01(c).
In
connection with any optional termination, only an amount equal to the Mortgage
Loan purchase price less any Swap Termination Payment shall be made available
for distribution to the Regular Certificates. Any Estimated Swap Termination
Payment deposited into the Distribution Account by the Terminator shall be
withdrawn by the Trustee from the Distribution Account on the final Distribution
Date and distributed as follows: (i) to the Supplemental Interest Trust for
payment to the Swap Provider in accordance with Section 4.08, an amount equal
to
the Swap Termination Payment calculated pursuant to the Swap Agreement, provided
that in no event shall the amount distributed to the Swap Provider in respect
of
the Swap Termination Payment exceed the Estimated Swap Termination Payment,
and
(ii) to the Terminator, an amount equal to the excess, if any, of the Estimated
Swap Termination Payment over the Swap Termination Payment. The Swap Termination
Payment shall not be part of any REMIC and shall not be paid into any account
which is part of any REMIC.
(c) Notice
of
any termination, specifying the Distribution Date (which shall be a date that
would otherwise be a Distribution Date) upon which the Certificateholders may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Trustee upon
the
Trustee receiving notice of such date from the Servicer or the NIMS Insurer,
by
letter to the Certificateholders, the Swap Provider and the NIMS Insurer mailed
not earlier than the 15th
day and
not later than the 25th
day of
the month next preceding the month of such final distribution specifying (1)
the
Distribution Date upon which final distribution of the Certificates will be
made
upon presentation and surrender of such Certificates at the office or agency
of
the Trustee therein designated, (2) the amount of any such final distribution
and (3) that the Record Date otherwise applicable to such Distribution Date
is
not applicable, distributions being made only upon presentation and surrender
of
the Certificates at the office or agency of the Trustee therein
specified.
(d) Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Holders of the Certificates on the Distribution Date for
such
final distribution, in proportion to the Percentage Interests of their
respective Class and to the extent that funds are available for such purpose,
an
amount equal to the amount required to be distributed to such Holders in
accordance with the provisions of Section 4.01 for such Distribution Date.
By
acceptance of the Residual Certificates, the Holders of the Residual
Certificates agree, in connection with any termination hereunder, to assign
and
transfer any amounts in excess of the par value of the Mortgage Loans, and
to
the extent received in respect of such termination, to pay any such amounts
to
the Holders of the Class C Certificates.
(e) In
the
event that all Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before such final Distribution Date, the
Trustee shall promptly following such date cause all funds in the Distribution
Account not distributed in final distribution to Certificateholders to be
withdrawn therefrom and credited to the remaining Certificateholders by
depositing such funds in a separate Servicing Account for the benefit of such
Certificateholders, and the Servicer (if the Servicer has exercised its right
to
purchase the Mortgage Loans), the NIMS Insurer (if the NIMS Insurer has
exercised its right to purchase the Mortgage Loans) or the Trustee (in any
other
case) 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 nine months after the second notice all the
Certificates shall not have been surrendered for cancellation, the Class R
Certificateholder shall be entitled to all unclaimed funds and other assets
which remain subject hereto, and the Trustee upon transfer of such funds shall
be discharged of any responsibility for such funds, and the Certificateholders
shall look to the Class R Certificateholder for payment.
| SECTION 10.02. |
Additional
Termination Requirements.
|
(a) In
the
event that the Servicer or the NIMS Insurer exercises its purchase option as
provided in Section 10.01, each REMIC shall be terminated in accordance with
the
following additional requirements, unless the Trustee shall have been furnished
with an Opinion of Counsel to the effect that the failure of the Trust to comply
with the requirements of this Section will not (i) result in the imposition
of
taxes on “prohibited transactions” of the Trust as defined in Section 860F of
the Code or (ii) cause any REMIC constituting part of the Trust Fund to fail
to
qualify as a REMIC at any time that any Certificates are
outstanding:
(i) Within
90
days prior to the final Distribution Date, the Servicer or the NIMS Insurer
shall adopt and the Trustee shall sign a plan of complete liquidation of each
REMIC created hereunder meeting the requirements of a “Qualified Liquidation”
under Section 860F of the Code and any regulations thereunder; and
(ii) At
or
after the time of adoption of such a plan of complete liquidation and at or
prior to the final Distribution Date, the Trustee shall sell all of the assets
of the Trust Fund to the Servicer or the NIMS Insurer, as applicable, for cash
pursuant to the terms of the plan of complete liquidation.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trustee as their attorney in fact to: (i) adopt such a plan of complete
liquidation (and the Certificateholders hereby appoint the Trustee as their
attorney in fact to sign such plan) as appropriate and (ii) to take such other
action in connection therewith as may be reasonably required to carry out such
plan of complete liquidation all in accordance with the terms
hereof.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
| SECTION 11.01. |
Amendment.
|
This
Agreement may be amended from time to time by the Depositor, the Servicer and
the Trustee with the consent of the NIMS Insurer and without the consent of
the
Certificateholders (i) to cure any ambiguity, (ii) to correct or supplement
any
provisions herein which may be defective or inconsistent with any other
provisions herein, (iii) to amend the provisions of Section 3.22(b) or (iv)
to
make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided that such action shall not, as evidenced by either (a)
an
Opinion of Counsel delivered to the Trustee or (b) written notice to the
Depositor, the Servicer and the Trustee from the Rating Agencies that such
action will not result in the reduction or withdrawal of the rating of any
outstanding Class of Certificates with respect to which it is a Rating Agency,
adversely affect in any material respect the interests of any Certificateholder.
Neither an Opinion of Counsel nor confirmation from the Rating Agencies will
be
required in connection with an amendment to the provisions of Section 3.22(b).
No amendment shall be deemed to adversely affect in any material respect the
interests of any Certificateholder who shall have consented thereto, and no
Opinion of Counsel or written notice from the Rating Agencies shall be required
to address the effect of any such amendment on any such consenting
Certificateholder.
This
Agreement may also be amended from time to time by the Depositor, the Servicer
and the Trustee with the consent of the NIMS Insurer and the Holders of
Certificates entitled to at least 66% of the Voting Rights 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
Swap Provider or Holders of Certificates; provided, however, that no such
amendment shall (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, (ii)
adversely affect in any material respect the interests of the Swap Provider
or
Holders of any Class of Certificates (as evidenced by either (a) an Opinion
of
Counsel delivered to the Trustee or (b) written notice to the Depositor, the
Servicer and the Trustee from the Rating Agencies that such action will not
result in the reduction or withdrawal of the rating of any outstanding Class
of
Certificates with respect to which it is a Rating Agency) in a manner, other
than as described in (i), or (iii) modify the consents required by the
immediately preceding clauses (i) and (ii) without the consent of the Holders
of
all Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Depositor or
the
Servicer or any Affiliate thereof shall be entitled to Voting Rights with
respect to matters affecting such Certificates.
Notwithstanding
any provision of this Agreement to the contrary, the Trustee shall not consent
to any amendment to this Agreement unless it shall have first received an
Opinion of Counsel, delivered by (and at the expense of) the Person seeking
such
Amendment and satisfactory to the NIMS Insurer, to the effect that such
amendment will not result in the imposition of a tax on any REMIC created
hereunder constituting part of the Trust Fund pursuant to the REMIC Provisions
or cause any REMIC created hereunder constituting part of the Trust to fail
to
qualify as a REMIC at any time that any Certificates are outstanding and that
the amendment is being made in accordance with the terms hereof.
Notwithstanding
any of the other provisions of this Section 11.01, none of the parties to this
Agreement shall
enter into any amendment to this Agreement that could reasonably be expected
to
have a material adverse effect on the interests of the Swap Provider
hereunder
(excluding, for the avoidance of doubt, any amendment to this Agreement that
is
entered into solely for the purpose of appointing a successor servicer, trustee
or other service provider) without the prior written consent of the Swap
Provider, which consent shall not be unreasonably withheld, conditioned or
delayed.
Promptly
after the execution of any such amendment the Trustee shall furnish, at the
expense of the Person that requested the amendment if such Person is the
Servicer (but in no event at the expense of the Trustee), otherwise at the
expense of the Trust, a copy of such amendment and the Opinion of Counsel
referred to in the immediately preceding paragraph to the Servicer, the NIMS
Insurer and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section 11.01
to approve the particular form of any proposed amendment; instead it shall
be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as
the Trustee may prescribe.
The
Trustee may, but shall not be obligated to, enter into any amendment pursuant
to
this Section 11.01 that affects its rights, duties and immunities under this
Agreement or otherwise.
| SECTION 11.02. |
Recordation
of Agreement; Counterparts.
|
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Servicer at the expense
of
the Trust, but only upon direction of Certificateholders accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
| SECTION 11.03. |
Limitation
on Rights of Certificateholders.
|
The
death
or incapacity of any Certificateholder shall not (i) operate to terminate this
Agreement or the Trust, (ii) entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, or (iii)
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Except
as
expressly provided for herein, no Certificateholder shall have any right to
vote
or in any manner otherwise control the operation and management of the Trust,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person
by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue 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 default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights 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 costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee for 15 days after its receipt
of
such notice, request and offer of indemnity, shall have neglected or refused
to
institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue 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, which priority or preference is not otherwise provided
for herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this
Section 11.03 each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
| SECTION 11.04. |
Governing
Law; Jurisdiction.
|
This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to the conflicts of law provisions thereof, and the
obligations, rights and remedies of the parties hereunder shall be determined
in
accordance with such laws. With respect to any claim arising out of this
Agreement, each party irrevocably submits to the exclusive jurisdiction of
the
courts of the State of New York and the United States District Court located
in
the Borough of Manhattan in The City of New York, and each party irrevocably
waives any objection which it may have at any time to the laying of venue of
any
suit, action or proceeding arising out of or relating hereto brought in any
such
courts, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have
jurisdiction over such party, provided that service of process has been made
by
any lawful means.
| SECTION 11.05. |
Notices.
|
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, by facsimile or by express delivery service, to
(a)
in the case of the Originator and/or Servicer, Option One Mortgage Corporation,
3 Ada, Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxx, or such other
address or telecopy number as may hereafter be furnished to the Depositor,
the
NIMS Insurer and the Trustee in writing by the Servicer, (b) in the case of
the
Trustee, Xxxxx Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Manager—Option One 2007-4, with a copy to Xxxxx Fargo Bank,
N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Option
One Mortgage Loan Trust Series 2007-4, or such other address or telecopy number
as may hereafter be furnished to the Depositor, the NIMS Insurer and the
Servicer in writing by the Trustee, (c) in the case of the Depositor, Option
One
Mortgage Acceptance Corporation, 3 Ada, Xxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxx Xxxxxxxx, or such other address or telecopy number as may be furnished
to
the Servicer, the NIMS Insurer and the Trustee in writing by the Depositor
and
(d) in the case of the NIMS Insurer, such address furnished to the Depositor,
the Servicer, the Trustee and the Guarantor in writing by the NIMS Insurer,
or
such other address or telecopy number as may hereafter be furnished to the
Depositor, the Servicer and the Trustee in writing by the NIMS Insurer. Any
notice required or permitted to be mailed to a Certificateholder shall be given
by first class mail, postage prepaid, at the address of such Holder as shown
in
the Certificate Register. Notice of any Servicer Default shall be given by
telecopy and by certified mail. Any notice so mailed within the time prescribed
in this Agreement shall be conclusively presumed to have duly been given when
mailed, whether or not the Certificateholder receives such notice. A copy of
any
notice required to be telecopied hereunder shall also be mailed to the
appropriate party in the manner set forth above.
| SECTION 11.06. |
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
| SECTION 11.07. |
Article
and Section References.
|
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
| SECTION 11.08. |
Notice
to the Rating Agencies and the NIMS
Insurer.
|
(a) Each
of
the Trustee and the Servicer shall be obligated to use its best reasonable
efforts promptly to provide notice to the Rating Agencies and the NIMS Insurer
with respect to each of the following of which a Responsible Officer of the
Trustee or Servicer, as the case may be, has actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Servicer Event of Termination that has not been cured or
waived;
(iii) the
resignation or termination of the Servicer or the Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class;
(v) any
change in the location of any Account; and
(vi) if
the
Trustee is acting as successor Servicer pursuant to Section 7.02 hereof, any
event that would result in the inability of the Trustee to make
Advances.
(b) In
addition, the Trustee shall promptly make available to each Rating Agency copies
of each Statement to Certificateholders described in Section 4.03 hereof and
the
Servicer shall promptly furnish to each Rating Agency copies of the
following:
(i) each
annual statement as to compliance described in Section 3.20 hereof;
(ii) each
annual independent public accountants’ servicing report described in Section
3.21 hereof; and
(iii) each
notice delivered pursuant to Section 7.01(a) hereof which relates to the fact
that the Servicer has not made an Advance.
Any
such
notice pursuant to this Section 11.08 shall be in writing and shall be deemed
to
have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to Xxxxx’x Investors Service,
Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: MBS Monitoring/Option
One
Mortgage Loan Trust 2007-4 and Standard & Poor’s Ratings Services, Inc., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
| SECTION 11.09. |
Further
Assurances.
|
Notwithstanding
any other provision of this Agreement, neither the Regular Certificateholders
nor the Trustee shall have any obligation to consent to any amendment or
modification of this Agreement unless they have been provided reasonable
security or indemnity against their out-of-pocket expenses (including reasonable
attorneys’ fees) to be incurred in connection therewith.
| SECTION 11.10. |
Third
Party Rights.
|
The
NIMS
Insurer shall be deemed a third-party beneficiary of this Agreement to the
same
extent as if it were a party hereto, and shall have the right to enforce the
provisions of this Agreement.
The
Swap
Provider shall be an express third-party beneficiary of this Agreement to the
extent of its express rights to receive any payments under this Agreement or
any
other express
rights of
the
Swap Provider explicitly stated in this Agreement,
and
shall have the right to enforce such rights under this Agreement as if it were
a
party hereto.
| SECTION 11.11. |
Benefits
of Agreement.
|
Nothing
in this Agreement or in the Certificates, expressed or implied, shall give
to
any Person, other than the Certificateholders, the NIMS Insurer and the parties
hereto and their successors hereunder, any benefit or any legal or equitable
right, remedy or claim under this Agreement.
| SECTION 11.12. |
Acts
of Certificateholders.
|
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee and the Servicer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “act” of the Certificateholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Agreement and conclusive in favor of the Trustee and the Trust,
if made in the manner provided in this Section 11.11.
(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
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by any Certificateholder shall bind every future Holder of such
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 Trustee or the Trust in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
| SECTION 11.13. |
No
Petition.
|
The
Depositor, Servicer and the Trustee, by entering into this Agreement and each
Certificateholder, by accepting a Certificate, hereby covenant and agree that
they will not at any time institute against the Trust Fund, or join in any
institution against the Trust Fund of, any bankruptcy proceedings under any
United States federal or state bankruptcy or similar law in connection with
any
obligations with respect to the Certificates or this Agreement.
| SECTION 11.14. |
Intention
of the Parties and Interpretation.
|
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.20, 3.21,
3.25 and 4.03 of this Agreement is to facilitate compliance by the Depositor
with the provisions of Regulation AB promulgated by the Commission under the
1934 Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from time to
time and subject to clarification and interpretive advice as may be issued
by
the staff of the Commission from time to time. Therefore, each of the parties
agrees that (a) the obligations of the parties hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) the parties’ obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance, convention or consensus
among active participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB, (c)
the
parties shall comply with requests made by the Depositor or Trustee for delivery
of additional or different information as the Depositor or Trustee may determine
in good faith is necessary to comply with the provisions of Regulation AB,
and
(d) no amendment of this Agreement shall be required to effect any such changes
in the parties’ obligations as are necessary to accommodate evolving
interpretations of the provisions of Regulation AB.
IN
WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
|
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION,
as
Depositor
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
||||||||||||
|
Name:
|
Xxxxxxx X. Xxxxxxx | ||||||||||||
|
Title:
|
Assistant Secretary | ||||||||||||
|
OPTION
ONE MORTGAGE CORPORATION,
as
Servicer
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
||||||||||||
|
Name:
|
Xxxxxxx X. Xxxxxxx | ||||||||||||
|
Title:
|
Vice President | ||||||||||||
|
XXXXX
FARGO BANK, N.A.,
as
Trustee
|
|||||||||||||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||||||||||||
|
Name:
|
Xxxxxx X. Xxxxxx | ||||||||||||
|
Title:
|
Assistant Vice President | ||||||||||||
| STATE OF CALIFORNIA | ) | ||
| ) ss.: | |||
| COUNTY OF ORANGE | ) |
On
the
______ day of ________________ before me, a notary public in and for said State,
personally appeared __________________ known to me to be a Vice President of
Option One Mortgage Acceptance Corporation, a Delaware corporation, that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
|
|
|||||||
|
|
Notary
Public
|
| STATE OF CALIFORNIA | ) | ||
| ) ss.: | |||
| COUNTY OF ORANGE | ) |
On
the
______ day of ________________ before me, a notary public in and for said State,
personally appeared __________________ known to me to be a Vice President of
Option One Mortgage Corporation, a California corporation, that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
|
|
|||||||
|
|
Notary
Public
|
| STATE OF MARYLAND | ) | ||
| ) ss.: | |||
| CITY OF BALTIMORE | ) |
On
the
______ day of ________________ before me, a notary public in and for said State,
personally appeared __________________, known to me to be a Assistant Vice
President of Xxxxx Fargo Bank, N.A., a national banking association, that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said association, and acknowledged to me that such
association executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
|
|
|||||||
|
|
Notary
Public
|
EXHIBIT
A-1
FORM
OF
CLASS I-A-1 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, EACH PURCHASER SHALL
BE
DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION 5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$462,095,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$462,095,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AA4
|
|
Class
|
:
|
I-A-1
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Asset-Backed
Certificates,
Series
2007-4
Class
I-A-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class I-A-1 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class I-A-1 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class I-A-1 Certificate (obtained by dividing the Denomination
of this Class I-A-1 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Option One Mortgage Acceptance
Corporation (the “Depositor”). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of April 1, 2007 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Xxxxx Fargo Bank, N.A., a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class I-A-1 Certificate
is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class I-A-1 Certificate
by
virtue of the acceptance hereof assents and by which such Holder is
bound.
Prior
to
the termination of the Supplemental Interest Trust, each purchaser shall
be
deemed to have made the representations set forth in Section 5.02(d) of the
Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class I-A-1 Certificate
set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class I-A-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class I-A-1 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-2
FORM
OF
CLASS II-A-1 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, EACH PURCHASER SHALL
BE
DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION 5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$197,657,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$197,657,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AB2
|
|
Class
|
:
|
II-A-1
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
II-A-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-1 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-1 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-1 Certificate (obtained by dividing the
Denomination of this Class II-A-1 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Option One Mortgage
Acceptance Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement dated as of April 1, 2007 (the “Agreement”)
among the Depositor, Option One Mortgage Corporation, as servicer (the
“Servicer”), and Xxxxx Fargo Bank, N. A., a national banking association, as
trustee (the “Trustee”). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Class II-A-1
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class
II-A-1
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
Prior
to
the termination of the Supplemental Interest Trust, each purchaser shall
be
deemed to have made the representations set forth in Section 5.02(d) of the
Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class II-A-1 Certificate
set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-1 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class II-A-1 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-3
FORM
OF
CLASS II-A-2 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, EACH PURCHASER SHALL
BE
DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION 5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$152,166,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$152,166,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AC0
|
|
Class
|
:
|
II-A-2
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
II-A-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-2 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-2 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-2 Certificate (obtained by dividing the
Denomination of this Class II-A-2 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Option One Mortgage
Acceptance Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement dated as of April 1, 2007 (the “Agreement”)
among the Depositor, Option One Mortgage Corporation, as servicer (the
“Servicer”), and Xxxxx Fargo Bank, N. A., a national banking association, as
trustee (the “Trustee”). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Class II-A-2
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class
II-A-2
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
Prior
to
the termination of the Supplemental Interest Trust, each purchaser shall
be
deemed to have made the representations set forth in Section 5.02(d) of the
Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class II-A-2 Certificate
set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-2 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class II-A-2 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-4
FORM
OF
CLASS II-A-3 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, EACH PURCHASER SHALL
BE
DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION 5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$46,148,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$46,148,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AD8
|
|
Class
|
:
|
II-A-3
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
II-A-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-3 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-3 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-3 Certificate (obtained by dividing the
Denomination of this Class II-A-3 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Option One Mortgage
Acceptance Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement dated as of April 1, 2007 (the “Agreement”)
among the Depositor, Option One Mortgage Corporation, as servicer (the
“Servicer”), and Xxxxx Fargo Bank, N. A., a national banking association, as
trustee (the “Trustee”). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Class II-A-3
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class
II-A-3
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
Prior
to
the termination of the Supplemental Interest Trust, each purchaser shall
be
deemed to have made the representations set forth in Section 5.02(d) of the
Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class II-A-3 Certificate
set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-3 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class II-A-3 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-5
FORM
OF
CLASS II-A-4 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, EACH PURCHASER SHALL
BE
DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION 5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$30,534,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$30,534,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AE6
|
|
Class
|
:
|
II-A-4
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
II-A-4
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-4 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-4 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-4 Certificate (obtained by dividing the
Denomination of this Class II-A-4 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Option One Mortgage
Acceptance Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement dated as of April 1, 2007 (the “Agreement”)
among the Depositor, Option One Mortgage Corporation, as servicer (the
“Servicer”), and Xxxxx Fargo Bank, N.A., a national banking association, as
trustee (the “Trustee”). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Class II-A-4
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class
II-A-4
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
Prior
to
the termination of the Supplemental Interest Trust, each purchaser shall
be
deemed to have made the representations set forth in Section 5.02(d) of the
Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class II-A-4 Certificate
set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-4 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class II-A-4 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-6
FORM
OF
CLASS M-1 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES TO THE EXTENT DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ANY
PURCHASER SHALL BE DEEMED TO MAKE THE REPRESENTATIONS SET FORTH IN SECTION
5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$54,000,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$54,000,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AF3
|
|
Class
|
:
|
M-1
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
M-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-1 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-1 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-1 Certificate (obtained by dividing the Denomination
of this Class M-1 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Option One Mortgage Acceptance
Corporation (the “Depositor”). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of April 1, 2007 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Xxxxx Fargo Bank, N.A., a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-1 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-1 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
purchaser shall be deemed to have made the representations set forth in Section
5.02(d) of the Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class M-1 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class M-1 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any, and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-7
FORM
OF
CLASS M-2 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES AND THE CLASS M-1
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
ANY
PURCHASER SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION
5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$52,800,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$52,800,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AG1
|
|
Class
|
:
|
M-2
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
M-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-2 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-2 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-2 Certificate (obtained by dividing the Denomination
of this Class M-2 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Option One Mortgage Acceptance
Corporation (the “Depositor”). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of April 1, 2007 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Xxxxx Fargo Bank, N.A., a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-2 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-2 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
purchaser shall be deemed to have made the representations set forth in Section
5.02(d) of the Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class M-2 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-2 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class M-2 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-8
FORM
OF
CLASS M-3 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES AND THE CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ANY
PURCHASER SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION
5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$25,200,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$25,200,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AH9
|
|
Class
|
:
|
M-3
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
M-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-3 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-3 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-3 Certificate (obtained by dividing the Denomination
of this Class M-3 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Option One Mortgage Acceptance
Corporation (the “Depositor”). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of April 1, 2007 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Xxxxx Fargo Bank, N.A., a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-3 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-3 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
purchaser shall be deemed to have made the representations set forth in Section
5.02(d) of the Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class M-3 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-3 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class M-3 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-9
FORM
OF
CLASS M-4 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3 CERTIFICATES TO
THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
ANY
PURCHASER SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION
5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$25,800,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$25,800,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AJ5
|
|
Class
|
:
|
M-4
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
M-4
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-4 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-4 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-4 Certificate (obtained by dividing the Denomination
of this Class M-4 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Option One Mortgage Acceptance
Corporation (the “Depositor”). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of April 1, 2007 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Xxxxx Fargo Bank, N.A., a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-4 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-4 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
purchaser shall be deemed to have made the representations set forth in Section
5.02(d) of the Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class M-4 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-4 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class M-4 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-10
FORM
OF
CLASS M-5 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES AND
THE
CLASS M-4 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
ANY
PURCHASER SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION
5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$22,800,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$22,800,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AK2
|
|
Class
|
:
|
M-5
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
M-5
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-5 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-5 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-5 Certificate (obtained by dividing the Denomination
of this Class M-5 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Option One Mortgage Acceptance
Corporation (the “Depositor”). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of April 1, 2007 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Xxxxx Fargo Bank, N.A., a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-5 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-5 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
purchaser shall be deemed to have made the representations set forth in Section
5.02(d) of the Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class M-5 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-5 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class M-5 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-11
FORM
OF
CLASS M-6 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES AND THE CLASS M-5 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ANY
PURCHASER SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION
5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$14,400,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$14,400,000.00
|
|
Percentage
Interest
|
:
|
100%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AL0
|
|
Class
|
:
|
M-6
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
M-6
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-6 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-6 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-6 Certificate (obtained by dividing the Denomination
of this Class M-6 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Option One Mortgage Acceptance
Corporation (the “Depositor”). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of April 1, 2007 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Xxxxx Fargo Bank, N.A., a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-6 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-6 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
purchaser shall be deemed to have made the representations set forth in Section
5.02(d) of the Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class M-6 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-6 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class M-6 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-12
FORM
OF
CLASS M-7 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES AND THE CLASS M-6 CERTIFICATES
TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
ANY
PURCHASER SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION
5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$17,400,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$17,400,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AM8
|
|
Class
|
:
|
M-7
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
M-7
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-7 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-7 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-7 Certificate (obtained by dividing the Denomination
of this Class M-7 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Option One Mortgage Acceptance
Corporation (the “Depositor”). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of April 1, 2007 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Xxxxx Fargo Bank, N.A., a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-7 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-7 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
purchaser shall be deemed to have made the representations set forth in Section
5.02(d) of the Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class M-7 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-7 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class M-7 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-13
FORM
OF
CLASS M-8 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES
AND THE
CLASS M-7 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
ANY
PURCHASER SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION
5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$12,600,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$12,600,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AN6
|
|
Class
|
:
|
M-8
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
M-8
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-8 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-8 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-8 Certificate (obtained by dividing the Denomination
of this Class M-8 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Option One Mortgage Acceptance
Corporation (the “Depositor”). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of April 1, 2007 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Xxxxx Fargo Bank, N.A., a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-8 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-8 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
purchaser shall be deemed to have made the representations set forth in Section
5.02(d) of the Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class M-8 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-8 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class M-8 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-14
FORM
OF
CLASS M-9 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES,
THE
CLASS M-7 CERTIFICATES AND THE CLASS M-8 CERTIFICATES TO THE EXTENT DESCRIBED
IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ANY
PURCHASER SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS SET FORTH IN SECTION
5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$21,000,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$21,000,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
68403F
AP1
|
|
Class
|
:
|
M-9
|
|
Assumed
Maturity Date
|
:
|
April
2037
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
M-9
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-9 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-9 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-9 Certificate (obtained by dividing the Denomination
of this Class M-9 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Option One Mortgage Acceptance
Corporation (the “Depositor”). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of April 1, 2007 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Xxxxx Fargo Bank, N.A., a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-9 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-9 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
purchaser shall be deemed to have made the representations set forth in Section
5.02(d) of the Pooling and Servicing Agreement.
Reference
is hereby made to the further provisions of this Class M-9 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-9 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class M-9 Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the
Servicer may purchase, in whole, from the Trust the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created
by the
Agreement will terminate upon notice to the Trustee upon the earliest of
(i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-15
FORM
OF
CLASS C CERTIFICATES
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A
AND THE
MEZZANINE CERTIFICATES TO
THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$65,399,903.66
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$65,399,903.66
|
|
Initial
Notional Amount of this Certificate
|
:
|
$1,200,000,003.66
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
C
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
C
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class C Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class C Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer, or the Trustee referred to below or any of their respective
affiliates.
This
certifies that Option One Mortgage Capital Corporation is the registered
owner
of the Percentage Interest evidenced by this Class C Certificate (obtained
by
dividing the Denomination of this Class C Certificate by the Original Class
Certificate Principal Balance) in certain distributions with respect to a
Trust
consisting primarily of the Mortgage Loans deposited by Option One Mortgage
Acceptance Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement dated as of April 1, 2007 (the “Agreement”)
among the Depositor, Option One Mortgage Corporation, as servicer (the
“Servicer”), and Xxxxx Fargo Bank, N.A., a national banking association, as
trustee (the “Trustee”). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Class C
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class
C
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. In the event that such a transfer is not to be made pursuant to
Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of
the
Trustee or the Depositor; or there shall be delivered to the Trustee and
the
Depositor a transferor certificate by the transferor and an investment letter
shall be executed by the transferee. The Holder hereof desiring to effect
such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not so
exempt
or is not made in accordance with such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement. In addition, no transfer
of
this Certificate shall be made except in accordance with the tax certification
form procedures set forth in Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class C Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class C Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class C Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
sum of
the aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the Servicer may purchase, in whole, from the Trust the Mortgage Loans at
a
purchase price determined as provided in the Agreement. In the event that
no
such optional termination occurs, the obligations and responsibilities created
by the Agreement will terminate upon notice to the Trustee upon the earliest
of
(i) the Distribution Date on which the Certificate Principal Balances of
the
Regular Certificates have been reduced to zero, (ii) the final payment or
other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-16
FORM
OF
CLASS P CERTIFICATES
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$100.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$100.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
P
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
P
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class P Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class P Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer, or the Trustee referred to below or any of their respective
affiliates.
This
certifies that Option One Mortgage Capital Corporation is the registered
owner
of the Percentage Interest evidenced by this Class P Certificate (obtained
by
dividing the Denomination of this Class P Certificate by the Original Class
Certificate Principal Balance) in certain distributions with respect to a
Trust
consisting primarily of the Mortgage Loans deposited by Option One Mortgage
Acceptance Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement dated as of April 1, 2007 (the “Agreement”)
among the Depositor, Option One Mortgage Corporation, as servicer (the
“Servicer”), and Xxxxx Fargo Bank, N.A., a national banking association, as
trustee (the “Trustee”). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Class P
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class
P
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
This
Certificate does not have a pass-through rate and will be entitled to
distributions only to the extent set forth in the Agreement.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. In the event that such a transfer is not to be made pursuant to
Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of
the
Trustee or the Depositor; or there shall be delivered to the Trustee and
the
Depositor a transferor certificate by the transferor and an investment letter
shall be executed by the transferee. The Holder hereof desiring to effect
such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not so
exempt
or is not made in accordance with such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class P Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class P Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class P Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
sum of
the aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the Servicer may purchase, in whole, from the Trust the Mortgage Loans at
a
purchase price determined as provided in the Agreement. In the event that
no
such optional termination occurs, the obligations and responsibilities created
by the Agreement will terminate upon notice to the Trustee upon the earliest
of
(i) the Distribution Date on which the Certificate Principal Balances of
the
Regular Certificates have been reduced to zero, (ii) the final payment or
other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-17
FORM
OF
CLASS R CERTIFICATES
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A ARESIDUAL
INTEREST” IN ONE OR MORE “REAL ESTATE MORTGAGE INVESTMENT CONDUITS,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
R
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
R
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Servicer or the Trustee referred to below
or
any of their respective affiliates.
This
certifies that Option One Mortgage Capital Corporation is the registered
owner
of the Percentage Interest evidenced by this Certificate specified above
in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by
Option One Mortgage Acceptance Corporation (the “Depositor”). The Trust was
created pursuant to a Pooling and Servicing Agreement dated as of April 1,
2007
(the “Agreement”) among the Depositor, Option One Mortgage Corporation, as
servicer (the “Servicer”) and Xxxxx Fargo Bank, N.A., a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement.
