HSI ASSET SECURITIZATION CORPORATION, Depositor, WELLS FARGO BANK, N.A., Master Servicer, Securities Administrator and Custodian, DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee and OFFICETIGER GLOBAL REAL ESTATE SERVICES INC., Credit Risk Manager
HSI
ASSET
SECURITIZATION CORPORATION,
Depositor,
XXXXX
FARGO BANK, N.A.,
Master
Servicer, Securities Administrator and Custodian,
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
and
OFFICETIGER
GLOBAL REAL ESTATE SERVICES INC.,
Credit
Risk Manager
Dated
as
of Xxxxx 0, 0000
XXX
XXXXX
SECURITIZATION CORPORATION TRUST 2007-HE2
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES 2007-HE2
TABLE
OF
CONTENTS
Page
|
ARTICLE
I
|
||
|
DEFINITIONS
|
||
|
ARTICLE
II
|
||
|
CONVEYANCE
OF MORTGAGE LOANS;
|
||
|
REPRESENTATIONS
AND WARRANTIES
|
||
|
Section
2.01
|
Conveyance
of Mortgage Loans
|
48
|
|
Section
2.02
|
Acceptance
by the Custodian of the Mortgage Loans
|
51
|
|
Section
2.03
|
Remedies
for Breaches of Representations and Warranties with Respect to the
Mortgage Loans
|
51
|
|
Section
2.04
|
Execution
and Delivery of Certificates
|
53
|
|
Section
2.05
|
REMIC
Matters
|
53
|
|
Section
2.06
|
Representations
and Warranties of the Depositor
|
53
|
|
ARTICLE
III
|
||
|
ADMINISTRATION
AND SERVICING
|
||
|
OF
MORTGAGE LOANS
|
||
|
Section
3.01
|
Establishment
of Certain Accounts
|
54
|
|
Section
3.02
|
Investment
of Funds in the Distribution Account
|
56
|
|
Section
3.03
|
Report
on Assessment of Compliance with Relevant Servicing
Criteria.
|
57
|
|
Section
3.04
|
Report
on Attestation of Compliance with Relevant Servicing
Criteria.
|
58
|
|
Section
3.05
|
Annual
Officer’s Certificates.
|
58
|
|
Section
3.06
|
Indemnification.
|
59
|
|
Section
3.07
|
Advances
|
60
|
|
ARTICLE
IV
|
||
|
DISTRIBUTIONS
|
||
|
Section
4.01
|
The
Distribution Account
|
62
|
|
Section
4.02
|
Priorities
of Distribution
|
62
|
|
Section
4.03
|
Monthly
Statements to Certificateholders
|
68
|
|
Section
4.04
|
Certain
Matters Relating to the Determination of LIBOR
|
70
|
|
Section
4.05
|
Allocation
of Applied Realized Loss Amounts
|
71
|
|
Section
4.06
|
Supplemental
Interest Trust.
|
71
|
|
Section
4.07
|
Rights
of the Swap Counterparty.
|
73
|
|
Section
4.08
|
Termination
Receipts.
|
74
|
|
ARTICLE
V
|
||
|
THE
CERTIFICATES
|
||
|
Section
5.01
|
The
Certificates
|
75
|
|
Section
5.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates
|
76
|
|
Section
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
82
|
|
Section
5.04
|
Persons
Deemed Owners
|
83
|
|
Section
5.05
|
Access
to List of Certificateholders’ Names and Addresses
|
83
|
|
Section
5.06
|
Maintenance
of Office or Agency
|
83
|
|
ARTICLE
VI
|
||
|
THE
DEPOSITOR
|
||
|
Section
6.01
|
Liabilities
of the Depositor
|
83
|
|
Section
6.02
|
Merger
or Consolidation of the Depositor
|
83
|
|
Section
6.03
|
Limitation
on Liability of the Depositor and Others.
|
84
|
|
ARTICLE
VII
|
||
|
DEFAULT
|
||
|
Section
7.01
|
Master
Servicer to Act; Appointment of Successor
|
84
|
|
Section
7.02
|
Notification
to Certificateholders
|
87
|
|
ARTICLE
VIII
|
||
|
CONCERNING
THE TRUSTEE
|
||
|
Section
8.01
|
Duties
of the Trustee
|
87
|
|
Section
8.02
|
Certain
Matters Affecting the Trustee
|
88
|
|
Section
8.03
|
Trustee
Not Liable for Certificates or Mortgage Loans
|
89
|
|
Section
8.04
|
Trustee
May Own Certificates
|
90
|
|
Section
8.05
|
Trustee’s
Fees Indemnification and Expenses
|
90
|
|
Section
8.06
|
Eligibility
Requirements for the Trustee
|
91
|
|
Section
8.07
|
Resignation
and Removal of the Trustee
|
91
|
|
Section
8.08
|
Successor
Trustee
|
92
|
|
Section
8.09
|
Merger
or Consolidation of the Trustee
|
93
|
|
Section
8.10
|
Appointment
of Co-Trustee or Separate Trustee
|
93
|
|
Section
8.11
|
Tax
Matters
|
94
|
|
Section
8.12
|
Commission
Reporting
|
98
|
-ii-
|
Section
8.13
|
Tax
Classification of the Excess Reserve Fund Account and the Supplemental
Interest Trust
|
105
|
|
ARTICLE
IX
|
||
|
ADMINISTRATION
OF THE MORTGAGE LOANS
|
||
|
BY
THE MASTER SERVICER
|
||
|
Section
9.01
|
Duties
of the Master Servicer; Enforcement of Servicer’s
Obligations.
|
105
|
|
Section
9.02
|
[Reserved]
|
107
|
|
Section
9.03
|
[Reserved]
|
107
|
|
Section
9.04
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
107
|
|
Section
9.05
|
Representations
and Warranties of the Master Servicer
|
107
|
|
Section
9.06
|
Master
Servicer Events of Default
|
108
|
|
Section
9.07
|
Waiver
of Default.
|
110
|
|
Section
9.08
|
Successor
to the Master Servicer.
|
110
|
|
Section
9.09
|
Compensation
of the Master Servicer.
|
111
|
|
Section
9.10
|
Merger
or Consolidation.
|
111
|
|
Section
9.11
|
Resignation
of the Master Servicer.
|
112
|
|
Section
9.12
|
Assignment
or Delegation of Duties by the Master Servicer.
|
112
|
|
Section
9.13
|
Limitation
on Liability of the Master Servicer.
|
112
|
|
Section
9.14
|
Indemnification;
Third Party Claims.
|
113
|
|
Section
9.15
|
Duties
of the Credit Risk Manager.
|
113
|
|
Section
9.16
|
Limitation
Upon Liability of the Credit Risk Manager.
|
115
|
|
Section
9.17
|
Removal
and Resignation of Credit Risk Manager.
|
115
|
|
ARTICLE
X
|
||
|
CONCERNING
THE SECURITIES ADMINISTRATOR
|
||
|
Section
10.01
|
Duties
of Securities Administrator.
|
115
|
|
Section
10.02
|
Certain
Matters Affecting the Securities Administrator.
|
116
|
|
Section
10.03
|
Securities
Administrator Not Liable for Certificates or Mortgage
Loans.
|
118
|
|
Section
10.04
|
Securities
Administrator May Own Certificates.
|
118
|
|
Section
10.05
|
Securities
Administrator’s Fees and Expenses.
|
119
|
|
Section
10.06
|
Eligibility
Requirements for Securities Administrator.
|
119
|
|
Section
10.07
|
Resignation
and Removal of Securities Administrator.
|
120
|
|
Section
10.08
|
Successor
Securities Administrator.
|
121
|
|
Section
10.09
|
Merger
or Consolidation of Securities Administrator.
|
121
|
|
Section
10.10
|
Assignment
or Delegation of Duties by the Securities Administrator.
|
122
|
|
ARTICLE
XI
|
||
|
TERMINATION
|
||
|
Section
11.01
|
Termination
upon Liquidation or Purchase of the Mortgage Loans
|
122
|
-iii-
|
Section
11.02
|
Final
Distribution on the Certificates
|
123
|
|
Section
11.03
|
Additional
Termination Requirements
|
124
|
|
ARTICLE
XII
|
||
|
MISCELLANEOUS
PROVISIONS
|
||
|
Section
12.01
|
Amendment
|
125
|
|
Section
12.02
|
Recordation
of Agreement; Counterparts
|
127
|
|
Section
12.03
|
Governing
Law
|
127
|
|
Section
12.04
|
Intention
of Parties
|
127
|
|
Section
12.05
|
Notices
|
129
|
|
Section
12.06
|
Severability
of Provisions
|
130
|
|
Section
12.07
|
Limitation
on Rights of Certificateholders
|
130
|
|
Section
12.08
|
Certificates
Nonassessable and Fully Paid
|
131
|
|
Section
12.09
|
Rule of
Construction
|
131
|
|
Section
12.10
|
Waiver
of Jury Trial
|
131
|
-iv-
SCHEDULES
Schedule I Mortgage
Loan Schedule
EXHIBITS
|
Exhibit A
|
Form
of Class A and Class M Certificates
|
|
Exhibit B
|
Form
of Class P Certificate
|
|
Exhibit C
|
Form
of Class R Certificate
|
|
Exhibit D
|
Form
of Class X Certificate
|
|
Exhibit E
|
Form
of Initial Certification of Custodian
|
|
Exhibit F
|
Form
of Document Certification and Exception Report of
Custodian
|
|
Exhibit G
|
Form
of Residual Transfer Affidavit
|
|
Exhibit H
|
Form
of Transferor Certificate
|
|
Exhibit I-A
|
Form
of Rule 144A Investment Letter
|
|
Exhibit
I-B
|
Form
of Regulation S Investment Letter
|
|
Exhibit J
|
Form
of Request for Release
|
|
Exhibit K
|
Contents
for Each Mortgage File
|
|
Exhibit L
|
Form
of Xxxxxxxx-Xxxxx Certification to be Provided by Master Servicer
(or
other Certification Party) signing Form 10-K
|
|
Exhibit M
|
List
of Servicing Agreements
|
|
Exhibit
N-1
|
[Reserved]
|
|
Exhibit
N-2
|
[Reserved]
|
|
Exhibit
N-3
|
[Reserved]
|
|
Exhibit
O
|
Form
of Swap Agreement
|
|
Exhibit
P
|
Form
of Cap Agreement
|
|
Exhibit
Q
|
[Reserved]
|
|
Exhibit
R
|
[Reserved]
|
|
Exhibit
S
|
Servicing
Criteria Matrix
|
|
Exhibit
T
|
Transaction
Parties
|
|
Exhibit
U
|
Form
of Annual Compliance Certificate
|
|
Exhibit
V
|
Additional
Form 10-D Disclosure
|
|
Exhibit
W
|
Additional
Form 10-K Disclosure
|
|
Exhibit
X
|
Form
8-K Disclosure Information
|
|
Exhibit
Y
|
Additional
Disclosure Notification
|
-v-
THIS
POOLING AND SERVICING AGREEMENT, dated as of April 1, 2007, among HSI ASSET
SECURITIZATION CORPORATION, as depositor (the “Depositor”),
XXXXX
FARGO BANK, N.A., a national banking association, as master servicer (in such
capacity, the “Master
Servicer”),
as
securities administrator (in such capacity, the “Securities
Administrator”)
and as
custodian (in such capacity, “the Custodian”),
OFFICETIGER GLOBAL REAL ESTATE SERVICES INC., as credit risk manager (the
“Credit
Risk Manager”),
and
DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking association, as trustee
(the “Trustee”).
WITNESSETH:
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
PRELIMINARY
STATEMENT
The
Securities Administrator on behalf of the Trust Fund (exclusive of (i) the
Swap
Agreement, (ii) the Cap Agreement, (iii) the right to receive and the obligation
to pay Basis Risk Carryover Amounts, (iv) the Excess Reserve Fund Account,
(v)
the Supplemental Interest Trust and the Supplemental Interest Trust Account,
and
(vi) the obligations to pay Class I Shortfalls (collectively, the “Excluded
Trust Assets”))
shall
elect that two segregated asset pools within the Trust Fund be treated for
federal income tax purposes as comprising three real estate mortgage investment
conduits under Section 860D of the Code (each a “REMIC”
or,
in
the alternative, “REMIC 1,” REMIC 2” and “REMIC 3,” REMIC 3 also being referred
to herein as the “Upper
Tier REMIC.”)
Any
inconsistencies or ambiguities in this Agreement or in the administration of
this Agreement shall be resolved in a manner that preserves the validity of
such
REMIC election.
Each
Certificate, other than the Class R Certificates, represents ownership of a
regular interest in the Upper Tier REMIC for purposes of the REMIC Provisions.
In addition, each Certificate, other than the Class R, Class X and Class P
Certificates, represents (i) the right to receive payments with respect to
any
Basis Risk Carryover Amounts and (ii) the obligation to pay Class I Shortfalls.
The Class R Certificate represents ownership of the sole Class of residual
interest in each of REMIC 1, REMIC 2 and the Upper Tier REMIC for purposes
of
the REMIC Provisions.
The
Upper Tier REMIC shall hold as its assets the uncertificated Lower Tier
Interests in REMIC 2, other than the Class LT2-R interest, and each such Lower
Tier Interest is hereby designated as a regular interest in REMIC 2 for purposes
of the REMIC Provisions. REMIC 2 shall hold as its assets the uncertificated
Lower Tier Interests in REMIC 1, other than the Class LT1-R interest, and each
such Lower Tier Interest is hereby designated as a regular interest in REMIC
1.
REMIC 1 shall hold as its assets the property of the Trust Fund other than
the
Lower Tier Interests in REMIC 1 and REMIC 2 and the Excluded Trust
Assets.
REMIC
1:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 1, each of which (other than the Class LT1-R
Lower Tier Interest) is hereby designated as a regular interest in REMIC 1
(the
“REMIC 1 Regular Interests”):
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
|
LT1-A
|
(5)
|
(1)
|
|
LT1-F1
|
$
6,740,161.50
|
(2)
|
|
LT1-V1
|
$
6,740,161.50
|
(3)
|
|
LT1-F2
|
$
7,866,241.50
|
(2)
|
|
LT1-V2
|
$
7,866,241.50
|
(3)
|
|
LT1-F3
|
$
8,972,257.50
|
(2)
|
|
LT1-V3
|
$
8,972,257.50
|
(3)
|
|
LT1-F4
|
$
10,035,639.00
|
(2)
|
|
LT1-V4
|
$
10,035,639.00
|
(3)
|
|
LT1-F5
|
$
11,050,345.00
|
(2)
|
|
LT1-V5
|
$
11,050,345.00
|
(3)
|
|
LT1-F6
|
$
11,990,728.50
|
(2)
|
|
LT1-V6
|
$
11,990,728.50
|
(3)
|
|
LT1-F7
|
$
12,809,961.00
|
(2)
|
|
LT1-V7
|
$
12,809,961.00
|
(3)
|
|
LT1-F8
|
$
12,716,422.00
|
(2)
|
|
LT1-V8
|
$
12,716,422.00
|
(3)
|
|
LT1-F9
|
$
12,150,785.50
|
(2)
|
|
LT1-V9
|
$
12,150,785.50
|
(3)
|
|
LT1-F10
|
$
11,573,874.00
|
(2)
|
|
LT1-V10
|
$
11,573,874.00
|
(3)
|
|
LT1-F11
|
$
11,022,253.00
|
(2)
|
|
LT1-V11
|
$
11,022,253.00
|
(3)
|
|
LT1-F12
|
$
10,492,010.00
|
(2)
|
|
LT1-V12
|
$
10,492,010.00
|
(3)
|
|
LT1-F13
|
$
9,987,348.00
|
(2)
|
|
LT1-V13
|
$
9,987,348.00
|
(3)
|
|
LT1-F14
|
$
9,517,922.00
|
(2)
|
|
LT1-V14
|
$
9,517,922.00
|
(3)
|
|
LT1-F15
|
$
9,064,691.50
|
(2)
|
|
LT1-V15
|
$
9,064,691.50
|
(3)
|
|
LT1-F16
|
$
8,639,164.00
|
(2)
|
|
LT1-V16
|
$
8,639,164.00
|
(3)
|
|
LT1-F17
|
$
8,233,451.50
|
(2)
|
|
LT1-V17
|
$
8,233,451.50
|
(3)
|
|
LT1-F18
|
$
12,207,788.50
|
(2)
|
|
LT1-V18
|
$
12,207,788.50
|
(3)
|
|
LT1-F19
|
$
13,786,845.00
|
(2)
|
-2-
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
|
LT1-V19
|
$
13,786,845.00
|
(3)
|
|
LT1-F20
|
$
12,550,602.50
|
(2)
|
|
LT1-V20
|
$
12,550,602.50
|
(3)
|
|
LT1-F21
|
$
11,283,167.00
|
(2)
|
|
LT1-V21
|
$
11,283,167.00
|
(3)
|
|
LT1-F22
|
$
10,146,425.00
|
(2)
|
|
LT1-V22
|
$
10,146,425.00
|
(3)
|
|
LT1-F23
|
$
7,151,475.00
|
(2)
|
|
LT1-V23
|
$
7,151,475.00
|
(3)
|
|
LT1-F24
|
$
5,400,738.50
|
(2)
|
|
LT1-V24
|
$
5,400,738.50
|
(3)
|
|
LT1-F25
|
$
5,096,884.00
|
(2)
|
|
LT1-V25
|
$
5,096,884.00
|
(3)
|
|
LT1-F26
|
$
4,909,343.50
|
(2)
|
|
LT1-V26
|
$
4,909,343.50
|
(3)
|
|
LT1-F27
|
$
4,749,690.00
|
(2)
|
|
LT1-V27
|
$
4,749,690.00
|
(3)
|
|
LT1-F28
|
$
4,497,993.50
|
(2)
|
|
LT1-V28
|
$
4,497,993.50
|
(3)
|
|
LT1-F29
|
$
4,225,019.50
|
(2)
|
|
LT1-V29
|
$
4,225,019.50
|
(3)
|
|
LT1-F30
|
$
3,955,014.50
|
(2)
|
|
LT1-V30
|
$
3,955,014.50
|
(3)
|
|
LT1-F31
|
$
3,695,456.00
|
(2)
|
|
LT1-V31
|
$
3,695,456.00
|
(3)
|
|
LT1-F32
|
$
3,430,812.50
|
(2)
|
|
LT1-V32
|
$
3,430,812.50
|
(3)
|
|
LT1-F33
|
$
3,177,928.00
|
(2)
|
|
LT1-V33
|
$
3,177,928.00
|
(3)
|
|
LT1-F34
|
$
2,937,997.00
|
(2)
|
|
LT1-V34
|
$
2,937,997.00
|
(3)
|
|
LT1-F35
|
$
2,750,871.50
|
(2)
|
|
LT1-V35
|
$
2,750,871.50
|
(3)
|
|
LT1-F36
|
$
2,589,138.50
|
(2)
|
|
LT1-V36
|
$
2,589,138.50
|
(3)
|
|
LT1-F37
|
$
2,442,639.50
|
(2)
|
|
LT1-V37
|
$
2,442,639.50
|
(3)
|
|
LT1-F38
|
$
2,304,537.50
|
(2)
|
|
LT1-V38
|
$
2,304,537.50
|
(3)
|
|
LT1-F39
|
$
2,174,377.50
|
(2)
|
|
LT1-V39
|
$
2,174,377.50
|
(3)
|
|
LT1-F40
|
$
2,051,696.50
|
(2)
|
|
LT1-V40
|
$
2,051,696.50
|
(3)
|
|
LT1-F41
|
$
35,019,997.50
|
(2)
|
-3-
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
|
LT1-V41
|
$
35,019,997.50
|
(3)
|
|
LT1-R
|
(4)
|
(4)
|
___________________________
|
(1)
|
For
any Distribution Date (and the related Interest Accrual Period) the
interest rate for the Class LT1-A Interest shall be the Net WAC Rate.
|
|
(2)
|
For
any Distribution Date (and the related Interest Accrual Period) the
interest rate for each of these Lower Tier Interests shall be the
lesser
of (i) 10.20% and (ii) the product of (a) the Net WAC Rate and (b)
2.
|
|
(3)
|
For
any Distribution Date (and the related Interest Accrual Period) the
interest rate for each of these Lower Tier Interests shall be the
excess,
if any, of (i) the product of (a) the Net WAC Rate and (b) 2, over
(ii)
10.20%.
|
|
(4)
|
The
Class LT1-R interest shall not have a principal amount and shall
not bear
interest. The Class LT1-R interest is hereby designated as the sole
class
of residual interest in REMIC 1.
|
| (5) |
This
interest shall have an initial principal balance equal to the excess
of
the aggregate stated Principal Balance of the Mortgage Loans as of
the
Cut-off Date over the aggregate initial principal balance of each
remaining interest in REMIC 1.
|
On
each
Distribution Date, the Securities Administrator shall first pay or charge as
an
expense of REMIC 1 all expenses of the Trust Fund for such Distribution Date,
other than any Net Swap Payment or Swap Termination Payment required to be
made
from the Trust Fund.
On
each
Distribution Date the Securities Administrator shall distribute the Interest
Remittance Amount (net of expenses described in the preceding paragraph) with
respect to each of the Lower Tier Interests in REMIC 1 based on the
above-described interest rates.
On
each
Distribution Date, the Securities Administrator shall distribute the Principal
Remittance Amount with respect to the Lower Tier Interests in REMIC 1, first
to
the Class LT1-A Interest until its principal balance is reduced to zero, and
then sequentially, to the other Lower Tier Interests in REMIC 1 in ascending
order of their numerical class designation, and, with respect to each pair
of
classes having the same numerical designation, in equal amounts to each such
class, until the principal balance of each such class is reduced to zero. All
losses on the Mortgage Loans shall be allocated among the Lower Tier Interests
in REMIC 1 in the same manner that principal distributions are
allocated.
On
each
Distribution Date, the Securities Administrator shall distribute the Prepayment
Charges collected during the preceding Prepayment Period to the Class LT1-F41
and Class LT1-V41 Lower Tier Interests, respectively.
REMIC
2:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 2, each of which (other than the Class LT2-R
interest) is hereby designated as a regular interest in REMIC 2 (the “REMIC 2
Regular Interests”):
-4-
|
REMIC
2
Lower
Tier
Class
Designation
|
REMIC
2
Lower
Tier
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of Certificate(s)
|
|||
|
Class
LT2-I-A
|
(1)
|
(4)
|
I-A
|
|||
|
Class
LT2-II-A1
|
(1)
|
(4)
|
II-A-1
|
|||
|
Class
LT2-II-A2
|
(1)
|
(4)
|
II-A-2
|
|||
|
Class
LT2-II-A3
|
(1)
|
(4)
|
II-A-3
|
|||
|
Class
LT2-II-A4
|
(1)
|
(4)
|
II-A-4
|
|||
|
Class
LT2-M1
|
(1)
|
(4)
|
M-1
|
|||
|
Class
LT2-M2
|
(1)
|
(4)
|
M-2
|
|||
|
Class
LT2-M3
|
(1)
|
(4)
|
M-3
|
|||
|
Class
LT2-M4
|
(1)
|
(4)
|
M-4
|
|||
|
Class
LT2-M5
|
(1)
|
(4)
|
M-5
|
|||
|
Class
LT2-M6
|
(1)
|
(4)
|
M-6
|
|||
|
Class
LT2-M7
|
(1)
|
(4)
|
M-7
|
|||
|
Class
LT2-M8
|
(1)
|
(4)
|
M-8
|
|||
|
Class
LT2-M9
|
(1)
|
(4)
|
M-9
|
|||
|
Class
LT2-M10
|
(1)
|
(4)
|
M-10
|
|||
|
Class
LT2-Q
|
(1)
|
(5)
|
N/A
|
|||
|
Class
LT2-IO
|
(2)
|
(2)
|
N/A
|
|||
|
Class
LT2-R
|
(3)
|
(3)
|
R
|
___________________________
|
(1)
|
For
any Distribution Date (and the related Interest Accrual Period) the
interest rate for each of these Lower Tier Interests in REMIC 2 is
a per
annum rate equal to the weighted average of the interest rates on
the
Lower Tier Interests in REMIC 1 for such Distribution Date; provided,
however,
that for any Distribution Date on which the Class LT2-IO Interest
is
entitled to a portion of the interest accruals on a Lower Tier Interest
in
REMIC 1 having an “F” in its class designation, as described in footnote
two below, such weighted average shall be computed by first subjecting
the
rate on such Lower Tier Interest in REMIC 1 to a cap equal to Swap
LIBOR
for such Distribution Date.
|
|
(2)
|
The
Class LT2-IO is an interest only class that does not have a principal
balance. For only those Distribution Dates listed in the first column
in
the table below, the Class LT2-IO shall be entitled to interest accrued
on
the Lower Tier Interest in REMIC 1 listed in second column in the
table
below at a per annum rate equal to the excess, if any, of (i) the
interest
rate for such Lower Tier Interest in REMIC 1 for such Distribution
Date
over (ii) Swap LIBOR for such Distribution
Date.
|
|
Distribution
Dates
|
REMIC
1
Class Designation
|
|
2
|
Class
LT1-F1
|
|
2-3
|
Class
LT1-F2
|
|
2-4
|
Class
LT1-F3
|
|
2-5
|
Class
LT1-F4
|
|
2-6
|
Class
LT1-F5
|
|
2-7
|
Class
LT1-F6
|
|
2-8
|
Class
LT1-F7
|
|
2-9
|
Class
LT1-F8
|
|
2-10
|
Class
LT1-F9
|
|
2-11
|
Class
LT1-F10
|
|
2-12
|
Class
LT1-F11
|
|
2-13
|
Class
LT1-F12
|
|
2-14
|
Class
LT1-F13
|
|
2-15
|
Class
LT1-F14
|
-5-
|
2-16
|
Class
LT1-F15
|
|
2-17
|
Class
LT1-F16
|
|
2-18
|
Class
LT1-F17
|
|
2-19
|
Class
LT1-F18
|
|
2-20
|
Class
LT1-F19
|
|
2-21
|
Class
LT1-F20
|
|
2-22
|
Class
LT1-F21
|
|
2-23
|
Class
LT1-F22
|
|
2-24
|
Class
LT1-F23
|
|
2-25
|
Class
LT1-F24
|
|
2-26
|
Class
LT1-F25
|
|
2-27
|
Class
LT1-F26
|
|
2-28
|
Class
LT1-F27
|
|
2-29
|
Class
LT1-F28
|
|
2-30
|
Class
LT1-F29
|
|
2-31
|
Class
LT1-F30
|
|
2-32
|
Class
LT1-F31
|
|
2-33
|
Class
LT1-F32
|
|
2-34
|
Class
LT1-F33
|
|
2-35
|
Class
LT1-F34
|
|
2-36
|
Class
LT1-F35
|
|
2-37
|
Class
LT1-F36
|
|
2-38
|
Class
LT1-F37
|
|
2-39
|
Class
LT1-F38
|
|
2-40
|
Class
LT1-F39
|
|
2-41
|
Class
LT1-F40
|
|
2-42
|
Class
LT1-F41
|
|
(3)
|
The
Class LT2-R interest is the sole class of residual interests in REMIC
2.