In
addition, any distribution of the proceeds of any remaining assets of the
Trust
will be made only upon presentment and surrender of this Certificate at the
Corporate Trust Office or the office or agency maintained by the Trustee
in
Minneapolis, Minnesota.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. In the event that such a transfer is not to be made pursuant to
Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of
the
Trustee or the Depositor; or there shall be delivered to the Trustee and
the
Depositor a transferor certificate by the transferor and an investment letter
shall be executed by the transferee. The Holder hereof desiring to effect
such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not so
exempt
or is not made in accordance with such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in
this
Certificate may be transferred without delivery to the Trustee of (a) a transfer
affidavit of the proposed transferee and (b) a transfer certificate of the
transferor, each of such documents to be in the form described in the Agreement,
(iii) each person holding or acquiring any Ownership Interest in this
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trustee as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Certificate must
agree
not to transfer an Ownership Interest in this Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and
(v) any
attempted or purported transfer of any Ownership Interest in this Certificate
in
violation of such restrictions will be absolutely null and void and will
vest no
rights in the purported transferee. Pursuant to the Agreement, the Trustee
will
provide the Internal Revenue Service and any pertinent persons with the
information needed to compute the tax imposed under the applicable tax laws
on
transfers of residual interests to disqualified organizations, if any person
other than a Permitted Transferee acquires an Ownership Interest on a Class
R
Certificate in violation of the restrictions mentioned above.
Reference
is hereby made to the further provisions of this Class R Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
|
|||||||
|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
|||||||
[Reverse
of Class R Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
sum of
the aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the Servicer may purchase, in whole, from the Trust the Mortgage Loans at
a
purchase price determined as provided in the Agreement. In the event that
no
such optional termination occurs, the obligations and responsibilities created
by the Agreement will terminate upon notice to the Trustee upon the earliest
of
(i) the Distribution Date on which the Certificate Principal Balances of
the
Regular Certificates have been reduced to zero, (ii) the final payment or
other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-18
FORM
OF
CLASS R-X CERTIFICATES
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A ARESIDUAL
INTEREST” IN ONE OR MORE “REAL ESTATE MORTGAGE INVESTMENT CONDUITS,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS R-X CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
R-X
|
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates,
Series
2007-4
Class
R-X
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed and adjustable rate mortgage loans (the “Mortgage
Loans”)
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION, as Depositor
This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Servicer or the Trustee referred to below
or
any of their respective affiliates.
This
certifies that Option One Mortgage Capital Corporation is the registered
owner
of the Percentage Interest evidenced by this Certificate specified above
in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by
Option One Mortgage Acceptance Corporation (the “Depositor”). The Trust was
created pursuant to a Pooling and Servicing Agreement dated as of April 1,
2007
(the “Agreement”) among the Depositor, Option One Mortgage Corporation, as
servicer (the “Servicer”) and Xxxxx Fargo Bank, N.A., a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement.
In
addition, any distribution of the proceeds of any remaining assets of the
Trust
will be made only upon presentment and surrender of this Certificate at the
Corporate Trust Office or the office or agency maintained by the Trustee
in
Minneapolis, Minnesota.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. In the event that such a transfer is not to be made pursuant to
Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of
the
Trustee or the Depositor; or there shall be delivered to the Trustee and
the
Depositor a transferor certificate by the transferor and an investment letter
shall be executed by the transferee. The Holder hereof desiring to effect
such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not so
exempt
or is not made in accordance with such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in
this
Certificate may be transferred without delivery to the Trustee of (a) a transfer
affidavit of the proposed transferee and (b) a transfer certificate of the
transferor, each of such documents to be in the form described in the Agreement,
(iii) each person holding or acquiring any Ownership Interest in this
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trustee as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Certificate must
agree
not to transfer an Ownership Interest in this Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and
(v) any
attempted or purported transfer of any Ownership Interest in this Certificate
in
violation of such restrictions will be absolutely null and void and will
vest no
rights in the purported transferee. Pursuant to the Agreement, the Trustee
will
provide the Internal Revenue Service and any pertinent persons with the
information needed to compute the tax imposed under the applicable tax laws
on
transfers of residual interests to disqualified organizations, if any person
other than a Permitted Transferee acquires an Ownership Interest on a Class
R-X
Certificate in violation of the restrictions mentioned above.
Reference
is hereby made to the further provisions of this Class R-X Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2007
|
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
|
||||||||||||
|
By:
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity, but solely
as Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
This
is one of the Certificates referenced in
the within-mentioned Agreement
|
|||||||
|
By:
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|
Authorized
Signatory of Xxxxx
Fargo Bank, N. A.,
as
Trustee
|
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[Reverse
of Class R-X Certificate]
OPTION
ONE MORTGAGE LOAN TRUST 2007-4
Asset-Backed
Certificates,
Series
2007-4
This
Certificate is one of a duly authorized issue of Certificates designated
as
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day then the first Business
Day following such Distribution Date (the “Distribution Date”), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on
such
Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the NIMs Insurer,
if
any and of Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates, but with the consent of the NIMS Insurer, if any.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Servicer, the Depositor, the Trustee, the NIMs Insurer, if any, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor,
the
Trustee, the NIMs Insurer, if any, the Certificate Registrar, any Paying
Agent
or the Trustee may treat the Person, including a Depository, in whose name
any
Certificate is registered as the owner hereof for all purposes, and none
of the
Servicer, the Trust, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
On
any
Distribution Date following the Distribution Date on which the remaining
aggregate Principal Balance of the Mortgage Loans is less than 10% of the
sum of
the aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date,
the Servicer may purchase, in whole, from the Trust the Mortgage Loans at
a
purchase price determined as provided in the Agreement. In the event that
no
such optional termination occurs, the obligations and responsibilities created
by the Agreement will terminate upon notice to the Trustee upon the earliest
of
(i) the Distribution Date on which the Certificate Principal Balances of
the
Regular Certificates have been reduced to zero, (ii) the final payment or
other
liquidation of the last Mortgage Loan in the Trust, (iii) the Distribution
Date
in April 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
|
Signature
by or on behalf of assignor
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DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
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,
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for
the account of
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,
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account
number___________, or, if mailed by check, to
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,
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|
Applicable
statements should be mailed to
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,
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.
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|
This
information is provided by
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,
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the
assignee named above, or
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,
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as
its agent.
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EXHIBIT
B
[Reserved]
EXHIBIT
C
FORM
OF
MORTGAGE LOAN PURCHASE AGREEMENT
OPTION
ONE MORTGAGE CORPORATION,
as
Originator and Seller,
OPTION
ONE MORTGAGE CAPITAL CORPORATION,
as
Obligor and Seller
OPTION
ONE OWNER TRUST 2001-1A,
OPTION
ONE OWNER TRUST 2001-2,
OPTION
ONE OWNER TRUST 2002-3,
OPTION
ONE OWNER TRUST 2003-4,
OPTION
ONE OWNER TRUST 2003-5,
OPTION
ONE OWNER TRUST 2005-6,
OPTION
ONE OWNER TRUST 2005-8,
OPTION
ONE OWNER TRUST 2005-9,
OPTION
ONE OWNER TRUST 2007-5A,
as
Sellers
and
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION,
as
Purchaser
MORTGAGE
LOAN PURCHASE AGREEMENT
Dated
as
of April 11, 2007
Fixed
Rate and Adjustable Rate Mortgage Loans
Option
One Mortgage Loan Trust 2007-4
Asset-Backed
Certificates, Series 2007-4
Table
of Contents
|
ARTICLE
I.
|
||
|
DEFINITIONS
|
||
|
Section
1.01
|
Definitions
|
|
|
ARTICLE
II.
|
||
|
SALE
OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
|
||
|
Section
2.01
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Sale
of Mortgage Loans
|
|
|
Section
2.02
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Obligations
of the Originator Upon Sale
|
|
|
Section
2.03
|
Payment
of Purchase Price for the Mortgage Loans.
|
|
|
ARTICLE
III.
|
||
|
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
|
||
|
Section
3.01
|
Representations
and Warranties Relating to the Mortgage Loans.
|
|
|
Section
3.02
|
Originator
Representations and Warranties Relating to the Originator
|
|
|
Section
3.03
|
Obligor
Representations and Warranties Relating to the Obligor
|
|
|
Section
3.04
|
Seller
Trust Representations and Warranties
|
|
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Section
3.05
|
Remedies
For Breach of Representations And Warranties
|
|
|
ARTICLE
IV.
|
||
|
ORIGINATOR'S
COVENANTS
|
||
|
Section
4.01
|
Covenants
of The Originator
|
|
|
ARTICLE
V.
|
||
|
INDEMNIFICATION
WITH RESPECT TO THE MORTGAGE LOANS
|
||
|
Section
5.01
|
Indemnification.
|
|
|
ARTICLE
VI.
|
||
|
TERMINATION
|
||
|
Section
6.01
|
Termination
|
|
|
ARTICLE
VII.
|
||
|
MISCELLANEOUS
PROVISIONS
|
||
|
Section
7.01
|
Amendment
|
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Section
7.02
|
Governing
Law
|
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Section
7.03
|
Notices
|
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Section
7.04
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Severability
of Provisions
|
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Section
7.05
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Counterparts
|
|
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Section
7.06
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Further
Agreements
|
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Section
7.07
|
Intention
of The Parties
|
|
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Section
7.08
|
Successors
And Assigns, Assignment of Purchase Agreement
|
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Section
7.09
|
Survival
|
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Section
7.10
|
Owner
Trustee
|
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SCHEDULES
|
SCHEDULE
I
|
MORTGAGE
LOANS OWNED BY ORIGINATOR
|
|
SCHEDULE
II
|
MORTGAGE
LOANS OWNED BY OBLIGOR
|
|
SCHEDULE
III
|
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2001-1A
|
|
SCHEDULE
IV
|
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2001-2
|
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SCHEDULE
V
|
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2002-3
|
|
SCHEDULE
VI
|
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2003-4
|
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SCHEDULE
VII
|
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2003-5
|
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SCHEDULE
VIII
|
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2005-6
|
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SCHEDULE
IX
|
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2005-8
|
|
SCHEDULE
X
|
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2005-9
|
|
SCHEDULE
XI
|
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST
2007-5A
|
MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of April 11, 2007 (the “Agreement”), among
Option One Mortgage Corporation (the “Originator”), Option One Mortgage Capital
Corporation (the “Obligor”), Option One Owner Trust 2001-1A (“Seller Trust 1A”),
Option One Owner Trust 2001-2 (“Seller Trust 2”), Option One Owner Trust 2002-3
(“Seller Trust 3”), Option One Owner Trust 2003-4 (“Seller Trust 4”), Option One
Owner Trust 2003-5 (“Seller Trust 5”), Option One Owner Trust 2005-6 (“Seller
Trust 6”), Option One Owner Trust 2005-8 (“Seller Trust 8”), Option One Owner
Trust 2005-9 (“Seller Trust 9”) and Option One Owner Trust 2007-5A (“Seller
Trust 5A”; each of Seller Trust 1A, Seller Trust 2, Seller Trust 3, Seller Trust
4, Seller Trust 5, Seller Trust 6, Seller Trust 8, Seller Trust 9 and Seller
Trust 5A a “Seller Trust” and collectively the “Seller Trusts”) (the Originator,
the Obligor, each Seller Trust a “Seller” and collectively the “Sellers”) and
Option One Mortgage Acceptance Corporation (the “Purchaser”).
W
I T
N E S S E T H
WHEREAS,
each Seller is the owner of (a) the notes or other evidence of indebtedness
(the
“Mortgage Notes”) so indicated on the applicable Schedule hereto referred to
below and (b) the other documents or instruments constituting the Mortgage
File
(collectively, the “Mortgage Loans”); and
WHEREAS,
the Sellers, as of the date hereof, own the mortgages (the “Mortgages”) on the
properties (the “Mortgaged Properties”) securing such Mortgage Loans, including
rights to (a) any property acquired by foreclosure or deed in lieu of
foreclosure or otherwise and (b) the proceeds of any insurance policies
covering
the Mortgage Loans or the Mortgaged Properties or the obligors on the Mortgage
Loans; and
WHEREAS,
the parties hereto desire that the Sellers sell the Mortgage Loans to the
Purchaser pursuant to the terms of this Agreement; and
WHEREAS,
each Seller Trust is an indirect subsidiary of the Originator and the Originator
is the administrator of each Seller Trust; and
WHEREAS,
the Originator originated or acquired the Mortgage Loans and subsequently
sold
the Mortgage Loans to the applicable Seller Trust; and
WHEREAS,
pursuant to the terms of a Pooling and Servicing Agreement dated as of
April 1,
2007 (the “Pooling and Servicing Agreement”) among the Purchaser as depositor,
the Originator as servicer and Xxxxx Fargo Bank, N.A. as trustee (the
“Trustee”), the Purchaser will convey the Mortgage Loans to Option One Mortgage
Loan Trust 2007-4 (the “Trust”); and
WHEREAS,
each of the Originator and the Obligor is obligated, in connection with
the
transactions contemplated by this Agreement, to make certain representations,
warranties and covenants with respect to itself and the Mortgage Loans;
and
WHEREAS,
each Seller Trust is obligated, in connection with the transactions contemplated
by this Agreement, to make certain representations, warranties and covenants
with respect to itself.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I.
DEFINITIONS
Section
1.01 Definitions.
All
capitalized terms used but not defined herein and below shall have the
meanings
assigned thereto in the Pooling and Servicing Agreement.
“ORIGINATOR
INFORMATION”: The information in the Prospectus Supplement as follows: under
“SUMMARY OF TERMS—Mortgage Loans”, the first sentence under the fourth bullet
point under “RISK FACTORS—Unpredictability of Prepayments and Effect on Yields,”
the first two sentences under “RISK FACTORS— Delinquency Status of the Mortgage
Loans,” the first sentence under “RISK FACTORS—Second Lien Loan Risk”, the first
sentence under “RISK FACTORS—Interest Only Mortgage Loans”, the second sentence
under the third bullet point under “RISK FACTORS—Interest Generated by the
Mortgage Loans May Be Insufficient to Maintain Overcollateralization”, the
second sentence under “RISK FACTORS—High Loan-to-Value Ratios Increase Risk of
Loss”, the third sentence under “RISK FACTORS—Balloon Loan Risk”, the first two
sentences under “RISK FACTORS—Simultaneous Second Lien Risk”, “THE MORTGAGE
POOL”, “THE ORIGINATOR AND SPONSOR”, and the first sentence of the seventh
paragraph under “YIELD,
PREPAYMENT AND MATURITY CONSIDERATIONS”.
ARTICLE
II.
SALE
OF
MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section
2.01 Sale
of Mortgage Loans.
The
applicable Seller, concurrently with the execution and delivery of this
Agreement, does hereby sell, and in connection therewith hereby assigns
to the
Purchaser, effective as of the Closing Date, without recourse, (i) all
of its
right, title and interest in and to each Mortgage Loan identified on the
related
Schedule, including the related Cut-off Date Principal Balance, all interest
accruing thereon on and after the Cut-off Date and all collections in respect
of
interest and principal due after the Cut-off Date; (ii) property which
secured
such Mortgage Loan and which has been acquired by foreclosure or deed in
lieu of
foreclosure; (iii) its interest in any insurance policies in respect of
the
Mortgage Loans and (iv) all proceeds of any of the foregoing. In addition
to the
sale of the Mortgage Loans, the Originator will direct the Trustee to enter
into
the Interest Rate Swap Agreement and Swap Administration Agreement on behalf
of
the Trust.
Section
2.02 Obligations
of the Originator Upon Sale.
In
connection with any transfer pursuant to Section 2.01 hereof, the Originator
further agrees, at its own expense on or prior to the Closing Date, (a)
to cause
its books and records and the books and records of each Seller Trust, to
indicate that the Mortgage Loans have been sold to the Purchaser pursuant
to
this Agreement and (b) to deliver to the Purchaser and the Trustee a computer
file containing a true and complete list of all such Mortgage Loans specifying
for each such Mortgage Loan, as of the Cut-off Date (i) its account number
and
(ii) the Cut-off Date Principal Balance. Such files, which form a part
of
Exhibit D to the Pooling and Servicing Agreement, shall also be marked
as
Schedules I-XI to this Agreement and are hereby incorporated into and made
a
part of this Agreement.
In
connection with any conveyance by the Sellers, the Originator shall on
behalf of
the Purchaser deliver to, and deposit with the Trustee, as assignee of
the
Purchaser, on or before the Closing Date, the following documents or instruments
with respect to each Mortgage Loan:
(i) the
original Mortgage Note, endorsed either (A) in blank, in which case the
Trustee
shall cause the endorsement to be completed or (B) in the following form:
“Pay
to the order of Xxxxx Fargo Bank, N.A., as Trustee, without recourse”, or with
respect to any lost Mortgage Note, an original Lost Note Affidavit stating
that
the original mortgage note was lost, misplaced or destroyed, together with
a
copy of the related mortgage note; provided,
however,
that
such substitutions of Lost Note Affidavits for original Mortgage Notes
may occur
only with respect to Mortgage Loans, the aggregate Cut-off Date Principal
Balance of which is less than or equal to 1.00% of the Pool Balance as
of the
Cut-off Date;
(ii) the
original Mortgage with evidence of recording thereon, and the original
recorded
power of attorney, if the Mortgage was executed pursuant to a power of
attorney,
with evidence of recording thereon;
(iii) an
original Assignment of Mortgage, in form and substance acceptable for recording.
The Mortgage shall be assigned either (A) in blank or (B) to “Xxxxx Fargo Bank,
N.A., as Trustee, without recourse”;
(iv) an
original of any intervening assignment of Mortgage showing a complete chain
of
assignments;
(v) the
original or a certified copy of lender's title insurance policy;
and
(vi) the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any.
The
Originator hereby confirms to the Purchaser and the Trustee that it has
caused
the appropriate entries to be made in its general accounting records to
indicate
that such Mortgage Loans have been transferred to the Trustee and constitute
part of the Trust in accordance with the terms of the Pooling and Servicing
Agreement.
If
any of
the documents referred to in Section 2.02(ii), (iii) or (iv) above has
as of the
Closing Date been submitted for recording but either (x) has not been returned
from the applicable public recording office or (y) has been lost or such
public
recording office has retained the original of such document, the obligations
of
the Originator to deliver such documents shall be deemed to be satisfied
upon
(1) delivery to the Trustee or the Custodian no later than the Closing
Date, of
a copy of each such document certified by the Originator in the case of
(x)
above or the applicable public recording office in the case of (y) above
to be a
true and complete copy of the original that was submitted for recording
and (2)
if such copy is certified by the Originator, delivery to the Trustee or
the
Custodian, promptly upon receipt thereof of either the original or a copy
of
such document certified by the applicable public recording office to be
a true
and complete copy of the original. If the original lender's title insurance
policy, or a certified copy thereof, was not delivered pursuant to Section
2.02(v) above, the Originator shall deliver or cause to be delivered to
the
Trustee or the Custodian, the original or a copy of a written commitment
or
interim binder or preliminary report of title issued by the title insurance
or
escrow company, with the original or a certified copy thereof to be delivered
to
the Trustee or the Custodian, promptly upon receipt thereof. The Originator
shall deliver or cause to be delivered to the Trustee or the Custodian
promptly
upon receipt thereof any other documents constituting a part of a Mortgage
File
received with respect to any Mortgage Loan, including, but not limited
to, any
original documents evidencing an assumption or modification of any Mortgage
Loan.
Upon
discovery or receipt of notice of any materially defective document in,
or that
a document is missing from, a Mortgage File, the Originator shall have
120 days
to cure such defect or deliver such missing document to the Purchaser.
If the
Originator does not cure such defect or deliver such missing document within
such time period, the Obligor shall either repurchase or substitute for
such
Mortgage Loan pursuant to Section 2.03 of the Pooling and Servicing
Agreement.
The
Purchaser hereby acknowledges its acceptance of all right, title and interest
to
the Mortgage Loans and other property, now existing and hereafter created,
conveyed to it pursuant to Section 2.01.
The
parties hereto intend that the transaction set forth herein be a sale by
the
Sellers to the Purchaser of all the applicable Seller’s right, title and
interest in and to the related Mortgage Loans and other property described
above. In the event the transaction set forth herein is deemed not to be
a sale,
each Seller hereby grants to the Purchaser a security interest in all of
such
Seller's right, title and interest in, to and under the related Mortgage
Loans
and other property described above, whether now existing or hereafter created,
to secure all of such Seller's obligations hereunder; and this Agreement
shall
constitute a security agreement under applicable law.
The
Originator shall cause the Assignments which were delivered in blank to
be
completed and shall cause all Assignments referred to in Section 2.02(iii)
hereof and, to the extent necessary, in Section 2.02(iv) hereof to be recorded.
The Originator shall be required to deliver such Assignments for recording
within 90 days of the Closing Date. Notwithstanding the foregoing, however,
for
administrative convenience and facilitation of servicing and to reduce
closing
costs, the Assignments of Mortgage shall not be required to be submitted
for
recording with respect to any Mortgage Loan in any jurisdiction where the
Rating
Agencies do not require recordation in order to receive the ratings on
the
Certificates at the time of their initial issuance; provided,
however,
each
Assignment shall be submitted for recording by the Originator in the manner
described above, at no expense to the Trust Fund or Trustee, upon the earliest
to occur of: (i) reasonable direction by Holders of Certificates entitled
to at
least 25% of the Voting Rights, or the NIMS Insurer, (ii) the occurrence
of a
Servicer Event of Termination, (iii) the occurrence of a bankruptcy, insolvency
or foreclosure relating to the Servicer, (iv) the occurrence of a servicing
transfer as described in Section 7.02 of the Pooling and Servicing Agreement,
(v) if the Originator is not the Servicer and with respect to any one Assignment
the occurrence of a bankruptcy, insolvency or foreclosure relating to the
Mortgagor under the related Mortgage and (vi) any Mortgage Loan that is
90 days
or more Delinquent and such recordation would be necessary to facilitate
conversion of the Mortgaged Property as provided herein. Upon (a) receipt
of
written notice from the Trustee that recording of the Assignments is required
pursuant to one or more of the conditions (excluding (v) and (vi) above)
set
forth in the preceding sentence or (b) upon the occurrence of condition
(v) or
(vi) in the preceding sentence, the Originator shall be required to deliver
such
Assignments for recording as provided above, promptly and in any event
within 30
days following receipt of such notice. Notwithstanding the foregoing, if
the
Originator fails to pay the cost of recording the Assignments, such expense
will
be paid by the Trustee and the Trustee shall be reimbursed for such expenses
by
the Trust. The Originator shall furnish the Trustee, or its designated
agent,
with a copy of each Assignment submitted for recording. In the event that
any
such Assignment is lost or returned unrecorded because of a defect therein,
the
Originator shall promptly have a substitute Assignment prepared or have
such
defect cured, as the case may be, and thereafter cause each such Assignment
to
be duly recorded.
The
Originator shall forward to the Purchaser original documents evidencing
an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with the Pooling and Servicing Agreement within
two
weeks of their execution; provided,
however,
that
the Originator shall provide the Purchaser with a certified true copy of
any
such document submitted for recordation within two weeks of its execution,
and
shall provide the original of any document submitted for recordation or
a copy
of such document certified by the appropriate public recording office to
be a
true and complete copy of the original within 365 days of its submission
for
recordation. In the event that the Originator cannot provide a copy of
such
document certified by the public recording office within such 365 day period,
the Originator shall deliver to the Purchaser, within such 365 day period,
an
Officer's Certificate of the Servicer which shall (A) identify the recorded
document, (B) state that the recorded document has not been delivered to
the
Purchaser due solely to a delay caused by the public recording office,
(C) state
the amount of time generally required by the applicable recording office
to
record and return a document submitted for recordation, if known, and (D)
specify the date the applicable recorded document is expected to be delivered
to
the Purchaser, and, upon receipt of a copy of such document certified by
the
public recording office, the Originator shall immediately deliver such
document
to the Purchaser. In the event the appropriate public recording office
will not
certify as to the accuracy of such document, the Originator shall deliver
a copy
of such document certified by an officer of the Originator to be a true
and
complete copy of the original to the Purchaser.
Section
2.03 Payment
of Purchase Price for the Mortgage Loans.
(a) In
consideration of the sale of the Mortgage Loans from each Seller to the
Purchaser on the Closing Date, the Purchaser agrees to pay each Seller
on the
Closing Date by transfer of (i) immediately available funds in the amount
set
forth below and (ii) a percentage interest, as specified below, in the
Class C
Certificates, the Class P Certificates and the Residual Certificates
(collectively, the “Retained Certificates”) which such Certificates shall be
registered in the name of the applicable Seller or a designee.
|
Seller
|
Cash
Consideration
|
Percentage
Interest in
Retained
Certificates
|
||||
|
Originator
|
$
|
0.00
|
0%
|
|||
|
Obligor
|
$
|
21,594,904.97
|
2%
|
|||
|
2001-1A
|
$
|
211,049,872.13
|
18%
|
|||
|
2001-2
|
$
|
105,610,727.37
|
9%
|
|||
|
2002-3
|
$
|
124,629,677.69
|
11%
|
|||
|
2003-4
|
$
|
105,668,897.90
|
9%
|
|||
|
2003-5
|
$
|
4,200,611.04
|
0%
|
|||
|
2005-6
|
$
|
180,474,294.34
|
16%
|
|||
|
2005-8
|
$
|
195,552,913.85
|
17%
|
|||
|
2005-9
|
$
|
115,850,180.24
|
10%
|
|||
|
2007-5A
|
$
|
96,074,060.26
|
8%
|
|||
(b) The
Originator shall pay, and be billed directly for, all expenses incurred
by the
Purchaser in connection with the issuance of the Certificates, including,
without limitation, printing fees incurred in connection with the prospectus
relating to the Certificates, blue sky registration fees and expenses,
fees and
expenses of Purchaser’s counsel, fees of the Rating Agencies requested to rate
the Certificates, accountant’s fees and expenses and the fees and expenses of
the Trustee and other out-of-pocket costs, if any.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01 Representations
and Warranties Relating to the Mortgage Loans.
(a) The
Originator and the Obligor jointly and severally hereby represent and warrant
to
the Purchaser with respect to the Mortgage Loans that as of the Closing
Date or
as of such date specifically provided herein:
(1) The
applicable Seller has good title to and is the sole owner and holder of
the
related Mortgage Loans;
(2) Immediately
prior to the transfer and assignment to the Purchaser, the Mortgage Notes
and
the Mortgage Loans were not subject to an assignment or pledge, and the
applicable Seller has full right and authority to sell and assign the related
Mortgage Loans;
(3) The
applicable Seller is transferring the related Mortgage Loan to the Purchaser
free and clear of any and all liens, pledges, charges or security interests
of
any nature encumbering the Mortgage Loans;
(4) The
information set forth on each Schedule is true and correct in all material
respects as of the Cut-off Date or such other date as may be indicated
in such
schedule;
(5) The
Mortgage Loan has been acquired, serviced, collected and otherwise dealt
with by
the Originator and any affiliate of the Originator in compliance with all
applicable federal, state and local laws and regulations and the terms
of the
related Mortgage Note and Mortgage;
(6) The
related Mortgage Note and Mortgage are genuine and each is the legal, valid
and
binding obligation of the maker thereof, enforceable in accordance with
its
terms except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general equity principles (regardless of whether
such
enforcement is considered in a proceeding in equity or at law);
(7) The
related Mortgage is a valid and enforceable first or second lien on the
related
Mortgaged Property, which Mortgaged Property is free and clear of all
encumbrances and liens (including mechanics liens) having priority over
the
first or second lien of the Mortgage except for: (i) liens for real estate
taxes
and assessments not yet due and payable; (ii) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of
the date of recording of such Mortgage, such exceptions appearing of record
being acceptable to mortgage lending institutions generally or specifically
reflected or considered in the lender's title insurance policy delivered
to the
originator of the Mortgage Loan and referred to in the appraisal made in
connection with the origination of the related Mortgage Loan, (iii) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by
such
Mortgage and (iv) the first lien on the Mortgaged Property, in the case
of the
Mortgages that are second liens;
(8) Any
security agreement, chattel mortgage or equivalent document related to
such
Mortgage Loan establishes and creates a valid and enforceable first or
second
lien on the Mortgaged Property;
(9) As
of the
last calendar day of March 2007, none of the Mortgage Loans are Delinquent.
(10) None
of
the Originator, the Obligor or any Seller Trust has advanced funds, or
induced,
solicited or knowingly received any advance of funds by a party other than
the
Mortgagor, directly or indirectly, for the payment of any amount required
under
the Mortgage Loan;
(11) None
of
the Originator, the Obligor or any Seller Trust has impaired, waived, altered
or
modified the related Mortgage or Mortgage Note in any material respect,
or
satisfied, canceled, rescinded or subordinated such Mortgage or Mortgage
Note in
whole or in part or released all or any material portion of the Mortgaged
Property from the lien of the Mortgage, or executed any instrument of release,
cancellation, rescission or satisfaction of the Mortgage Note or
Mortgage;
(12) As
of the
Cut-off Date, the Mortgage has not been satisfied, canceled or subordinated,
in
whole or in part, or rescinded, and the Mortgaged Property has not been
released
from the lien of the Mortgage, in whole or in part (except for a release
that
does not materially impair the security of the Mortgage Loan or a release
the
effect of which is reflected in the Loan-to-Value Ratio or combined
Loan-to-Value Ratio for the Mortgage Loan as set forth in the Schedule
of
Mortgage Loans), nor has any instrument been executed that would effect
any such
release, cancellation, subordination or rescission;
(13) No
Mortgage Loan is subject to any right of rescission, set-off, counterclaim
or
defense, including the defense of usury, nor will the operation of any
of the
terms of any Mortgage Note or Mortgage, or the exercise of any right thereunder,
render either the Mortgage Note or Mortgage unenforceable in whole or in
part,
or subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto;
(14) To
the
Originator’s knowledge, there is no proceeding pending for the total or partial
condemnation and no eminent domain proceedings pending affecting any Mortgaged
Property;
(15) Each
Mortgage Loan is covered by either (i) a mortgage title insurance policy
or
other generally acceptable form of insurance policy customary in the
jurisdiction where the Mortgaged Property is located together with an adjustable
rate rider if applicable or (ii) if generally acceptable in the jurisdiction
where the Mortgaged Property is located, an attorney's opinion of title
given by
an attorney licensed to practice law in the jurisdiction where the Mortgaged
Property is located. All of the Originator's rights under such policies,
opinions or other instruments shall be transferred and assigned to Purchaser
upon sale and assignment of the Mortgage Loans hereunder. The title insurance
policy has been issued by a title insurer licensed to do business in the
jurisdiction where the Mortgaged Property is located, insuring the original
lender, its successor and assigns, as to the first or second priority lien
of
the Mortgage in the original principal amount of the Mortgage Loan, subject
to
the exceptions contained in such policy. The Originator is the sole insured
of
such mortgagee title insurance policy, and such mortgagee title insurance
policy
is in full force and effect and will be in force and effect upon the
consummation of the transactions contemplated by this Agreement. Neither
the
Originator nor any affiliate of the Originator has made, and the Originator
has
no knowledge of, any claims under such mortgagee title insurance policy.