It does not have an interest rate or a principal balance.
|
|
(4)
|
This
Lower Tier Interest shall have an initial class principal amount
equal to
one-half of the initial Class Principal Amount of its Corresponding
Class
of Certificates.
|
|
(5)
|
This
Lower Tier Interest shall have an initial class principal amount
equal to
the excess of (i) the Pool Stated Principal Balance as of the Cut-off
Date, over (ii) the aggregate initial Class Principal Amount of each
other
regular interest in REMIC 2 (other than any interest-only Lower Tier
Interest).
|
On
each
Distribution Date, interest shall be distributed on the Lower Tier Interests
in
REMIC 2 based on the above-described interest rates; provided,
however,
that
interest that accrues on the Class LT2-Q Interest shall be deferred in an amount
equal to one-half of the increase, if any, in the Overcollateralization Amount
for such Distribution Date. Any interest so deferred shall itself bear interest
at the interest rate for the Class LT2-Q Interest. An amount equal to the
interest so deferred shall be distributed as additional principal on the other
Lower Tier Interests in REMIC 2 having a principal balance in the manner
described under priority (a) below.
On
each
Distribution Date principal shall be distributed, and Realized Losses shall
be
allocated, among the Lower Tier Interests in REMIC 2 in the following order
of
priority:
(a) First,
to
the Class LT2-I-A, Class LT2-II-A1, Class LT2-II-A2, Class LT2-II-A3, Class
LT2-II-A4, Class LT2-M1, Class LT2-M2, Class LT2-M3, Class LT2-M4, Class
LT2-M5, Class LT2-M6, Class LT2-M7, Class LT2-M8, Class LT2-M9, and Class
LT2-M10 Interests until the principal balance of each such Lower Tier Interest
equals one-half of the Class Principal Amount of the Corresponding Class of
Certificates immediately after such Distribution Date; and
-6-
(b) Second,
to the Class LT2-Q Interests, any remaining amounts.
On
each
Distribution Date, the Securities Administrator shall be deemed to have
distributed the Prepayment Charges passed through with respect to the Class
LT1-F41 and Class LT1-V41 Lower Tier Interests in REMIC 1 on such Distribution
Date to the Class LT2-Q Interest.
Upper
Tier REMIC
The
Upper
Tier REMIC shall issue the following Classes of Upper Tier REMIC Regular
Interests and each such interest, other than the Class R Interest, is hereby
designated as a regular interest in the Upper Tier REMIC.
Upper
Tier REMIC
|
Upper
Tier REMIC
Class Designation
|
Upper
Tier REMIC Interest Rate and Corresponding Class Interest
Rate
|
Initial
Upper Tier REMIC Principal Amount and Corresponding Class Certificate
Balance
|
Corresponding
Class of
Certificates
|
|||
|
Class I-A
|
(1)
|
$
326,874,000
|
Class I-A
|
|||
|
Class II-A-1
|
(2)
|
$
132,967,000
|
Class II-A
|
|||
|
Class II-A-2
|
(3)
|
$
26,376,000
|
Class II-A-2
|
|||
|
Class II-A-3
|
(4)
|
$
49,252,000
|
Class II-A-3
|
|||
|
Class II-A-4
|
(5)
|
$
3,688,000
|
Class II-A-4
|
|||
|
Class M-1
|
(6)
|
$
29,714,000
|
Class M-1
|
|||
|
Class M-2
|
(6)
|
$
27,567,000
|
Class M-2
|
|||
|
Class M-3
|
(6)
|
$
16,468,000
|
Class M-3
|
|||
|
Class M-4
|
(6)
|
$
14,320,000
|
Class M-4
|
|||
|
Class M-5
|
(6)
|
$
13,963,000
|
Class M-5
|
|||
|
Class M-6
|
(6)
|
$
11,814,000
|
Class M-6
|
|||
|
Class M-7
|
(6)
|
$
11,814,000
|
Class M-7
|
|||
|
Class M-8
|
(6)
|
$
10,740,000
|
Class M-8
|
|||
|
Class M-9
|
(6)
|
$
8,592,000
|
Class M-9
|
|||
|
Class M-10
|
(6)
|
$
13,604,000
|
Class M-10
|
|||
|
Class X
|
(7)
|
(7)
|
Class X
|
|||
|
Class R
|
(8)
|
(8)
|
Class R
|
|||
|
Class P
|
(9)
|
(9)
|
Class
P
|
|||
|
(1)
|
The
Class I-A Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) LIBOR plus the applicable
Interest Margin and (ii) the Group I Available Funds Cap or
(b) after the Optional Termination Date, the lesser of (i) LIBOR
plus the applicable Interest Margin and (ii) the Group I Available
Funds Cap. For purposes of the REMIC Provisions, the reference to
“Group I
Available Funds Cap” in clause (ii) of the preceding sentence shall be
deemed a reference to the REMIC 2 Net Funds Cap; therefore, on any
Distribution Date on which the Interest Rate for the Class I-A
Certificates exceeds the REMIC 2 Net Funds Cap, interest accruals
based on
such excess shall be treated as having been paid from the Excess
Reserve
Fund Account or the Supplemental Interest Trust, as applicable; on
any
Distribution Date on which the Interest Rate on the Class I-A Certificates
is based on the Group I Available Funds Cap, the amount of interest
that
would have accrued on the Class I-A Certificates if the REMIC 2 Net
Funds
Cap were substituted for the Group I Available Funds Cap shall be
treated
as having been paid by the Class I-A Certificateholders to the
Supplemental Interest Trust, all pursuant to and as further provided
in
Section 8.11 hereof.
|
-7-
|
(2)
|
The
Class II-A-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) LIBOR plus the applicable
Interest Margin and (ii) the Group II Available Funds Cap or
(b) after the Optional Termination Date, the lesser of (i) LIBOR
plus the applicable Interest Margin and (ii) the Group II Available
Funds Cap. For purposes of the REMIC Provisions, the reference to
“Group
II Available Funds Cap” in clause (ii) of the preceding sentence shall be
deemed a reference to the REMIC 2 Net Funds Cap; therefore, on any
Distribution Date on which the Interest Rate for the Class II-A-1
Certificates exceeds the REMIC 2 Net Funds Cap, interest accruals
based on
such excess shall be treated as having been paid from the Excess
Reserve
Fund Account or the Supplemental Interest Trust, as applicable; on
any
Distribution Date on which the Interest Rate on the Class II-A-1
Certificates is based on the Group II Available Funds Cap, the amount
of
interest that would have accrued on the Class II-A-1 Certificates
if the
REMIC 2 Net Funds Cap were substituted for the Group II Available
Funds
Cap shall be treated as having been paid by the Class II-A-1
Certificateholders to the Supplemental Interest Trust, all pursuant
to and
as further provided in Section 8.11
hereof.
|
|
(3)
|
The
Class II-A-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) LIBOR plus the applicable
Interest Margin and (ii) the Group II Available Funds Cap or
(b) after the Optional Termination Date, the lesser of (i) LIBOR
plus the applicable Interest Margin and (ii) the Group II Available
Funds Cap. For purposes of the REMIC Provisions, the reference to
“Group
II Available Funds Cap” in clause (ii) of the preceding sentence shall be
deemed a reference to the REMIC 2 Net Funds Cap; therefore, on any
Distribution Date on which the Interest Rate for the Class II-A-2
Certificates exceeds the REMIC 2 Net Funds Cap, interest accruals
based on
such excess shall be treated as having been paid from the Excess
Reserve
Fund Account or the Supplemental Interest Trust, as applicable; on
any
Distribution Date on which the Interest Rate on the Class II-A-2
Certificates is based on the Group II Available Funds Cap, the amount
of
interest that would have accrued on the Class II-A-2 Certificates
if the
REMIC 2 Net Funds Cap were substituted for the Group II Available
Funds
Cap shall be treated as having been paid by the Class II-A-2
Certificateholders to the Supplemental Interest Trust, all pursuant
to and
as further provided in Section 8.11
hereof.
|
|
(4)
|
The
Class II-A-3 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) LIBOR plus the applicable
Interest Margin and (ii) the Group II Available Funds Cap or
(b) after the Optional Termination Date, the lesser of (i) LIBOR
plus the applicable Interest Margin and (ii) the Group II Available
Funds Cap. For purposes of the REMIC Provisions, the reference to
“Group
II Available Funds Cap” in clause (ii) of the preceding sentence shall be
deemed a reference to the REMIC 2 Net Funds Cap; therefore, on any
Distribution Date on which the Interest Rate for the Class II-A-3
Certificates exceeds the REMIC 2 Net Funds Cap, interest accruals
based on
such excess shall be treated as having been paid from the Excess
Reserve
Fund Account or the Supplemental Interest Trust, as applicable; on
any
Distribution Date on which the Interest Rate on the Class II-A-3
Certificates is based on the Group II Available Funds Cap, the amount
of
interest that would have accrued on the Class II-A-3 Certificates
if the
REMIC 2 Net Funds Cap were substituted for the Group II Available
Funds
Cap shall be treated as having been paid by the Class II-A-3
Certificateholders to the Supplemental Interest Trust, all pursuant
to and
as further provided in Section 8.11
hereof.
|
|
(5)
|
The
Class II-A-4 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) LIBOR plus the applicable
Interest Margin and (ii) the Group II Available Funds Cap or
(b) after the Optional Termination Date, the lesser of (i) LIBOR
plus the applicable Interest Margin and (ii) the Group II Available
Funds Cap. For purposes of the REMIC Provisions, the reference to
“Group
II Available Funds Cap” in clause (ii) of the preceding sentence shall be
deemed a reference to the REMIC 2 Net Funds Cap; therefore, on any
Distribution Date on which the Interest Rate for the Class II-A-4
Certificates exceeds the REMIC 2 Net Funds Cap, interest accruals
based on
such excess shall be treated as having been paid from the Excess
Reserve
Fund Account or the Supplemental Interest Trust, as applicable; on
any
Distribution Date on which the Interest Rate on the Class II-A-4
Certificates is based on the Group II Available Funds Cap, the amount
of
interest that would have accrued on the Class II-A-4 Certificates
if the
REMIC 2 Net Funds Cap were substituted for the Group II Available
Funds
Cap shall be treated as having been paid by the Class II-A-4
Certificateholders to the Supplemental Interest Trust, all pursuant
to and
as further provided in Section 8.11
hereof.
|
-8-
|
(6)
|
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,
Class M-9 and Class M-10 Interests will bear interest during
each Interest Accrual Period at a per annum rate equal to (a) on or
prior to the Optional Termination Date, the lesser of (i) LIBOR plus
the applicable Interest Margin and (ii) the Class M Available Funds
Cap or (b) after the Optional Termination Date, the lesser of
(i) LIBOR plus the applicable Interest Margin and (ii) the Class
M Available Funds Cap. For purposes of the REMIC Provisions, the
reference
to Class M Available Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 2 Net Funds Cap; therefore,
on any Distribution Date on which the Interest Rate for the Class
X-0,
X-0, X-0, X-0, X-0, M-6, M-7, M-8, M-9 and M-10 Certificates, as
applicable, exceeds the REMIC 2 Net Funds Cap, interest accruals
based on
such excess shall be treated as having been paid from the Excess
Reserve
Fund Account or the Supplemental Interest Trust, as applicable; on
any
Distribution Date on which the Interest Rate on the Class X-0, X-0,
X-0,
X-0, X-0, M-6, M-7, M-8, M-9 and M-10 Certificates, as applicable,
is
based on the Class M Available Funds Cap, the amount of interest
that
would have accrued on each such Class of Certificates if the REMIC
2 Net
Funds Cap were substituted for the Class M Available Funds Cap shall
be
treated as having been paid by the Class X-0, X-0, X-0, X-0, X-0,
M-6,
M-7, M-8, M-9 and M-10 Certificateholders, as applicable, to the
Supplemental Interest Trust, all pursuant to and as further provided
in
Section 8.11 hereof.
|
|
(7)
|
For
purposes of the REMIC Provisions, the Class X Interest shall have
an
initial principal balance of $18,258,755.67 (initial overcollateralization
of $18,258,855.67 less $100.00 attributable to the Class P Principal
Amount), and the right to receive distributions of such amount represents
a regular interest in the Upper Tier REMIC. The Class X Certificate
shall
also comprise two notional components, each of which represents a
regular
interest in the Upper Tier REMIC. The first such component has a
notional
balance that will at all times equal the aggregate of the Class
Certificate Balances of the Lower Tier Interests in REMIC 2, and,
for each
Distribution Date (and the related Interest Accrual Period) this
notional
component shall bear interest at a per annum rate equal to the excess,
if
any, of (i) (a) the weighted average of the interest rates on the
Lower
Tier Interests in REMIC 2 (other than any interest-only regular interest)
minus (b) the Credit Risk Manager’s Fee over (ii) the Adjusted Lower Tier
WAC. The second notional component represents the right to receive
all
distributions in respect of the Class LT2-IO interest in REMIC 2
(the
“LT3-I” interest). In addition, for purposes of the REMIC Provisions, the
Class X Certificate shall represent beneficial ownership of (i) the
Excess
Reserve Fund Account; (ii) the Supplemental Interest Trust, including
the
Swap Agreement, Swap Account, Cap Agreement, and Cap Account, and
(iii) an
interest in the notional principal contracts described in Section
8.11
hereof.
|
|
(8)
|
The
Class R Interest is the sole Class of residual interest in the Upper
Tier REMIC. The Class R Interest is issued without a principal amount
does not bear a stated Interest Rate. The Class R Certificate will be
issued as a single certificate evidencing the initial Percentage
Interest
of such Class, and shall represent ownership of each of the Class
R, Class
LT1-R and Class LT2-R Interests.
|
|
(9)
|
The
Class P Interest shall not bear interest at a stated Interest Rate.
Prepayment Charges paid with respect to the Mortgage Loans shall
be paid
to the Class P Certificateholders as provided in Section 4.02(b).
For
purposes of the REMIC Provisions, the Class P Interest shall represent
a
regular interest in the Upper Tier REMIC. The Class P Certificate
will
have a Class P Principal Amount of
$100.
|
The
minimum denomination for each Class of Certificates, other than the
Class P, Class R and the Class X Certificates, will be $25,000 of
Certificate Balance ($100,000 with respect to initial investors resident in
a
Member State of the European Economic Area subject to the EU Prospectus
Directive 2003/71/EC) with integral multiples of $1 in excess thereof, except
that one Certificate in each Class may be issued in a different amount. The
minimum denomination for each of the Class P and Class X Certificates
will be a 10.00% Percentage Interest in such Class, and the minimum denomination
for the Class R Certificates shall be 100% Percentage Interest in such
Class.
-9-
Set
forth
below are designations of Classes of Certificates to the categories used
herein:
|
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical
Certificates.
|
|
Class A
Certificates
|
Class
I-A, Class II-A-1, Class II-A-2, Class II-A-3 and Class II-A-4
Certificates.
|
|
Class M
Certificates
|
Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and
Class M-10 Certificates.
|
ERISA-Restricted
|
Certificates
|
Any
Class P, Class X and Class R Certificates and any Certificate with
a
rating which falls below the lowest applicable permitted rating under
the
Underwriters’ Exemption.
|
ERISA-Restricted
|
Trust
Certificates
|
Any
Offered Certificate prior to the termination of the Cap Agreement
and the
Swap Agreement.
|
|
Group
I Certificates
|
The
Class I-A Certificates.
|
|
Group
II Certificates
|
Collectively,
the Class II-A-1, Class II-A-2, Class II-A-3 and Class II-A-4
Certificates.
|
|
LIBOR
Certificates
|
Collectively,
the Class A Certificates and the Class M
Certificates.
|
|
Non-Delay
Certificates
|
The
Class A Certificates, the Class M Certificates and the Class X
Certificates.
|
|
Offered
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
|
Physical
Certificates
|
Class P,
Class X and Class R
Certificates.
|
|
Private
Certificates
|
Class P,
Class X and Class R
Certificates.
|
|
Rating
Agencies
|
Fitch,
Xxxxx’x and Standard &
Poor’s.
|
|
Regular
Certificates
|
All
Classes of Certificates other than the Class R
Certificates.
|
|
Residual
Certificates
|
Class R
Certificates.
|
-10-
ARTICLE
I
DEFINITIONS
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
10-K
Filing Deadline: As defined in Section 8.12(a)(ii).
Account:
Any of
the Collection Accounts, the Distribution Account and any Escrow Account, with
respect to the Supplemental Interest Trust, the Excess Reserve Fund Account
and
the Supplemental Interest Trust Account. Each Account shall be an Eligible
Account.
Additional
Disclosure Notification:
The
form of notice set forth on Exhibit Y.
Additional
Form 10-D Disclosure:
As
defined in Section 8.12(a)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 8.12(a)(ii).
Additional
Termination Event:
As
defined in the Cap Agreement or the Swap Agreement, as applicable.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan which provides for the adjustment of the Mortgage Rate payable
in
respect thereto.
Adjusted
Lower Tier WAC:
For any
Distribution Date (and the related Interest Accrual Period), an amount equal
to
(i) two, multiplied by (ii) the weighted average of the interest rates for
such
Distribution Date for the Class LT2-I-A, LT2-II-A-1, LT2-II-A-2, LT2-II-A-3,
LT2-II-A-4, LT2-M-1, LT2-M-2, LT2-M-3, LT2-M-4, LT2-M-5, LT2-M-6, LT2-M-7,
LT2-M-8, LT2-M-9, LT2-M-10 and LT2-Q Interests, weighted in proportion to their
Class Certificate Balances as of the beginning of the related Interest Accrual
Period and computed by subjecting the rate on the Class LT2-Q Interest to a
cap
of 0.00%, and by subjecting the rate on each of the Class LT2-I-A, LT2-II-A-1,
LT2-II-A-2, LT2-II-A-3, LT2-II-A-4, LT2-M-1, LT2-M-2, LT2-M-3, LT2-M-4, LT2-M-5,
LT2-M-6, LT2-M-7, LT2-M-8, LT2-M-9 and LT2-M-10 Interests to a cap that
corresponds to the Interest Rate (determined by substituting the REMIC 2 Net
Funds Cap for the applicable Available Funds Cap) for the Corresponding Class
of
Certificates; provided,
however,
that
for each Class of LIBOR Certificates, the Certificate Interest Rate shall be
multiplied by the quotient of (a) the actual number of days in the Interest
Accrual Period, divided by (b) 30.
Advance:
Any
P&I Advance or Servicing Advance.
Affected
Party:
As
defined in the Swap Agreement.
Affiliate:
With
respect to any Person, any other Person controlling, controlled by or under
common control with such first Person. For the purposes of this definition,
“control” means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
-11-
Agreement:
This
Pooling and Servicing Agreement and all amendments or supplements
hereto.
Amounts
Held for Future Distribution:
As to
the Certificates on any Distribution Date, the aggregate amount held in the
Collection Accounts of the Servicers at the close of business on the related
Determination Date on account of (i) Principal Prepayments, Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and Subsequent Recoveries
on the Mortgage Loans received after the end of the related Prepayment Period
and (ii) all Scheduled Payments on the Mortgage Loans due after the end of
the related Due Period.
Applied
Realized Loss Amount:
With
respect to any Distribution Date, the amount, if any, by which the aggregate
Class Certificate Balance of the LIBOR Certificates after distributions of
principal on such Certificates on such Distribution Date exceeds the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution
Date.
Appraised
Value:
The
value set forth in an appraisal made in connection with the origination of
the
related Mortgage Loan as the value of the Mortgaged Property.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form (other than the assignee’s name and recording information not
yet returned from the recording office), reflecting the sale of the Mortgage
to
the Trustee.
Available
Funds:
With
respect to any Distribution Date and the Mortgage Loans to the extent received
by the Master Servicer (x) the sum of (i) all scheduled installments
of interest (net of the related Expense Fees) and principal due on the Due
Date
on such Mortgage Loans in the related Due Period and received by the Servicers
on or prior to the related Determination Date, together with any
P&I Advances in respect thereof; (ii) all Condemnation Proceeds,
Insurance Proceeds, Liquidation Proceeds and Subsequent Recoveries received
by
the Servicers during the related Prepayment Period (in each case, net of
unreimbursed expenses incurred in connection with a liquidation or foreclosure
and unreimbursed Advances, if any); (iii) all partial or full prepayments
on the Mortgage Loans received by the Servicers during the related Prepayment
Period together with all Compensating Interest paid by the Servicers in
connection therewith (excluding any Prepayment Charges); (iv) all
Substitution Adjustment Amounts with respect to the substitutions of Mortgage
Loans that occur on or prior to the related Determination Date; (v) all
amounts received with respect to such Distribution Date as the Repurchase Price
in respect of a Mortgage Loan repurchased by a Mortgage Loan Seller or the
Sponsor on or prior to the related Determination Date; and (vi) the
proceeds with respect to the termination of the Trust Fund pursuant to
clause (a) of Section 11.01; reduced by (y) amounts in
reimbursement for Advances previously made with respect to the Mortgage Loans
and other amounts as to which a Servicer, the Depositor, the Master Servicer,
the Securities Administrator, the Credit Risk Manager or the Trustee are
entitled to be paid or reimbursed pursuant to the Servicing Agreements or this
Agreement.
-12-
Back-up
Certification:
As
defined in Section 3.05.
Basic
Principal Payment Amount:
With
respect to any Distribution Date, the excess of (i) the Principal
Remittance Amount for such Distribution Date over (ii) the Excess
Overcollateralization Amount, if any, for such Distribution Date.
Basis
Risk Carryover Amount:
With
respect to each Class of LIBOR Certificates, as of any Distribution Date,
the sum of (A) if on such Distribution Date the Interest Rate for any
Class of LIBOR Certificates is based upon the Group I Available Funds Cap,
the Group II Available Funds Cap or the Class M Available Funds Cap, as
applicable, the excess of (i) the amount of interest such Class of
Certificates would otherwise be entitled to receive on such Distribution Date
had such Interest Rate been calculated as the sum of LIBOR and the applicable
Interest Margin on such Class of Certificates for such Distribution Date,
over (ii) the amount of interest payable on such Class of
Certificates, in the case of any Group I Certificates, based on the Group I
Available Funds Cap, in the case of any Group II Certificates, based on the
Group II Available Funds Cap and in the case of any Class of Class M
Certificates, based on the Class M Available Funds Cap and (B) the portion
of any such excess described in clause (A) for such Class of
Certificates from all previous Distribution Dates not previously paid, together
with interest thereon at a rate equal the applicable Interest Rate for each
such
Class of Certificates for such Distribution Date.
Basis
Risk Payment:
For any
Distribution Date, an amount equal to the lesser of (i) the aggregate of
the Basis Risk Carryover Amounts of the LIBOR Certificates for such Distribution
Date and (ii) the Class X Distributable Amount (prior to any reduction
for Basis Risk Payments).
Book-Entry
Certificates:
As
specified in the Preliminary Statement.
Business
Day:
Any day
other than (i) Saturday or Sunday, or (ii) a day on which banking and
savings and loan institutions, in (a) the States of New York, California,
Maryland or Minnesota, (b) the Commonwealth of Pennsylvania or any other
State in which a Servicer’s servicing operations are located, or (c) any
State in which the Corporate Trust Office is located, are authorized or
obligated by law or executive order to be closed.
Cap
Account:
The
sub-account of the Supplemental Interest Trust Account created pursuant to
Section 4.06(a).
Cap
Agreement:
The
interest rate cap agreement entered into by the Supplemental Interest Trust
and
the Cap Counterparty, dated May 4, 2007, which agreement provides for the
monthly payment specified to the Supplemental Interest Trust Trustee (for the
benefit of Certificateholders) commencing with the Distribution Date in November
2007 and ending on the Distribution Date in May 2014, by the Cap Counterparty,
but subject to the conditions set forth therein, together with any schedule,
confirmations or other agreements relating thereto, attached as Exhibit
P.
Cap
Amount:
With
respect to each Distribution Date, the amount of any Cap Payment deposited
into
the Cap Account.
-13-
Cap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Cap Agreement, and
any
successor in interest or its assigns. Initially, the Cap Counterparty shall
be
Wachovia Bank, National Association.
Cap
Payment:
With
respect to each Distribution Date, any payment required to be made by the Cap
Counterparty to the Supplemental Interest Trust pursuant to the terms of the
Cap
Agreement.
Cap
Payment Date:
For as
long as the Cap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day immediately preceding each Distribution Date.
Cap
Replacement Receipts:
As
defined in Section 4.08(b)(i).
Cap
Replacement Receipts Account:
As
defined in Section 4.08(b)(i).
Cap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Cap Agreement,
the payment required to be made by the Cap Counterparty to the Supplemental
Interest Trust pursuant to the terms of the Cap Agreement and any unpaid amounts
due on previous Cap Payment Dates and accrued interest thereon as provided
in
the Cap Agreement, as calculated by the Cap Counterparty and furnished to the
Securities Administrator.