The
Originator is not aware of any action by a prior holder and neither the
Originator nor any affiliate of the Originator has done, by act or omission,
anything which could impair the coverage or enforceability of such mortgagee
title insurance policy or the accuracy of such attorney's opinion of
title;
(16) There
is
no material default, breach, violation or event of acceleration existing
under
the related Mortgage or the related Mortgage Note and no event which, with
the
passage of time or with notice and the expiration of any grace or cure
period,
would constitute a material default, breach, violation or event of acceleration,
other than a payment delinquency that is for a payment due after the date
specified in (i) above. None of the Originator, the Obligor, any Seller
Trust or
any affiliate of the Originator or any Seller Trust has waived any default,
breach, violation or event of acceleration;
(17) With
respect to any Mortgage Loan which provides for an adjustable interest
rate, all
rate adjustments have been performed in accordance with the terms of the
related
Mortgage Note or subsequent modifications, if any;
(18) To
the
Originator’s knowledge, there are no delinquent taxes, ground rents, water
charges, sewer rents, assessments, insurance premiums, leasehold payments,
including assessments payable in future installments or other outstanding
charges, affecting the related Mortgaged Property;
(19) As
of the
Cut-off Date, no foreclosure proceedings are pending against the Mortgaged
Property and the Mortgage Loan is not subject to any pending bankruptcy
or
insolvency proceeding, and to the Originator’s best knowledge, no material
litigation or lawsuit relating to the Mortgage Loan is pending;
(20) The
Mortgaged Property for each Mortgage Loan is insured under a hazard insurance
policy (“Hazard Insurance”) in an amount at least equal to the lesser of (i) the
maximum insurable value of such improvements or (ii) the principal balance
of
the Mortgage Loan with a standard mortgagee clause, in either case in an
amount
sufficient to avoid the application of any “co-insurance provisions,” and, if it
was in place at origination of the Mortgage Loan, flood insurance, at the
mortgagor's cost and expense. If the Mortgaged Property is in an area identified
in the Federal Register by the Federal Emergency Management Agency (“FEMA”) as
having special flood hazards, a flood insurance policy is in effect which
met
the requirements of FEMA at the time such policy was issued. The Mortgage
obligates the Mortgagor to maintain the Hazard Insurance, and, if applicable,
flood insurance policy at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
obtain
and maintain such insurance at the Mortgagor's cost and expense, and to
seek
reimbursement therefor from the Mortgagor;
(21) The
Mortgage Note is not and has not been secured by any collateral except
the lien
of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage;
(22) The
Mortgage contains an enforceable provision for the acceleration of the
payment
of the unpaid principal balance of the Mortgage Loan in the event that
the
Mortgaged Property is sold or transferred without the prior written consent
of
the Mortgagee thereunder. The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of
the security provided thereby, including (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale and (ii) otherwise by
judicial
foreclosure. Since the date of origination of the Mortgage Loan, the Mortgaged
Property has not been subject to any bankruptcy proceeding or foreclosure
proceeding and the Mortgagor has not filed for protection under applicable
bankruptcy laws. There is no homestead or other exemption available to
the
Mortgagor that would interfere with the right to sell the Mortgaged Property
at
a trustee's sale or the right to foreclose the Mortgage. In the event the
Mortgage constitutes a deed of trust, a trustee, duly qualified under applicable
law to serve as such, as been properly designated and currently so serves
and is
named in the Mortgage, and no fees or expenses are or will become payable
by
Purchaser to the trustee under the deed of trust, except in connection
with a
trustee's sale after default by the related Mortgagor. The Mortgagor has
not
notified the Originator or any affiliate of the Originator and the Originator
has no knowledge of any relief requested or allowed to the Mortgagor under
the
Servicemembers Civil Relief Act;
(23) Except
as
set forth in the appraisal which forms part of the related Mortgage File,
the
Mortgaged Property, normal wear and tear excepted, is undamaged by waste,
fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty
so as
to affect materially and adversely the value of the Mortgaged Property
as
security for the Mortgage Loan or the use for which the premises were
intended;
(24) To
the
Originator’s knowledge, there was no fraud involved in the origination of the
Mortgage Loan by the mortgagee or by the Mortgagor, any appraiser or any
other
party involved in the origination of the Mortgage Loan;
(25) Each
Mortgage File contains an appraisal of the Mortgaged Property indicating
the
appraised value at the time of origination for such Mortgaged Property.
Each
appraisal has been performed in accordance with the provisions of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989;
(26) To
the
best of the Originator’s knowledge, all parties which have had any interest in
the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise,
are
(or, during the period in which they held and disposed of such interest,
were)
in compliance with any and all applicable “doing business” and licensing
requirements of the laws of the state wherein the Mortgaged Property is
located;
(27) No
improvements on the related Mortgaged Property (upon which value was given)
encroach on adjoining properties (and in the case of a condominium unit,
such
improvements are within the project with respect to that unit), and no
improvements on adjoining properties encroach upon the Mortgaged Property
unless
there exists in the Mortgage File a title Policy with endorsements which
insure
against losses sustained by the insured as a result of such
encroachments;
(28) Each
Mortgage Loan was originated or acquired by a savings and loan association,
a
savings bank, a commercial bank or similar banking institution which is
supervised and examined by a federal or state authority, or by a mortgagee
approved by the Secretary of HUD. Each Mortgage Loan was originated
substantially in accordance with the Originator's underwriting criteria,
which
are at least as stringent as the underwriting criteria set forth in the
Prospectus Supplement. Each Mortgage Loan is currently being serviced by
the
Originator and has been serviced by the Originator since the date of origination
of such Mortgage Loan;
(29) (i)
Except with respect to the interest only mortgage loans, principal payments
on
the Mortgage Loan commenced no more than two months after the proceeds
of the
Mortgage Loan were disbursed and (ii) each Mortgage Note is payable on
the first
day of each month;
(30) The
Mortgage Loan bears interest at the Mortgage Rate and the Mortgage Note
does not
permit negative amortization. No Mortgage Loan bearing interest at an adjustable
rate permits the Mortgagor to convert the Mortgage Loan to a fixed rate
Mortgage
Loan;
(31) With
respect to escrow deposits, if any, all such payments are in the possession
of,
or under the control of, the Servicer and there exist no deficiencies in
connection therewith for which customary arrangements for repayment thereof
have
not been made. No escrow deposits or escrow advances or other charges or
payments due the Servicer have been capitalized under any Mortgage or the
related Mortgage Note;
(32) No
Mortgage Loan contains provisions pursuant to which scheduled payments
are: (i)
paid or partially paid with funds deposited in any separate account established
by the Originator, the related Seller Trust, the Mortgagor, or anyone on
behalf
of the Mortgagor; or (ii) paid by any source other than the Mortgagor or
contains any other similar provisions which may constitute a “buydown”
provision. The Mortgage Loan is not a graduated payment mortgage loan and
the
Mortgage Loan does not have a shared appreciation or other contingent interest
feature;
(33) As
of the
origination date of each Mortgage Loan, the related Mortgaged Property
is
lawfully permitted to be occupied under applicable law;
(34) Except
as
disclosed in the Prospectus Supplement, there are no proceedings or
investigations pending, with respect to servicing, collection or notification
practices and with respect to origination practices, violating any law
in
connection with any Mortgage Loan transferred to the Purchaser pursuant
to this
Agreement, including, without limitation, usury, truth in lending, real
estate
settlement procedures, consumer credit protection, equal credit opportunity
or
disclosure laws. The Mortgage Loan has been serviced in accordance with
the
terms of the Mortgage Note.
(35) No
Mortgage Loan was made in connection with (a) the construction or rehabilitation
of a Mortgaged Property or (b) facilitating the trade-in or exchange of
a
Mortgaged Property;
(36) The
proceeds of the Mortgage Loan have been fully disbursed to or for the account
of
the Mortgagor and there is no obligation for the Mortgagee to advance additional
funds thereunder, and any and all requirements as to completion of any
on-site
or off-site improvement and as to disbursements of any escrow funds therefor
have been complied with. All costs, fees and expenses incurred in making
or
closing the Mortgage Loan and the recording of the Mortgage have been paid,
and
the Mortgagor is not entitled to any refund of any amounts paid or due
to the
Mortgagee pursuant to the Mortgage Note or Mortgage;
(37) There
are
no mechanics' or similar liens or claims that have been filed for work,
labor or
material (and no rights are outstanding that under law could give rise
to such
lien) affecting the related Mortgaged Property that are or may be liens
prior
to, or equal or coordinate with, the lien of the related Mortgage;
(38) As
to
each Mortgage Loan, interest is calculated on the Mortgage Note on the
basis of
twelve 30-day months and a 360 day year;
(39) The
Mortgaged Property consists of one of the following: detached or semi-detached
one- to four-family dwelling units, townhouses, individual condominium
units and
individual units in planned unit developments, or manufactured homes treated
as
real property under local law;
(40) The
Mortgage Loans were not intentionally selected by the related Seller in
a manner
intended to adversely affect the Purchaser or the Trust;
(41) [Reserved];
(42) The
Mortgage Loans have original terms to maturity ranging from 10 to 30
years;
(43) As
of the
Cut-off Date; each Mortgage Loan, including any Mortgage Loan seasoned
more than
12 months as of the Cut-off Date, had a loan-to-value-ratio that was less
than
or equal to 100%;
(44) With
respect to each Mortgage Loan, the Mortgage Note related thereto bears
a fixed
Mortgage Rate or an adjustable Mortgage Rate which will be adjusted on
each
Adjustment Date to equal the Index plus the Gross Margin, rounded to the
nearest
or next highest 0.125%, subject to the Periodic Rate Cap, the Maximum Mortgage
Rate and the Minimum Mortgage Rate;
(45) No
Mortgage Loan underlying the security is covered by the Home Ownership
and
Equity Protection Act of 1994 (“HOEPA”) and no mortgage loan is in violation of
any comparable state law;
(46) Each
Mortgage Loan conforms, and all Mortgage Loans in the aggregate conform,
in all
material respects, to the description thereof set forth in the Prospectus
Supplement;
(47) With
respect to second lien Mortgage Loans, either (a) no consent for the Mortgage
Loan is required by the holder of the related first lien or (b) such consent
has
been obtained and is contained in the Mortgage File;
(48) Each
Mortgage Note is comprised of one original promissory note and each such
promissory note constitutes an “instrument” for purposes of section 9-102(a)(65)
of the UCC;
(49) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act;
(50) Each
Mortgage Loan was originated in compliance with all applicable local, state
and
federal laws, including, but not limited to, all applicable anti-predatory
and
anti-abusive lending laws;
(51) None
of
the Mortgage Loans are High Cost as defined by the applicable predatory
and
abusive lending laws;
(52) No
Mortgage Loan is a high cost loan or a covered loan, as applicable (as
such
terms are defined in the then current Standard & Poor’s LEVELS Glossary
which is now Version 5.7, Appendix E);
(53) Each
Mortgage Loan is a “qualified mortgage” under Section 860G(a)(3);
and
(54) No
mortgage loan in the trust is a “high cost home,” “covered” (excluding home
loans defined as “covered home loans” in the New Jersey Home Ownership Security
Act of 2002 that were originated between November 26, 2003 and July 7,
2004),
“high risk home” or “predatory” loan under any other applicable state, federal
or local law (or a similarly classified loan using different terminology
under a
law imposing heightened regulatory scrutiny or additional legal liability
for
residential mortgage loans having high interest rates, points and/or
fees).
(55) The
Mortgaged Property is either a fee simple estate or a long-term residential
lease. If the Mortgage Loan is secured by a long-term residential lease,
unless
otherwise specifically disclosed in the Mortgage Loan Schedule, (A) the
terms of
such lease expressly permit the mortgaging of the leasehold estate, the
assignment of the lease without the lessor’s consent (or the lessor’s consent
has been obtained and such consent is the Mortgage File) and the acquisition
by
the holder of the Mortgage of the rights of the lessee upon foreclosure
or
assignment in lieu of foreclosure or provide the holder of the Mortgage
with
substantially similar protection; (B) the terms of such lease do not (x)
allow
the termination thereof upon the lessee’s default without the holder of the
Mortgage being entitled to receive written notice of, and opportunity to
cure,
such default or (y) prohibit the holder of the Mortgage from being insured
under
the hazard insurance policy relating to the Mortgaged Property; (C) the
original
term of such lease is not less than 15 years; (D) the term of such lease
does
not terminate earlier than ten years after the maturity date of the Mortgage
Note; and (E) the Mortgaged Property is located in a jurisdiction in which
the
use of leasehold estates for residential properties is an accepted
practice;
(56) [Reserved].
(57) Each
mortgage loan and the prepayment penalty associated with the mortgage loan
at
the time it was made complied in all material respects with applicable
local,
state and federal laws, including, but not limited to, all applicable predatory
and abusive lending laws.
(b) The
Originator and Obligor hereby represents and warrants to the Purchaser,
with
respect to the Group I Mortgage Loans as of the Closing Date or as of such
date
specifically provided herein:
(1) Each
Group I Mortgage Loan had a Principal Balance at origination which conformed
with Xxxxxxx Mac guidelines;
(2) Each
Group I Mortgage Loan in the trust at the time it was made complied in
all
material respects with applicable local, state, and federal laws, including,
but
not limited to, all applicable predatory, abusive and fair lending
laws;
(3) No
refinance or purchase money mortgage loan in the trust that is secured
by the
borrower’s principal residence has an APR or total points and fees that exceed
the thresholds set by the Home Ownership and Equity Protection Act of 1994
(“HOEPA”) and its implementing regulations, including 12 CFR § 226.32(a)(1)(i)
and (ii). This requirement does not apply to home equity lines of credit
(HELOCs) but does apply to other second mortgage loans;
(4) There
is
no Group I Mortgage Loan in the trust that was originated on or after October
1,
2002 and before March 7, 2003, which is governed by the Georgia Fair Lending
Act;
(5) No
Group
I Mortgage Loan in the trust is a “high cost home,” “covered” (excluding home
loans defined as “covered home loans” in the New Jersey Home Ownership Security
Act of 2002 that were originated between November 26, 2003 and July 7,
2004),
“high risk home” or “predatory” loan under any other applicable state, federal
or local law (or a similarly classified loan using different terminology
under a
law imposing heightened regulatory scrutiny or additional legal liability
for
residential mortgage loans having high interest rates, points and/or
fees);
(6) With
respect to each Group I Mortgage Loan underlying the security, no borrower
obtained a prepaid single-premium credit-life, credit disability, credit
unemployment or credit property insurance policy in connection with the
origination of the mortgage loan;
(7) With
respect to any Group I Mortgage Loan underlying the security that contains
a
provision permitting imposition of a penalty upon a prepayment prior to
maturity: (a) the mortgage loan provides some benefit to the borrower (e.g.,
a
rate or fee reduction) in exchange for accepting such prepayment penalty;
(b)
the mortgage loan’s originator had a written policy of offering the borrower, or
requiring third-party brokers to offer the borrower, the option of obtaining
a
mortgage loan that did not require payment of such a penalty; (c) the prepayment
penalty was adequately disclosed to the borrower pursuant to applicable
state
and federal law; (d) no subprime loan originated on or after October 1,
2002
underlying the security will provide for prepayment penalties for a term
in
excess of three years and any loans originated prior to such date, and
any
non-subprime loans, will not provide for prepayment penalties for a term
in
excess of five years; unless the loan was modified to reduce the prepayment
period to no more than three years (in the case of subprime loans) or five
years
(in the case of non-subprime loans) from the date of the note and the borrower
was notified in writing of such reduction in prepayment period; and (e)
such
prepayment penalty shall not be imposed in any instance where the mortgage
loan
is accelerated or paid off in connection with the workout of a delinquent
mortgage or due to the borrower’s default, notwithstanding that the terms of the
mortgage loan or state or federal law might permit the imposition of such
penalty;
(8) The
servicer for each Group I Mortgage Loan underlying the security has fully
furnished accurate and complete information (i.e., favorable and unfavorable)
on
its borrower credit files to Equifax, Experian, and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis
and
in accordance with the Fair Credit Reporting Act and its implementing
regulations;
(9) The
servicer for each Group I Mortgage Loan underlying the security will fully
furnish accurate and complete information (i.e., favorable and unfavorable)
on
its borrower credit files to Equifax, Experian, and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis
and
in accordance with the Fair Credit Reporting Act and its implementing
regulations;
(10) With
respect to each Group I Mortgage Loan underlying the security, the borrower
was
not encouraged or required to select a mortgage loan product offered by
the
mortgage loan’s originator which is a higher cost product designed for less
creditworthy borrowers, taking into account such facts as, without limitation,
the mortgage loan’s requirements and the borrower’s credit history, income,
assets and liabilities. For a borrower who seeks financing through a mortgage
loan originator’s higher-priced subprime lending channel, the borrower should be
directed towards or offered the mortgage loan originator’s standard mortgage
line if the borrower is able to qualify for one of the standard
products;
(11) The
methodology used in underwriting the extension of credit for each Group
I
Mortgage Loan in the trust did not rely solely on the extent of the borrower’s
equity in the collateral as the principal determining factor in approving
such
extension of credit. The methodology employed objective criteria such as
the
borrower’s income, assets and liabilities to the proposed mortgage payment and,
based on such methodology, the mortgage loan’s originator made a reasonable
determination that at the time of origination the borrower had the ability
to
make timely payments on the mortgage loan;
(12) No
borrower under a Group I Mortgage Loan in the trust that is secured by
the
borrower’s principal residence was charged points and fees in an amount greater
than (a) $1,000 or (b) 5% of the principal amount of such mortgage loan,
whichever is greater. For purposes of this representation, “points and fees” (x)
include origination, underwriting, broker and finder’s fees and charges that the
lender imposed as a condition of making the mortgage loan, whether they
are paid
to the lender or a third party; and (y) exclude bona fide discount points,
fees
paid for actual services rendered in connection with the origination of
the
mortgage (such as attorneys’ fees, notaries fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood
and
tax certifications, and home inspections); the cost of mortgage insurance
or
credit-risk price adjustments; the costs of title, hazard, and flood insurance
policies; state and local transfer taxes or fees; escrow deposits for the
future
payment of taxes and insurance premiums; and other miscellaneous fees and
charges, which miscellaneous fee and charges, in total, do not exceed 0.25
percent of the loan amount;
(13) With
respect to any Group I Mortgage Loan originated on or after August 1, 2004
and
underlying the security, neither the related mortgage nor the related mortgage
note requires the borrower to submit to arbitration to resolve any dispute
arising out of or relating in any way to the mortgage loan
transaction;
(14) The
Group
I Mortgage Loans underlying the security are exclusively secured by
single-family (1-4 unit) residential housing. None of the Group I Mortgage
Loans
are on multifamily, commercial, industrial, agricultural or undeveloped
property, or on any property located anywhere except the continental United
States, Alaska, Hawaii, Puerto Rico, the Virgin Islands or Guam.
(15) No
manufactured housing units underlie the security;
(16) None
of
the Group I Mortgage Loans are a condominium unit that is part of a condominium
development that operates as, or holds itself out to be, a condominium
hotel
(“condotel”). No such unit can back our security, regardless of whether the unit
itself is being used as a condotel unit.
(17) The
original principal balance of each Group I Mortgage Loan underlying the
security
must be within Xxxxxxx Mac’s dollar amount limits for conforming
one-to-four-family mortgage loans;
(18) No
first
lien Group I Mortgage Loan underlying the security has an original principal
balance that exceeds the applicable Xxxxxxx Mac loan limit;
(19) With
respect to any subordinate lien Group I Mortgage Loan underlying the security,
such lien is on a one- to four-family residence that is the principal residence
of the borrower;
(20) No
subordinate lien Group I Mortgage Loan underlying the security has an original
principal balance that exceeds one-half of the one-unit
limitation for first lien mortgage loans, i.e., $208,500 (in Alaska, Guam,
Hawaii or Virgin Islands: $312,750), without regard to the number of
units;
(21) The
original principal balance of the first lien Group I Mortgage Loan plus
the
original principal balance of any subordinate lien mortgage loans relating
to
the same mortgaged property does not exceed the applicable Xxxxxxx Mac
loan
limit for first lien mortgage loans for that property type; and
(22) No
Group
I Mortgage Loan underlying the security is “seasoned”.
Section
3.02 Originator
Representations and Warranties Relating to the Originator.
The
Originator represents, warrants and covenants to the Purchaser as of the
Closing
Date or as of such other date specifically provided herein or in the applicable
Assignment and Conveyance:
(i) The
Originator is duly organized, validly existing and in good standing as
a
corporation under the laws of the State of California and is and will remain
in
compliance with the laws of each state in which any Mortgaged Property
is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan in accordance with the terms of this Agreement;
(ii) The
Originator has the full power and authority to execute, deliver and perform,
and
to enter into and consummate, all transactions contemplated by this Agreement.
The Originator has duly authorized the execution, delivery and performance
of
this Agreement, has duly executed and delivered this Agreement and this
Agreement, assuming due authorization, execution and delivery by the Purchaser
and the related Seller, constitutes a legal, valid and binding obligation
of the
Originator, enforceable against it in accordance with its terms except
as the
enforceability thereof may be limited by bankruptcy, insolvency or
reorganization. At the time of the sale of each Mortgage Loan by the Originator,
the Originator had the full power and authority to hold each Mortgage Loan
and
to sell each Mortgage Loan;
(iii) The
execution and delivery of this Agreement by the Originator and the performance
of and compliance with the terms of this Agreement will not violate the
Originator's articles of incorporation or by-laws or constitute a default
under
or result in a breach or acceleration of, any material contract, agreement
or
other instrument to which the Originator is a party or which may be applicable
to the Originator or its assets;
(iv) The
Originator is not in violation of, and the execution and delivery of this
Agreement by the Originator and its performance and compliance with the
terms of
this Agreement will not constitute a violation with respect to, any order
or
decree of any court or any order or regulation of any federal, state, municipal
or governmental agency having jurisdiction over the Originator or its assets,
which violation might have consequences that would materially and adversely
affect the condition (financial or otherwise) or the operation of the Originator
or its assets or might have consequences that would materially and adversely
affect the performance of its obligations and duties hereunder;
(v) The
Originator is a HUD approved mortgagee pursuant to Section 203 and Section
211
of the National Housing Act. No event has occurred, including but not limited
to
a change in insurance coverage, which would make the Originator unable
to comply
with HUD eligibility requirements or which would require notification to
HUD;
(vi) The
Originator does not believe, nor does it have any reason or cause to believe,
that it cannot perform each and every covenant contained in this
Agreement;
(vii) There
are
no actions or proceedings against, or investigations known to it of, the
Originator before any court, administrative or other tribunal (A) that
might
prohibit its entering into this Agreement, (B) seeking to prevent the sale
of
the Mortgage Loans or the consummation of the transactions contemplated
by this
Agreement or (C) that might prohibit or materially and adversely affect
the
performance by the Originator of its obligations under, or validity of
enforceability of, this Agreement;
(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 Originator
of, or compliance by the Originator with, this Agreement or the consummation
of
the transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been
obtained;
(ix) The
consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Originator. The sale of the Mortgage
Loans
was in the ordinary course of business of the Originator and the assignment
and
conveyance of the Mortgage Notes and the Mortgages by the Originator are
not
subject to the bulk transfer or any similar statutory provisions;
(x) The
information delivered by the Originator to the Purchaser with respect to
the
Originator's loan loss, foreclosure and delinquency experience on mortgage
loans
underwritten to similar standards as the Mortgage Loans and covering mortgaged
properties similar to the Mortgaged Properties, is true and correct in
all
material respects as of the date of such report;
(xi) Except
with respect to any statement regarding the intentions of the Purchaser,
or any
other statement contained herein the truth or falsity of which is dependant
solely upon the actions of the Purchaser, this Agreement does not contain
any
untrue statement of material fact or omit to state a material fact necessary
to
make the statements contained herein not misleading. The written statements,
reports and other documents prepared and furnished or to be prepared and
furnished by the Originator pursuant to this Agreement or in connection
with the
transactions contemplated hereby taken in the aggregate do not contain
any
untrue statement of material fact or omit to state a material fact necessary
to
make the statements contained therein not misleading; and
(xii) The
Originator has not transferred the Mortgage Loans with any intent to hinder,
delay or defraud any of its creditors.
Section
3.03 Obligor
Representations and Warranties Relating to the Obligor.
The
Obligor represents, warrants and covenants to the Purchaser as of the Closing
Date or as of such other date specifically provided herein:
(i) The
Obligor is duly organized, validly existing and in good standing as a
corporation under the laws of the State of Delaware and is and will remain
in
compliance with the laws of each state in which any Mortgaged Property
is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan in accordance with the terms of this Agreement;
(ii) The
Obligor has the full power and authority to execute, deliver and perform,
and to
enter into and consummate, all transactions contemplated by this Agreement.
The
Obligor has duly authorized the execution, delivery and performance of
this
Agreement, has duly executed and delivered this Agreement and this Agreement,
assuming due authorization, execution and delivery by the Purchaser and
the
related Seller, constitutes a legal, valid and binding obligation of the
Obligor, enforceable against it in accordance with its terms except as
the
enforceability thereof may be limited by bankruptcy, insolvency or
reorganization. At the time of the sale of each Mortgage Loan by the Obligor,
the Obligor had the full power and authority to hold each Mortgage Loan
and to
sell each Mortgage Loan;
(iii) The
execution and delivery of this Agreement by the Obligor and the performance
of
and compliance with the terms of this Agreement will not violate the Obligor's
articles of incorporation or by-laws or constitute a default under or result
in
a breach or acceleration of, any material contract, agreement or other
instrument to which the Obligor is a party or which may be applicable to
the
Obligor or its assets;
(iv) The
Obligor is not in violation of, and the execution and delivery of this
Agreement
by the Obligor and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or
decree
of any court or any order or regulation of any federal, state, municipal
or
governmental agency having jurisdiction over the Obligor or its assets,
which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Obligor or its
assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) The
Obligor does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(vi) There
are
no actions or proceedings against, or investigations known to it of, the
Obligor
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans or the consummation of the transactions contemplated by this Agreement
or
(C) that might prohibit or materially and adversely affect the performance
by
the Obligor of its obligations under, or validity of enforceability of,
this
Agreement;
(vii) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Obligor
of,
or compliance by the Obligor with, this Agreement or the consummation of
the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained;
and
(viii) The
consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Obligor. The sale of the Mortgage Loans
was
in the ordinary course of business of the Obligor and the assignment and
conveyance of the Mortgage Notes and the Mortgages by the Obligor are not
subject to the bulk transfer or any similar statutory provisions.
Section
3.04 Seller
Trust Representations and Warranties.
Each
Seller Trust represents, warrants and covenants to the Purchaser as of
the
Closing Date or as of such other date specifically provided herein:
(a) The
Seller Trust is duly organized, validly existing and in good standing as
a
business trust under the laws of the State of Delaware and is and will
remain in
compliance with the laws of each state in which any Mortgaged Property
is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan in accordance with the terms of this Agreement;
(b) The
Seller Trust has the full power and authority to hold each Mortgage Loan,
to
sell each Mortgage Loan, to execute, deliver and perform, and to enter
into and
consummate, all transactions contemplated by this Agreement. The Seller
Trust
has duly authorized the execution, delivery and performance of this Agreement,
has duly executed and delivered this Agreement and this Agreement, assuming
due
authorization, execution and delivery by the Purchaser and the Originator,
constitutes a legal, valid and binding obligation of the Seller Trust,
enforceable against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or reorganization;
(c) The
execution and delivery of this Agreement by the Seller Trust and the performance
of and compliance with the terms of this Agreement will not violate the
Seller
Trust's certificate of trust or constitute a default under or result in
a breach
or acceleration of, any material contract, agreement or other instrument
to
which the Seller Trust is a party or which may be applicable to the Seller
Trust
or its assets;
(d) The
Seller Trust is not in violation of, and the execution and delivery of
this
Agreement by the Seller Trust and its performance and compliance with the
terms
of this Agreement will not constitute a violation with respect to, any
order or
decree of any court or any order or regulation of any federal, state, municipal
or governmental agency having jurisdiction over such Seller Trust or its
assets,
which violation might have consequences that would materially and adversely
affect the condition (financial or otherwise) or the operation of the Seller
Trust or its assets or might have consequences that would materially and
adversely affect the performance of its obligations and duties hereunder;
(e) Immediately
prior to the payment of the mortgage loan purchase price for each Mortgage
Loan,
the Seller Trust was the owner of the related Mortgage and the indebtedness
evidenced by the related Mortgage Note and upon the payment of the mortgage
loan
purchase price by the Purchaser, in the event that the Seller Trust retains
record title, the Seller Trust shall retain such record title to each Mortgage,
each related Mortgage Note and the related Mortgage Files with respect
thereto
in trust for the Purchaser as the owner thereof;
(f) The
Seller Trust has not transferred the Mortgage Loans to the Purchaser with
any
intent to hinder, delay or defraud any of its creditors;
(g) There
are
no actions or proceedings against, or investigations known to it of, the
Seller
Trust before any court, administrative or other tribunal (A) that might
prohibit
its entering into this Agreement, (B) seeking to prevent the sale of the
Mortgage Loans or the consummation of the transactions contemplated by
this
Agreement or (C) that might prohibit or materially and adversely affect
the
performance by the Seller Trust of its obligations under, or validity or
enforceability of, this Agreement;
(h) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Seller
Trust
of, or compliance by the Seller Trust with, this Agreement or the consummation
of the transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been
obtained;
(i) The
consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Seller Trust, and the transfer assignment
and
conveyance of the related Mortgage Notes and the Mortgages by the Seller
Trust
pursuant to this Agreement are not subject to the bulk transfer or any
similar
statutory provisions; and
(j) Except
with respect to liens released immediately prior to the transfer herein
contemplated, the applicable Mortgage Note and related Mortgage have not
been
assigned or pledged and immediately prior to the transfer and assignment
herein
contemplated, the Seller Trust held good, marketable and indefeasible title
to,
and was the sole owner and holder of, the related Mortgage Loan subject
to no
liens, charges, mortgages, claims, participation interests, equities, pledges
or
security interests of any nature, encumbrances or rights of others
(collectively, a “Lien”); the Seller Trust has full right and authority under
all governmental and regulatory bodies having jurisdiction over the Seller
Trust, subject to no interest or participation of, or agreement with, any
party,
to sell and assign the same pursuant to this Agreement; and immediately
upon the
transfers and assignments herein contemplated, the Seller Trust shall have
transferred all of its right, title and interest in and to the related
Mortgage
Loans and the Trustee will hold good, marketable and indefeasible title
to, and
be the sole owner of, the related Mortgage Loans subject to no
Liens.
Section
3.05 Remedies
For Breach of Representations And Warranties.
It is
understood and agreed that the representations and warranties set forth
in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to
the
Purchaser and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment
or the
examination or lack of examination of any Mortgage File. With respect to
the
representations and warranties contained herein that are made to the knowledge
or the best knowledge of the Originator or Obligor or as to which the Originator
or Obligor has no knowledge, if it is discovered that the substance of
any such
representation and warranty is inaccurate and the inaccuracy materially
and
adversely affects the value of the related Mortgage Loan, or the interest
therein of the Purchaser or the Purchaser's assignee, designee or transferee,
then notwithstanding the Originator's or Obligor’s lack of knowledge with
respect to the substance of such representation and warranty being inaccurate
at
the time the representation and warranty was made, such inaccuracy shall
be
deemed a breach of the applicable representation and warranty and the Obligor
shall take such action described in the following paragraphs of this Section
3.05 in respect of such Mortgage Loan. Upon discovery by either the Originator,
the Servicer or the Purchaser of a breach of any of the foregoing
representations and warranties that materially and adversely affects the
value
of the Mortgage Loans or the interest of the Purchaser (or which materially
and
adversely affects the interests of the Purchaser in the related Mortgage
Loan in
the case of a representation and warranty relating to a particular Mortgage
Loan), the party discovering such breach shall give prompt written notice
to the
others. It is understood by the parties hereto that a breach of the
representations and warranties made in Section 3.01(a) (45), (49), (50),
(53),
(54); Xxxxxxx 0.00(x) (0), (0), (0), (0), (0), (0), (0), (0), (0), (10),
(11),
(12), (13), (14), (15), (16), (17), (18), (19), (20), (21) and (22) will
be
deemed to materially and adversely affect the value of the related Mortgage
Loan
or the interest of the Purchaser.
Within
120 days of the earlier of either discovery by or notice to the Originator
of
any breach of a representation or warranty made by the Originator or Obligor
that materially and adversely affects the value of a Mortgage Loan or the
Mortgage Loans or the interest therein of the Purchaser, the Originator
and
Obligor shall use their best efforts promptly to cure such breach in all
material respects and, if such breach cannot be cured, the Obligor shall,
at the
Purchaser’s option, repurchase such Mortgage Loan at the Purchase Price. In the
event that a breach shall involve any representation or warranty set forth
in
Section 3.03 and such breach cannot be cured within 120 days of the earlier
of
either discovery by or notice to the Originator of such breach, all of
the
Mortgage Loans shall, at the Purchaser’s option, be repurchased by the Obligor
at the Purchase Price. The Obligor may, at the request of the Purchaser
and
assuming the Obligor has a Qualified Substitute Mortgage Loan, rather than
repurchase a deficient Mortgage Loan as provided above, remove such Mortgage
Loan and substitute in its place a Qualified Substitute Mortgage Loan or
Loans.
If the Obligor does not provide a Qualified Substitute Mortgage Loan or
Loans,
it shall repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage
Loan(s) pursuant to the foregoing provisions of this Section 3.05 shall
occur on
a date designated by the Purchaser and shall be accomplished by deposit
in
accordance with Section 2.03 of the Pooling and Servicing Agreement. Any
repurchase or substitution required by this Section shall be made in a manner
consistent with Section 2.03 of the Pooling and Servicing
Agreement.
At
the
time of substitution or repurchase of any deficient Mortgage Loan, the
Purchaser
and the Originator shall arrange for the reassignment of the repurchased
or
substituted Mortgage Loan to the Originator and the delivery to the Originator
of any documents held by the Trustee relating to the deficient or repurchased
Mortgage Loan. In the event the Purchase Price is deposited in the Collection
Account, the Originator shall, simultaneously with such deposit, give written
notice to the Purchaser that such deposit has taken place. Upon such repurchase,
the Mortgage Loan Schedule shall be amended to reflect the withdrawal of
the
repurchased Mortgage Loan from this Agreement.
As
to any
Deleted Mortgage Loan for which the Obligor substitutes a Qualified Substitute
Mortgage Loan or Loans, the Obligor shall effect such substitution by delivering
to the Purchaser or its designee for such Qualified Substitute Mortgage
Loan or
Loans the Mortgage Note, the Mortgage, the Assignment and such other documents
and agreements as are required by the Pooling and Servicing Agreement,
with the
Mortgage Note endorsed as required therein. The Obligor shall deposit in
the
Collection Account the Monthly Payment due on such Qualified Substitute
Mortgage
Loan or Loans in the month following the date of such substitution. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the
month of
substitution will be retained by the Obligor. For the month of substitution,
distributions to the Purchaser will include the Monthly Payment due on
such
Deleted Mortgage Loan in the month of substitution, and the Obligor shall
thereafter be entitled to retain all amounts subsequently received by the
Obligor in respect of such Deleted Mortgage Loan. Upon such substitution,
the
Qualified Substitute Mortgage Loans shall be subject to the terms of this
Agreement in all respects, and the Obligor shall be deemed to have made
with
respect to such Qualified Substitute Mortgage Loan or Loans as of the date
of
substitution, the covenants, representations and warranties set forth in
Sections 3.01, 3.02 and 3.03.
In
the
event that the Obligor does not meet any of its obligations as and when
described under this Agreement, then the Originator shall perform such
obligation within one Business Day of such Obligor’s breach without any need for
any notice or any other action by any other Person.
It
is
understood and agreed that the representations and warranties set forth
in
Section 3.01 shall survive delivery of the respective Mortgage Files to
the
Trustee on behalf of the Purchaser.
It
is
understood and agreed that the obligations of the Originator and Obligor
set
forth in Section 3.05 to cure, repurchase and substitute for a defective
Mortgage Loan and to indemnify the Purchaser as provided in Section 5.01
constitute the sole remedies of the Purchaser respecting a missing or defective
document or a breach of the representations and warranties contained in
Section
3.01, 3.02, 3.03 or 3.04.
ARTICLE
IV.
ORIGINATOR'S
COVENANTS
Section
4.01 Covenants
of The Originator.
The
Originator hereby covenants that except for the transfer hereunder, neither
the
Originator nor any Seller will sell, pledge, assign or transfer to any
other
Person, or grant, create, incur, assume or suffer to exist any Lien on
any
Mortgage Loan, or any interest therein; the Originator will notify the
Trustee,
as assignee of the Purchaser, of the existence of any Lien on any Mortgage
Loan
immediately upon discovery thereof, and the Originator will defend the
right,
title and interest of the Trust, as assignee of the Purchaser, in, to and
under
the Mortgage Loans, against all claims of third parties claiming through
or
under the Originator or any Seller; provided, however, that nothing in
this
Section 4.01 shall prevent or be deemed to prohibit the Originator or any
Seller
from suffering to exist upon any of the Mortgage Loans any Liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the
Originator or any Seller shall currently be contesting the validity thereof
in
good faith by appropriate proceedings and shall have set aside on its books
adequate reserves with respect thereto.
ARTICLE
V.
INDEMNIFICATION
WITH RESPECT TO THE MORTGAGE LOANS
Section
5.01 Indemnification.
(a) The
Originator agrees to indemnify and hold harmless the Purchaser, each of
its
directors, each of its officers and each person or entity who controls
the
Purchaser or any such person, within the meaning of Section 15 of the Securities
Act, against any and all losses, claims, damages or liabilities, joint
and
several, as incurred, to which the Purchaser, or any such person or entity
may
become subject, under the Securities Act or otherwise, and will reimburse
the
Purchaser, each such director and officer and each such controlling person
for
any legal or other expenses incurred by the Purchaser or such controlling
person
in connection with investigating or defending any such losses, claims,
damages
or liabilities, insofar as such losses, claims, damages or liabilities
(or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in
the Free
Writing Prospectus or Prospectus Supplement or any amendment or supplement
to
the Free Writing Prospectus or Prospectus Supplement approved in writing
by the
Originator or the omission or the alleged omission to state therein a material
fact necessary in order to make the statements in the Free Writing Prospectus
or
Prospectus Supplement or any amendment or supplement to the Free Writing
Prospectus or Prospectus Supplement approved in writing by the Originator,
in
the light of the circumstances under which they were made, not misleading,
but
only to the extent that such untrue statement or alleged untrue statement
or
omission or alleged omission relates to the Originator Information contained
in
the Free Writing Prospectus or Prospectus Supplement, (ii) any untrue statement
or alleged untrue statement of any material fact contained in the information
on
any computer tape furnished to the Purchaser or an affiliate thereof by
or on
behalf of the Originator containing information regarding the assets of
the
Trust or (iii) any untrue statement or alleged untrue statement of any
material
fact contained in any information provided by the Originator to the Purchaser
or
any affiliate thereof, or any material omission from the information purported
to be provided hereby, and disseminated to KPMG LLP or prospective investors
(directly or indirectly through available information systems) in connection
with the issuance, marketing or offering of the Certificates. This indemnity
agreement will be in addition to any liability which the Originator may
otherwise have.
(b) The
Purchaser agrees to indemnify and hold harmless each Seller Trust the Obligor
and the Originator, each of their respective officers, directors and each
person
or entity who controls each Seller Trust, the Originator, the Obligor or
any
such person, against any and all losses, claims, damages or liabilities,
joint
and several, to which the related Seller Trust, Obligor, the Originator
or any
such person or entity may become subject, under the Securities Act or otherwise,
and will reimburse the applicable Seller Trust and/or the Originator or
Obligor
for any legal or other expenses incurred by such Seller Trust, the Originator,
the Obligor each officer and director and controlling person in connection
with
investigating or defending any such losses, claims, damages or liabilities
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue
statement of any material fact contained in the Free Writing Prospectus
or
Prospectus Supplement or any amendment or supplement to the Free Writing
Prospectus or Prospectus Supplement or the omission or the alleged omission
to
state therein a material fact necessary in order to make the statements
in the
Free Writing Prospectus or Prospectus Supplement or any amendment or supplement
to the Free Writing Prospectus or Prospectus Supplement, in the light of
the
circumstances under which they were made, not misleading, but only to the
extent
that such untrue statement or alleged untrue statement or omission or alleged
omission is not contained in the Originator Information in the Free Writing
Prospectus or Prospectus Supplement. This indemnity agreement will be in
addition to any liability which the Purchaser may otherwise have.
(c) Promptly
after receipt by any indemnified party under this Article V of notice of
any
claim or the commencement of any action, such indemnified party shall,
if a
claim in respect thereof is to be made against any indemnifying party under
this
Article V, notify the indemnifying party in writing of the claim or the
commencement of that action; provided,
however,
that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Article V except to the extent it
has
been materially prejudiced by such failure and, provided further, that
the
failure to notify any indemnifying party shall not relieve it from any
liability
which it may have to any indemnified party otherwise than under this Article
V.
If
any
such claim or action shall be brought against an indemnified party, and
it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled
to participate therein and, to the extent that it wishes, jointly with
any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice
from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to
the indemnified party under this Article V for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any
indemnified party shall have the right to employ separate counsel in any
such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless:
(i) the
employment thereof has been specifically authorized by the indemnifying
party in
writing; (ii) such indemnified party shall have been advised in writing
by such
counsel that there may be one or more legal defenses available to it which
are
different from or additional to those available to the indemnifying party
and in
the reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel; or (iii) the indemnifying party has failed
to
assume the defense of such action and employ counsel reasonably satisfactory
to
the indemnified party, in which case, if such indemnified party notifies
the
indemnifying party in writing that it elects to employ separate counsel
at the
expense of the indemnifying party, the indemnifying party shall not have
the
right to assume the defense of such action on behalf of such indemnified
party,
it being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or
circumstances, be liable for the reasonable fees and expenses of more than
one
separate firm of attorneys (in addition to local counsel) at any time for
all
such indemnified parties, which firm shall be designated in writing by
the
Purchaser, if the indemnified parties under this Article V consist of the
Purchaser, by the Originator, if the indemnified parties in this Article
V
consist of the Originator or by the related Seller Trust, if the indemnified
parties in this Article V consist of such Seller Trust.
Each
indemnified party, as a condition of the indemnity agreements contained
in
Section 5.01 (a) and (b) hereof, shall use its best efforts to cooperate
with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to
indemnify and hold harmless any indemnified party from and against any
loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested
an
indemnifying party to consent to a settlement of any action, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if such settlement is entered into
more
than 30 days after receipt by such indemnifying party of the aforesaid
request
and the indemnifying party has not previously provided the indemnified
party
with written notice of its objection to such settlement. No indemnifying
party
shall effect any settlement of any pending or threatened proceeding in
respect
of which an indemnified party is or could have been a party and indemnity
is or
could have been sought hereunder, without the written consent of such
indemnified party, unless settlement includes an unconditional release
of such
indemnified party from all liability and claims that are the subject matter
of
such proceeding.
(d) In
order
to provide for just and equitable contribution in circumstances in which
the
indemnity agreement provided for in this Article is for any reason held
to be
unenforceable although applicable in accordance with its terms, each Seller
Trust and the Originator, on the one hand, and the Purchaser, on the other,
shall contribute to the aggregate losses, liabilities, claims, damages
and
expenses of the nature contemplated by said indemnity agreement incurred
by the
related Seller Trust, the Originator and the Purchaser in such proportions
as
shall be appropriate to reflect the relative benefits received by each
Seller
Trust the Obligor and the Originator on the one hand and the Purchaser
on the
other from the sale of the Mortgage Loans such that the Purchaser is responsible
for the lesser of (i) 0.25% thereof and (ii) 0.25% of the aggregate proceeds
to
the respective Seller Trust from the sale of the related Mortgage Loans
and the
Originator and/or the Obligor shall be responsible for the balance; provided,
however,
that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person
who was not guilty of such fraudulent misrepresentation. For purposes of
this
Section, each officer and director of the Purchaser and each person, if
any, who
controls the Purchaser within the meaning of Section 15 of the Securities
Act
shall have the same rights to contribution as the Purchaser, each director
of
the Originator, each officer of the Originator, and each person, if any,
who
controls the Originator within the meaning of Section 15 of the Securities
Act
shall have the same rights to contribution as the Originator and each director
of the related Seller Trust, each officer of such Seller Trust, and each
person,
if any, who controls such Seller within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as the related
Seller.
(e) The
Originator agrees to indemnify and to hold each of the Purchaser, the Trustee,
each of the officers and directors of each such entity and each person
or entity
who controls each such entity or person and each Certificateholder harmless
against any and all claims, losses, penalties, fines, forfeitures, legal
fees
and related costs, judgments, and any other costs, fees and expenses that
the
Purchaser, the Trustee, or any such person or entity and any Certificateholder
may sustain in any way (i) related to the failure of the Originator to
perform
its duties in compliance with the terms of this Agreement, (ii) arising
from a
breach by the Originator of its representations and warranties in Section
3.01
and 3.02 of this Agreement or (iii) related to the origination or prior
servicing of the Mortgage Loans by reason of any acts, omissions, or alleged
acts or omissions of the Originator, the related Seller or any servicer.
The
Originator shall immediately notify the Purchaser, the Trustee and each
Certificateholder if a claim is made by a third party with respect to this
Agreement. The Originator shall assume the defense of any such claim and
pay all
expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be
entered
against the Purchaser, the Trustee or any such person or entity and/or
any
Certificateholder in respect of such claim.
ARTICLE
VI.
TERMINATION
Section
6.01 Termination.
The
respective obligations and responsibilities of the Originator, each Seller
and
the Purchaser created hereby shall terminate, except for the Originator's
indemnity obligations as provided herein upon the termination of the Trust
as
provided in Article X of the Pooling and Servicing Agreement.
ARTICLE
VII.
MISCELLANEOUS
PROVISIONS
Section
7.01 Amendment.
This
Agreement may be amended from time to time, with the consent of the NIMS
Insurer, if any, by the Originator, each Seller Trust and the Purchaser,
by
written agreement signed by the Originator, each Seller Trust and the
Purchaser.
Section
7.02 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section
7.03 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, addressed as follows:
if
to the
Originator or to the Obligor:
Option
One Mortgage Corporation
3
Ada
Xxxxxx,
XX 00000
Attention:
C. Xxxxxx Xxxxxx
or
such
other address as may hereafter be furnished to the Purchaser and any Seller
Trust in writing by the Originator.
if
to the
Purchaser:
Option
One Mortgage Acceptance Corporation
3
Ada
Xxxxxx,
XX 00000
Attention:
C. Xxxxxx Xxxxxx
or
such
other address as may hereafter be furnished to any Seller and the Originator
in
writing by the Purchaser.
if
to the
Seller Trusts:
Option
One Owner Trust 2001-1A
Option
One Owner Trust 2001-2
Option
One Owner Trust 2002-3
Option
One Owner Trust 2003-4
Option
One Owner Trust 2003-5
Option
One Owner Trust 2005-6
Option
One Owner Trust 2005-8
Option
One Owner Trust 2005-9
Option
One Owner Trust 2007-5A
c/o
Wilmington Trust Company
One
Xxxxxx Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration
or
such
other address as may hereafter be furnished to the Originator and the Purchaser
in writing by the related Seller.
Section
7.04 Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions of terms of this Agreement
shall be held invalid for any reason whatsoever, 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 of enforceability of the other provisions of this
Agreement.
Section
7.05 Counterparts.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original and such counterparts, together, shall constitute
one and the same agreement.
Section
7.06 Further
Agreements.
The
Purchaser, each Seller and the Originator each agree to execute and deliver
to
the other such additional documents, instruments or agreements as may be
necessary or reasonable and appropriate to effectuate the purposes of this
Agreement or in connection with the issuance of any series of Certificates
representing interests in the Mortgage Loans.
Without
limiting the generality of the foregoing, as a further inducement for the
Purchaser to purchase the Mortgage Loans from the Sellers, the Originator
will
cooperate with the Purchaser in connection with the sale of any of the
securities representing interests in the Mortgage Loans. In that connection,
the
Originator will provide to the Purchaser any and all information and appropriate
verification of information, whether through letters of its auditors and
counsel
or otherwise, as the Purchaser shall reasonably request and will provide
to the
Purchaser such additional representations and warranties, covenants, opinions
of
counsel, letters from auditors, and certificates of public officials or
officers
of the Originator as are reasonably required in connection with such
transactions and the offering of investment grade securities rated by the
Rating
Agencies.
Section
7.07 Intention
of The Parties.
It is
the intention of the parties that the Purchaser is purchasing, and each
Seller
is selling, the Mortgage Loans rather than pledging the Mortgage Loans
to secure
a loan by the Purchaser to each Seller. Accordingly, the parties hereto
each
intend to treat the transaction for federal income tax purposes and all
other
purposes as a sale by the related Seller, and a purchase by the Purchaser,
of
the Mortgage Loans. The Purchaser will have the right to review the Mortgage
Loans and the related Mortgage Files to determine the characteristics of
the
Mortgage Loans which will affect the federal income tax consequences of
owning
the Mortgage Loans and the related Seller will cooperate with all reasonable
requests made by the Purchaser in the course of such review.
Section
7.08 Successors
And Assigns, Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by
each
Seller, the Originator, the Purchaser, the Trustee and the NIMs Insurer,
if any.
The NIMs Insurer, if any, shall be a third party beneficiary hereof and
may
enforce the terms hereof as if a party hereto. The obligations of each
Seller
and the Originator under this Agreement cannot be assigned or delegated
to a
third party without the consent of the Purchaser which consent shall be
at the
Purchaser's sole discretion, except that the Purchaser acknowledges and
agrees
that each Seller or the Originator may assign its obligations hereunder
to any
Person into which the related Seller or the Originator is merged or any
corporation resulting from any merger, conversion or consolidation to which
the
related Seller or the Originator is a party or any Person succeeding to
the
business of the related Seller or the Originator. The parties hereto acknowledge
that the Purchaser is acquiring the Mortgage Loans for the purpose of
contributing them to a trust that will issue a series of Certificates
representing undivided interests in such Mortgage Loans. As an inducement
to the
Purchaser to purchase the Mortgage Loans, the related Seller and the Originator
each acknowledge and consent to the assignment by the Purchaser to the
Trustee
of all of the Purchaser's rights against each Seller and the Originator
pursuant
to this Agreement insofar as such rights relate to Mortgage Loans transferred
to
the Trustee and to the enforcement or exercise of any right or remedy against
each Seller or the Originator pursuant to this Agreement by the Trustee.
Such
enforcement of a right or remedy by the Trustee shall have the same force
and
effect as if the right or remedy had been enforced or exercised by the
Purchaser
directly.
Section
7.09 Survival.
The
representations and warranties set forth in Sections 3.01, 3.02 and 3.03
and the
provisions of Article V hereof shall survive the purchase of the Mortgage
Loans
hereunder.
Section
7.10 Owner
Trustee.
It is
expressly understood and agreed by the parties to this Agreement that (a)
this
Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as Owner Trustee of the Seller Trusts,
in
the exercise of the powers and authority conferred and vested in it as
trustee,
(b) each of the representations, undertakings and agreements herein made
on the
part of the related Seller Trust is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company
but is
made and intended for the purpose of binding only the related Seller Trust,
(c)
nothing herein contained shall be construed as creating any liability on
Wilmington Trust Company, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any,
being
expressly waived by the parties to this Agreement and by any person claiming
by,
through or under the parties to this Agreement and (d) under no circumstances
shall Wilmington Trust Company be personally liable for the payment of
any
indebtedness or expenses of any Seller Trust or be liable for the breach
or
failure of any obligation, representation, warranty or covenant made or
undertaken by any Seller Trust under this Agreement or any other
document.
IN
WITNESS WHEREOF, each Seller, the Originator, the Obligor and the Purchaser
have
caused their names to be signed to this Mortgage Loan Purchase Agreement
by
their respective officers thereunto duly authorized as of the day and year
first
above written.
|
OPTION
ONE MORTGAGE ACCEPTANCE CORPORATION,
as
Purchaser
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
|
OPTION
ONE MORTGAGE CORPORATION,
as
Originator
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
|
OPTION
ONE MORTGAGE CAPITAL CORPORATION,
as
Obligor and a Seller
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
|
OPTION
ONE OWNER TRUST 2001-1A,
as
a Seller
|
||||||||||||||
|
By:
|
Wilmington
Trust Company, not in its individual
capacity but solely as Owner Trustee.
|
|||||||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
|
OPTION
ONE OWNER TRUST 2001-2,
as
a Seller
|
||||||||||||||
|
By:
|
Wilmington
Trust Company, not in its individual
capacity but solely as Owner Trustee.
|
|||||||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
|
OPTION
ONE OWNER TRUST 2002-3,
as
a Seller
|
||||||||||||||
|
By:
|
Wilmington
Trust Company, not in its individual
capacity but solely as Owner Trustee.
|
|||||||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
|
OPTION
ONE OWNER TRUST 2003-4,
as
a Seller
|
||||||||||||||
|
By:
|
Wilmington
Trust Company, not in its individual
capacity but solely as Owner Trustee.
|
|||||||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
|
OPTION
ONE OWNER TRUST 2003-5,
as
a Seller
|
||||||||||||||
|
By:
|
Wilmington
Trust Company, not in its individual
capacity but solely as Owner Trustee.
|
|||||||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
|
OPTION
ONE OWNER TRUST 2005-6,
as
a Seller
|
||||||||||||||
|
By:
|
Wilmington
Trust Company, not in its individual
capacity but solely as Owner Trustee.
|
|||||||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
|
OPTION
ONE OWNER TRUST 2005-8,
as
a Seller
|
||||||||||||||
|
By:
|
Wilmington
Trust Company, not in its individual
capacity but solely as Owner Trustee.
|
|||||||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
|
OPTION
ONE OWNER TRUST 2005-9,
as
a Seller
|
||||||||||||||
|
By:
|
Wilmington
Trust Company, not in its individual
capacity but solely as Owner Trustee.
|
|||||||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
|
OPTION
ONE OWNER TRUST 2007-5A,
as
a Seller
|
||||||||||||||
|
By:
|
Wilmington
Trust Company, not in its individual
capacity but solely as Owner Trustee.
|
|||||||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
SCHEDULE
I
MORTGAGE
LOANS OWNED BY THE ORIGINATOR
AVAILABLE
UPON REQUEST
SCHEDULE
II
MORTGAGE
LOANS OWNED BY OPTION ONE MORTGAGE CAPITAL CORPORATION
AVAILABLE
UPON REQUEST
SCHEDULE
III
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2001-1A
AVAILABLE
UPON REQUEST
SCHEDULE
IV
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2001-2
AVAILABLE
UPON REQUEST
SCHEDULE
V
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2002-3
AVAILABLE
UPON REQUEST
SCHEDULE
VI
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2003-4
AVAILABLE
UPON REQUEST
SCHEDULE
VII
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2003-5
AVAILABLE
UPON REQUEST
SCHEDULE
VIII
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2005-6
AVAILABLE
UPON REQUEST
SCHEDULE
IX
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2005-8
AVAILABLE
UPON REQUEST
SCHEDULE
X
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2005-9
AVAILABLE
UPON REQUEST
SCHEDULE
XI
MORTGAGE
LOANS OWNED BY OPTION ONE OWNER TRUST 2007-5A
AVAILABLE
UPON REQUEST
EXHIBIT
D
MORTGAGE
LOAN SCHEDULE
As
filed
on April 20, 2007
EXHIBIT
E
REQUEST
FOR RELEASE
|
To:
|
Xxxxx
Fargo Bank, N.A.,
|
|
00
Xxxxxxxxx Xxxx, Xxxxx 000
|
|
|
Xxxxxx,
XX 00000
|
|
|
Attn:
Inventory Control
|
|
Re:
|
Pooling
and Servicing Agreement dated as of April 1, 2007 among Option
One
Mortgage Acceptance Corporation, as Depositor, Option One Mortgage
Corporation, as Servicer and Xxxxx Fargo Bank, N.A., as
Trustee
|
In
connection with the administration of the Mortgage Loans held by you as Trustee
pursuant to the above-captioned Pooling and Servicing Agreement, we request
the
release, and hereby acknowledge receipt of the Trustee’s 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 Trustee should deliver
the
Trustee’s Mortgage File:
|
By:
|
|||||||
|
(authorized
signer)
|
|||||||
Issuer:
Address:
Date:
EXHIBIT
F-1
FORM
OF
TRUSTEE’S INITIAL CERTIFICATION
[Date]
|
Option
One Mortgage Acceptance Corporation
3
Ada
Xxxxxx,
Xxxxxxxxxx 00000
|
Option
One Mortgage Corporation
3
Ada
Xxxxxx,
Xxxxxxxxxx 00000
|
|||
|
Re:
|
Pooling
and Servicing Agreement dated as of April 1, 2007 among Option
One
Mortgage Acceptance Corporation, as Depositor, Option One Mortgage
Corporation, as Servicer and Xxxxx Fargo Bank, N.A., as Trustee
|
||
Ladies
and Gentlemen:
Attached
is the Trustee’s preliminary exception report delivered in accordance with
Section 2.02 of the referenced Pooling and Servicing Agreement (the APooling
and Servicing Agreement”). Capitalized terms used but not otherwise defined
herein shall have the meanings set forth in the Pooling and Servicing
Agreement.
The
Trustee has made no independent examination of any documents contained in
each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to (i) the
validity, legality, sufficiency, enforceability or genuineness of any of
the
documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any
Mortgage File included any of the documents specified in clause (vi) of Section
2.01 of the Pooling and Servicing Agreement.
|
XXXXX
FARGO BANK, N.A.
|
||||||||||||
|
By:
|
||||||||||||
|
Name:
|
||||||||||||
|
Title:
|
||||||||||||
EXHIBIT
F-2
FORM
OF
TRUSTEE’S FINAL CERTIFICATION
[Date]
|
Option
One Mortgage Acceptance Corporation
3
Ada
Xxxxxx,
Xxxxxxxxxx 00000
|
|
Re:
|
Pooling
and Servicing Agreement dated as of April 1, 2007 among Option
One
Mortgage Acceptance Corporation, as Depositor, Option One Mortgage
Corporation, as Servicer and Xxxxx Fargo Bank, N.A., as
Trustee
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement, the
undersigned, as Trustee, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage loan paid in full
or
listed on Schedule I hereto) it (or its custodian) has received the applicable
documents listed in Section 2.01 of the Pooling and Servicing
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in the Mortgage Loan Schedule is
correct.
The
Trustee has made no independent examination of any documents contained in
each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to (i) the
validity, legality, sufficiency, enforceability or genuineness of any of
the
documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any
Mortgage File included any of the documents specified in clause (vi) of Section
2.01 of the Pooling and Servicing Agreement.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement. This Certificate is qualified
in
all respects by the terms of said Pooling and Servicing Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
||||||||||||
|
By:
|
||||||||||||
|
Name:
|
||||||||||||
|
Title:
|
||||||||||||
EXHIBIT
F-3
FORM
OF
RECEIPT OF MORTGAGE NOTE
|
Option
One Mortgage Acceptance Corporation
3
Ada
Xxxxxx,
Xxxxxxxxxx 00000
|
|
Re:
|
Option
One Mortgage Loan Trust 2007-4, Asset-Backed Certificates Series
2007-4
|
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement, dated as of April
1,
2007, among Option One Mortgage Acceptance Corporation as Depositor, Option
One
Mortgage Corporation as Servicer and Xxxxx Fargo Bank, N.A. as trustee (the
“Trustee”), we hereby acknowledge the receipt of the original Mortgage Notes (a
copy of which is attached hereto as Exhibit 1) with any exceptions thereto
listed on Exhibit 2.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
||||||||||||
|
By:
|
||||||||||||
|
Name:
|
||||||||||||
|
Title:
|
||||||||||||
EXHIBIT
G
LOSS
MITIGATION PROCEDURES
FAS
140 P &S Relevant Provisions - Recovery for Default
Loans
Collections
Department Pre-foreclosure Process:
As
a
general rule, at 34 calendar days of delinquency, all borrowers are sent
a
30-day pre-foreclosure demand letter. Borrowers in states that require more
than
a 30-day period are given the amount of time specified by state law. Servicer
will follow customary and prudent servicing practices when issuing
pre-foreclosure demand letters.
Borrowers
who are unable to pay the total amount past due are reviewed for foreclosure
based upon the following criteria:
“Early
Indicator” default risk score. Those borrowers with risk scores that suggest a
strong statistical likelihood of continuing default, are approved for
foreclosure as soon as 48 hours after expiration of the demand letter
(approximately 64 calendar days delinquent).
|
A.
|
Borrowers
who demonstrate a willingness and ability to pay are solicited
for
extended repayment plans. For example, on a six month repayment
plan, a
portion of all past due payments is divided equally by 6 and
a monthly
payment schedule is established. The first payment would consist
of a good
faith payment of some portion of the past due amount, one regular
monthly
installment and 1/6th of the remaining past due amount, and
each of the
remaining 5 payments would be comprised of a regular monthly
payment and
1/6 of the remaining past due amount referred to
hereinabove.
|
|
B.
|
Broken
repayment plans. Those borrowers who are placed on extended repayment
plans but fail to make their scheduled payments are issued a new
Notice of
Intent to Foreclose or reviewed for foreclosure referral as soon
as 48
hours after the payment plan is broken, as
applicable.
|
All
borrowers are given reasonable opportunities to pay the total amount past
due
(including all contractually permitted fees and charges) prior to the expiration
of the 30 day demand letters. Borrowers who fail to contact Option One when
past
due, who repeatedly break promises to pay, who have a willingness but no
financial ability, or apparent financial ability but no willingness, may
be
referred to foreclosure at any time after the expiration of the 30-day demand
letter. As a general rule, a loan is referred to foreclosure no later than
the
120th
day of
delinquency. The guidelines outlined herein presuppose at least some reasonable
degree of willingness and ability to pay.
Borrowers
who have willingness to pay and contact the Servicer for alternative workout
options may avoid foreclosure referral by means of options including
modification, extended re-payment plan, mortgage insurance claim advance,
short
payoff, deed in lieu of foreclosure or other agreed upon Loss Mitigation
options
that may be meritorious.
Pre-conveyance
of Title:
Initial
contact is made for discovery of mortgagor’s intent and a minimum requirement of
two attempted contacts per month is required. In general, contact made or
attempted within the first 48 hours establishes categories as follows: Willing
and Able, Unwilling or Willing and Unable. Each category provides a subset
of
options for loss mitigation efforts and the options are ranked within each
category as follows:
|
1.
|
Willing
and Able
-
Typically the mortgagor’(s) reason for default is temporary and a
foreseeable solution is probable. The standard options negotiated,
ranked
in priority are:
|
|
A.
|
Full
Reinstatement
|
| B. | Payoff |
|
C.
|
Standard
payment plan
|
|
D.
|
Extension
of the payment plan
|
|
E.
|
Forbearance
|
|
F.
|
Mortgage
Insurance Claim Advance
|
|
G.
|
Modification
|
|
2.
|
Unwilling
-
Typically the mortgagor(s) is unclear of options to mitigate default
and
avoids all calls or is brief and discloses little when contact
is made. In
this category efforts are made to continue attempts to contact
and/or
counsel mortgagor(s). When no contact is made, Skip Tracing, promotional
items and/or letters are mailed in attempts to stimulate
communication.
|
|
3.
|
Willing
and Unable
-
Mortgagor(s) want to save home or remedy the default, however do
not have
resources to do so. In this scenario, the standard options negotiated,
ranked in priority are:
|
|
A.
|
Payoff
|
|
B.
|
Pre-Sale/Pre-Foreclosure
Sale, Short Payoff
|
|
C.
|
Deed
In Lieu of Foreclosure
|
|
D.
|
Write-Off
|
|
E.
|
Negotiated
Settlement
|
|
F.
|
Modification
|
The
foreclosure process runs parallel to the Loss Mitigation efforts and in the
event no workout is achieved then the Servicer obtains title to the property
through foreclosure sale, following which the REO Department will attempt
to
seek complete recovery from the sale of said property.
List
of all Loss Mitigation Options used:
| - |
Full
Reinstatement
|
| - | Payoff |
|
-
|
Re-Payment
Plan
|
|
-
|
Extension
Payment Plan
|
|
-
|
Forbearance
|
|
-
|
Short
Payoff
|
|
-
|
Modification
|
|
-
|
Deed
In Lieu of Foreclosure
|
|
-
|
Write-off
|
|
-
|
Negotiated
Settlement
|
|
-
|
Mortgage
Insurance Claim Advance
|
Conveyance
of Title:
Once
title is acquired as a result of foreclosure sale, Deed In Lieu of Foreclosure
or otherwise, the property is assigned to an REO Agent for complete and timely
disposition. REO Broker/Agents are selected and retained using the following
criteria:
|
-
|
Experienced
and Possess Error and Omissions
Insurance
|
|
-
|
Licensed
to sell Real Property in the related
region
|
|
-
|
Adhere
to Option One Mortgage Corporation’s
Standards
|
Review
of
the current values obtained on the subject property will determine the marketing
strategy and the strategy will focus on disposing of the property in a timely
and practical manner. An analysis worksheet is completed to establish the
marketing strategy on the property.
EXHIBIT
H
FORM
OF
LOST NOTE AFFIDAVIT
Personally
appeared before me the undersigned authority to administer oaths, ______________
who first being duly sworn deposes and says: Deponent is ____________ of
_______________, successor by merger to ________________________________________
(“Seller”) and who has personal knowledge of the facts set out in this
affidavit.
On
____________________, ____________________ did execute and deliver a promissory
note in the principal amount of $____________________.
That
said
note has been misplaced or lost through causes unknown and is presently lost
and
unavailable after diligent search has been made. Seller’s records show that an
amount of principal and interest on said note is still presently outstanding,
due, and unpaid, and Seller is still owner and holder in due course of said
lost
note.