Cap
Termination Receipts:
As
defined in Section 4.08(b)(i).
Cap
Termination Receipts Account:
As
defined in Section 4.08(b)(i).
Certificate:
Any one
of the Certificates executed and authenticated by the Securities Administrator
in substantially the forms attached hereto as exhibits.
Certificate
Balance:
With
respect to any Certificate, other than a Class X, Class P or
Class R Certificate, at any date, the maximum dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal
to
the Denomination thereof minus all distributions of principal previously made
with respect thereto and in the case of any Class M Certificates, reduced by
any
Applied Realized Loss Amounts allocated to such Class of Certificates
pursuant to Section 4.05; provided,
however,
that
immediately following the Distribution Date on which a Subsequent Recovery
is
distributed, the Class Certificate Balances of any Class or Classes of
Certificates that have been previously reduced by Applied Realized Loss Amounts
will be increased, in order of seniority, by the amount of any Subsequent
Recovery distributed on such Distribution Date (up to the amount of Unpaid
Realized Loss Amount for such Class or Classes for such Distribution Date).
The Class P Certificates are issued with an initial Class P Principal
Amount of $100. The Class X and Class R Certificates have no
Certificate Balance.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the beneficial owner
of
such Book-Entry Certificate.
Certificate
Register:
The
register maintained pursuant to Section 5.02.
-14-
Certificateholder
or
Holder:
The
person in whose name a Certificate is registered in the Certificate Register,
except that, solely for the purpose of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor or any
Affiliate of the Depositor shall be deemed not to be Outstanding and the
Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary
to
effect such consent has been obtained; provided,
however,
that if
any such Person (including the Depositor) owns 100.00% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires
the
consent of the Holders of Certificates of a particular Class as a condition
to the taking of any action hereunder. The Securities Administrator is entitled
to rely conclusively on a certification of the Depositor or any Affiliate of
the
Depositor in determining which Certificates are registered in the name of an
Affiliate of the Depositor.
Certificate
Group:
The
Group I Certificates or the Group II Certificates, as applicable.
Certification
Parties:
As
defined in Section 3.05.
Certifying
Person:
As
defined in Section 3.05.
Class:
All
Certificates bearing the same class designation as set forth in the Preliminary
Statement.
Class I-A
Certificates:
All
Certificates bearing the Class designation of “Class I-A”.
Class II-A-1
Certificates:
All
Certificates bearing the Class designation of “Class II-A-1”.
Class II-A-2
Certificates:
All
Certificates bearing the Class designation of “Class II-A-2”.
Class II-A-3
Certificates:
All
Certificates bearing the Class designation of “Class II-A-3”.
Class II-A-4
Certificates:
All
Certificates bearing the Class designation of “Class II-A-4”.
Class A
Certificates:
As
specified in the Preliminary Statement.
Class Certificate
Balance:
With
respect to any Class of LIBOR Certificates and as to any date of determination,
the aggregate of the Certificate Balances of all Certificates of such
Class as of such date. With respect to the Class X, Class P and Class R
Certificates, zero. With respect to any Lower Tier Interest and as to any date
of determination, the initial Class Principal Balance as shown or described
in
the table set forth in the Preliminary Statement to this Agreement for the
issuing REMIC, as reduced by any principal distributed with respect to such
Lower Tier Interest and Realized Losses allocated to such Lower Tier
Interest.
-15-
Class
I Shortfalls: As
defined in Section 8.11 hereof. For
purposes of clarity, the aggregate Class I Shortfall for any Distribution Date
shall equal the amount payable to the Derivative Counterparty on such
Distribution Date in excess of the amount payable with respect to the Class
LT3-I interest in the Upper Tier REMIC on such Distribution Date, all as further
provided in Section 8.11 hereof.
Class
M Available Funds Cap:
With
respect to the Class M Certificates as of any Distribution Date, a per annum
rate equal to the weighted average of the Group I Available Funds Cap and the
Group II Available Funds Cap, weighted on the basis of the Group Subordinate
Amount for the Group I Mortgage Loans and the Group Subordinate Amount for
the
Group II Mortgage Loans, respectively.
Class M
Certificates:
As
specified in the Preliminary Statement.
Class M
Principal Payment Amount:
With
respect to any Distribution Date and any Class of Class M Certificates
(other than the Class M-10 Certificates), the lesser of (i) the excess of
(a) the Principal Payment Amount over (b) the aggregate amount
distributed on that Distribution Date as principal to all Classes of
Certificates more senior than that Class of Class M Certificates and
(ii) the excess of (a) the sum of the aggregate Class Certificate Balances
of all Class of Certificates more senior than that Class of
Class M Certificates (after giving effect to all amounts distributed on
that Distribution Date to those Classes of more senior certificates and the
Class Certificate Balance of that Class of Class M Certificates
immediately prior to that Distribution Date over (b) the lesser of:
(x) the
percentage set forth in the table below for the applicable Class of
Class M Certificates multiplied by the aggregate Stated Principal Balance
of the Mortgage Loans for that Distribution Date:
|
Class
|
Percentage
|
|
|
M-1
|
58.90%
|
|
|
M-2
|
66.60%
|
|
|
M-3
|
71.20%
|
|
|
M-4
|
75.20%
|
|
|
M-5
|
79.10%
|
|
|
M-7
|
82.40%
|
|
|
M-7
|
85.70%
|
|
|
M-8
|
88.70%
|
|
|
M-9
|
91.10%
|
and
(y) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for that Distribution Date over 0.50% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date, until the Class Certificate
Balance of that Class of Class M Certificates has been reduced to
zero.
-16-
With
respect to any Distribution Date and the Class M-10 Certificates, the
lesser of (i) any remaining Principal Payment Amount from both Loan Groups
(after taking into account principal payments made to the Offered Certificates
(other than the Class M-10 Certificates) on that Distribution Date) and (ii)
the
excess of (a) the aggregate Class Certificate Balance of the Offered
Certificates (other than the Class M-10 Certificates) (after giving effect
to
principal payments to those Certificates on that Distribution Date) and the
balance of the Class M-10 Certificates immediately prior to such Distribution
Date over (b) the lesser of (1) the excess of 94.90% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the Due Period
over the aggregate amount distributed as principal to the Class M-10
Certificates pursuant to Section 4.02(a)(iii)(I) on all prior Distribution
Dates
and (2) the excess of the aggregate Stated Principal Balance of the Mortgage
Loans as of the last day of the Due Period over 0.50% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Class M-1
Certificates:
All
Certificates bearing the Class designation of “Class M-1”.
Class M-2
Certificates:
All
Certificates bearing the Class designation of “Class M-2”.
Class M-3
Certificates:
All
Certificates bearing the Class designation of “Class M-3”.
Class M-4
Certificates:
All
Certificates bearing the Class designation of “Class M-4”.
Class M-5
Certificates:
All
Certificates bearing the Class designation of “Class M-5”.
Class M-6
Certificates:
All
Certificates bearing the Class designation of “Class M-6”.
Class M-7
Certificates:
All
Certificates bearing the Class designation of “Class M-7”.
Class M-8
Certificates:
All
Certificates bearing the Class designation of “Class M-8”.
Class M-9
Certificates:
All
Certificates bearing the Class designation of “Class M-9”.
Class M-10
Certificates:
All
Certificates bearing the Class designation of “Class M-10”.
Class Notional
Balance:
Not
applicable.
Class P
Certificates:
All
Certificates bearing the Class designation of “Class P”.
-17-
Class P
Principal Amount:
As of
the Closing Date, $100.00.
Class R
Certificates:
All
Certificates bearing the Class designation of “Class R”.
Class X
Certificates:
All
Certificates bearing the Class designation of “Class X”.
Class
X Distributable Amount:
With
respect to any Distribution Date, the amount of interest that has accrued on
the
Class X Notional Balance, as described in the Preliminary Statement, but that
has not been distributed prior to such date. In addition, such amount shall
include the initial Overcollateralization Amount of $18,258,755.67
($18,258,855.67 less $100 of such amount allocated to the Class P Certificates)
to the extent such amount has not been distributed on an earlier Distribution
Date as part of the Overcollateralization Reduction Amount.
Class
X Notional Balance:
With respect to
any Distribution Date (and the related Interest Accrual Period) the aggregate
principal balance of the regular interests in REMIC 2 as specified in the
Preliminary Statement hereto.
Closing
Date:
May 4,
2007.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Collateral
Account:
The
account maintained by the Supplemental Interest Trust Trustee in accordance
with
the provisions of Section 4.06(b).
Collection
Account:
With
respect to each Servicer, the account defined as a “Custodial Account” in the
related Servicing Agreement
Commission:
The
United States Securities and Exchange Commission.
Compensating
Interest:
For any
Distribution Date, the lesser of (a) the amount, if any, by which the
Prepayment Interest Shortfall, if any, for such Distribution Date, with respect
to all voluntary Principal Prepayments (excluding any payments made upon
liquidation of any Mortgage Loan) exceeds all Prepayment Interest Excesses
for
such Distribution Date, and (b) the aggregate amount of the Servicing Fee
actually retained by or paid to the applicable Servicer for such Distribution
Date.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation.
Corporate
Trust Office:
With
respect to the Securities Administrator, (i) for transfer, presentation or
surrender of Certificates, the office at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services -HASCO 2007-HE2, and (ii) for all other purposes, 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Manager - HASCO 2007-HE2
or at
such other address as the Securities Administrator may designate from time
to
time by notice to the Certificateholders, the Depositor, the Master Servicer
and
the Trustee. With respect to the Trustee, the designated office of the Trustee
in the State of California at which any particular time its corporate trust
business with respect to this Agreement is administered, which office at the
date of the execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust Administration -
HB07H2, facsimile number (000) 000-0000, and its telephone number is (000)
000-0000 and which is also the address to which notices to and correspondence
with the Trustee under this Agreement should be directed.
-18-
Corresponding
Class:
As set
forth in first table under the heading REMIC 2 and in the first table under
the
heading Upper Tier REMIC in the Preliminary Statement.
Countrywide
Servicing:
Countywide Home Loans Servicing LP.
Credit
Enhancement Percentage:
With
respect to any Distribution Date, the percentage obtained by dividing
(x) the sum of (i) the aggregate Class Certificate Balance of the
Class M Certificates and (ii) the Overcollateralization Amount
(assuming the Overcollateralization Amount is not less than zero and in each
case after taking into account the distributions of principal for such
Distribution Date assuming no Trigger Event has occurred) by (y) the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date.
Credit
Risk Manager:
OfficeTiger Global Real Estate Services Inc., and its successors and assigns.
Credit
Risk Management Agreement:
Each of
the loan performance management agreements, dated as of the Closing Date,
entered into by (i) Xxxxx Fargo Bank, N.A., as Servicer, and the Credit Risk
Manager, and (ii) the Master Servicer and the Credit Risk Manager.
Credit
Risk Manager’s Fee:
With
respect to any Distribution Date and each Mortgage Loan, an amount equal to
the
product of (a) one twelfth, (b) the Credit Risk Manager’s Fee Rate and (c) the
Stated Principal Balance of such Mortgage Loan as of the first day of the
related Due Period; provided, however, that such amount shall not be less than
$1,500.00 on each Distribution Date.
Credit
Risk Manager’s Fee Rate:
0.014% per
annum.
Credit
Support Annex:
The
credit support annex to the Swap Agreement and the Cap Agreement dated as of
May
4, 2007, between the Supplemental Interest Trust Trustee, on behalf of the
Supplemental Interest Trust, the Swap Counterparty and Cap
Counterparty.
Cumulative
Loss Percentage:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
the
numerator of which is the aggregate amount of Realized Losses incurred from
the
Cut-off Date to the last day of the calendar month preceding the month in which
such Distribution Date occurs and the denominator of which is the Cut-off Date
Pool Principal Balance of the Mortgage Loans.
Cumulative
Loss Trigger Event:
If,
with respect to any Distribution Date, the quotient (expressed as a
percentage) of (x) the aggregate amount of Realized Losses incurred since
the Cut-off Date through the last day of the related Prepayment Period, divided
by (y) the Cut-off Date Pool Principal Balance, exceeds the applicable loss
percentages set forth below with respect to such Distribution
Date:
-19-
|
Distribution
Date Occurring In:
|
Loss
Percentage:
|
|||
|
May
2009 through April 2010
|
1.70%
for the first month, plus an additional 1/12th of
2.35%
for each month thereafter
|
|||
|
May
2010 through April 2011
|
4.05%
for the first month, plus an additional 1/12th of
2.35%
for each month thereafter
|
|||
|
May
2011 through April 2012
|
6.40%
for the first month, plus an additional 1/12th of
1.85%
for each month thereafter
|
|||
|
May
2012 through April 2013
|
8.25%
for the first month, plus an additional 1/12th of
1.00%
for each month thereafter
|
|||
|
May
2013 and thereafter
|
9.25%
|
|||
Custodial
File:
The
meaning assigned to such term in Section 2.01(a).