Seller
executes this Affidavit for the purpose of inducing Xxxxx Fargo Bank, N.A.,
as
trustee on behalf of Option One Mortgage Loan Trust 2007-4, Asset-Backed
Certificates Series 2007-4, to accept the transfer of the above described
loan
from Seller.
Seller
agrees to indemnify Xxxxx Fargo Bank, N.A., Option One Mortgage Acceptance
Corporation and Option One Mortgage Corporation for any losses incurred by
such
parties resulting from the above described promissory note that has been
lost or
misplaced.
By:
____________________
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
this
_____ day of ____________________, 20__, before me, a Notary Public, in and
for
said County and State, appeared ____________________, who acknowledged the
extension of the foregoing and who, having been duly sworn, states that any
representations therein contained are true.
Witness
my hand and Notarial Seal this ______ day of _________________,
20__.
My
commission expires ____________________.
EXHIBIT
I
FORM
OF
INTEREST RATE SWAP AGREEMENT
|
DATE:
|
April
19, 2007
|
|
TO:
|
Xxxxx
Fargo Bank, N.A., not individually, but solely as Supplemental
Interest
Trust Trustee on behalf of the Supplemental Interest Trust with
respect to
the Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates,
Series 2007-4
|
|
ATTENTION:
|
Client
Manager - Option One 2007-4
|
|
TELEPHONE:
|
000-000-0000
|
|
FACSIMILE:
|
000-000-0000
|
|
FROM:
|
Xxxxxx
Brothers Special Financing Inc.
|
|
ATTENTION:
|
Documentation
Manager
|
|
TELEPHONE:
|
(000)
000-0000
|
|
FACSIMILE:
|
(000)
000-0000
|
|
SUBJECT:
|
Fixed
Income Derivatives Confirmation
|
|
REFERENCE
NUMBER:
|
Global
ID: 2996168 / Effort ID: 1327154
|
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between
XXXXXX
BROTHERS SPECIAL FINANCING INC, (“Party
A”) and
Xxxxx
Fargo Bank, N.A.,
not
individually, but solely as supplemental interest trust trustee (the
“Supplemental Interest Trust Trustee”) on behalf of the supplemental interest
trust with respect to the Option One Mortgage Loan Trust 2007-4, Asset-Backed
Certificates, Series 2007-4 (the “Supplemental Interest Trust”) (“Party
B”)
created
under the Pooling and Servicing Agreement, dated as of Apri1 1, 2007, among
Option One Mortgage Acceptance Corporation, as depositor (the “Depositor”),
Option One Mortgage Corporation, as servicer (the “Servicer”) and Xxxxx Fargo
Bank, N.A., as trustee (the “Trustee”) (the
“Pooling
and Servicing Agreement”)
. This
Confirmation evidences a complete and binding agreement between you and
us to
enter into the Transaction on the terms set forth below and replaces any
previous agreement between us with respect to the subject matter hereof.
This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit
Support
Annex to the Schedule.
| 1. |
This
Confirmation shall supplement, form a part of, and be subject
to an
agreement in the form of the ISDA Master Agreement (Multicurrency
- Cross
Border) as published and copyrighted in 1992 by the International
Swaps
and Derivatives Association, Inc. (the “ISDA
Master Agreement”),
as if Party A and Party B had executed an agreement in such form
on the
date hereof, with a Schedule as set forth in Item 3 of this Confirmation,
and an ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject
to New York Law Only version) as published and copyrighted in
1994 by the
International Swaps and Derivatives Association, Inc., with Paragraph
13
thereof as set forth in Annex A hereto (the “Credit
Support Annex”).
For the avoidance of doubt, the Transaction described herein
shall be the
sole Transaction governed by such ISDA Master Agreement. In the
event of
any inconsistency among any of the following documents, the relevant
document first listed shall govern: (i) this Confirmation, exclusive
of
the provisions set forth in Item 3 hereof and Annex A hereto;
(ii) the
provisions set forth in Item 3 hereof, which are incorporated
by reference
into the Schedule; (iii) the Credit Support Annex; (iv) the Definitions;
and (v) the ISDA Master Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section” “of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference
herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
2.
The
terms
of the particular Transaction to which this Confirmation relates are as
follows:
Type
of
Transaction:
Interest
Rate Swap
Notional
Amount:
With
respect to any Calculation Period, the lesser of: (i) the amount set forth
on
Schedule I attached hereto for such Calculation Period and (ii) the product
of
(x) aggregate Certificate Principal Balance of the Reference Assets immediately
preceding the Distribution Date which occurs in the calendar month of the
Floating Rate Payer Payment Date for such Calculation Period (determined
for
this purpose without regard to any adjustment of the Floating Rate Payer
Payment
Date relating to business days) and (y) 1/250.
Reference
Assets:
Option
One Mortgage Loan Trust 0000-0, Xxxxx Backed Certificates, Series 2007-4,
Class
1-A-1 (Cusip: 00000XXX0), Class 2-A-1 (Cusip: 00000XXX0), Class 2-A-2 (Cusip:
00000XXX0), Class 2-A-3 (Cusip: 00000XXX0), Class 2-A-4 (Cusip: 00000XXX0),
Class M-1 (Cusip: 00000XXX0), Class M-2 (Cusip: 00000XXX0), Class M-3 (Cusip:
00000XXX0), Class M-4 (Cusip: 00000XXX0), Class M-5 (Cusip: 00000XXX0),
Class
M-6 (Cusip: 00000XXX0), Class M-7 (Cusip: 00000XXX0), Class M-8 (Cusip:
00000XXX0), and Class M-9 (Cusip: 00000XXX0).
Certificate
Principal
Balance:
As
reported on Bloomberg Financial Services, Inc. (“Bloomberg”): by entering the
Cusip, <Mtge>, type “pdi4”, <Go>. If Bloomberg fails to publish the
aggregate Certificate Principal Balance of the Referenced Assets or the
parties
fail to agree on the aggregate Certificate Principal Balance of the Referenced
Assets for any Calculation Period, the aggregate Certificate Principal
Balance
of the Referenced Assets shall be determined by the Calculation Agent pursuant
to the Pooling and Servicing Agreement, dated as of April 1, 2007, among
Option
One Mortgage Acceptance Corporation as depositor, Option One Mortgage
Corporation as servicer and Xxxxx Fargo Bank, N.A. as trustee.
Trade
Date:
April
12,
2007
Effective
Date:
April
19,
2007
Termination
Date:
June
25,
2013, for purposes of the final Calculation Period on the Floating Amounts,
subject to adjustment in accordance with the Business Day Convention; provided,
however, that for the purpose of determining the final Fixed Rate Payer
Period
End Date, Termination Date shall be subject to No Adjustment.
Fixed
Amounts:
Fixed
Rate
Payer: Party
B
Fixed
Rate Payer
Period
End
Dates: The
25th
calendar
day of each month during the Term of this Transaction, commencing May 25,
2007,
and ending on the Termination Date, with No Adjustment.
Fixed
Rate Payer
Payment
Dates:
One
(1)
Business Day prior to each Fixed Rate Payer Period End Date.
Fixed
Rate: 4.950%
Fixed
Amount: To
be
determined in accordance with the following formula:
Scale
Factor*Fixed Rate*Notional Amount*Fixed Rate Day Count Fraction
Fixed
Rate Day
Count
Fraction:
30/360
Scale
Factor:
250
Floating
Amounts:
Floating
Rate
Payer: Party
A
Floating
Rate Payer
Period
End
Dates:
The
25th
calendar
day of each month during the Term of this Transaction, commencing May 25,
2007,
and ending on the Termination Date, subject to adjustment in accordance
with the
Business Day Convention.
Floating
Rate Payer
Payment
Dates:
One
(1)
Business Day prior to such Floating Rate Payer period End Date.
Floating
Rate Option:
USD-LIBOR-BBA
Floating
Amount:
To
be
determined in accordance with the following formula:
Scale
Factor*Floating Rate Option*Notional Amount*Floating Rate Day Count
Fraction
Designated
Maturity:
One
month
Floating
Rate Day
Count
Fraction:
Actual/360
Scale
Factor:
250
Reset
Dates:
The
first
day of each Calculation Period.
Compounding:
Inapplicable
Business
Days:
New
York
Business
Day Convention: Following
Calculation
Agent:
Party
A
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
For
the
purposes of this Agreement:-
(a)
“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
|
(b)
|
“Specified
Transaction”
will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party
means
that upon the occurrence of such an Event of Default with respect to such
party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will
not
apply to a specific party means that the other party shall not have such
rights.
| (i) |
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will
apply to
Party B; provided, however, that Section 5(a)(i) is hereby amended
by
replacing the word “third” with the word “first”; provided, further, that
notwithstanding anything to the contrary in Section 5(a)(i),
any failure
by Party A to comply with or perform any obligation to be complied
with or
performed by Party A under the Credit Support Annex shall not
constitute
an Event of Default under Section 5(a)(i) unless (A) a Required
Ratings
Downgrade Event has occurred and been continuing for 30 or more
Local
Business Days and (B) such failure is not remedied on or before
the third
Local Business Day after notice of such failure is given to Party
A.
|
| (ii) |
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and will
not apply to
Party B.
|
| (iii) |
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will
not apply
to Party B except that Section 5(a)(iii)(1) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided, however, that notwithstanding anything
to the
contrary in Section 5(a)(iii)(1), any failure by Party A to comply
with or
perform any obligation to be complied with or performed by Party
A under
the Credit Support Annex shall not constitute an Event of Default
under
Section 5(a)(iii) unless (A) a Required Ratings Downgrade Event
has
occurred and been continuing for 30 or more Local Business Days
and (B)
such failure is not remedied on or before the third Local Business
Day
after notice of such failure is given to Party
A.
|
| (iv) |
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and will
not apply to
Party B.
|
| (v) |
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and will
not apply to
Party B.
|
| (vi) |
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and will
not apply to
Party B. For purposes of Section 5(a)(vi), solely with respect
to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14.
“Threshold
Amount” means with respect to Party A an amount equal to three percent (3%) of
the Shareholders’ Equity of Party A or, if applicable, the Eligible Guarantor.
“Shareholders’
Equity” means with respect to an entity, at any time, the sum (as shown in the
most recent annual audited financial statements of such entity) of (i)
its
capital stock (including preferred stock) outstanding, taken at par value,
(ii)
its capital surplus and (iii) its retained earnings, minus (iv) treasury
stock,
each to be determined in accordance with generally accepted accounting
principles.
| (vii) |
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will
apply to
Party B except that the provisions of Section 5(a)(vii)(2), (6)
(to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any appointment
to
which Party B has not become subject), (7) and (9) will not apply
to Party
B; provided that, with respect to Party B only, Section 5(a)(vii)(4)
is
hereby amended by adding after the words “against it” the words
“(excluding any proceeding or petition instituted or presented
by Party A
or its Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by
deleting the words “to (7) inclusive” and inserting lieu thereof “, (3),
(4) as amended, (5), (6) as amended, or
(7)”.
|
| (viii) |
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and will
apply to
Party B.
|
(d)
Termination
Events.
The
statement below that a Termination Event will apply to a specific party
means
that upon the occurrence of such a Termination Event, if such specific
party is
the Affected Party with respect to a Tax Event, the Burdened Party with
respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected
Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that
such an
event will not apply to a specific party means that such party shall not
have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence
of such
a Termination Event with respect to such party, either party shall have
the
right to designate an Early Termination Date in accordance with Section
6 of
this Agreement.
(i)
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply to Party
B.
|
(ii)
|
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A except that,
for
purposes of the application of Section 5(b)(ii) to Party A, Section
5(b)(ii) is hereby amended by deleting the words “(x) any action taken by
a taxing authority, or brought in a court of competent jurisdiction,
on or
after the date on which a Transaction is entered into (regardless
of
whether such action is taken or brought with respect to a party
to this
Agreement) or (y)”, and the “Tax
Event”
provisions of Section 5(b)(ii) will apply to Party B.
|
|
(iii)
|
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will
apply to
Party B, provided that Party A shall not be entitled to designate
an Early
Termination Date by reason of a Tax Event upon Merger in respect
of which
it is the Affected Party.
|
|
(iv)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and
will not
apply to Party B.
|
|
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will
not apply to
Party B.
|
(f)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
| (i) |
Market
Quotation will apply, provided, however, that, in the event of
a
Derivative Provider Trigger Event, the following provisions will
apply:
|
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted
in its
entirety and replaced with the
following:
|
“Market
Quotation” means,
with respect to one or more Terminated Transactions, a Firm Offer which
is (1)
made by a Reference Market-maker that is an Eligible Replacement, (2) for
an
amount that would be paid to Party B (expressed as a negative number) or
by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in respect of
the
Terminated Transaction or group of Transactions are to be excluded but,
without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be
included.
|
(B)
|
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
|
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined by
Party B)
equal to:
|
(a)
|
If
a Market Quotation for the relevant Terminated Transaction or
group of
Terminated Transactions is accepted by Party B so as to become
legally
binding on or before the day falling ten Local Business Days
after the day
on which the Early Termination Date is designated, or such later
day as
Party B may specify in writing to Party A, but in either case
no later
than one Local Business Day prior to the Early Termination Date
(such day,
the “Latest Settlement Amount Determination Day”), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
|
|
(b)
|
If,
on the Latest Settlement Amount Determination Day, no Market
Quotation for
the relevant Terminated Transaction or group of Terminated Transactions
has been accepted by Party B so as to become legally binding
and one or
more Market Quotations from
Approved Replacements have
been made and remain capable of becoming legally binding upon
acceptance,
the Settlement Amount shall equal the Termination Currency Equivalent
of
the amount (whether positive or negative) of the lowest of such
Market
Quotations (for the avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of
such Market Quotations
expressed as a positive number or, if any of such Market Quotations
is
expressed as a negative number, the Market Quotation expressed
as a
negative number with the largest absolute value);
or
|
|
(c)
|
If,
on the Latest Settlement Amount Determination Day, no Market
Quotation for
the relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding and no Market
Quotation from an Approved Replacement remains capable of becoming
legally
binding upon acceptance, the Settlement Amount shall equal Party
B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.
|
|
(C)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest Settlement
Amount Determination Day.
|
|
(D)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
|
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect
of the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III) Party
A
shall pay to Party B the Termination Currency Equivalent of the Unpaid
Amounts
owing to Party B; provided, however, that (x) the amounts payable under
the
immediately preceding clauses (II) and (III) shall be subject to netting
in
accordance with Section 2(c) of this Agreement and (y) notwithstanding
any other
provision of this Agreement, any amount payable by Party A under the immediately
preceding clause (III) shall not be netted-off against any amount payable
by
Party B under the immediately preceding clause (I).”
|
(E)
|
At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations from Approved Replacements
remain
capable of becoming legally binding upon acceptance, Party B
shall be
entitled to accept only the lowest of such Market Quotations
(for the
avoidance of doubt, the lowest of such Market Quotations shall
be the
lowest Market Quotation of such Market Quotations expressed as
a positive
number or, if any of such Market Quotations is expressed as a
negative
number, the Market Quotation expressed as a negative number with
the
largest absolute value).
|
| (ii) |
The
Second Method will apply.
|
(g)
“Termination
Currency”
means
USD.
(h)
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)
Tax
Representations.
(a) Payer
Tax Representations.
For the
purpose of Section
3(e)
of this
Agreement, Party A and Party B will each make the following representation:
None.
(b)
Payee
Tax Representations.
For the
purpose of Section
3(f)
of this
Agreement, Party A represents that it is a corporation duly organized and
validly existing under the laws of the State of Delaware.
(c) Tax
Representations in Confirmations. For
purposes of Sections
2(d)(i)(4)
and
3(f),
any
payee tax representation specified in a Confirmation under this Agreement
shall
be deemed to be specified in this Schedule.
|
(b)
|
Tax
Provisions.
|
|
(i)
|
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section
2(d)(ii)
shall not apply to Party B as Y, in each case such that Party
B shall not
be required to pay any additional amounts referred to
therein.
|
|
(ii)
|
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
|
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments
by
Party B, no Tax.
Part
3. Agreement
to Deliver Documents.
(a)
For
the
purpose of Section 4(a)(i), tax forms, documents, or certificates to be
delivered are:
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be delivered
|
|
Party
A and Party B
|
Any
document required or reasonably requested to allow the other
party to make
payments under this Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding
at a
reduced rate.
|
Promptly
after reasonable demand by either
party.
|
(b)
For
the
purpose of Section 4(a)(ii), other documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for
it to execute
and deliver the Agreement, this Confirmation, and any Credit
Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under the Agreement, this Confirmation and any Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the
incumbency
and authority of the respective officers of the party signing
the
Agreement, this Confirmation, and any relevant Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements
certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country
in which
Party A is organized
|
Promptly
upon becoming publicly available
|
Yes
|
|
Party
A
|
Quarterly
Financial Statements of Party A containing unaudited, consolidated
financial statements of Party A’s fiscal quarter prepared in accordance
with generally accepted accounting principles in the country
in which
Party A is organized
|
Promptly
upon becoming publicly available
|
Yes
|
|
Party
A
|
An
opinion of counsel to Party A substantially in the form of Exhibit
A to
this Confirmation
|
Upon
the execution and delivery of this Agreement
|
No
|
|
Party
A
|
A
guarantee of Xxxxxx Brothers Holdings Inc., substantially in
the form of
Exhibit B to this Confirmation
|
Upon
the execution and delivery of this Agreement
|
No
|
|
Party
A
|
An
opinion of counsel to Party A’s Guarantor substantially in the form of
Exhibit C to this Confirmation
|
Upon
the execution and delivery of this Agreement
|
No
|
|
Party
B
|
Executed
copy of the Pooling and Servicing Agreement.
|
Upon
execution in final form.
|
No
|
|
Party
B
|
Monthly
Report
|
At
such time as each Monthly Report is delivered to the
Trustee
|
No.
|
|
Party
B
|
Copy
of any notice delivered to Party B under the Pooling and Servicing
Agreement.
|
Upon
availability
|
No
|
|
Party
B
|
An
opinion of counsel to Party B substantially in the form of Exhibit
D to
this Schedule.
|
Upon
the execution and delivery of this Agreement
|
No
|
Part
4. Miscellaneous.
|
(a)
|
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
|
Address:
Xxxxxx
Brothers Special Financing Inc.
c/x
Xxxxxx Brothers Inc.
Corporate
Advisory Division
Transaction
Management Group
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Documentation
Manager
Telephone
No.: (000)
000-0000
Facsimile
No.: (000)
000-0000
(For
all
purposes)
Address
for notices or communications to Party B:
Address:
Xxxxx
Fargo Bank, NA
0000
Xxx
Xxxxxxxxx Xx.
Xxxxxxxx,
XX 00000-0000
Attention:
Client
Manager- Option One- Option One 2007-4
Facsimile:
000
000
0000
Phone:
000
000
0000
(For
all
purposes)
(b)
Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
|
Party
A
is not a Multibranch Party.
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent. The
Calculation Agent is Party A; provided however, if an Event of
Default
occurs and is continuing with respect to Party A, then the parties
shall
be entitled to appoint a financial institution mutually acceptable
to both
parties which would qualify as a Reference Market-maker to act
as
Calculation Agent, the cost for which shall be borne by Party
A, until the
earlier of (i) a designation under Section 6(c)(ii), or (ii)
the
discontinuance of such Event of Default with respect to Party
A.
|
(f)
Credit
Support Document.
|
Party
A:
|
The
Credit Support Annex, and the guarantee in support of Party A’s
obligations under this Agreement substantially in the form attached
hereto
as Exhibit B to this Schedule.
|
Party
B: The
Credit Support Annex, solely in respect of Party B’s obligations under Paragraph
3(b) of the Credit Support Annex.
|
(g)
|
Credit
Support Provider.
|
Party
A: The
guarantor under any guarantee in support of Party A’s obligations under this
Agreement.
Party
B: None.
|
(h)
|
Governing
Law.
The parties to this Agreement hereby agree that the law of the
State of
New York shall govern their rights and duties in whole, without
regard to
the conflict of law provisions thereof other than New York General
Obligations Law Sections 5-1401 and 5-1402.
|
|
(i)
|
Netting
of Payments.
The parties agree that subparagraph (ii) of Section 2(c) will
apply to
each Transaction hereunder.
|
|
(j)
|
Affiliate. “Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party B shall be deemed to have no Affiliates for purposes
of this
Agreement, including for purposes of Section 6(b)(ii); provided,
further,
that with respect to Party A, such definition shall be understood
to
exclude Xxxxxx Brothers Derivative Products Inc. and Xxxxxx Brothers
Financial Products Inc.
|
Part
5. Other
Provisions.
|
(a)
|
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each
Transaction
under this Agreement are subject to the 2000 ISDA Definitions
as published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions
set forth
in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part
of this
Agreement, except that (i) references in the Definitions to a
“Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
|
(b)
Amendments
to ISDA Master Agreement.
|
(i)
|
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
|
(ii) Conditions
Precedent. Section
2(a)(iii) is hereby amended by adding the following at the end thereof:
Notwithstanding
anything to the contrary in Section 2(a)(iii)(1), if an Event of Default
with
respect to Party B or Potential Event of Default with respect to Party
B has
occurred and been continuing for more than 30 Local Business Days and no
Early
Termination Date in respect of the Affected Transactions has occurred or
been
effectively designated by Party A, the obligations of Party A under Section
2(a)(i) shall cease to be subject to the condition precedent set forth
in
Section 2(a)(iii)(1) with respect to such specific occurrence of such Event
of
Default or such Potential Event of Default (the “Specific
Event”);
provided, however, for the avoidance of doubt, the obligations of Party
A under
Section 2(a)(i) shall be subject to the condition precedent set forth in
Section
2(a)(iii)(1) (subject to the foregoing) with respect to any subsequent
occurrence of the same Event of Default with respect to Party B or Potential
Event of Default with respect to Party B after the Specific Event has ceased
to
be continuing and with respect to any occurrence of any other Event of
Default
with respect to Party B or Potential Event of Default with respect to Party
B
that occurs subsequent to the Specific Event.
|
(iii)
|
Change
of Account.
Section 2(b) is hereby amended by the addition of the following
after the
word “delivery” in the first line
thereof:
|
“to
another account in the same legal and tax jurisdiction as the original
account”.
|
(iv)
|
Representations.
Section 3 is hereby amended by adding at the end thereof the
following
subsection (g):
|
|
“(g)
|
Relationship
Between Parties.
|
|
(1)
|
Nonreliance.
(i) It is not relying on any statement or representation of the
other
party regarding the Transaction (whether written or oral), other
than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction and (ii) it has consulted with its
own legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its own
investment,
hedging and trading decisions based upon its own judgment and
upon any
advice from such advisors as it has deemed necessary and not
upon any view
expressed by the other party.
|
|
(2)
|
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) the Transaction and
has made its
own decision to enter into the Transaction and (ii) It understands
the
terms, conditions and risks of the Transaction and is willing
and able to
accept those terms and conditions and to assume those risks,
financially
and otherwise.
|
|
(3)
|
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
|
|
(4)
|
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible swap participant” as such term is
defined in, Section 35.1(b)(2) of the regulations (17 C.F.R.
35)
promulgated under, and an “eligible contract participant” as defined in
Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
|
|
(v)
|
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended by (i) deleting the words
“or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
and (ii) by deleting the words “to transfer” and inserting the words “to
effect a Permitted Transfer” in lieu
thereof.
|
|
(vi)
|
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of
subparagraph (i) thereof the word "non-", (ii) deleting “; and” from the
end of subparagraph (i) and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
|
|
(vii)
|
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby
amended by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events.
The following Additional Termination Events will
apply:
|
| (i) |
First
Rating Trigger Collateral.
If
(A) it is not the case that a Xxxxx’x Second Trigger Ratings Event has
occurred and been continuing for 30 or more Local Business Days
and (B)
Party
A has failed to comply with or perform any obligation to be complied
with
or performed by Party A in accordance with the Credit Support
Annex, then
an Additional Termination Event shall have occurred with respect
to Party
A and Party A shall be the sole Affected Party with respect to
such
Additional Termination Event.
|
| (ii) |
Second
Rating Trigger Replacement.
If
(A) a Required Ratings Downgrade Event has occurred and been
continuing
for 30 or more Local Business Days and (B) (i) at least one Eligible
Replacement has made a Firm Offer to be the transferee of all
of Party A’s
rights and obligations under this Agreement (and such Firm Offer
remains
an offer that will become legally binding upon such Eligible
Replacement
upon acceptance by the offeree) and/or (ii) an Eligible Guarantor
has made
a Firm Offer to provide an Eligible Guarantee (and such Firm
Offer remains
an offer that will become legally binding upon such Eligible
Guarantor
immediately upon acceptance by the offeree), then an Additional
Termination Event shall have occurred with respect to Party A
and Party A
shall be the sole Affected Party with respect to such Additional
Termination Event.
|
|
(iii)
|
Amendment
of Pooling and Servicing Agreement.
If, without the prior written consent of Party A where such consent
is
required under the Pooling and Servicing Agreement (such consent
not to be
unreasonably withheld), an amendment is made to the Pooling and
Servicing
Agreement which amendment could reasonably be expected to have
a material
adverse effect on the interests of Party A (excluding, for the
avoidance
of doubt, any amendment to the Pooling and Servicing Agreement
that is
entered into solely for the purpose of appointing a successor
servicer,
master servicer, securities administrator, trustee or other service
provider) under this Agreement, an Additional Termination Event
shall have
occurred with respect to Party B and Party B shall be the sole
Affected
Party with respect to such Additional Termination Event.
|
|
(iv)
|
If,
upon the occurrence of a Regulation AB Event (as defined in Part
5(e)
below) Party A has not, within 30 days after such Regulation
AB Event
complied with any of the provisions set forth in Part 5(e)(iii)
below (or,
if the significance percentage reaches 10% after a Regulation
AB Event has
occurred, Party A has not complied with the provisions set forth
in Part
5(e)(iii) below within 10 calendar days of Party A being informed
by the
Depositor or Party B, as the case may be of the significance
percentage
reaching 10%), then an Additional Termination Event shall have
occurred
with respect to Party A and Party A shall be the sole Affected
Party with
respect to such Additional Termination
Event.
|
|
(v)
|
Optional
Termination of Securitization. An
Additional Termination Event shall occur upon the notice to
Certificateholders of an Optional Termination becoming unrescindable
in
accordance with Article X of the Pooling and Servicing Agreement
(such
notice, the “Optional Termination Notice”). With respect to such
Additional Termination Event: (A) Party B shall be the sole Affected
Party; (B) notwithstanding anything to the contrary in Section
6(b)(iv) or
Section 6(c)(i), the final Distribution Date specified in the
Optional
Termination Notice is hereby designated as the Early Termination
Date for
this Additional Termination Event in respect of all Transactions;
(C)
Section 2(a)(iii)(2) shall not be applicable to any Transaction
in
connection with the Early Termination Date resulting from this
Additional
Termination Event; notwithstanding anything to the contrary in
Section
6(c)(ii), payments and deliveries under Section 2(a)(i) or Section
2(e) in
respect of the Terminated Transactions resulting from this Additional
Termination Event will be required to be made through and including
the
Early Termination Date designated as a result of this Additional
Termination Event; provided, for the avoidance of doubt, that
any such
payments or deliveries that are made on or prior to such Early
Termination
Date will not be treated as Unpaid Amounts in determining the
amount
payable in respect of such Early Termination Date; (D) notwithstanding
anything to the contrary in Section 6(d)(i), (I) if, no later
than 4:00 pm
New York City time on the day that is four Business Days prior
to the
final Distribution Date specified in the Optional Termination
Notice, the
Trustee requests the amount of the Estimated Swap Termination
Payment,
Party A shall provide to the Trustee in writing (which may be
done in
electronic format) the amount of the Estimated Swap Termination
Payment no
later than 2:00 pm New York City time on the following Business
Day and
(II) if the Trustee provides written notice (which may be done
in
electronic format) to Party A no later than two Business Days
prior to the
final Distribution Date specified in the Optional Termination
Notice that
all requirements of the Optional Termination have been met, then
Party A
shall, no later than one Business Day prior to the final Distribution
Date
specified in the Optional Termination Notice, make the calculations
contemplated by Section 6(e) of the ISDA Master Agreement (as
amended
herein) and provide to the Trustee in writing (which may be done
in
electronic format) the amount payable by either Party B or Party
A in
respect of the related Early Termination Date in connection with
this
Additional Termination Event; provided, however, that the amount
payable
by Party B, if any, in respect of the related Early Termination
Date shall
be the lesser of (x) the amount calculated to be due from Party
B pursuant
to Section 6(e) and (y) the Estimated Swap Termination Payment;
and (E)
notwithstanding anything to the contrary in this Agreement, any
amount due
from Party B to Party A in respect of this Additional Termination
Event
will be payable on the final Distribution Date specified in the
Optional
Termination Notice and any amount due from Party A to Party B
in respect
of this Additional Termination Event will be payable one Business
Day
prior to the final Distribution Date specified in the Optional
Termination
Notice.
|
For
purposes of determining the payment under Section 6(e) of the ISDA Master
Agreement with respect to the Additional Termination Event in this Part
5(c)(v),
for all Calculation Periods beginning on or after the Early Termination
Date,
the definition of Notional Amount in the Confirmation shall be deleted
in its
entirety and replaced with the following: “With respect to each Calculation
Period, the amount for such Calculation Period as set forth in Schedule
I
attached hereto multiplied by the quotient of (A) the Notional Amount for
the
Calculation Period immediately prior to the Early Termination Date divided
by
(B) the Calculation Amount for the Calculation Period immediately prior
to the
Early Termination Date as set forth in Schedule I attached hereto”.
The
Trustee shall be an express third party beneficiary of this Agreement as
if a
party hereto to the extent of the Trustee’s rights specified in this Part 5(v).
|
(d)
|
Required
Ratings Downgrade Event.
In
the event that no Relevant Entity has credit ratings at least
equal to the
Required Ratings Threshold, then Party A shall, as soon as reasonably
practicable and so long as a Required Ratings Downgrade Event
is in
effect, at its own expense, using commercially reasonable efforts,
procure
either (A) a Permitted Transfer or (B) an Eligible Guarantee
from an
Eligible Guarantor.
|
(e)
Compliance with Regulation AB.
|
(i)
|
Party
A agrees and acknowledges that while reporting requirements with
respect
to this Transaction are operative by force of law, the Depositor
is required under Regulation AB under the Securities Act of 1933,
as
amended, and the Securities Exchange Act of 1934, as amended
(“Regulation
AB”),
to disclose certain information set forth in Regulation AB regarding
Party
A or its group of affiliated entities, if applicable, depending
on the
aggregate “significance percentage” of this Agreement and any other
derivative contracts between Party A or its group of affiliated
entities,
if applicable, and Party B, as calculated from time to time in
accordance
with Item 1115 of Regulation AB.
|
|
(ii)
|
If,
solely while the relevant reporting requirements apply by force
of law to
this Transaction, the Depositor determines, reasonably and in good
faith, that the significance percentage of this Agreement has
increased to
nine (9) percent, then the Depositor or Party B, as the case may be,
shall notify Party A on a Business Day after the date hereof
of such
increase in the significance percentage (such notification, a
“Regulation
AB Event”).
The Depositor hereby agrees with Party A to provide Party A with
the
calculations and any other information reasonably requested by
Party A
with respect to the determination that led to a Regulation AB
Event.
|
|
(iii)
|
Upon
the occurrence of a Regulation AB Event, Party A, at its own
expense,
shall (1) provide the Depositor with the information set forth
in Item 1115(b) of Regulation AB (the “Regulation
AB Information”),
(2) subject to Rating Agency Condition, secure by Permitted Transfer
another entity to replace Party A as party to this Agreement
on terms
substantially similar to this Agreement, which entity is able
to provide
the Regulation AB Information or (3) subject to Rating Agency
Condition,
obtain a guaranty of Party A’s obligations under this Agreement from an
affiliate of Party A that is able to provide the Regulation AB
Information, such that disclosure provided in respect of the
affiliate
will satisfy any disclosure requirements applicable to Party
A, and cause
such affiliate to provide the Regulation AB Information. If permitted
by
Regulation AB, any required Regulation AB Information may be
provided by
incorporation by reference from reports filed pursuant to the
Securities
Exchange Act.
|
|
(f)
|
Transfers.
|
Section
7
is hereby amended to read in its entirety as follows:
“Except
with respect to any Permitted Transfer pursuant to Section 6(b)(ii), Part
5(d),
Part 5(e), or the succeeding sentence, neither Party A nor Party B is permitted
to assign, novate or transfer (whether by way of security or otherwise)
as a
whole or in part any of its rights, obligations or interests under the
Agreement
or any Transaction unless (a) the prior written consent of the other party
is
obtained, and (b) the Rating Agency Condition has been satisfied with respect
to
S&P. At any time at which no Relevant Entity has credit ratings at least
equal to the Approved Ratings Threshold, Party A may make a Permitted Transfer.”
"Notwithstanding
anything to the contrary in Section 7 and Section 6(b)(ii) of the Agreement,
Party A may make a Permitted Transfer to any Affiliate of Xxxxxx Brothers
Holdings Inc. ("Holdings") effective upon delivery to Party B of the guarantee
by Holdings, in favor of Party B, of the obligations of such Affiliate,
such
guarantee to be identical to the guarantee then in effect of the obligations
of
the transferor (except for the name, address and the jurisdiction of the
guarantor) or that otherwise satisfies the Rating Agency
Condition."
|
(g)
|
Non-Recourse.
Party
A acknowledges and agrees that, notwithstanding any provision
in this
Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely from
the
Supplemental Interest Trust and the proceeds thereof, in accordance
with
the priority of payments and other terms of the Pooling and Servicing
Agreement and that Party A will not have any recourse to any
of the
directors, officers, employees, shareholders or affiliates of
the Party B
with respect to any claims, losses, damages, liabilities, indemnities
or
other obligations in connection with any transactions contemplated
hereby.
This provision will survive the termination of this
Agreement.
|
In
the
event that the Supplemental Interest Trust and the proceeds thereof, should
be
insufficient to satisfy all claims outstanding and following the realization
of
the account held by the Supplemental Interest Trust and the proceeds thereof,
any claims against or obligations of Party B under the ISDA Master Agreement
or
any other confirmation thereunder still outstanding shall be extinguished
and
thereafter not revive. The Supplemental Interest Trust Trustee shall not
have
liability for any failure or delay in making a payment hereunder to Party
A due
to any failure or delay in receiving amounts in the account held by the
Supplemental Interest Trust from the Trust created pursuant to the Pooling
and
Servicing Agreement. This provision will survive the termination of this
Agreement.
|
(h)
|
Timing
of Payments
by Party B upon Early Termination.
Notwithstanding anything to the contrary in Section 6(d)(ii),
to the
extent that all or a portion (in either case, the “Unfunded Amount”) of
any amount that is calculated as being due in respect of any
Early
Termination Date under Section 6(e) from Party B to Party A will
be paid
by Party B from amounts other than any upfront payment paid to
Party B by
an Eligible Replacement that has entered a Replacement Transaction
with
Party B, then such Unfunded Amount shall be due on the next subsequent
Distribution Date following the date on which the payment would
have been
payable as determined in accordance with Section 6(d)(ii), and
on any
subsequent Distribution Dates until paid in full (or if such
Early
Termination Date is the final Distribution Date, on such final
Distribution Date); provided, however, that if the date on which
the
payment would have been payable as determined in accordance with
Section
6(d)(ii) is a Distribution Date, such payment will be payable
on such
Distribution Date.
|
|
(i)
|
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Swap Rating Agency has been given prior written notice of
such
designation or transfer.
|
|
(j)
|
No
Set-off.
Except as expressly provided for in Section 2(c), Section 6 or
Part
1(f)(i)(D) hereof, and notwithstanding any other provision of
this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off,
net, recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date
and
determined pursuant to this Section will be subject to any
Set-off.”.
|
|
(k)
|
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under this
Agreement
shall be permitted by either party unless each of the Swap Rating
Agencies
has been provided prior written notice of the same and such amendment
satisfies the Rating Agency Condition with respect to S&P.
|
|
(l)
|
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving
of notice or
passage of time or both would constitute) an Event of Default
or
Termination Event with respect to such party, promptly to give
the other
Party and to each Swap Rating Agency notice of such event or
condition;
provided that failure to provide notice of such event or condition
pursuant to this Part 5(l) shall not constitute an Event of Default
or a
Termination Event.
|
(m)
Proceedings.
No
Relevant Entity shall institute against, or cause any other person to institute
against, or join any other person in instituting against Party B, the
Supplemental Interest Trust, or the trust formed pursuant to the Pooling
and
Servicing Agreement, in any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law for a period of one year (or, if longer, the
applicable preference period) and one day following payment in full of
the
Certificates and any Notes. This provision will survive the termination
of this
Agreement.
|
(n)
|
Supplemental
Interest Trust Trustee Liability Limitations.
It
is expressly understood and agreed by the parties hereto that
(a) this
Agreement is executed by Xxxxx Fargo Bank N.A. (“Xxxxx”) not in its
individual capacity, but solely as Supplemental Interest Trust
Trustee
under the Pooling and Servicing Agreement in the exercise of
the powers
and authority conferred and invested in it thereunder; (b) the
Supplemental Interest Trust Trustee has been directed pursuant
to the
Pooling and Servicing Agreement to enter into this Agreement
and to
perform its obligations hereunder; (c) each of the representations,
undertakings and agreements herein made on behalf of the Supplemental
Interest Trust is made and intended not as personal representations
of the
Supplemental Interest Trust Trustee but is made and intended
for the
purpose of binding only the Supplemental Interest Trust; and
(d) under no
circumstances shall Xxxxx
in its individual capacity be personally liable for any payments
hereunder
or for the breach or failure of any obligation, representation,
warranty
or covenant made or undertaken under this
Agreement.
|
|
(o)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
invalid or unenforceable (in whole or in part) in any respect,
the
remaining terms, provisions, covenants, and conditions hereof
shall
continue in full force and effect as if this Agreement had been
executed
with the invalid or unenforceable portion eliminated, so long
as this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement
will not
substantially impair the respective benefits or expectations
of the
parties; provided, however, that this severability provision
shall not be
applicable if any provision of Section 2, 5, 6, or 13 (or any
definition
or provision in Section 14 to the extent it relates to, or is
used in or
in connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace
any
invalid or unenforceable term, provision, covenant or condition with a
valid or
enforceable term, provision, covenant or condition, the economic effect
of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(p)
|
Agent
for Party B. Party
A acknowledges that the Depositor has appointed the Supplemental
Interest
Trust Trustee and the Swap Administrator as its agents under
the Pooling
and Servicing Agreement and the Swap Administration Agreement
to carry out
certain functions on behalf of Party B, and that the Supplemental
Interest
Trustee and the Swap Administrator shall be entitled to give
notices and
to perform and satisfy the obligations of Party B hereunder on
behalf of
Party B.
|
|
(q)
|
Escrow
Payments.
If
(whether by reason of the time difference between the cities
in which
payments are to be made or otherwise) it is not possible for
simultaneous
payments to be made on any date on which both parties are required
to make
payments hereunder, either Party may at its option and in its
sole
discretion notify the other Party that payments on that date
are to be
made in escrow. In this case deposit of the payment due earlier
on that
date shall be made by 2:00 pm (local time at the place for the
earlier
payment) on that date with an escrow agent selected by the notifying
party, accompanied by irrevocable payment instructions (i) to
release the
deposited payment to the intended recipient upon receipt by the
escrow
agent of the required deposit of any corresponding payment payable
by the
other party on the same date accompanied by irrevocable payment
instructions to the same effect or (ii) if the required deposit
of the
corresponding payment is not made on that same date, to return
the payment
deposited to the party that paid it into escrow. The party that
elects to
have payments made in escrow shall pay all costs of the escrow
arrangements.
|
|
(r)
|
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at any time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the parties
and
their Affiliates.
|
|
(s)
|
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in
respect of
any suit, action or proceeding relating to this Agreement or
any Credit
Support Document.
|
|
(t)
|
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the ISDA
Master
Agreement is intended to be the printed form of the ISDA Master
Agreement
(Multicurrency - Crossborder) as published and copyrighted in
1992 by the
International Swaps and Derivatives Association,
Inc.
|
|
(u)
|
Third-Party
Beneficiary.
Party B consents that Party A shall be an express third-party
beneficiary
of the Pooling and Servicing
Agreement.
|
|
(v)
|
Additional
representations.
|
|
(i)
|
Representations
of Party A.
Party A represents to Party B on the date on which Party A enters
into
each Transaction that:--
|
|
(1)
|
Party
A’s obligations under this Agreement rank pari passu with all of
Party A’s
other unsecured, unsubordinated obligations except those obligations
preferred by operation of law.
|
|
(ii)
|
Capacity.
Party A represents to Party B on the date on which Party A enters
into
this Agreement that it is entering into the Agreement and the
Transaction
as principal and not as agent of any person. The Supplemental
Interest
Trust Trustee represents to Party A on the date on which the
Supplemental
Interest Trust Trustee executes this Agreement that it is executing
the
Agreement in its capacity as Supplemental Interest Trust
Trustee..
|
(z)
Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold and the Moody’s First Trigger
Ratings Threshold. .
“Approved
Replacement” means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b), (c) and (d) of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion, acting
in a
commercially reasonable manner) if such entity were a Transferee, as defined
in
the definition of Permitted Transfer.
“Derivative
Provider Trigger Event”
means
(i) an Event of Default with respect to which Party A is a Defaulting Party,
(ii) a Termination Event with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future obligations
(for the avoidance of doubt, not limited to payment obligations) of Party
A (or
an Eligible Replacement) to Party B under this Agreement that is provided
by an
Eligible Guarantor as principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which guarantee are subject
to
the Rating Agency Condition with respect to S&P, and either (A) a law firm
has given a legal opinion confirming that none of the guarantor’s payments to
Party B under such guarantee will be subject to Tax
collected by withholding or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to Tax collected by withholding, such guarantor
is
required to pay such additional amount as is necessary to ensure that the
net
amount actually received by Party B (free and clear of any Tax collected
by
withholding) will equal the full amount Party B would have received had
no such
withholding been required.
“Eligible
Guarantor” means
an
entity that (A) has credit ratings from S&P at least equal to the S&P
Approved Ratings Threshold and (B) has credit ratings from Moody’s at least
equal to the Moody’s Second Trigger Ratings Threshold, provided, for the
avoidance of doubt, that an Eligible Guarantee of an Eligible Guarantor
with
credit ratings below the Moody’s First Trigger Ratings Threshold will not cause
a Collateral Event (as defined in the Credit Support Annex) not to occur
or
continue with respect to Moody’s.
“Eligible
Replacement”
means an
entity (A) (i) (a) that has credit ratings from S&P at least equal to the
S&P Approved Ratings Threshold, and (b) has credit ratings from Moody’s at
least equal to the Moody’s Second Trigger Ratings Threshold, provided, for the
avoidance of doubt, that an Eligible Replacement with credit ratings below
the
Moody’s First Trigger Ratings Threshold will not cause a Collateral Event (as
defined in the Credit Support Annex) not to occur or continue with respect
to
Moody’s or (ii) the present and future obligations (for the avoidance of doubt,
not limited to payment obligations) of which entity to Party B under this
Agreement are guaranteed pursuant to an Eligible Guarantee and (B) that
has
executed an Item 1115 Agreement with Depositor.
“Estimated
Swap Termination Payment”
means,
with respect to an Early Termination Date, an amount determined by Party
A in
good faith and in a commercially reasonable manner as the maximum payment
that
could be owed by Party B to Party A in respect of such Early Termination
Date
pursuant to Section 6(e) of the ISDA Master Agreement, taking into account
then
current market conditions.
“Firm
Offer”
means
(A) with respect to an Eligible Replacement, a quotation from such Eligible
Replacement (i) in an amount equal to the actual amount payable by or to
Party B
in consideration of an agreement between Party B and such Eligible Replacement
to replace Party A as the counterparty to this Agreement by way of novation
or,
if such novation is not possible, an agreement between Party B and such
Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A as
the
counterparty to this Agreement or enter a Replacement Transaction that
will
become legally binding upon such Eligible Replacement upon acceptance by
Party
B, and (B) with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally binding
upon
such Eligible Guarantor upon acceptance by the offeree.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Event”
means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s First Trigger Ratings Threshold.
“Moody’s
First Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of
“A1”.
“Moody’s
Second Trigger Ratings Event”
means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody’s of “A3”.
“Permitted
Transfer”
means a
transfer by novation by Party A pursuant to Section 6(b)(ii), Part 5(d),
Part
5(e), or the second sentence of Section 7 (as amended herein), to a transferee
(the “Transferee”) of all, but not less than all, of Party A’s rights,
liabilities, duties and obligations under this Agreement, with respect
to which
transfer each of the following conditions is satisfied: (a) the Transferee
is an
Eligible Replacement; (b) Party A and the Transferee are both “dealers in
notional principal contracts” within the meaning of Treasury regulations section
1.1001-4; (c) as of the date of such transfer the Transferee would not
be
required to withhold or deduct on account of Tax from any payments under
this
Agreement or would be required to gross up for such Tax under Section
2(d)(i)(4); (d) an Event of Default or Termination Event would not occur
as a
result of such transfer; (e) pursuant to a written instrument (the “Transfer
Agreement”), the Transferee acquires and assumes all rights and obligations of
Party A under the Agreement and the relevant Transaction; (f) Party B shall
have
determined, in its sole discretion, acting in a commercially reasonable
manner,
that such Transfer Agreement is effective to transfer to the Transferee
all, but
not less than all, of Party A’s rights and obligations under the Agreement and
all relevant Transactions; (g) Party A will be responsible for any costs
or
expenses incurred in connection with such transfer (including any replacement
cost of entering into a replacement transaction); (h) either (A) Moody’s has
been given prior written notice of such transfer and the Rating Agency
Condition
is satisfied with respect to S&P, or (B) each Swap Rating Agency has been
given prior written notice of such transfer and such transfer is in connection
with the assignment and assumption of this Agreement without modification
of its
terms, other than party names, dates relevant to the effective date of
such
transfer, tax representations (provided that the representations in Part
2(a)(i)
are not modified) and any other representations regarding the status of
the
substitute counterparty of the type included in Part 5(b)(iv) or Part 5(v)(ii),
notice information and account details; and (i) such transfer otherwise
complies
with the terms of the Pooling and Servicing Agreement.
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder
and
each Swap Rating Agency specified in connection with such proposed act
or
omission, that the party acting or failing to act must consult with each
of the
specified Swap Rating Agencies and receive from each such Swap Rating Agency
a
prior written confirmation that the proposed action or inaction would not
cause
a downgrade or withdrawal of the then-current rating of any Certificates
or
Notes.
“Relevant
Entity” means
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (i) would have the effect of
preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that Date, and (ii) has terms
which
are substantially the same as this Agreement, including, without limitation,
rating triggers, Regulation AB compliance, and credit support documentation,
save for the exclusion of provisions relating to Transactions that are
not
Terminated Transaction, as determined by Party B in its sole discretion,
acting
in a commercially reasonable manner.
“Required
Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the Required
Ratings Threshold.
“Required
Ratings Threshold” means
each of the S&P Required Ratings Threshold and the Moody’s Second Trigger
Ratings Threshold.
“S&P”
means
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a short-term unsecured and unsubordinated debt rating
from
S&P of “A-1”, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating from S&P of
“A+”.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
or
counterparty rating from S&P of “BBB+”.
“Swap
Rating Agencies”
means,
with respect to any date of determination, each of S&P and Moody’s, to the
extent that each such rating agency is then providing a rating for any
of the
Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
(the “Certificates”) or any notes backed by the Certificates (the “Notes”).
[Remainder
of this page intentionally left blank.]
4. Account
Details and Settlement Information:
Payments
to Party
A:
XX
XXXXXX
XXXXX BANK NEW YORK (XXXXXX00)
A/C
XXXXXX BROTHERS SPECIAL FINANCING INC.
A/C#
000-000-000
Payments
to Party
B: XXXXX
FARGO BANK N.A.
ABA#
000000000
ACCT#
0000000000
ACCT
NAME: SAS CLEARING
FFC:
53139702
OPTION
ONE 2007-4 SWAP ACCOUNT
This
Agreement may be executed in several counterparts, each of which shall
be deemed
an original but all of which together shall constitute one and the same
instrument.
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
XXXXXX
BROTHERS SPECIAL FINANCING INC.
By: _______________________________
Name:
Title:
Party
B,
acting through its duly authorized signatory, hereby agrees to, accepts
and
confirms the terms of the foregoing as of the date hereof.
Xxxxx
Fargo Bank, N.A., not individually, but solely as Supplemental Interest
Trust
Trustee on behalf of the Supplemental Interest Trust with respect to the
Option
One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series
2007-4
By: _______________________________
Name:
Title:
SCHEDULE
I
(*All
such dates subject to No Adjustment with respect to Fixed Rate Payer Period
End
Dates and adjustment in
accordance
with the Following Business Day Convention with respect to Floating Rate
Payer
Period End Dates)
|
*Calculation
Period
from and
including
|
*Calculation
Period
up to but
excluding
|
Calculation
Amount
(USD)
|
||
|
Effective
Date
|
May
25, 2007
|
0.00
|
||
|
May
25, 2007
|
June
25, 2007
|
4,502,698.43
|
||
|
June
25, 2007
|
July
25, 2007
|
4,456,766.76
|
||
|
July
25, 2007
|
August
25, 2007
|
4,400,619.55
|
||
|
August
25, 2007
|
September
25, 2007
|
4,334,335.36
|
||
|
September
25, 2007
|
October
25, 2007
|
4,258,059.96
|
||
|
October
25, 2007
|
November
25, 2007
|
4,172,060.68
|
||
|
November
25, 2007
|
December
25, 2007
|
4,076,647.09
|
||
|
December
25, 2007
|
January
25, 2008
|
3,972,334.64
|
||
|
January
25, 2008
|
February
25, 2008
|
3,860,715.07
|
||
|
February
25, 2008
|
March
25, 2008
|
3,745,313.40
|
||
|
March
25, 2008
|
April
25, 2008
|
3,631,837.48
|
||
|
April
25, 2008
|
May
25, 2008
|
3,521,632.99
|
||
|
May
25, 2008
|
June
25, 2008
|
3,414,586.41
|
||
|
June
25, 2008
|
July
25, 2008
|
3,310,606.49
|
||
|
July
25, 2008
|
August
25, 2008
|
3,209,604.60
|
||
|
August
25, 2008
|
September
25, 2008
|
3,111,480.24
|
||
|
September
25, 2008
|
October
25, 2008
|
3,015,574.09
|
||
|
October
25, 2008
|
November
25, 2008
|
2,922,104.92
|
||
|
November
25, 2008
|
December
25, 2008
|
2,829,632.83
|
||
|
December
25, 2008
|
January
25, 2009
|
2,728,698.11
|
||
|
January
25, 2009
|
February
25, 2009
|
2,599,109.11
|
||
|
February
25, 2009
|
March
25, 2009
|
2,424,952.01
|
||
|
March
25, 2009
|
April
25, 2009
|
2,250,186.29
|
||
|
April
25, 2009
|
May
25, 2009
|
2,095,069.50
|
||
|
May
25, 2009
|
June
25, 2009
|
1,971,663.96
|
||
|
June
25, 2009
|
July
25, 2009
|
1,889,012.82
|
||
|
July
25, 2009
|
August
25, 2009
|
1,818,704.30
|
||
|
August
25, 2009
|
September
25, 2009
|
1,750,774.38
|
||
|
September
25, 2009
|
October
25, 2009
|
1,685,140.62
|
||
|
October
25, 2009
|
November
25, 2009
|
1,621,722.36
|
||
|
November
25, 2009
|
December
25, 2009
|
1,560,443.04
|
||
|
December
25, 2009
|
January
25, 2010
|
1,501,229.10
|
||
|
January
25, 2010
|
February
25, 2010
|
1,444,009.53
|
||
|
February
25, 2010
|
March
25, 2010
|
1,388,718.98
|
||
|
March
25, 2010
|
April
25, 2010
|
1,335,291.30
|
||
|
April
25, 2010
|
May
25, 2010
|
1,283,659.42
|
||
|
May
25, 2010
|
June
25, 2010
|
1,283,659.42
|
||
|
June
25, 2010
|
July
25, 2010
|
1,283,659.42
|
||
|
July
25, 2010
|
August
25, 2010
|
1,247,869.05
|
||
|
August
25, 2010
|
September
25, 2010
|
1,207,730.99
|
||
|
September
25, 2010
|
October
25, 2010
|
1,168,935.93
|
||
|
October
25, 2010
|
November
25, 2010
|
1,131,437.68
|
||
|
November
25, 2010
|
December
25, 2010
|
1,095,191.79
|
||
|
December
25, 2010
|
January
25, 2011
|
1,060,155.38
|
||
|
January
25, 2011
|
February
25, 2011
|
1,026,287.10
|
||
|
February
25, 2011
|
March
25, 2011
|
993,546.93
|
||
|
March
25, 2011
|
April
25, 2011
|
961,896.29
|
||
|
April
25, 2011
|
May
25, 2011
|
931,297.95
|
||
|
May
25, 2011
|
June
25, 2011
|
901,715.96
|
||
|
June
25, 2011
|
July
25, 2011
|
873,115.61
|
||
|
July
25, 2011
|
August
25, 2011
|
845,463.42
|
||
|
August
25, 2011
|
September
25, 2011
|
818,727.05
|
||
|
September
25, 2011
|
October
25, 2011
|
792,875.28
|
||
|
October
25, 2011
|
November
25, 2011
|
767,877.20
|
||
|
November
25, 2011
|
December
25, 2011
|
743,704.16
|
||
|
December
25, 2011
|
January
25, 2012
|
720,326.67
|
||
|
January
25, 2012
|
February
25, 2012
|
697,714.68
|
||
|
February
25, 2012
|
March
25, 2012
|
675,833.95
|
||
|
March
25, 2012
|
April
25, 2012
|
654,642.58
|
||
|
April
25, 2012
|
May
25, 2012
|
634,141.33
|
||
|
May
25, 2012
|
June
25, 2012
|
614,314.07
|
||
|
June
25, 2012
|
July
25, 2012
|
595,137.93
|
||
|
July
25, 2012
|
August
25, 2012
|
576,590.90
|
||
|
August
25, 2012
|
September
25, 2012
|
558,652.13
|
||
|
September
25, 2012
|
October
25, 2012
|
541,301.00
|
||
|
October
25, 2012
|
November
25, 2012
|
524,517.11
|
||
|
November
25, 2012
|
December
25, 2012
|
508,281.20
|
||
|
December
25, 2012
|
January
25, 2013
|
492,574.76
|
||
|
January
25, 2013
|
February
25, 2013
|
477,379.90
|
||
|
February
25, 2013
|
March
25, 2013
|
462,679.45
|
||
|
March
25, 2013
|
April
25, 2013
|
448,456.70
|
||
|
April
25, 2013
|
May
25, 2013
|
434,695.49
|
||
|
May
25, 2013
|
Termination
Date
|
421,380.27
|
Annex
A
Paragraph
13 of the Credit Support Annex
ANNEX
A
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of April 19, 2007 between
XXXXXX
BROTHERS SPECIAL FINANCING INC. (hereinafter
referred to as “Party
A”
or
“Pledgor”)
and
Xxxxx
Fargo Bank, N.A. not individually, but solely as trustee (the “Supplemental
Interest Trust Trustee”) on behalf
of
the
supplemental interest trust with respect to the Option One Mortgage Loan
Trust
2007-4, Asset-Backed
Certificates,
Series 2007-4 (the “Supplemental Interest Trust”) (hereinafter referred to as
“Party
B”
or
“Secured
Party”).
For
the
avoidance of doubt, and notwithstanding anything to the contrary that
may be
contained in the Agreement, this Credit Support Annex shall relate solely
to the
Transaction documented in the Confirmation dated April 19, 2007, between
Party A
and Party B, Reference Number: Global ID: 2996168 / Effort ID:
1327154.
Paragraph
13. Elections and Variables.
| (a) |
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
| (b) |
Credit
Support Obligations.
|
| (i) |
Delivery
Amount, Return Amount and Credit Support
Amount.
|
| (A) |
“Delivery
Amount”
has the meaning specified in Paragraph 3(a) as amended (I)
by deleting the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” and inserting in lieu thereof the words “not later than
the close of business on each Valuation Date” and (II) by deleting in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Value as of that Valuation Date of all Posted
Credit Support held by the Secured Party.” and inserting in lieu thereof
the following:
|
The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest
of
|
(1)
|
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value as of such Valuation Date of all Posted
Credit Support held by the Secured Party,
|
|
(2)
|
the
amount by which (a) the Moody’s First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured
Party,
and
|
|
(3)
|
the
amount by which (a) the Moody’s Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the
Secured
Party.
|
| (B) |
“Return
Amount”
has the meaning specified in Paragraph 3(b) as amended by deleting
in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
|
The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the
least of
|
(1)
|
the
amount by which (a) the S&P Value as of such Valuation Date of all
Posted Credit Support held by the Secured Party exceeds (b)
the S&P
Credit Support Amount for such Valuation Date,
|
|
(2)
|
the
amount by which (a) the Xxxxx’x First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party
exceeds (b)
the Xxxxx’x First Trigger Credit Support Amount for such Valuation Date,
and
|
|
(3)
|
the
amount by which (a) the Xxxxx’x Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party
exceeds (b)
the Xxxxx’x Second Trigger Credit Support Amount for such Valuation
Date.
|
| (C) |
“Credit
Support Amount”
shall not apply. For purposes of calculating any Delivery Amount
or Return
Amount for any Valuation Date, reference shall be made to the
S&P
Credit Support Amount, the Xxxxx’x First Trigger Credit Support Amount, or
the Xxxxx’x Second Trigger Credit Support Amount, in each case for such
Valuation Date, as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B),
above.
|
| (ii) |
Eligible
Collateral.
|
On
any
date, the following items will qualify as “Eligible
Collateral”
(for
the avoidance of doubt, all Eligible Collateral to be denominated in
USD):
|
Collateral
|
S&P
Valuation
Percentage
|
Xxxxx’x
First
Trigger ValuationPercentage
|
Xxxxx’x
Second
Trigger ValuationPercentage
|
|
(A) Cash
|
100%
|
100%
|
100%
|
|
(B) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of not more than one
year
|
98.5%
|
100%
|
100%
|
|
(C) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than one year but
not more than
ten years
|
89.9%
|
100%
|
94%
|
|
(D) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than ten years
|
83.9%
|
100%
|
87%
|
| (iii) |
Other
Eligible Support.
|
The
following items will qualify as “Other
Eligible Support”
for the
party specified:
Not
applicable.
| (iv) |
Threshold.
|
| (A) |
“Independent
Amount”
means zero with respect to Party A and Party
B.
|
| (B) |
“Threshold”
means, with respect to Party A and any Valuation Date, zero
if (i) a
Collateral Event has occurred and has been continuing (x) for
at least 30
days or (y) since this Annex was executed, or (ii) a Required
Ratings
Downgrade Event has occurred and is continuing; otherwise,
infinity.
|
“Threshold”
means,
with respect to Party B and any Valuation Date, infinity.
| (C) |
“Minimum
Transfer Amount” means
USD 100,000 with respect to Party A and Party B; provided,
however, that
if the aggregate Certificate Principal Balance of the Certificates
and the
aggregate principal balance of the Notes rated by S&P ceases to be
more than USD 50,000,000, the “Minimum
Transfer Amount”
shall be USD 50,000.
|
| (D) |
Rounding:
The Delivery Amount will be rounded up to the nearest integral
multiple of
USD 10,000. The Return Amount will be rounded down to the nearest
integral
multiple of USD 10,000.
|
| (c) |
Valuation
and Timing.
|
| (i) |
“Valuation
Agent”
means Party A; provided, however, that if an Event of Default
has occurred
and is continuing with respect to Party A, then the parties
shall have the
right to designate a financial institution which will qualify
as a
Reference Market-maker and acceptable to both parties to act
as Valuation
Agent, the cost for which shall be borne by Party A, until
the earlier of
(i) a designation under Section 6(c)(ii), or (ii) the discontinuance
of
such Event of Default with respect to Party A. All calculations
by the
Valuation Agent must be made in accordance with standard market
practice,
including, in the event of a dispute as to the Value of any
Eligible
Credit Support or Posted Credit Support, by making reference
to quotations
received by the Valuation Agent from one or more Pricing Sources.
|
| (ii) |
“Valuation
Date” means
each Wednesday or if such day is not a Local Business Day,
the next
following Local Business Day in each week on which any of the
S&P
Credit Support Amount, the Xxxxx’x First Trigger Credit Support Amount or
the Xxxxx’x Second Trigger Credit Support Amount is greater than
zero.
|
| (iii) |
“Valuation
Time” means
the close of business in New York on the Local Business Day
immediately
preceding the Valuation Date or date of calculation, as applicable;
provided that the calculations of Value and Exposure will be
made as of
approximately the same time on the same date.”
The
Valuation Agent will notify each party (or the other party,
if the
Valuation Agent is a party) of its calculations not later than
the
Notification Time on the applicable Valuation Date (or in the
case of
Paragraph 6(d), the Local Business Day following the day on
which such
relevant calculations are
performed).”
|
| (iv) |
“Notification
Time” means
11:00 a.m., New York time, on a Local Business Day.
|
| (v) |
External
Verification.
Notwithstanding anything to the contrary in the definitions
of Valuation
Agent or Valuation Date, at any time at which Party A’s Credit Support
Provider does not have a long-term unsubordinated and unsecured
debt
rating of at least “BBB+” from S&P, the Valuation Agent shall (A)
calculate the Secured Party’s Exposure and the S&P Value of Posted
Credit Support on each Valuation Date based on internal marks
and (B)
verify such calculations with external marks monthly by obtaining
on the
last Local Business Day of each calendar month two external
marks for each
Transaction to which this Annex relates and for all Posted
Credit Support;
such verification of the Secured Party’s Exposure shall be based on the
higher of the two external marks. Each external xxxx in respect
of a
Transaction shall be obtained from an independent Reference
Market-maker
that would be eligible and willing to enter into such Transaction
in the
absence of the current derivative provider, provided that an
external xxxx
xxx not be obtained from the same Reference Market-maker more
than four
times in any 12-month period. The Valuation Agent shall obtain
these
external marks directly or through an independent third party,
in either
case at no cost to Party B. The Valuation Agent shall calculate
on each
Valuation Date (for purposes of this paragraph, the last Local
Business
Day in each calendar month referred to above shall be considered
a
Valuation Date) the Secured Party’s Exposure based on the greater of the
Valuation Agent’s internal marks and the external marks received. If the
S&P Value on any such Valuation Date of all Posted Credit Support
then
held by the Secured Party is less than the S&P Credit Support Amount
on such Valuation Date (in each case as determined pursuant
to this
paragraph), Party A shall, within three Local Business Days
of such
Valuation Date, Transfer to the Secured Party Eligible Credit
Support
having an S&P Value as of the date of Transfer at least equal to such
deficiency.
|
| (vi) |
Notice
to S&P.
At
any time at which Party A’s Credit Support Provider does not have a
long-term unsubordinated and unsecured debt rating of at least
“BBB+” from
S&P, the Valuation Agent shall provide to S&P not later than the
Notification Time on the Local Business Day following each
Valuation Date
its calculations of the Secured Party’s Exposure and the S&P Value of
any Eligible Credit Support or Posted Credit Support for that
Valuation
Date. The Valuation Agent shall also provide to S&P any external marks
received pursuant to the preceding
paragraph.
|
| (d) |
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party
if the
Termination Event occurs with respect to that party): With
respect to
Party A: any Additional Termination Event with respect to which
Party A is
the sole Affected Party. With respect to Party B:
None.
|
| (e) |
Substitution.
|
| (i) |
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
|
| (ii) |
Consent.
If
specified here as applicable, then the Pledgor must obtain
the Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
|
| (f) |
Dispute
Resolution.
|
| (i) |
“Resolution
Time”
means 1:00 p.m. New York time on the Local Business Day following
the date
on which the notice of the dispute is given under Paragraph
5.
|
| (ii) |
Value.