Custodian:
Initially, Xxxxx Fargo, or any successor custodian appointed
hereunder.
Cut-off
Date:
April
1, 2007.
Cut-off
Date Pool Principal Balance:
The
aggregate Stated Principal Balances of all Mortgage Loans as of the Cut-off
Date.
Cut-off
Date Principal Balance:
As to
any Mortgage Loan, the Stated Principal Balance thereof as of the close of
business on the Cut-off Date.
Data
Tape Information:
With
respect to each Mortgage Loan, the same information (provided as of the Cut-off
Date) included in the data fields specified under the definition of “Mortgage
Loan Schedule” in the applicable Transfer Agreement, with such additions and
modifications as agreed upon by the applicable Mortgage Loan Seller and the
Depositor. A copy of each Transfer Agreement is attached at Exhibit Q
hereto.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction by a court of competent jurisdiction
in a proceeding under the United States Bankruptcy Code in the Scheduled Payment
for such Mortgage Loan which became final and non-appealable, except such a
reduction resulting from a Deficient Valuation or any reduction that results
in
a permanent forgiveness of principal.
Defaulting
Party:
As
defined in the Swap Agreement or Cap Agreement, as applicable.
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 then outstanding
principal balance of the Mortgage Loan, which valuation results from a
proceeding initiated under the United States Bankruptcy Code.
-20-
Definitive
Certificates:
Any
Certificate evidenced by a Physical Certificate and any Certificate issued
in
lieu of a Book-Entry Certificate pursuant to Section 5.02(e).
Deleted
Mortgage Loan:
A
Mortgage Loan repurchased by a Mortgage Loan Seller or the Sponsor and removed
from the Trust Fund.
Delinquency
Rate:
For any
calendar month, a fraction, expressed as a percentage, the numerator of which
is
the aggregate Stated Principal Balance of 60+ Day Delinquent Mortgage Loans
as
of the close of business on the last day of such month (not including those
Mortgage Loans that are liquidated as of the end of the related Prepayment
Period), and the denominator of which is the aggregate Stated Principal Balance
of the Mortgage Loans as of the close of business on the last day of such month
(not including those Mortgage Loans that are liquidated as of the end of the
related Prepayment Period).
Delinquency
Trigger Event:
With
respect to any Distribution Date on or after the Stepdown Date, the
circumstances in which the Rolling Three Month Delinquency Rate as of the last
day of the immediately preceding calendar month exceeds the applicable
percentages of the Credit Enhancement Percentage for the prior Distribution
Date
(for the purpose of this definition, the Credit Enhancement Percentage for
each
class of the Class M Certificates will be calculated by dividing (x) the sum
of
(i) the aggregate Class Certificate Balance of the Class M Certificates with
a
lower payment priority than that Class and (ii) the Overcollateralization Amount
(in each case after taking into account distributions of principal for that
Distribution Date) by (y) the aggregate Stated Principal Balance of the Mortgage
Loans for that Distribution Date) as
set
forth below for the most senior Class of LIBOR Certificates then
outstanding:
|
Class
|
Percentage
|
|
|
A
|
32.40%
|
|
|
M-1
|
38.90%
|
|
|
M-2
|
47.90%
|
|
|
M-3
|
55.55%
|
|
|
M-4
|
64.50%
|
|
|
M-5
|
76.55%
|
|
|
M-6
|
90.90%
|
|
|
M-7
|
111.85%
|
|
|
M-8
|
141.55%
|
|
|
M-9
|
179.75%
|
|
|
M-10
|
313.70%
|
Denomination:
With
respect to each Certificate, the amount set forth on the face thereof as the
“Initial Certificate Balance of this Certificate” or the Percentage Interest
appearing on the face thereof.
Depositor:
HSI
Asset Securitization Corporation, a Delaware corporation, and its successors
in
interest.
-21-
Depository:
The
initial Depository shall be The Depository Trust Company, the nominee of which
is CEDE & Co., as the registered Holder of the Book-Entry Certificates.
The Depository shall at all times be a “clearing corporation” as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New
York.
Depository
Institution:
Any
depository institution or trust company, including the Trustee and the
Securities Administrator, that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to
supervision and examination by federal or state banking authorities and
(c) has outstanding unsecured commercial paper or other short-term
unsecured debt obligations that are rated P-1 by Moody’s, F1+ by Fitch and A-1
by Standard & Poor’s.
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.
Derivative
Agreement:
The
Swap Agreement and the Cap Agreement.
Derivative
Counterparty:
Collectively, the Cap Counterparty and the Swap Counterparty.
Derivative
Payment Date:
For so
long as either the Cap Agreement or the Swap Agreement is in effect, the
Business Day preceding each Distribution Date.
Determination
Date:
means,
for each Remittance Date (i) with respect to Xxxxx Fargo, as Servicer, the
business day immediately preceding such Remittance Date, and (ii) with respect
to Countrywide Servicing, the 15th
day of
the calendar month in which such Remittance Date occurs, or if that day is
not a
business day, the immediately succeeding business day.
Disqualified
Non-U.S. Person:
With
respect to a Class R Certificate, any Non-U.S. Person or agent thereof
other than (i) a Non-U.S. Person that holds the Class R Certificate in
connection with the conduct of a trade or business within the United States
and
has furnished the transferor and the Securities Administrator with an effective
IRS Form W-8ECI or (ii) a Non-U.S. Person that has delivered to both the
transferor and the Securities Administrator an opinion of a nationally
recognized tax counsel to the effect that the transfer of the Class R
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Class R
Certificate will not be disregarded for federal income tax
purposes.
Distribution
Account:
The
separate Eligible Account created and maintained by the Securities Administrator
pursuant to Section 3.01(c) in the name of the Securities Administrator as
paying agent for the benefit of the Trustee and the Certificateholders and
designated “Xxxxx Fargo Bank, N.A. as securities administrator in trust for
registered holders of HSI Asset Securitization Corporation Trust 2007-HE2
Mortgage Pass-Through Certificates, Series 2007-HE2”. Funds in the
Distribution Account shall be held in trust for the Certificateholders for
the
uses and purposes set forth in this Agreement.
-22-
Distribution
Account Deposit Date:
As to
any Distribution Date, 12:00 noon New York City time on the third Business
Day
immediately preceding such Distribution Date.
Distribution
Date:
The
25th day of each calendar month, or if such day is not a Business Day, the
next
succeeding Business Day, commencing in May 2007.
Document
Certification and Exception Report:
The
form of report attached to Exhibit F hereto.
Due
Date:
The day
of the month on which the Scheduled Payment is due on a Mortgage Loan, exclusive
of any days of grace.
Due
Period:
With
respect to any Distribution Date, the period commencing on the second day of
the
calendar month preceding the month in which such Distribution Date occurs and
ending on the first day of the calendar month in which such Distribution Date
occurs.
XXXXX:
The
Commission’s Electronic Data Gathering and Retrieval System.
Eligible
Account:
Either
(i) an account maintained with a federal or state-chartered depository
institution or trust company that complies with the definition of Eligible
Institution, (ii) an account maintained with the corporate trust department
of a
federal depository institution or state-chartered depository institution subject
to regulations regarding fiduciary funds on deposit similar to Title 12 of
the
U.S. Code of Federal Regulation Section 9.10(b), which, in either case, has
corporate trust powers and is acting in its fiduciary capacity or (iii) any
other account acceptable to each Rating Agency. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Securities Administrator.
Eligible
Institution:
A
federal or state-chartered depository institution or trust company the
commercial paper, short-term debt obligations, or other short-term deposits
of
which are rated at least “A-1+” by Standard & Poor’s if the amounts on
deposit are to be held in the account for no more than 365 days (or at least
“A-2” if the amounts on deposit are to be held in the account for no more than
30 days), “P-1” by Moody’s and “F1+” by Fitch (or a comparable rating if another
Rating Agency is specified by the Depositor by written notice to each of the
Servicers and the Securities Administrator) or long-term unsecured debt
obligations are rated at least “AA-” by Standard & Poor’s if the amounts on
deposit are to be held in the account for no more than 365 days.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of Prohibited Transaction Exemption (“PTE”) 96-84,
61 Fed. Reg. 58234 (1996), as amended by XXX 00-00, 00 Xxx. Xxx. 00000
(1997), PTE 2000-58, 65 Fed. Reg. 67765 (2000) and PTE 2002-41, 67 Fed.
Reg. 54487 (2002) (or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of Labor.
ERISA-Restricted
Certificate:
As
specified in the Preliminary Statement.
-23-
ERISA-Restricted
Trust Certificate:
As
specified in the Preliminary Statement.
Escrow
Account:
With
respect to each Servicer, the meaning assigned to such term in the related
Servicing Agreement.
Event
of Default:
With
respect to each Servicer, the meaning assigned to such term in the related
Servicing Agreement.
Excess
Overcollateralization Amount:
With
respect to any Distribution Date, the excess, if any, of (a) the
Overcollateralization Amount (for purposes of this calculation only, assuming
100% of the Principal Remittance Amount is applied as a principal payment to
the
LIBOR Certificates on such Distribution Date, but before giving effect to any
other distributions on the LIBOR Certificates in reduction of their respective
Class Certificate Balances on such Distribution Date) on such Distribution
Date
over (b) the Overcollateralization Target Amount for such Distribution
Date.
Excess
Reserve Fund Account:
The
separate Eligible Account created and maintained by the Securities Administrator
under the Supplemental Interest Trust pursuant to Sections 3.01(a) and
3.01(b) in the name of the Securities Administrator as paying agent for the
benefit of the LIBOR Certificateholders and the Class X Certificateholders
and
designated “Xxxxx Fargo Bank, N.A. as securities administrator in trust for
registered holders of HSI Asset Securitization Corporation Trust 2007-HE2,
Mortgage Pass-Through Certificates, Series 2007-HE2”. Funds in the Excess
Reserve Fund Account shall be held in trust for such Certificateholders for
the
uses and purposes set forth in this Agreement. Amounts on deposit in the Excess
Reserve Fund Account shall not be invested. The Excess Reserve Fund Account
shall be considered part of the Supplemental Interest Trust but not part of
any
REMIC.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
Excluded
Trust Assets:
As
defined in the Preliminary Statement.
Expense
Adjusted Mortgage Rate:
With
respect to any Distribution Date and as to each Mortgage Loan, the per annum
rate equal to the Mortgage Rate as of the first day of the related Due Period
less the Expense Fee Rate.
Expense
Fee Rate:
As to
each Mortgage Loan, a per annum rate equal to the sum of the Servicing Fee
Rate
and the Master Servicing Fee Rate.
Expense
Fees:
As to
each Mortgage Loan and any Distribution Date, the sum of the Servicing Fee
and
the Master Servicing Fee.
Extra
Principal Payment Amount:
As of
any Distribution Date, the lesser of (x) the sum of (a) the amount available
in
each of the Swap Account and the Cap Account for distribution under Section
4.02(e) after distributions for such Distribution Date pursuant to Section
4.02(e)(i) through (iii) and (b) the related Total Monthly Excess Spread for
such Distribution Date and (y) the related Overcollateralization Deficiency
for such Distribution Date. Amounts available in the Swap Account and the Cap
Account as decribed above, if any, will be applied first towards the Extra
Principal Payment Amount, before application of any Total Monthly Excess
Spread.
-24-
Xxxxxx
Mae:
The
Federal National Mortgage Association, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Mortgage Loan Seller or the
Sponsor as contemplated by this Agreement, any Transfer Agreement or the
Purchase Agreement, as applicable), a determination made by any Servicer that
all Insurance Proceeds, Condemnation 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.
Final
Scheduled Distribution Date:
The
Final Scheduled Distribution Date for each Class of Certificates is the
Distribution Date occurring in April 2037.
Fitch:
Fitch,
Inc., or any successor thereto. If Fitch is designated as a Rating Agency in
the
Preliminary Statement, for purposes of Section 12.05 the address for
notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: MBS Monitoring - HASCO (HSI Asset Securitization
Corporation Trust 2007-HE2), or such other address as Fitch may hereafter
furnish to the Depositor and the Securities Administrator.
Fixed
Rate Mortgage Loan:
A
Mortgage Loan with respect to which the Mortgage Rate set forth in the Mortgage
Note is fixed for the term of such Mortgage Loan.
Form
8-K Disclosure Information:
As
defined in Section 8.12(a)(iii).
Xxxxxxx
Mac:
The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home
Finance Act of 1970, as amended, or any successor thereto.
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note to be added to the Index to determine the
Mortgage Rate.
Group
I Available Funds Cap:
With
respect to the Group I Mortgage Loans as of any Distribution Date, the per
annum
rate (subject to adjustment based on the actual number of days elapsed in the
related Interest Accrual Period) equal to (x) the weighted average of the
Expense Adjusted Mortgage Rate for each Group I Mortgage Loan then in effect
at
the beginning of the related Due Period (not including for this purpose any
Group I Mortgage Loans for which Principal Prepayments in Full have been
received and distributed in the month prior to that Distribution Date)
minus
(y) a
percentage equal to the product of (i) a fraction, the numerator of which is
equal to the portion of the Net Derivative Payment or Swap Termination Payment
(other than a Swap Termination Payment resulting from a Derivative Counterparty
Trigger Event) made to the Swap Counterparty with respect to such Due Period
allocated to the Group I Mortgage Loans based on the applicable Group
Percentage, and the denominator of which is equal to the aggregate Stated
Principal Balance of the Group I Mortgage Loans as of the beginning of the
related Due Period and (ii) 12.