Notwithstanding anything to the contrary in Paragraph 12, for
the purpose
of Paragraphs 5(i)(C) and 5(ii), the S&P Value, Xxxxx’x First Trigger
Value, and Xxxxx’x Second Trigger Value, on any date, of Eligible
Collateral other than Cash will be calculated as follows:
|
For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
sum of (A) the product of (1) the bid price at the Valuation Time for
such
securities by
any
principal market maker for such securities selected by the Valuation
Agent,
or
if no
such bid price is listed or quoted for such date, the bid price listed
or quoted
(as the case may be) at the Valuation Time for the day next preceding
such date
on which such prices were available and
(2) the
applicable Valuation Percentage for such Eligible Collateral, and (B)
the
accrued interest on such securities (except to the extent Transferred
to the
Pledgor pursuant to Paragraph 6(d)(ii) or included in the applicable
price
referred to in the immediately preceding clause (A)) as of such
date.
| (iii) |
Alternative.
The provisions of Paragraph 5 will
apply.
|
| (g) |
Holding
and Using Posted
Collateral.
|
Eligibility
to Hold Posted Collateral; Custodians. Party
B
(or any Custodian) will be entitled to hold Posted Collateral pursuant
to
Paragraph 6(b). provided that the following conditions applicable to
the
Custodian are satisfied:
| (i) |
Party
B may appoint as Custodian (A) the entity then serving as Supplemental
Interest Trust Trustee or as Swap Administrator or (B) any
entity other
than the entity then serving as Supplemental
Interest Trust Trustee
if
such other entity (or, to the extent applicable, its parent
company or
credit support provider) shall then have a short-term unsecured
and
unsubordinated debt rating from S&P of at least
“A-1.”
|
Initially,
the Custodian
for
Party B is: The Swap Administrator.
| (ii) |
Use
of Posted Collateral. The
provisions of Paragraph 6(c)(i) will not apply to Party B,
but the
provisions of Paragraph 6(c)(ii) will apply to Party B.
|
| (h) |
Distributions
and Interest Amount.
|
| (i) |
Interest
Rate.
The “Interest
Rate”
will be the actual interest rate earned on Posted Collateral
in the form
of Cash that is held by Party B or its Custodian. Posted Collateral
in the
form of Cash shall be invested in such overnight (or redeemable
within two
Local Business Days of demand) Permitted Investments rated
at least (x)
AAAm or AAAm-G by S&P and (y) Prime-1 by Xxxxx’x or Aaa by Xxxxx’x, as
directed by Party A (unless (x) an Event of Default or an Additional
Termination Event has occurred with respect to which Party
A is the
defaulting or sole Affected Party or (y) an Early Termination
Date has
been designated, in which case such Posted Collateral shall
be held
uninvested). Gains and losses incurred in respect of any investment
of
Posted Collateral in the form of Cash in Permitted Investments
as directed
by Party A shall be for the account of Party
A.
|
| (ii) |
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on the second
Local
Business Day following the end of each calendar month and on
any other
Local Business Day on which Posted Collateral in the form of
Cash is
Transferred to the Pledgor pursuant to Paragraph 3(b); provided,
however,
that the obligation of Party B to Transfer any Interest Amount
to Party A
shall be limited to the extent that Party B has earned and
received such
funds and such funds are available only to Party B.
|
| (iii) |
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will
apply.
|
| (i) |
Additional
Representation(s).
There are no additional representations by either
party.
|
| (j) |
Other
Eligible Support and Other Posted Support.
|
| (i) |
“Value”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (ii) |
“Transfer”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (k) |
Demands
and Notices.All
demands, specifications and notices under this Annex will be
made pursuant
to the Notices Section of this Agreement, except that any demand,
specification or notice shall be given to or made at the following
addresses, or at such other address as the relevant party may
from time to
time designate by giving notice (in accordance with the terms
of this
paragraph) to the other party:
|
If
to
Party A, at the address specified pursuant to the Notices Section of
this
Agreement.
If
to
Party B or to Party B’s Custodian, at the address specified pursuant to the
Notices Section of this Agreement.
| (l) |
Address
for Transfers.
Each Transfer hereunder shall be made to the address specified
below or to
an address specified in writing from time to time by the party
to which
such Transfer will be made.
|
For
Party
A: As agreed upon between the parties from time to time.
For
Party
B: For Cash:
Xxxxx
Fargo Bank, N.A.
San
Francisco, CA
ABA#
000000000
Acct#
0000000000
Acct
Name: SAS Clearing
FFC:
53139703, Option One 2007-4 Swap Collateral Account
For
Treasury Securities:
Xxxxx
Fargo Bank, N.A.
San
Francisco, CA
ABA#
000000000
Acct#
0000000000
Acct
Name: SAS Clearing
FFC:
53139703, Option One 2007-4 Swap Collateral Account
| (m) |
Other
Provisions.
|
| (i) |
Collateral
Account.
Party B shall open and maintain a segregated account, which
shall be an
Eligible Account, and hold, record and identify all Posted
Collateral in
such segregated account.
|
| (ii) |
Agreement
as to Single Secured Party and Single Pledgor.
Party A and Party B hereby agree that, notwithstanding anything
to the
contrary in this Annex, (a) the term “Secured Party” as used in this Annex
means only Party B, (b) the term “Pledgor” as used in this Annex means
only Party A, (c) only Party A makes the pledge and grant in
Paragraph 2,
the acknowledgement in the final sentence of Paragraph 8(a)
and the
representations in Paragraph 9.
|
| (iii) |
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, Xxxxx’x First Trigger Value,
Xxxxx’x Second Trigger Value”. Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words “a Value” and inserting in lieu thereof “an
S&PValue, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger
Value” and (B) deleting the words “the Value” and inserting in lieu
thereof “S&P Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second
Trigger Value”. Paragraph 5 (flush language) is hereby amended by deleting
the word “Value” and inserting in lieu thereof “S&PValue, Xxxxx’x
First Trigger Value, or Xxxxx’x Second Trigger Value”. Paragraph 5(i)
(flush language) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, Xxxxx’x First Trigger Value, and
Xxxxx’x Second Trigger Value”. Paragraph 5(i)(C) is hereby amended by
deleting the word “the Value, if” and inserting in lieu thereof “any one
or more of the S&P Value, Xxxxx’x First Trigger Value, or Xxxxx’x
Second Trigger Value, as may be”. Paragraph 5(ii) is hereby amended by (1)
deleting the first instance of the words “the Value” and inserting in lieu
thereof “any one or more of the S&P Value, Xxxxx’x First Trigger
Value, or Xxxxx’x Second Trigger Value” and (2) deleting the second
instance of the words “the Value” and inserting in lieu thereof “such
disputed S&P Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second
Trigger Value”. Each of Paragraph 8(b)(iv)(B) and Paragraph 11(a) is
hereby amended by deleting the word “Value” and inserting in lieu thereof
“least of the S&PValue, Xxxxx’x First Trigger Value, and Xxxxx’x
Second Trigger Value”.
|
| (iv) |
Form
of Annex. Party
A and Party B hereby agree that the text of Paragraphs 1 through
12,
inclusive, of this Annex is intended to be the printed form
of ISDA Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to
New York Law
Only version) as published and copyrighted in 1994 by the International
Swaps and Derivatives Association,
Inc.
|
| (v) |
Events
of Default.
Paragraph 7 will not apply to cause any Event of Default to
exist with
respect to Party B except that Paragraph 7(i) will apply to
Party B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex. Notwithstanding anything to the contrary in
Paragraph 7,
any failure by Party A to comply with or perform any obligation
to be
complied with or performed by Party A under the Credit Support
Annex shall
only be an Event of Default if (A) a
Required Ratings Downgrade Event has occurred and been continuing
for 30
or more Local Business Days, and (B) such failure is not remedied
on or
before the third Local Business Day after notice of such failure
is given
to Party A.
|
| (vi) |
Expenses.
Notwithstanding anything to the contrary in Paragraph 10, the
Pledgor will
be responsible for, and will reimburse the Secured Party for,
all transfer
and other taxes and other costs involved in any Transfer of
Eligible
Collateral.
|
| (vii) |
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately
after “the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
|
(viii)
Additional
Definitions.
As used
in this Annex:
“Collateral
Event” means
that no Relevant Entity has credit ratings at least equal to the Approved
Ratings Threshold.
“Exposure”
has the
meaning specified in Paragraph 12, except that after the word “Agreement” the
words “(assuming, for this purpose only, that Part 1(f) of the Schedule is
deleted)” shall be inserted.
“Local
Business Day”
means,
for purposes of this Annex: any day on which (A) commercial banks are
open for
business (including dealings in foreign exchange and foreign currency
deposits)
in New York and the location of Party A, Party B and any Custodian, and
(B) in
relation to a Transfer of Eligible Collateral, any day on which the clearance
system agreed between the parties for the delivery of Eligible Collateral
is
open for acceptance and execution of settlement instructions (or in the
case of
a Transfer of Cash or other Eligible Collateral for which delivery is
contemplated by other means a day on which commercial banks are open
for
business (including dealings in foreign exchange and foreign deposits)
in New
York and the location of Party A, Party B and any Custodian.
“Xxxxx’x
First Trigger Credit Support Amount” means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (I) a Xxxxx’x First Trigger Ratings Event has
occurred and has been continuing (x) for at least 30 Local
Business Days
or (y) since this Annex was executed and (II) it is not the
case that a
Xxxxx’x Second Trigger Ratings Event has occurred and been continuing
for
at least 30 Local Business Days, an amount equal to the greater
of (a)
zero and (b) the sum of (i) the Secured Party’s Exposure for such
Valuation Date and (ii) the sum, for each Transaction to which
this Annex
relates, of
|
the
product of (i) the applicable Xxxxx’x First Trigger Factor set forth in Table 1,
(ii) the Scale Factor, if any, for such Transaction, or, if no Scale
Factor is
applicable for such Transaction, one, and (iii) the Notional Amount for
such
Transaction for the Calculation Period for such Transaction (each as
defined in
the related Confirmation) which includes such Valuation Date; or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II) the
Threshold for Party A such Valuation Date.
“Xxxxx’x
First Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Xxxxx’x
Second Trigger Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which it is the case that a Xxxxx’x Second Trigger
Ratings Event has occurred and been continuing for at least
30 Local
Business Days, an amount equal to the greatest of (a) zero,
(b) the
aggregate amount of the next payment due to be paid by Party
A under each
Transaction to which this Annex relates, and (c) the sum of
(x) the
Secured Party’s Exposure for such Valuation Date and (y) the sum, for each
Transaction to which this Annex relates, of
|
(1)
if
such Transaction is not a Transaction-Specific Hedge,
the
product of (i) the applicable Xxxxx’x Second Trigger Factor set forth in Table
2, (ii) the Scale Factor, if any, for such Transaction, or, if no Scale
Factor
is applicable for such Transaction, one, and (iii) the Notional Amount
for such
Transaction for the Calculation Period for such Transaction (each as
defined in
the related Confirmation) which includes such Valuation Date;
or
(2)
if
such Transaction is a Transaction-Specific Hedge,
the
product of (i) the applicable Xxxxx’x Second Trigger Factor set forth in Table
3, (ii) the Scale Factor, if any, for such Transaction, or, if no Scale
Factor
is applicable for such Transaction, one, and (iii) the Notional Amount
for such
Transaction for the Calculation Period for such Transaction (each as
defined in
the related Confirmation) which includes such Valuation Date; or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II) the
Threshold for Party A for such Valuation Date.
“Xxxxx’x
Second Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Pricing
Sources”
means
the sources of financial information commonly known as Bloomberg, Bridge
Information Services, Data Resources Inc., Interactive Data Services,
International Securities Market Association, Xxxxxxx Xxxxx Securities
Pricing
Service, Xxxxxx Data Corporation, Reuters, Wood Gundy, Trepp Pricing,
XX Xxxxx,
S&P and Telerate.
“Remaining
Weighted Average Maturity” means,
with respect to a Transaction, the expected weighted average maturity
for such
Transaction as determined by the Valuation Agent.
“S&P
Approved Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the S&P
Approved Ratings Threshold.
“S&P
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (i) a S&P Approved Ratings Downgrade Event
has occurred and been continuing for at least 30 days, or (ii)
a S&P
Required Ratings Downgrade Event has occurred and is continuing,
an amount
equal to the sum of (1) 100.0% of the Secured Party’s Exposure for such
Valuation Date and (2) the sum, for each Transaction to which
this Annex
relates, of the product of (i) the Volatility Buffer for such
Transaction,
(ii) the Scale Factor, if any, for such Transaction, or, if
no Scale
Factor is applicable for such Transaction, one, and (iii) the
Notional
Amount of such Transaction for the Calculation Period of such
Transaction
(each as defined in the related Confirmation) which includes
such
Valuation Date, or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A for such Valuation Date.
“S&P
Required Ratings Downgrade Event” means
that no Relevant Entity has credit ratings at least equal to the S&P
Required Ratings Threshold.
“S&P
Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the
product of (A) the bid price obtained by the Valuation Agent for such
Eligible
Collateral and (B) the S&P Valuation Percentage for such Eligible Collateral
set forth in paragraph 13(b)(ii).
“Transaction
Exposure”
means,
for any Transaction, Exposure determined as if such Transaction were
the only
Transaction between the Secured Party and the Pledgor.
“Transaction-Specific
Hedge” means
any
Transaction that is (i) an interest rate swap in respect of which (x)
the
notional amount of the interest rate swap is “balance guaranteed” or (y) the
notional amount of the interest rate swap for any Calculation Period
(as defined
in the related Confirmation) otherwise is not a specific dollar amount
that is
fixed at the inception of the Transaction, (ii) an interest rate cap,
(iii) an
interest rate floor or (iv) an interest rate swaption.
“Valuation
Percentage”
shall
mean, for purposes of determining the S&P Value, Xxxxx’x First Trigger
Value, or Xxxxx’x Second Trigger Value with respect to any Eligible Collateral
or Posted Collateral, the applicable S&P Valuation Percentage, Xxxxx’x First
Trigger Valuation Percentage, or Xxxxx’x Second Trigger Valuation Percentage for
such Eligible Collateral or Posted Collateral, respectively, in each
case as set
forth in Paragraph 13(b)(ii).
“Value”
shall
mean, in respect of any date, the related S&P Value, the related Xxxxx’x
First Trigger Value, and the related Xxxxx’x Second Trigger Value.
“Volatility
Buffer”
means,
for any Transaction, the related percentage set forth in the following
table.
|
The
higher of the S&P credit rating of (i) Party A and (ii) the Credit
Support Provider of Party A, if applicable
|
Remaining
Weighted Average Maturity of such Transaction
up
to 3 years
|
Remaining
Weighted Average Maturity of such Transaction
up
to 5 years
|
Remaining
Weighted Average Maturity of such Transaction
up
to 10 years
|
Remaining
Weighted Average Maturity of such Transaction
up
to 30 years
|
|
“A-2”
or higher
|
2.75%
|
3.25%
|
4.00%
|
4.75%
|
|
“A-3”
|
3.25%
|
4.00%
|
5.00%
|
6.25%
|
|
“BB+”
or
lower
|
3.50%
|
4.50%
|
6.75%
|
7.50%
|
[Remainder
of this page intentionally left blank]
Table
1
Xxxxx’x
First Trigger Factor
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
Weekly
Collateral
Posting
|
|
|
1
or less
|
0.25%
|
|
|
More
than 1 but not more than 2
|
0.50%
|
|
|
More
than 2 but not more than 3
|
0.70%
|
|
|
More
than 3 but not more than 4
|
1.00%
|
|
|
More
than 4 but not more than 5
|
1.20%
|
|
|
More
than 5 but not more than 6
|
1.40%
|
|
|
More
than 6 but not more than 7
|
1.60%
|
|
|
More
than 7 but not more than 8
|
1.80%
|
|
|
More
than 8 but not more than 9
|
2.00%
|
|
|
More
than 9 but not more than 10
|
2.20%
|
|
|
More
than 10 but not more than 11
|
2.30%
|
|
|
More
than 11 but not more than 12
|
2.50%
|
|
|
More
than 12 but not more than 13
|
2.70%
|
|
|
More
than 13 but not more than 14
|
2.80%
|
|
|
More
than 14 but not more than 15
|
3.00%
|
|
|
More
than 15 but not more than 16
|
3.20%
|
|
|
More
than 16 but not more than 17
|
3.30%
|
|
|
More
than 17 but not more than 18
|
3.50%
|
|
|
More
than 18 but not more than 19
|
3.60%
|
|
|
More
than 19 but not more than 20
|
3.70%
|
|
|
More
than 20 but not more than 21
|
3.90%
|
|
|
More
than 21 but not more than 22
|
4.00%
|
|
|
More
than 22 but not more than 23
|
4.00%
|
|
|
More
than 23 but not more than 24
|
4.00%
|
|
|
More
than 24 but not more than 25
|
4.00%
|
|
|
More
than 25 but not more than 26
|
4.00%
|
|
|
More
than 26 but not more than 27
|
4.00%
|
|
|
More
than 27 but not more than 28
|
4.00%
|
|
|
More
than 28 but not more than 29
|
4.00%
|
|
|
More
than 29
|
4.00%
|
Table
2
Xxxxx’x
Second Trigger Factor for Interest Rate Swaps with Fixed Notional
Amounts
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
Weekly
Collateral
Posting
|
|
|
1
or less
|
0.60%
|
|
|
More
than 1 but not more than 2
|
1.20%
|
|
|
More
than 2 but not more than 3
|
1.70%
|
|
|
More
than 3 but not more than 4
|
2.30%
|
|
|
More
than 4 but not more than 5
|
2.80%
|
|
|
More
than 5 but not more than 6
|
3.30%
|
|
|
More
than 6 but not more than 7
|
3.80%
|
|
|
More
than 7 but not more than 8
|
4.30%
|
|
|
More
than 8 but not more than 9
|
4.80%
|
|
|
More
than 9 but not more than 10
|
5.30%
|
|
|
More
than 10 but not more than 11
|
5.60%
|
|
|
More
than 11 but not more than 12
|
6.00%
|
|
|
More
than 12 but not more than 13
|
6.40%
|
|
|
More
than 13 but not more than 14
|
6.80%
|
|
|
More
than 14 but not more than 15
|
7.20%
|
|
|
More
than 15 but not more than 16
|
7.60%
|
|
|
More
than 16 but not more than 17
|
7.90%
|
|
|
More
than 17 but not more than 18
|
8.30%
|
|
|
More
than 18 but not more than 19
|
8.60%
|
|
|
More
than 19 but not more than 20
|
9.00%
|
|
|
More
than 20 but not more than 21
|
9.00%
|
|
|
More
than 21 but not more than 22
|
9.00%
|
|
|
More
than 22 but not more than 23
|
9.00%
|
|
|
More
than 23 but not more than 24
|
9.00%
|
|
|
More
than 24 but not more than 25
|
9.00%
|
|
|
More
than 25 but not more than 26
|
9.00%
|
|
|
More
than 26 but not more than 27
|
9.00%
|
|
|
More
than 27 but not more than 28
|
9.00%
|
|
|
More
than 28 but not more than 29
|
9.00%
|
|
|
More
than 29
|
9.00%
|
Table
3
Xxxxx’x
Second Trigger Factor for Transaction-Specific Xxxxxx
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
Weekly
Collateral
Posting
|
|
|
1
or less
|
0.75%
|
|
|
More
than 1 but not more than 2
|
1.50%
|
|
|
More
than 2 but not more than 3
|
2.20%
|
|
|
More
than 3 but not more than 4
|
2.90%
|
|
|
More
than 4 but not more than 5
|
3.60%
|
|
|
More
than 5 but not more than 6
|
4.20%
|
|
|
More
than 6 but not more than 7
|
4.80%
|
|
|
More
than 7 but not more than 8
|
5.40%
|
|
|
More
than 8 but not more than 9
|
6.00%
|
|
|
More
than 9 but not more than 10
|
6.60%
|
|
|
More
than 10 but not more than 11
|
7.00%
|
|
|
More
than 11 but not more than 12
|
7.50%
|
|
|
More
than 12 but not more than 13
|
8.00%
|
|
|
More
than 13 but not more than 14
|
8.50%
|
|
|
More
than 14 but not more than 15
|
9.00%
|
|
|
More
than 15 but not more than 16
|
9.50%
|
|
|
More
than 16 but not more than 17
|
9.90%
|
|
|
More
than 17 but not more than 18
|
10.40%
|
|
|
More
than 18 but not more than 19
|
10.80%
|
|
|
More
than 19 but not more than 20
|
11.00%
|
|
|
More
than 20 but not more than 21
|
11.00%
|
|
|
More
than 21 but not more than 22
|
11.00%
|
|
|
More
than 22 but not more than 23
|
11.00%
|
|
|
More
than 23 but not more than 24
|
11.00%
|
|
|
More
than 24 but not more than 25
|
11.00%
|
|
|
More
than 25 but not more than 26
|
11.00%
|
|
|
More
than 26 but not more than 27
|
11.00%
|
|
|
More
than 27 but not more than 28
|
11.00%
|
|
|
More
than 28 but not more than 29
|
11.00%
|
|
|
More
than 29
|
11.00%
|
IN
WITNESS WHEREOF, the parties have executed this Annex by their duly authorized
representatives as of the date of the Agreement.
|
Xxxxxx
Brothers Special Financing Inc.
|
Xxxxx
Fargo Bank, N.A., not individually, but solely as Supplemental
Interest
Trust Trustee on behalf of the Supplemental Interest Trust
with respect to
the Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates,
Series 2007-4
|
|
By: _____________________________
Name:
Title:
Date:
|
By: _____________________________
Name:
Title:
Date:
|
EXHIBIT
J
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
|
Option
One Mortgage Acceptance Corporation
0
Xxx
Xxxxxx,
Xxxxxxxxxx 00000
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000-0000
|
|
Re:
|
Option
One Mortgage Loan Trust 2007-4, Asset-Backed Certificates Series
2007-4
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned Certificates, we certify
that (a) we understand that the Certificates are not being registered under
the
Securities Act of 1933, as amended (the “Act”), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
Aaccredited
investor,” as defined in Regulation D under the Act, and have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of investments in the Certificates, (c) we have had
the
opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificates and all matters relating thereto
or
any additional information deemed necessary to our decision to purchase the
Certificates, (d) either (i) we are not an employee benefit plan that is
subject
to the Employee Retirement Income Security Act of 1974, as amended, or a
plan
that is subject to Section 4975 of the Internal Revenue Code of 1986, as
amended, nor are we acting on behalf of any such plan or (ii) we have provided
the Opinion of Counsel as required under Section 5.02(d) of the Pooling and
Servicing Agreement, (e) we are acquiring the Certificates for investment
for
our own account and not with a view to any distribution of such Certificates
(but without prejudice to our right at all times to sell or otherwise dispose
of
the Certificates in accordance with clause (g) below), (f) we have not offered
or sold any Certificates to, or solicited offers to buy any Certificates
from,
any person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of Section
5 of the Act, and (g) we will not sell, transfer or otherwise dispose of
any
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Act or is exempt
from
such registration requirements, and if requested, we will at our expense
provide
an opinion of counsel satisfactory to the addressees of this Certificate
that
such sale, transfer or other disposition may be made pursuant to an exemption
from the Act, (2) the purchaser or transferee of such Certificate has executed
and delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with
any
conditions for transfer set forth in the Pooling and Servicing
Agreement.
|
Very
truly yours,
|
|||||||||||||
|
[NAME
OF TRANSFEREE]
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
FORM
OF
RULE 144A INVESTMENT LETTER
[DATE]
|
Option
One Mortgage Acceptance Corporation
0
Xxx
Xxxxxx,
Xxxxxxxxxx 00000
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000-0000
|
|
[Swap
Provider]
|
|
Re:
|
Option
One Mortgage Loan Trust 2007-4, Asset-Backed Certificates Series
2007-4
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify
that:
(a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws;
(b)
we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates;
(c)
either (i) we are not an employee benefit plan that is subject to the Employee
Retirement Income Security Act of 1974, as amended, or a plan that is subject
to
Section 4975 of the Internal Revenue Code of 1986, as amended, nor are we
acting
on behalf of any such plan or (ii) we have provided the Opinion of Counsel
as
required under Section 5.02(d) of the Pooling and Servicing
Agreement;
(d)
we
have not, nor has anyone acting on our behalf offered, transferred, pledged,
sold or otherwise disposed of the Certificates, any interest in the Certificates
or any other similar security to, or solicited any offer to buy or accept
a
transfer, pledge or other disposition of the Certificates, any interest in
the
Certificates or any other similar security from, or otherwise approached
or
negotiated with respect to the Certificates, any interest in the Certificates
or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under
the Securities Act or that would render the disposition of the Certificates
a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to
act,
in such manner with respect to the Certificates; and
(e)
we
are a “qualified institutional buyer” as that term is defined in Rule 144A under
the Securities Act and have completed either of the forms of certification
to
that effect attached hereto as Annex 1 or Annex 2. We are aware that the
sale to
us is being made in reliance on Rule 144A. We are acquiring the Certificates
for
our own account or for resale pursuant to Rule 144A and further, understand
that
such Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases
for its
own account or for the account of a qualified institutional buyer to whom
notice
is given that the resale, pledge or transfer is being made in reliance on
Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
(f)
with
respect to a transfer of the Class C Certificates, the Transferee agrees
to
provide to the Trustee and the Swap Provider the appropriate tax certification
form (i.e., IRS Form W-9 or IRS Form W-8BEN, W-8IMY or W-8ECI, as applicable
(or
any successor form thereto)), and agrees to update such forms (i) upon
expiration of any such form, (ii) as required under then applicable U.S.
Treasury regulations and (iii) promptly upon learning that any IRS Form W-9
or
IRS Form X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor
form
thereto), has become obsolete or incorrect. In
addition, if the transfer contemplated hereby causes the Supplemental Interest
Trust to be beneficially owned by two or more persons for federal income
tax
purposes, or continue to be so treated, (a) each Transferee shall comply
with
the foregoing conditions, (b) the proposed majority Holder of the Class C
Certificates (or each Holder, if there is or would be no majority Holder)
(A)
shall provide, or cause to be provided, on behalf of the Supplemental Interest
Trust the appropriate tax certification form that would be required from
the
Supplemental Interest Trust to eliminate any withholding or deduction for
taxes
from amounts payable by the Swap Provider, pursuant to the Interest Rate
Swap
Agreement, to the Trustee, the Swap Provider on behalf of the Supplemental
Interest Trust (i.e., IRS Form W-9 or IRS Form W-8BEN, W-8IMY or W-8ECI,
as
applicable (or any successor form thereto) as a condition to such transfer,
together with any applicable attachments) and (B) each Transferee agrees
to
update such form (x) upon expiration of any such form, (y) as required under
then applicable U.S. Treasury regulations and (z) promptly upon learning
that
such form has become obsolete or incorrect.
The
Transferee hereby authorizes the Trustee to provide any such tax certification
form to the Swap Provider, upon its request, solely to the extent the Swap
Provider has not received such IRS Form directly from the Holder of the Class
C
Certificates. Each Holder of a Class C Certificate by its purchase of such
Certificate is deemed to consent to any such IRS Form being so forwarded.
Upon
the request of the Swap Provider, the Trustee shall be required to forward
any
tax certification received by it to the Swap Provider at the last known address
provided to it, and, subject to Section 8.01 of the Pooling and Servicing
Agreement, shall not be liable for the receipt of such tax certification
by the
Swap Provider, nor any action taken or not taken by the Swap Provider with
respect to such tax certification. Any purported sales or transfers of the
Class
C Certificate to a Transferee which does not comply with the requirements
of the
preceding paragraph shall be deemed null and void under the Pooling and
Servicing Agreement. The Trustee shall have no duty to take any action to
correct any misstatement or omission in any tax certification provided to
it by
the Holder of the Class C Certificates and forwarded to the Swap
Provider.
|
Very
truly yours,
|
|||||||||||||
|
[NAME
OF TRANSFEREE]
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
ANNEX
1 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates
with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis $_______1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
Corporation,
etc.
The
Buyer is a corporation (other than a bank, savings and loan association or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section 501 (c) (3) of the Internal
Revenue
Code of 1986, as amended.
Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
Broker-dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940.
Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities
that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit
(v)
loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value,
and
(ii) no current information with respect to the cost of those securities
has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and
if the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself
a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the
seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales
to the
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each
of the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of
the
date of such purchase. In addition, if the Buyer is a bank or savings and
loan
is provided above, the Buyer agrees that it will furnish to such parties
updated
annual financial statements promptly after they become available.
|
Print
Name of Buyer
|
|||||||
|
By:
|
|||||||
|
Name:
|
|||||||
|
Title:
|
|||||||
|
Date:
|
|||||||
1
Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or
invest on a discretionary basis at least $10,000,000 in securities.
ANNEX
2 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates
with
respect to the Certificates described therein:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2.
In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyers Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their
market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
The
Buyer
owned $____________ in securities (other than the excluded securities referred
to below) as of the end of the Buyer’s most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$_____________ in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3.
The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4.
The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the
Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6.
Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of
such
purchase.
|
Print
Name of Buyer
|
|||||||
|
By:
|
|||||||
|
Name:
|
|||||||
|
Title:
|
|||||||
IF
AN
ADVISER:
|
Print
Name of Buyer
|
|||||||
Date:
EXHIBIT
K
FORM
OF
RESIDUAL CERTIFICATES TRANSFER AFFIDAVIT
PURSUANT
TO SECTION 5.02(d)
OPTION
ONE MORTGAGE LOAN TRUST 2007-4,
ASSET-BACKED
CERTIFICATES, SERIES 2007-4
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of _____________________________, the proposed
Transferee of an Ownership Interest in a Residual Certificate (the “Certificate”)
issued
pursuant to the Pooling and Servicing Agreement dated as of April 1, 2007
(the
“Agreement”),
among
Option One Mortgage Acceptance Corporation, as depositor (the “Depositor”),
Option One Mortgage Corporation, as servicer (the “ Servicer”) and Xxxxx Fargo
Bank, N.A., as trustee (the “Trustee”).
Capitalized terms used, but not defined herein or in Exhibit 1 hereto,
shall have the meanings ascribed to such terms in the Agreement. The Transferee
has authorized the undersigned to make this affidavit on behalf of the
Transferee for the benefit of the Depositor and the Trustee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account. The Transferee has no knowledge
that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be
imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman)
for
a Person that is not a Permitted Transferee, on the agent; and (iii) the
Person otherwise liable for the tax shall be relieved of liability for the
tax
if the subsequent Transferee furnished to such Person an affidavit that such
subsequent Transferee is a Permitted Transferee and, at the time of Transfer,
such Person does not have actual knowledge that the affidavit is
false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record
holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed the provisions of Section 5.02(d) of the Agreement
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions
on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by
the provisions of Section 5.02(d) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and agrees
that
any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom
the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person
that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as Exhibit L to the
Agreement (a “Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to which
the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee has historically paid its debts as they have come due, intends
to pay
its debts as they come due in the future, and understands that the taxes
payable
with respect to the Certificate may exceed the cash flow with respect thereto
in
some or all periods and intends to pay such taxes as they become due. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is [_________].
9. The
Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee will not cause income from the Certificate to be attributable
to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check
one
of the following:
[
] The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum
of:
|
(i)
|
the
present value of any consideration given to the Transferee to acquire
such
Certificate;
|
|
(ii)
|
the
present value of the expected future distributions on such Certificate;
and
|
|
(iii)
|
the
present value of the anticipated tax savings associated with holding
such
Certificate as the related REMIC generates
losses.
|
For
purposes of this calculation, (i) the Transferee is assumed to pay tax at
the
highest rate currently specified in Section 11(b) of the Code (but the tax
rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject
to the
alternative minimum tax under Section 55 of the Code in the preceding two
years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using
a
discount rate equal to the short-term Federal rate prescribed by Section
1274(d)
of the Code for the month of the transfer and the compounding period used
by the
Transferee.
[
] The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
|
(i)
|
the
Transferee is an “eligible corporation,” as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), as to which income from
the
Certificate will only be taxed in the United
States;
|
|
(ii)
|
at
the time of the transfer, and at the close of the Transferee’s two fiscal
years preceding the year of the transfer, the Transferee had gross
assets
for financial reporting purposes (excluding any obligation of a
person
related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets
in
excess of $10 million;
|
|
(iii)
|
the
Transferee will transfer the Certificate only to another “eligible
corporation,” as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements
of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5)
of
the U.S. Treasury Regulations;
and
|
|
(iv)
|
the
Transferee determined the consideration paid to it to acquire the
Certificate based on reasonable market assumptions (including,
but not
limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and
other
factors specific to the Transferee) that it has determined in good
faith.
|
[
] None of the above.