-25-
Group I
Certificates:
As
specified in the Preliminary Statement.
Group I
Mortgage Loans:
The
Mortgage Loans identified on the Mortgage Loan Schedule as Group I Mortgage
Loans.
Group I
Principal Payment Amount:
With
respect to any Distribution Date prior to the Stepdown Date, the Principal
Payment Amount multiplied by the Group Principal Allocation Percentage for
the Group I Certificates.
Group I
Senior Principal Payment Amount:
With
respect to any Distribution Date, the lesser of (i) the Group I Principal
Payment Amount for that Distribution Date and (ii) the excess of (a) the
aggregate Class Certificate Balance of the Group I Certificates
immediately prior to that Distribution Date over (b) the lesser of (x)
50.60% of the aggregate Stated Principal Balance of the Group I Mortgage
Loans for that Distribution Date and (y) the excess, if any, of the
aggregate Stated Principal Balance of the Group I Mortgage Loans for that
Distribution Date over 0.50% of the aggregate State Principal Balance of the
Group I Mortgage Loans as of the Cut-off Date.
Group II
Available Funds Cap:
With
respect to the Group II Mortgage Loans as of any Distribution Date, the per
annum rate (subject to adjustment based on the actual number of days elapsed
in
the related Interest Accrual Period) equal to (x) the weighted average of the
Expense Adjusted Mortgage Rate for each Group II Mortgage Loan then in effect
at
the beginning of the related Due Period (not including for this purpose any
Group II Mortgage Loans for which Principal Prepayments in Full have been
received and distributed in the month prior to that Distribution Date)
minus
(y) a
percentage equal to the product of (i) a fraction, the numerator of which is
equal to the portion of the Net Derivative Payment or Swap Termination Payment
(other than a Swap Termination Payment resulting from a Derivative Counterparty
Trigger Event) made to the Swap Counterparty with respect to such Due Period
allocated to the Group II Mortgage Loans based on the applicable Group
Percentage, and the denominator of which is equal to the aggregate Stated
Principal Balance of the Group II Mortgage Loans as of the beginning of the
related Due Period and (ii) 12.
Group II
Certificates:
As
specified in the Preliminary Statement.
Group II
Mortgage Loans:
The
Mortgage Loans identified on the Mortgage Loan Schedule as Group II
Mortgage Loans.
Group II
Principal Payment Amount:
With
respect to any Distribution Date, the Principal Payment Amount multiplied by
the
Group Principal Allocation Percentage for the Group II
Certificates.
Group II
Senior Principal Payment Amount:
With
respect to any Distribution Date, the lesser of (i) the Group II Principal
Payment Amount for that Distribution Date and (ii) the excess of (a) the
aggregate Class Certificate Balance of the Group II Certificates
immediately prior to that Distribution Date over (b) the lesser of (x)
50.60% of the aggregate Stated Principal Balance of the Group II Mortgage
Loans for that Distribution Date and (y) the excess, if any, of the
aggregate Stated Principal Balance of the Group II Mortgage Loans for that
Distribution Date over 0.50% of the aggregate State Principal Balance of the
Group II Mortgage Loans as of the Cut-off Date.
-26-
Group Available
Funds Cap:
The
Group I Available Funds Cap or the Group II Available Funds Cap, as
applicable.
Group
Percentage:
For any
Distribution Date and for each of the Group I Mortgage Loans and the
Group II Mortgage Loans, a fraction (expressed as a percentage) the
numerator of which is the aggregate Stated Principal Balance of the Mortgage
Loans in such Loan Group as of the beginning of the related Due Period and
the
denominator of which is equal to the aggregate Stated Principal Balance of
all
the Mortgage Loans as of such date.
Group Principal
Allocation Percentage:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
determined as follows:
(i) with
respect to the Group I Certificates, a fraction, the numerator of which is
the portion of the Principal Remittance Amount for that Distribution Date that
is attributable to the principal received or advanced on the Group I
Mortgage Loans and the denominator of which is the Principal Remittance Amount
for that Distribution Date; and
(ii) with
respect to the Group II Certificates, a fraction, the numerator of
which is the portion of the Principal Remittance Amount for that Distribution
Date that is attributable to the principal received or advanced on the
Group II Mortgage Loans and the denominator of which is the Principal
Remittance Amount for that Distribution Date.
Group Subordinate
Amount:
For any
Distribution Date and (i) for the Group I Mortgage Loans, the excess
of the aggregate Stated Principal Balance of the Group I Mortgage Loans as
of the beginning of the related Due Period over the Class Certificate
Balance of the Group I Certificates immediately prior to such Distribution
Date
and (ii) for the Group II Mortgage Loans, the excess of the aggregate
Stated Principal Balance of the Group II Mortgage Loans as of the beginning
of the related Due Period over the aggregate Class Certificate Balance of
the Group II Certificates immediately prior to the current Distribution Date.
Independent:
When
used with respect to any accountants, a Person who is “independent” within the
meaning of Rule 2-01(B) of the Commission’s Regulation S-X. Independent means,
when used with respect to any other Person, a Person who (A) is in fact
independent of another specified Person and any Affiliate of such other Person,
(B) does not have any material direct or indirect financial interest in such
other Person or any Affiliate of such other Person, (C) is not connected with
such other Person or any Affiliate of such other Person as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions and (D) is not a member of the immediate family of a Person defined
in
clause (B) or (C) above.
-27-
Index:
As to
each Adjustable Rate Mortgage Loan, the six-month LIBOR index, from time to
time
in effect for the adjustment of the Mortgage Rate as set forth in the related
Mortgage Note.
Initial
Certification:
As
defined in Section 2.02.
Insurance
Policy:
With
respect to any Mortgage Loan included in the Trust Fund, any insurance policy,
including, but not limited to, any standard hazard insurance policy, flood
insurance policy, earthquake insurance policy, title insurance policy or Primary
Mortgage Insurance Policy (if any), including all riders and endorsements
thereto in effect, including any replacement policy or policies.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of Insurance Policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interest
Accrual Period:
With
respect to each Class of LIBOR Certificates and any Distribution Date, the
period commencing on the Distribution Date occurring in the month preceding
the
month in which the current Distribution Date occurs and ending on the day
immediately preceding the current Distribution Date (or, in the case of the
first Distribution Date, the period from and including the Closing Date to
but
excluding such first Distribution Date). For purposes of computing interest
accruals on each Class of LIBOR Certificates, each Interest Accrual Period
has the actual number of days in such month and each year is assumed to have
360 days. With respect to each Class of Lower Tier Interests and any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
Interest
Carry Forward Amount:
As of
any Distribution Date and any Class of LIBOR Certificates, the sum of, if
applicable, (i) the portion of the Interest Payment Amount from Distribution
Dates prior to the current Distribution Date remaining unpaid immediately prior
to the current Distribution Date (excluding any Basis Risk Carryover Amount
with
respect to such Class), and (ii) interest on the amount in clause (i) above
at
the applicable Interest Rate (to the extent permitted by applicable
law).
Interest
Margin:
Except
as set forth in the following sentence, with respect to each Class of LIBOR
Certificates, the following percentages: Class I-A Certificates, 0.210%;
Class II-A-1 Certificates, 0.110%; Class II-A-2 Certificates, 0.190%;
Class II-A-3 Certificates, 0.260%; Class II-A-4 Certificates, 0.330%;
Class M-1 Certificates, 0.370%; Class M-2 Certificates, 0.390%;
Class M-3 Certificates, 0.500%; Class M-4 Certificates, 0.850%;
Class M-5 Certificates, 1.000%; Class M-6 Certificates, 2.000%,
Class M-7 Certificates, 2.000%, Class M-8 Certificates, 2.500%,
Class M-9 Certificates, 2.500% and Class M-10 Certificates, 2.000%. On the
first Distribution Date after the Optional Termination Date, the Interest
Margins shall increase to the following percentages: Class I-A
Certificates, 0.420%; Class II-A-1 Certificates, 0.220%; Class II-A-2
Certificates, 0.380%; Class II-A-3 Certificates, 0.520%; Class II-A-4
Certificates, 0.660%; Class M-1 Certificates, 0.555%; Class M-2
Certificates, 0.585%; Class M-3 Certificates, 0.750%; Class M-4
Certificates, 1.275%; Class M-5 Certificates, 1.500%; Class M-6
Certificates, 3.000%, Class M-7 Certificates, 3.000%, Class M-8
Certificates, 3.750%, Class M-9 Certificates, 3.750% and Class M-10
Certificates, 3.000%.
-28-
Interest
Payment Amount:
With
respect to any Distribution Date for each Class of LIBOR Certificates, the
amount of interest accrued during the related Interest Accrual Period at the
applicable Interest Rate on the related Class Certificate Balance
immediately prior to such Distribution Date, as reduced by such Class’s share of
Net Prepayment Interest Shortfalls and Relief Act Interest Shortfalls for such
Distribution Date allocated to such Class pursuant to
Section 4.02.
Interest
Rate:
For
each Class of LIBOR Certificates, each Class of Upper Tier REMIC Regular
Interest and each class of Lower Tier Interest, the per annum rate set forth
or
calculated in the manner described in the Preliminary Statement.
Interest
Remittance Amount:
With
respect to any Distribution Date and the Mortgage Loans in a Loan Group, that
portion of Available Funds attributable to interest relating to the Mortgage
Loans in that Loan Group.
Investor:
With
respect to each MERS Designated Mortgage Loan, the Person named on the MERS
System as the investor pursuant to the MERS Procedures Manual.
IRS:
The
Internal Revenue Service.
Late
Collections:
With
respect to any Mortgage Loan and any Due Period, all amounts received after
the
Determination Date immediately following such Due Period, whether as late
payments of Scheduled Payments or as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, 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 for such Due Period and not previously recovered.
LIBOR:
With
respect to any Interest Accrual Period for the LIBOR Certificates, the rate
determined by the Securities Administrator on the related LIBOR Determination
Date on the basis of the offered rate for one-month U.S. dollar deposits as
such
rate appears on Reuters screen “LIBOR01” as of 11:00 a.m. (London time) on
such date; provided,
that if
such rate does not appear on Reuters screen “LIBOR01”, the rate for such date
will be determined on the basis of the rates at which one-month U.S. dollar
deposits are offered by the Reference Banks at approximately 11:00 a.m.
(London time) on such date to prime banks in the London interbank market. In
such event, the Securities Administrator shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If
at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Securities Administrator
(after consultation with the Depositor), at approximately 11:00 a.m. (New York
City time) on such date for one-month U.S. dollar loans to leading European
banks.
LIBOR
Certificates:
As
specified in the Preliminary Statement.
-29-
LIBOR
Determination Date:
With
respect to any Interest Accrual Period for the LIBOR Certificates, the second
London Business Day preceding the commencement of such Interest Accrual
Period.
Liquidated
Mortgage Loan:
With
respect to any Distribution Date, a defaulted Mortgage Loan (including any
REO
Property) which was liquidated in the calendar month preceding the month of
such
Distribution Date and as to which a Servicer has certified to the Securities
Administrator that it has received all amounts it expects to receive in
connection with the liquidation of such Mortgage Loan including the final
disposition of an REO Property.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a Liquidated Mortgage Loan,
whether through a trustee’s sale, foreclosure sale or otherwise.
Loan
Group:
The
Group I Mortgage Loans or the Group II Mortgage Loans, as
applicable.
Loan-to-Value
Ratio
or
LTV:
As of
any date and as to any Mortgage Loan, the ratio (expressed as a
percentage) of the outstanding principal balance of the Mortgage Loan to
(a) in the case of a purchase, the lesser of (i) the sale price of the
Mortgaged Property and (ii) its appraised value at the time of sale or
(b) in the case of a refinancing or modification, the appraised value of
the Mortgaged Property at the time of the refinancing or
modification.
London
Business Day:
Any day
on which dealings in deposits of United States dollars are transacted in the
London interbank market.
Lower
Tier Interest:
An
interest in any REMIC formed hereby other than the Upper Tier
REMIC.
Master
Agreement:
The
ISDA Master Agreement, dated May 4, 2007, entered into between the Supplemental
Interest Trust and the Derivative Counterparty.
Master
Servicer:
Xxxxx
Fargo and any successors in interest, and if a successor master servicer is
appointed hereunder, such successor.
Master
Servicer Event of Default:
As
defined in Section 9.06.
Master
Servicing Fee:
As to
any Distribution Date and each Mortgage Loan serviced by Countrywide Servicing,
an amount equal to 1/12th
the
product of (a) the Master Servicing Fee Rate and (b) the outstanding Stated
Principal Balance of such Mortgage Loan as of the prior Distribution Date (or
as
of the Cut-off Date in the case of the first Distribution Date).