13. The
Transferee is not an employee benefit plan that is subject to Title I of
ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject to
any Federal, state or local law that is substantially similar to Title I
of
ERISA or Section 4975 of the Code, and the Transferee is not acting on behalf
of
or investing plan assets of such a plan.
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
_____
day of ___________, 20__.
|
[TRANSFEREE]
|
||||||||||||
|
By:
|
||||||||||||
|
Name:
|
||||||||||||
|
Title:
|
||||||||||||
[Corporate
Seal]
| ATTEST: | |||||||||||||
| [Assistant] Secretary | |||||||||||||
Personally
appeared before me the above-named __________, known or proved to me to be
the
same person who executed the foregoing instrument and to be the ___________
of
the Transferee, and acknowledged that he executed the same as his free act
and
deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this ____ day of __________, 20___.
|
NOTARY
PUBLIC
|
|
|
My
Commission expires the _____ day of _________,
20____
|
[Corporate
Seal]
| ATTEST: | |||||||||||||
| [Assistant] Secretary | |||||||||||||
Personally
appeared before me the above-named __________________________, known or proved
to me to be the same person who executed the foregoing instrument and to
be the
____________________ of the Transferee, and acknowledged that he executed
the
same as his free act and deed and the free act and deed of the
Transferee.
Subscribed
and sworn before me this ____ day of __________, ____.
|
NOTARY
PUBLIC
|
|
|
My
Commission expires the _____ day of _________,
20____
|
EXHIBIT
L
FORM
OF
TRANSFEROR CERTIFICATE
[DATE]
|
Option
One Mortgage Acceptance Corporation
3
Ada
Xxxxxx,
Xxxxxxxxxx 00000
|
|
Re:
|
Option
One Mortgage Loan Trust 2007-4, Asset-Backed Certificates Series
2007-4
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that
(a) we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act,
(b) we
have not offered or sold any Certificates to, or solicited offers to buy
any
Certificates from, any person, or otherwise approached or negotiated with
any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act,
(c) to
the extent we are disposing of a Class [ ] Certificate, we have no knowledge
the
Transferee is not a Permitted Transferee and (d) no purpose of the proposed
disposition of a Class [ ] Certificate is to impede the assessment or collection
of tax.
|
Very
truly yours,
|
|||||||||||||
|
TRANSFEROR
|
|||||||||||||
|
By:
|
|
||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
EXHIBIT
M
FORM
OF
ERISA REPRESENTATION LETTER
|
Option
One Mortgage Acceptance Corporation
3
Ada
Xxxxxx,
Xxxxxxxxxx 00000
|
_____________,
20__
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000-0000
|
|
Option
One Mortgage Corporation
3
Ada
Xxxxxx,
Xxxxxxxxxx 00000
|
|
Re:
|
Option
One Mortgage Loan Trust 2007-4, Asset-Backed Certificates Series
2007-4
|
Dear
Sirs:
_______________________________
(the “Transferee”) intends to acquire from ___________________________ (the
“Transferor”) $____________ Initial Certificate Principal Balance Option One
Mortgage Loan Trust 2007-4, Asset-Backed Certificates Series 2007-4, Class
[C][P][R][R-X] (the “Certificates”), issued pursuant to a Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”) dated as of April 1, 2007
among Option One Mortgage Acceptance Corporation as depositor (the “Depositor”),
Option One Mortgage Corporation as servicer (the “Servicer”) and Xxxxx Fargo
Bank, N.A. as trustee (the “Trustee”). Capitalized terms used herein and not
otherwise defined shall have the meanings assigned thereto in the Pooling
and
Servicing Agreement. The Transferee hereby certifies, represents and warrants
to, and covenants with the Depositor, the Trustee and the Servicer the
following:
The
Certificates (i) are not being acquired by, and will not be transferred to,
any
employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or other
retirement arrangement, including individual retirement accounts and annuities,
Xxxxx plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that is subject to Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986 (the “Code”) (any of the foregoing, a “Plan”), (ii) are not being
acquired with “plan assets” of a Plan within the meaning of the Department of
Labor (“DOL”) regulation, 29 C.F.R. § 2510.3-101, and (iii) will not be
transferred to any entity that is deemed to be investing in plan assets within
the meaning of the DOL regulation at 29 C.F.R. § 2510.3-101.
|
Very
truly yours,
|
|||||||||||||
| By: |
|
||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
EXHIBIT
N
SWAP
ADMINISTRATION AGREEMENT
This
Swap
Administration Agreement, dated as of April 19, 2007 (this “Agreement”), among
Xxxxx Fargo Bank, N.A., a national banking association (“Xxxxx Fargo Bank,
N.A.”), as swap administrator (in such capacity, the “Swap Administrator”),
Xxxxx Fargo Bank, N.A., as trustee for Option One Mortgage Loan Trust 2007-4,
Asset-Backed Pass-Through Certificates, Series 2007-4 (in such capacity,
the
“Trustee”), Xxxxx Fargo Bank, N.A., as supplemental
interest trust trustee
(in such
capacity, the “Supplemental Interest Trust Trustee”) and Option One Mortgage
Capital Corporation (“Option One”).
WHEREAS,
Xxxxx Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2007-4,
Asset-Backed Pass-Through Certificates, Series 2007-4, is counterparty
to an
Interest Rate Swap Agreement (the “Swap Agreement”), a copy of which is attached
hereto as Exhibit A, between Xxxxx Fargo Bank, N.A. as Supplemental Interest
Trust Trustee and Xxxxxx Brothers Special Financing Inc. (the “Swap Provider”);
WHEREAS,
it is desirable to irrevocably appoint the Swap Administrator, and the
Swap
Administrator desires to accept such appointment, to receive and distribute
funds payable by the Swap Provider under the Swap Agreement as provided
herein;
and
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and
for
other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the parties agree as follows:
1. Definitions.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned thereto in the Pooling and Servicing Agreement
or
in the related Indenture, as the case may be, as in effect on the date
hereof.
2. Swap
Administrator.
| (a) |
The
Supplemental Interest Trust Trustee will receive all funds paid
by the
Swap Provider or its successors in interest under the Swap Agreement
(including any Swap Termination Payment). The Supplemental Interest
Trust
Trustee hereby appoints the Swap Administrator to receive such
amounts on
each Distribution Date and the Swap Administrator accepts such
appointment. Thereafter, the Swap Administrator hereby agrees
to
distribute on each Distribution Date such amounts in the following
order
of priority:
|
(i) first,
to
the Trustee for deposit into the Swap Account, an amount equal to the sum
of the
following amounts remaining outstanding after distribution of the Net Monthly
Excess Cashflow (other than with respect to any Certificates beneficially
owned
by Option One or its Affiliates of which a Responsible Officer of the Trustee
has actual knowledge): (A) Unpaid Interest Shortfall Amounts, (B) Net WAC
Rate
Carryover Amounts; (C) an amount necessary to maintain or restore the
Overcollateralization Target Amount, subject to Section 4.01 of the Pooling
and
Servicing Agreement; and (D) any Allocated Realized Loss Amounts;
(ii) second,
to Option One, any amounts remaining after payment of (i) above, provided,
however,
upon the
issuance of notes by an issuer (the “Trust”), secured by all or a portion of the
Class C Certificates and the Class P Certificates (the “NIM Notes”), Option One
hereby instructs the Swap Administrator to make any payments under this
clause
2(a)(ii) in the following order of priority:
| (A) |
to
the Indenture Trustee for the Trust, for deposit into the Note
Account
(each as to defined in the related Indenture), and until satisfaction
and
discharge of the Indenture, the Floating Amount (as defined in
Annex I);
and
|
| (B) |
to
the Holders of the Class C Certificates; provided; however, that
any Swap
Termination Payment received by the Swap Administrator, on behalf
of the
Supplemental Interest Trust Trustee, shall not be payable to
the Holders
of the Class C Certificates pursuant to this clause (ii)(B) without
the
prior written consent of the NIMS Insurer, if any, and the Rating
Agencies.
|
| (b) |
The
Swap Administrator, on behalf of the Supplemental Interest Trust
Trustee,
agrees to hold any amounts received under the Swap Agreement
in trust upon
the terms and conditions and for the exclusive use and benefit
of the
Trustee, the Indenture Trustee, as applicable (in turn for the
benefit of
the Certificateholders, the Noteholders and the NIMS Insurer,
if any) as
set forth herein. The rights, duties and liabilities of the Swap
Administrator in respect of this Agreement shall be as
follows:
|
(i) The
Swap
Administrator shall have the full power and authority to do all things
not
inconsistent with the provisions of this Agreement that it may deem advisable
in
order to enforce the provisions hereof. The Swap Administrator shall not
be
answerable or accountable except for its own bad faith, willful misconduct
or
negligence. The Swap Administrator shall not be required to take any action
to
exercise or enforce any of its rights or powers hereunder which, in the
opinion
of the Swap Administrator, shall be likely to involve expense or liability
to
the Swap Administrator, unless the Swap Administrator shall have received
an
agreement satisfactory to it in its sole discretion to indemnify it against
such
liability and expense.
(ii) The
Swap
Administrator shall not be liable with respect to any action taken or omitted
to
be taken by it in good faith in accordance with the direction of any party
hereto or the NIMS Insurer, if any, or otherwise as provided herein, relating
to
the time, method and place of conducting any proceeding for any remedy
available
to the Swap Administrator or exercising any right or power conferred upon
the
Swap Administrator under this Agreement.
(iii) The
Swap
Administrator may perform any duties hereunder either directly or by or
through
agents or attorneys of the Swap Administrator. The Swap Administrator shall
not
be liable for the acts or omissions of its agents or attorneys so long
as the
Swap Administrator chose such Persons with due care.
3. Swap
Account.
The
Swap Administrator, on behalf of the Supplemental Interest Trust Trustee,
shall
segregate and hold all funds received pursuant to the Swap Agreement (including
any Swap Termination Payment) separate and apart from any of its own funds
and
general assets and shall establish and maintain in the name of the Swap
Administrator one or more segregated accounts (such account or accounts,
the
“Swap Account”), held in trust for the benefit of the Trustee, the Indenture
Trustee, if any, and the parties to this Agreement. All amounts on deposit
in
the Swap Account shall remain uninvested unless the Swap Administrator
receives
instructions to the contrary from any party hereto, with the consent of
the NIMS
Insurer, if any. The Swap Administrator hereby agrees that and it holds
and
shall hold the Swap Account and all amounts deposited therein in trust
for the
exclusive use and benefit of the Trustee and the Indenture Trustee, if
any, as
their interests may appear.
4. [Reserved].
5. Representations
and Warranties of Xxxxx Fargo.
Xxxxx
Fargo Bank, N.A. represents and warrants as follows:
| (a) |
Xxxxx
Fargo Bank, N.A. is duly organized and validly existing as a
national
banking association under the laws of the United States and has
all
requisite power and authority to execute and deliver this Agreement,
to
perform its obligations as Swap Administrator
hereunder.
|
| (b) |
The
execution, delivery and performance of this Agreement by Xxxxx
Fargo Bank,
N.A. as Swap Administrator, Supplemental Interest Trust Trustee
and
Trustee have been duly authorized in the Pooling and Servicing
Agreement
and the Indenture.
|
| (c) |
This
Agreement has been duly executed and delivered by Xxxxx
Fargo Bank, N.A.
as
Swap Administrator, Supplemental Interest Trust Trustee and Trustee
and is
enforceable against Xxxxx Fargo Bank, N.A. in such capacities
in
accordance with its terms, except as enforceability may be affected
by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium
and other similar laws relating to or affecting creditors’ rights
generally, general equitable principles (whether considered in
a
proceeding in equity or at law).
|
6. Replacement
of Swap Administrator.
Any
corporation, bank, trust company or association into which the Swap
Administrator may be merged or converted or with which it may be consolidated,
or any corporation, bank, trust company or association resulting from any
merger, conversion or consolidation to which the Swap Administrator shall
be a
party, or any corporation, bank, trust company or association succeeding
to all
or substantially all the corporate trust business of the Swap Administrator,
shall be the successor of the Swap Administrator hereunder, without the
execution or filing of any paper or any further act on the part of any
of the
parties hereto, except to the extent that assumption of its duties and
obligations, as such, is not effected by operation of law.
No
resignation or removal of the Swap Administrator and no appointment of
a
successor Swap Administrator shall become effective until the appointment
by
Option One of a successor swap administrator acceptable to the NIMS Insurer,
if
any. Any successor swap administrator shall execute such documents or
instruments necessary or appropriate to vest in and confirm to such successor
swap administrator all such rights and powers conferred by this
Agreement.
The
Swap
Administrator may resign at any time by giving written notice thereof to
the
other parties hereto with a copy to the NIMS Insurer, if any. If a successor
swap administrator shall not have accepted the appointment hereunder within
30
days after the giving by the resigning Swap Administrator of such notice
of
resignation, the resigning Swap Administrator may petition any court of
competent jurisdiction for the appointment of a successor swap administrator
acceptable to the NIMS Insurer, if any.
In
the
event of a resignation or removal of the Swap Administrator, Option One
shall
promptly appoint a successor swap administrator acceptable to the NIMS
Insurer,
if any. If no such appointment has been made within 10 days of the resignation
or removal, the NIMS Insurer, if any, may appoint a successor swap
administrator.
7. Trustee
Obligations.
Whenever
the Trustee, in such capacity as the Supplemental Interest Trust Trustee,
as a
party to the Swap Agreement, has the option or is requested in such capacity,
whether such request is by the counterparty to such agreement, to take
any
action or to give any consent, approval or waiver that it is entitled to
take or
give in such capacity, including, without limitation, in connection with
an
amendment of such agreement or the occurrence of a default or termination
event
thereunder, the Trustee, in such capacity as the Supplemental Interest
Trust
Trustee, shall promptly notify the parties hereto and the NIMS Insurer,
if any,
of such request in such detail as is available to it and, shall, on behalf
of
the parties hereto and the NIMS Insurer, if any, take such action in connection
with the exercise and/or enforcement of any rights and/or remedies available
to
it in such capacity with respect to such request as the NIMS Insurer, if
any,
shall direct in writing; provided that if no such direction is received
prior to
the date that is established for taking such action or giving such consent,
approval or waiver (notice of which date shall be given by the Trustee,
in such
capacity as the Supplemental Interest Trust Trustee, to the parties hereto
and
the NIMS Insurer, if any), the Trustee, in such capacity as the Supplemental
Interest Trust Trustee, may abstain from taking such action or giving such
consent, approval or waiver.
The
Trustee, in such capacity as the Supplemental Interest Trust Trustee, shall
forward to the parties hereto and the NIMS Insurer, if any, on the Payment
Date
following its receipt thereof copies of any and all notices, statements,
reports
and/or other material communications and information (collectively, the
“Swap
Reports”) that it receives in connection with the Swap Agreement or from the
counterparty thereto.
8. Miscellaneous.
| (a) |
This
Agreement shall be governed by and construed in accordance with
the laws
of the State of New York.
|
| (b) |
Any
action or proceeding against any of the parties hereto relating
in any way
to this Agreement may be brought and enforced in the courts of
the State
of New York sitting in the borough of Manhattan or of the United
States
District Court for the Southern District of New York and the
Swap
Administrator irrevocably submits to the jurisdiction of each
such court
in respect of any such action or proceeding. The Swap Administrator
waives, to the fullest extent permitted by law, any right to
remove any
such action or proceeding by reason of improper venue or inconvenient
forum.
|
| (c) |
This
Agreement may be amended, supplemented or modified in writing
by the
parties hereto, but only with the consent of the NIMS Insurer,
if
any.
|
| (d) |
This
Agreement may not be assigned or transferred without the prior
written
consent of the NIMS Insurer, if any; provided, however, the parties
hereto
acknowledge and agree to the assignment of the rights of Option
One as
provided under this Agreement pursuant to the Sale Agreement,
the Trust
Agreement and the Indenture.
|
| (e) |
This
Agreement may be executed by one or more of the parties to this
Agreement
on any number of separate counterparts (including by facsimile
transmission), and all such counterparts taken together shall
be deemed to
constitute one and the same
instrument.
|
| (f) |
Any
provision of this Agreement which is prohibited or unenforceable
in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent
of such prohibition or unenforceability without invalidating
the remaining
provisions hereof, and any such prohibition or unenforceability
in any
jurisdiction shall not invalidate or render unenforceable such
provision
in any other jurisdiction.
|
| (g) |
The
representations and warranties made by the parties to this Agreement
shall
survive the execution and delivery of this Agreement. No act
or omission
on the part of any party hereto shall constitute a waiver of
any such
representation or warranty.
|
| (h) |
The
article and section headings herein are for convenience of reference
only,
and shall not limit or otherwise affect the meaning
hereof.
|
9. Third
Party Beneficiary.
The Note
Insurer, the Backup Note Insurer and the Indenture Trustee, if any, shall
be
deemed a third-party beneficiary of this Agreement to the same extent as
if it
were a party hereto, and shall have the right to enforce the provisions
of this
Agreement.
10. Swap
Administrator Rights.
The
Swap Administrator shall be entitled to the same rights, protections and
indemnities afforded to the Trustee under the Pooling and Servicing Agreement
and the Indenture Trustee under the Indenture, in each case, as if specifically
set forth herein with respect to the Swap Administrator.
11. Limited
Recourse.
Notwithstanding any other provisions of this Agreement, the obligations
of the
Trustee under this Agreement are limited recourse obligations of the Trustee.
Such obligations are non-recourse to the Trustee, its assets and its property
other than the assets of the Trust Fund, and following realization of such
assets, any claims of any party hereto shall be extinguished and shall
not
thereafter be reinstated. No recourse shall be had against any principal,
director, officer, employee, beneficiary, shareholder, partner, member,
trustee,
agent or affiliate of the Trustee or any person owning, directly or indirectly,
any legal or beneficial interest in the Trustee, or any successors or assigns
of
any of the foregoing (the “Exculpated Parties”) for the payment of any amount
payable under this Agreement. The parties hereto shall not enforce the
liability
and obligations of the Trustee to perform and observe the obligations contained
in this Agreement by any action or proceeding wherein a money judgment
establishing any personal liability shall be sought against the Trustee,
subject
to the following sentence, or the Exculpated Parties. The agreements in
this
paragraph shall survive termination of this Agreement and the performance
of all
obligations hereunder.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
|
XXXXX
FARGO BANK, N.A.
as
Swap Administrator
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
|
XXXXX
FARGO BANK, N.A.
as
Trustee
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
|
XXXXX
FARGO BANK, N.A.
as
Supplemental Interest Trust Trustee
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
|
OPTION
ONE MORTGAGE CAPITAL CORPORATION
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
EXHIBIT
A
FORM
OF
INTEREST RATE SWAP AGREEMENT
See
Exhibit I to the Pooling and Servicing Agreement
ANNEX
I
The
amounts paid under clause 2(a)(ii) of the Swap Administration Agreement
shall be
calculated as follows:
|
Floating
Amount:
|
|
|
Floating
Rate Payer:
|
Swap
Administrator.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA.
|
|
Floating
Amount
|
The
Floating Amount payable by Party A shall be an amount equal to
(i) the
Notional Amount * (ii) Floating Rate Option * (iii) Floating
Rate Day
Count Fraction.
|
|
Floating
Rate Day Count Fraction:
|
Actual/360.
|
|
Notional
Amount:
|
The
aggregate certificate principal balance of the outstanding Class
A and
Mezzanine Certificates immediately prior to the related Distribution
Date.
|
EXHIBIT
O
FORM
OF
REMITTANCE REPORT
|
Standard
File Layout - Trustee
|
|
|
|
|
|
Column
Name
|
DESCRIPTION
|
Decimal
|
Comment
|
Max
Size
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
Text
up to 10 digits
|
10
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 10 digits
|
20
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
|
BORR_NEXT
_PAY_DUE_DATE
|
The
date at the end of processing cycle that the Borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ACTL_END
_PRIN_BAL
|
The
Borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to the investors at the end of
a
processing cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_BEG
_PRIN_BAL
|
The
Borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of
the cycle
date to be passed through to the investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PAY_AMT
|
The
scheduled monthly principal and scheduled interest payment that
a Borrower
is expected to pay; P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_
AMT
|
The
scheduled principal amount as reported by the Servicer for the
current
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT
_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT
_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT
_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, 00xXXX, 00xXXX, 63= Substitution,
65=Repurchase;
|
2
|
|
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
|
SCHED_GROSS_INTEREST_AMT
|
The
amount of interest due on the outstanding scheduled principal balance
in
the current cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_FEE_AMT
|
The
monthly loan fee amount expressed in dollars and cents.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_FEE_RATE
|
The
Servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
CR_LOSS_AMT
|
The
amount of loss that is classified as a credit.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
FRAUD_LOSS_AMT
|
The
amount of loss that is attributable to a fraud claim.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BANKRUPTCY_LOSS_AMT
|
The
amount of loss due to bankruptcy.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SPH_LOSS_AMT
|
The
amount of loss that is classified as a special hazard.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a Borrower prepays on his loan as
reported by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
MOD_DATE
|
The
effective payment date of the modification for the loan.
|
|
MM/DD/YYYY
|
10
|
|
MOD_TYPE
|
The
modification type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
EXHIBIT
P
[Reserved]
EXHIBIT
Q
[Reserved]
EXHIBIT
R-1
FORM
OF
CERTIFICATION TO BE PROVIDED BY DEPOSITOR WITH FORM 10-K
I,
_______________, the senior officer of Option One Mortgage Acceptance
Corporation, certify that:
l. I
have
reviewed this report on Form 10-K and all reports on Form 10-D required to
be
filed in respect of the period covered by this report on Form 10-K of Option
One
Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series 2007-4 (the
“Exchange Act periodic reports”);
2. Based
on
my knowledge, the Exchange Act periodic reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period covered
by
this report;
3. Based
on
my knowledge, all of the distribution, servicing and other information required
to be provided under the Form 10-D for the period covered by this report
is
included in the Exchange Act periodic reports;
4. Based
on
my knowledge and the servicer compliance statement required in this report
under
Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic
reports, the servicer has fulfilled its obligations under the servicing
agreement; and
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except
as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this Form 10-K.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated parties: Xxxxx Fargo Bank, N.A.
Date:
___________________
| OPTION ONE MORTGAGE ACCEPTANCE CORPORATION | |||||||||||||
| By: |
|
||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
EXHIBIT
R-2
FORM
OF
CERTIFICATION TO BE PROVIDED TO DEPOSITOR BY TRUSTEE
Re:
The
[ ] agreement dated as
of [ ],
200[ ] (the “Agreement”), among [IDENTIFY PARTIES]
I,
________________________________, the _______________________ of Xxxxx Fargo
Bank, N.A., certify to the Certifying Person and [the Depositor], and its
officers, directors and affiliates, with the knowledge and intent that they
will
rely upon this certification, that:
(1) I
have
reviewed the annual report on Form 10-K for the fiscal year [ ] (the
“Annual
Report”)
and
all reports on Form 10-D required to be filed in respect of the period covered
by the Annual Report (collectively with the Annual Report, the “Reports”)
of the
Trust;
(2) Based
on
my knowledge, the Reports, taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements made, in the light of the circumstances under which such
statements were made, not misleading with respect to the period of time covered
by the Annual Report;
(3) Based
on
my knowledge, the distribution information required to be provided by the
Trustee under the Agreement for inclusion in the Reports is included in the
Reports;
(4) I
am
responsible for reviewing the activities performed by the Trustee under the
Agreement, and based on my knowledge and the compliance review conducted
in
preparing the compliance statement of the Trustee required in the Annual
Report
under Item 1123 of Regulation AB, and except as disclosed in the Reports,
the
Trustee has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
report on assessment of compliance with servicing criteria for asset-backed
securities of the Trustee and its related attestation report on assessment
of
compliance required to be included in the Annual Report in accordance with
Item
1122 of Regulation AB and Exchange Act rules 13a-18 and 15d-18 has been included
as an exhibit to the Annual Report. Any material instances of noncompliance
are
described in such report and have been disclosed in the Annual
Report.
| Date: |
|
||||||||||||
| XXXXX FARGO BANK, N.A., as Trustee | |||||||||||||
| By: |
|
||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
|
Date:
|
|||||||||||||
EXHIBIT
S
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
Definitions
Primary
Servicer - transaction party having borrower contact
Servicer
- aggregator of pool assets
Securities
Administrator - waterfall calculator (may be the Trustee, or may be the
Servicer)
Back-up
Servicer - named in the transaction (in the event a Back up Servicer becomes
the
Primary Servicer, follow Primary Servicer obligations)
Custodian
- safe keeper of pool assets
Paying
Agent - distributor of funds to ultimate investor
Trustee
-
fiduciary of the transaction
Note:
The
definitions above describe the essential function that the party performs,
rather than the party’s title. So, for example, in a particular transaction, the
trustee may perform the “paying agent” and “securities administrator” functions,
while in another transaction, the securities administrator may perform these
functions.
Where
there are multiple checks for criteria the attesting party will identify
in
their management assertion that they are attesting only to the portion of
the
distribution chain they are responsible for in the related transaction
agreements.
Key: X
- obligation
[X]
- under consideration for obligation
|
Reg
AB Reference
|
Servicing
Criteria
|
Primary
Servicer
|
Servicer
|
Trustee
|
|
General
Servicing Considerations
|
||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
X
|
|
|
Cash
Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
X
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
X
|
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
X
|
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
X
|
X
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
X
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with
the related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
|
X
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
X
|
EXHIBIT
T
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party
shall
be primarily responsible for reporting the information to the Trustee pursuant
to Section 3.25. If the Trustee is indicated below as to any item, then the
Trustee is primarily responsible for obtaining that information.
Under
Item 1 of Form 10-D: a) items marked “4.03 statement” are required to be
included in the periodic Distribution Date statement under Section 4.03,
provided by the Trustee based on information received from the Servicer;
and b)
items marked “Form 10-D report” are required to be in the Form 10-D report but
not the 4.03 statement, provided by the party indicated. Information under
all
other Items of Form 10-D is to be included in the Form 10-D report.
|
Form
|
Item
|
Description
|
Responsible
Party
|
|
10-D
|
Must
be filed within 15 days of the Distribution Date.
|
||
|
1
|
Distribution
and Pool Performance Information
|
||
|
Item
1121(a) - Distribution and Pool Performance
Information
|
|||
|
(1)
Any applicable record date, accrual date, determination date for
calculating distributions and actual distribution dates for the
distribution period.
|
4.03
statement
|
||
|
(2)
Cash flows received for distributions, fees and expenses.
|
4.03
statement
|
||
|
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
4.03
statement
|
||
|
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
|
4.03
statement
|
||
|
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of
the general
purpose of such payments and the party receiving such
payments.
|
4.03
statement
|
||
|
(iii)
Principal, interest and other distributions accrued and paid on
the
asset-backed securities by type and by class or series and any
principal
or interest shortfalls or carryovers.
|
4.03
statement
|
||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
4.03
statement
|
||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
4.03
statement
|
||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
4.03
statement
|
||
|
(6)
Beginning and ending balances of transaction accounts, such as
reserve
accounts, and material account activity during the period.
|
4.03
statement
|
||
|
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
4.03
statement
|
||
|
(8)
Number and amount of pool assets at the beginning and ending of
each
period, and updated pool composition information, such as weighted
average
coupon, weighted average life, weighted average remaining term,
pool
factors and prepayment amounts.
|
4.03
statement
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||
|
(9)
Delinquency and loss information for the period.
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool
assets.
|
4.03
statement.
Form
10-D report: Depositor
|
||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
4.03
statement
|
||
|
(11)
Any material modifications, extensions or waivers to pool asset
terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
4.03
statement
|
||
|
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
Form
10-D report: Trustee
|
||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
4.03
statement
|
||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
[information
regarding] any pool asset changes (other than in connection with
a pool
asset converting into cash in accordance with its terms), such
as
additions or removals in connection with a prefunding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any prefunding or revolving accounts, if
applicable.
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
Form
10-D report: Depositor
Form
10-D report: Depositor
Form
10-D report: Depositor
|
||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
Depositor
|
||
|
2
|
Legal
Proceedings
|
|
|
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
|
Seller
Depositor
Trustee
Depositor
Servicer
Originator
Custodian
|
||
|
3
|
Sales
of Securities and Use of Proceeds
|
|
|
|
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
Depositor
|
||
|
4
|
Defaults
Upon Senior Securities
|
||
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
Trustee
|
||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
||
|
Information
from Item 4 of Part II of Form 10-Q
|
Trustee
|
||
|
6
|
Significant
Obligors of Pool Assets
|
|
|
|
Item
1112(b) - Significant
Obligor Financial Information*
|
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.
|
|
||
|
7
|
Significant
Enhancement Provider Information
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
Trustee
Depositor
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information*
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Trustee
Trustee
Depositor
|
||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
||
|
8
|
Other
Information
|
|
|
|
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
below
|
||
|
9
|
Exhibits
|
||
|
Distribution
report
|
Trustee
|
||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
||
|
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
||
|
1.01
|
Entry
into a Material Definitive Agreement
|
||
|
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
Depositor
|
||
|
1.02
|
Termination
of a Material Definitive Agreement
|
||
|
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
Depositor
|
||
|
1.03
|
Bankruptcy
or Receivership
|
||
|
Disclosure
is required regarding the bankruptcy or receivership, if known
to the
Servicer, with respect to any of the following:
Sponsor
(Seller), Depositor, Servicer, Trustee, Cap Provider,
Custodian
|
Depositor
|
||
|
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
||
|
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the 4.03 statement
|
Trustee
|
||
|
3.03
|
Material
Modification to Rights of Security Holders
|
||
|
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
Trustee
|
||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
Depositor
|
||
|
5.06
|
Change
in Shell Company Status
|
||
|
[Not
applicable to ABS issuers]
|
Depositor
|
||
|
6.01
|
ABS
Informational and Computational Material
|
||
|
[Not
included in reports to be filed under Section 4.07]
|
Depositor
|
||
|
6.02
|
Change
of Servicer or Trustee
|
||
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
servicer, affiliated servicer, other servicer servicing 10% or
more of
pool assets at time of report, other material servicers, certificate
administrator or trustee. Reg AB disclosure about any new servicer
or
trustee is also required.
|
Trustee
or Servicer
|
||
|
6.03
|
Change
in Credit Enhancement or Other External Support
|
||
|
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
Reg AB disclosure about any new enhancement provider is also
required.
|
Depositor
or Trustee
|
||
|
6.04
|
Failure
to Make a Required Distribution
|
Trustee
|
|
|
6.05
|
Securities
Act Updating Disclosure
|
|
|
|
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
||
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
||
|
7.01
|
Regulation
FD Disclosure
|
Depositor
|
|
|
8.01
|
Other
Events
|
||
|
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to security
holders.
|
Depositor
|
||
|
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event
|
|
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
||
|
9B
|
Other
Information
|
||
|
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
above
|
||
|
15
|
Exhibits
and Financial Statement Schedules
|
||
|
Item
1112(b) - Significant
Obligor Financial Information
|
N/A
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
Trustee
Depositor
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Trustee
Trustee
Depositor
|
||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
Credit
Enhancer/Support Provider, if any
Significant
Obligor, if any
|
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
Depositor
Depositor
|
||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
Each
Party participating in the servicing function
|
||
|
Item
1123 -Servicer Compliance Statement
|
Servicer
|
||
EXHIBIT
U
ADDITIONAL
DISCLOSURE NOTIFICATION
Xxxxx
Fargo Bank, N.A., as Trustee
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Corporate Trust Services- [DEAL NAME]—SEC REPORT PROCESSING
RE:
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Pooling and Servicing Agreement dated
as of
April 1, 2007 (the “Agreement”) among the Depositor, Option One Mortgage
Corporation, as servicer (the “Servicer”), and Xxxxx Fargo Bank, N. A., a
national banking association, as Trustee (the “Trustee), the undersigned, as [
], hereby notifies you that certain events have come to our attention that
[will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description
of Additional Form [10-D][10-K][8-K] Disclosure:
List
of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any
inquiries related to this notification should be directed to [ ],
phone number:
[ ];
email address: [
].
|
[NAME
OF PARTY],
as
[role]
|
|||||||||||||
|
By:
|
|
||||||||||||
|
|
Name:
|
||||||||||||
|
Title:
|
|||||||||||||
SCHEDULE
I
PREPAYMENT
CHARGE SCHEDULE
(Available
Upon Request)