Master
Servicing Fee Rate:
With
respect to any Mortgage Loan serviced by Countrywide Servicing, a per annum
rate
equal to 0.0025%.
Master
Servicing Officer:
Any
officer of the Master Servicer involved in, or responsible for, the
administration and master servicing of the Mortgage Loans.
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MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, and
its
successors in interest.
MERS
Designated Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as nominee for the holder
from
time to time of the Mortgage Note.
MERS
Procedure Manual:
The
MERS Procedures Manual, as it may be amended, supplemented or otherwise modified
from time to time.
MERS®
System:
MERS
mortgage electronic registry system, as more particularly described in the
MERS
Procedures Manual.
MIN:
The
Mortgage Identification Number of Mortgage Loans registered with MERS on the
MERS® System.
Monthly
Statement:
The
statement made available to the Certificateholders by the Securities
Administrator through its website pursuant to Section 4.03.
Moody’s:
Xxxxx’x
Investors Service, Inc. If Xxxxx’x is designated as a Rating Agency in the
Preliminary Statement, for purposes of Section 12.05 the address for
notices to Moody’s shall be Xxxxx’x Investors Service, Inc., 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Pass-Through Group,
HASCO (HSI Asset Securitization Corporation Trust Series 2007-HE2), or such
other address as Moody’s may hereafter furnish to the Depositor and the
Securities Administrator.
Mortgage:
The
mortgage, deed of trust or other instrument identified on the Mortgage Loan
Schedule as securing a Mortgage Note.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan contained in either the Servicing
File or Custodial File.
Mortgage
Loan:
An
individual Mortgage Loan that is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
Mortgage Loan Schedule, which Mortgage Loan includes, without limitation, the
Mortgage File, the Scheduled Payments, Principal Prepayments, Liquidation
Proceeds, Subsequent Recoveries, Condemnation Proceeds, Insurance Proceeds,
REO
Disposition proceeds, Prepayment Charges, and all other rights, benefits,
proceeds and obligations arising from or in connection with such Mortgage Loan,
excluding replaced or repurchased Mortgage Loans.
Mortgage
Loan Seller:
Any
entity which sold Mortgage Loans to the Sponsor pursuant to a Transfer
Agreement.
Mortgage
Loan Schedule:
A
schedule of Mortgage Loans prepared by the Depositor, delivered to the Trustee
on the Closing Date and referred to on Schedule I, such schedule setting
forth the Data Tape Information with respect to each Mortgage
Loan.
-31-
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor under a Mortgage
Loan.
Mortgage
Rate:
The
annual rate of interest borne on a Mortgage Note, which shall be adjusted from
time to time.
Mortgaged
Property:
With
respect to each Mortgage Loan, the real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment
of
the debt evidenced by the related Mortgage Note.
Mortgagor:
The
obligor(s) on a Mortgage Note.
Net
Derivative Payment:
The net
payment required to be made on the Derivative Payment Date either by (a) the
Supplemental Interest Trust to the Derivative Counterparty, to the extent that
the fixed amount payable by the Supplemental Interest Trust under the terms
of
the Swap Agreement exceeds the aggregate amount of the corresponding floating
amount payable by the Derivative Counterparty under the terms of the Swap
Agreement and any amounts payable by the Derivative Counterparty under the
Cap
Agreement, or (b) the Derivative Counterparty to the Supplemental Interest
Trust, to the extent that the aggregate amount of the floating amount payable
by
the Derivative Counterparty under the terms of the Swap Agreement and any such
amount payable by the Derivative Counterparty under the Cap Agreement exceeds
the corresponding fixed amount payable by the Supplemental Interest Trust under
the terms of the Swap Agreement, plus in the case of a payment made under either
clause (a) or clause (b) any unpaid amounts due under such clause from previous
Derivative Payment Dates, and accrued interest thereon as provided in the
applicable Derivative Agreement, as calculated by the Derivative Counterparty
and furnished to the Supplemental Interest Trust Trustee. Any Swap Termination
Payment or Cap Termination Payment will be made exclusive of the Net Derivative
Payment required to be made by the Derivative Counterparty or Supplemental
Interest Trust, as applicable, under the Swap Agreement or the Cap
Agreement.
Net
Monthly Excess Cash Flow:
For any
Distribution Date, the amount of interest and principal remaining for
distribution pursuant to subsection 4.02(a)(iii) (before giving effect to
distributions pursuant to such subsection).
Net
Prepayment Interest Shortfall:
For any
Distribution Date, the amount by which the sum of the Prepayment Interest
Shortfalls for such Distribution Date exceeds the sum of Compensating Interest
payments made with respect to such Distribution Date.
Net
Swap Payment:
With
respect to each Swap Payment Date, the net payment (not including any Swap
Termination Payment) required to be made pursuant to the terms of the Swap
Agreement plus any unpaid amounts due on previous Swap Payment Dates and accrued
interest thereon as provided in the Swap Agreement, as calculated by the Swap
Counterparty and furnished to the Securities Administrator.
Net
WAC Rate:
With
respect to any Distribution Date (and the related Interest Accrual Period),
a
per annum rate equal to the weighted average of the Expense Adjusted Mortgage
Rates of the Mortgage Loans as of the first day of the related Due Period (not
including for this purpose Mortgage Loans for which Principal Prepayments in
Full have been received and distributed in the month prior to that Distribution
Date).
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NIM
Issuer:
The
entity established as the issuer of the NIM Securities.
NIM
Securities:
Any
debt securities secured or otherwise backed by some or all of the Class X
and Class P Certificates that are rated by any Rating Agency.
NIM
Trustee:
The
indenture trustee for the NIM Securities.
Non-Delay
Certificates:
As
specified in the Preliminary Statement.
Non-Permitted
Transferee:
A
Person other than a Permitted Transferee.
Non-U.S.
Person:
A
person that is not a U.S. Person.
Nonrecoverable
P&I Advance:
Any
P&I Advance previously made or proposed to be made in respect of a Mortgage
Loan or REO Property that, in the good faith business judgment (taking into
account Accepted Servicing Practices) of the related Servicer, the Master
Servicer, as successor servicer, or any successor master servicer including
the
Trustee, as applicable, will not or, in the case of a proposed P&I Advance,
would not be ultimately recoverable from related Late Collections on such
Mortgage Loan or REO Property as provided herein.
Nonrecoverable
Servicing Advance:
Any
Servicing Advances previously made or proposed to be made in respect of a
Mortgage Loan or REO Property, which, in accordance with Accepted Servicing
Practices, will not or, in the case of a proposed Servicing Advance, would
not
be ultimately recoverable from related Late Collections.
Notice
of Final Distribution:
The
notice to be provided by the Securities Administrator pursuant to
Section 11.02 to the effect that final distribution on any of the
Certificates shall be made only upon presentation and surrender
thereof.
Offered
Certificates:
As
specified in the Preliminary Statement.
Offering
Documents:
The
Prospectus.
Officer’s
Certificate:
A
certificate signed by an officer of a Servicer or the Master Servicer, as
applicable, with responsibility for the servicing of the Mortgage
Loans.
Opinion
of Counsel:
A
written opinion of counsel, which may be in-house or outside counsel to the
Depositor, the Sponsor, the Master Servicer, the Securities Administrator or
the
Trustee, acceptable to the Trustee or the Securities Administrator, as
applicable, except that any opinion of counsel relating to (a) the qualification
of any REMIC created hereunder as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
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Option
to Purchase:
With
respect to any Optional Termination Date, the right of the Master Servicer
at
its own option to purchase the Mortgage Loans.
Optional
Termination Date:
Any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans, as of the last day of the related Due Period, is less than
or
equal to 10.00% of the Cut-off Date Pool Principal Balance.
OTS:
Office
of Thrift Supervision, and any successor thereto.
Outstanding:
With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(i) Certificates
theretofore canceled by the Securities Administrator or delivered to the
Securities Administrator for cancellation; and
(ii) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Securities Administrator pursuant to this
Agreement.
Outstanding
Mortgage Loan:
As of
any Due Date, a Mortgage Loan with a Stated Principal Balance greater than
zero
which was not the subject of a Principal Prepayment in Full prior to such Due
Date and which did not become a Liquidated Mortgage Loan prior to such Due
Date.
Overcollateralization
Amount:
As of
any Distribution Date, the excess, if any, of (a) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over
(b) the aggregate of the Class Certificate Balances of the LIBOR
Certificates as of such Distribution Date (after giving effect to all payments
of principal to such Certificates on such Distribution Date).
Overcollateralization
Deficiency:
With
respect to any Distribution Date, the excess, if any, of (a) the
Overcollateralization Target Amount applicable to such Distribution Date over
(b) the Overcollateralization Amount (for purposes of this calculation
only, assuming 100% of the Principal Remittance Amount is applied as a principal
payment to the LIBOR Certificates on such Distribution Date, but before giving
effect to any other distributions on the LIBOR Certificates in reduction of
their respective Class Certificate Balances on such Distribution Date)
applicable to such Distribution Date.
Overcollateralization
Reduction Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
Excess Overcollateralization Amount and (b) the Net Monthly Excess Cash
Flow.
Overcollateralization
Target Amount:
Prior
to the Stepdown Date, an amount equal to the sum of (i) 2.55% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date and (ii)
the Overcollateralization Target Amount Increase. On and after the Stepdown
Date
provided a Trigger Event is not in effect, an amount equal to the greater of
(i)
the sum of (a) 5.10% of the aggregate Stated Principal Balance of the Mortgage
Loans as of the last day of the related Due Period and (b) the
Overcollateralization Target Amount Increase and (ii) 0.50% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date;
provided,
however,
that
if, on any Distribution Date a Trigger Event exists, the Overcollateralization
Target Amount shall not be reduced to the applicable percentage of then current
aggregate Stated Principal Balance of the Mortgage Loans until the Distribution
Date on which a Trigger Event no longer exists but rather shall remain the
Overcollateralization Target Amount as determined for the immediately preceding
Distribution Date. When the Class Certificate Balance of each Class of
LIBOR Certificates has been reduced to zero, the Overcollateralization Target
Amount will thereafter equal zero.
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Overcollateralization
Target Amount Increase:
For any
Distribution Date, the aggregate of all amounts paid to the Class M-10
Certificates in respect of all prior Distribution Dates pursuant to Section
4.02(a)(iii)(I).
Ownership
Interest:
As to
any Residual Certificate, any ownership interest in such Certificate including
any interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial.
P&I
Advance:
As to
any Mortgage Loan or REO Property, any advance made by a Servicer in respect
of
any Remittance Date representing the aggregate of all payments of principal
and
interest, net of the applicable Servicing Fee, that were due during the related
Due Period on the Mortgage Loans and that were delinquent on the related
Determination Date, plus certain amounts representing assumed payments not
covered by any current net income on the Mortgaged Properties acquired by
foreclosure or deed in lieu of foreclosure as determined pursuant to the related
Servicing Agreement.
Percentage
Interest:
As to
any Certificate, the percentage interest evidenced thereby in distributions
required to be made on the related Class, such percentage interest being set
forth on the face thereof or equal to the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of the same Class.
Permitted
Investments:
Any one
or more of the following obligations or securities acquired at a purchase price
of not greater than par, regardless of whether issued by the Securities
Administrator, the Trustee or any of their respective Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) demand
and time deposits in, certificates of deposit of, or bankers’ acceptances (which
shall each have an original maturity of not more than 90 days and, in the
case of bankers’ acceptances, shall in no event have an original maturity of
more than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars and issued by, any Depository Institution
and rated F1+ by Fitch, A-1+ by Standard & Poor’s and P-1 by
Moody’s;
(iii) repurchase
obligations with respect to any security described in clause (i) above
entered into with a Depository Institution (acting as
principal);
-35-
(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 Fitch, Moody’s and Standard & Poor’s (in each case, to
the extent they are designated as Rating Agencies in the Preliminary Statement),
and by each other Rating Agency that rates such securities, in its highest
long-term unsecured rating categories at the time of such investment or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by Fitch,
Moody’s and Standard & Poor’s (in each case, to the extent they are
designated as Rating Agencies in the Preliminary Statement), and by each other
Rating Agency that rates such securities, in its highest short-term unsecured
debt rating available at the time of such investment;
(vi) units
of
money market funds, including money market funds managed or advised by the
Trustee, the Securities Administrator or an Affiliate thereof, that have been
rated “Aaa” by Moody’s, “AAA” by Standard & Poor’s and, if rated by
Fitch, “AAA” by Fitch; and
(vii) if
previously confirmed in writing to the Securities Administrator, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to each of the Rating Agencies as a permitted
investment of funds backing “Aaa” or “AAA” rated securities;
provided,
however,
that no
instrument described hereunder shall evidence either the right to receive
(a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from
obligations underlying such instrument and the interest and principal payments
with respect to such instrument provide a yield to maturity at par greater
than
120.00% of the yield to maturity at par of the underlying
obligations.
Permitted
Transferee:
Any
Person other than (i) the United States, any State or political subdivision
thereof, or any agency or instrumentality of any of the foregoing, (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers’
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511
of the Code on unrelated business taxable income) on any excess inclusions
(as
defined in Section 860E(c)(1) of the Code) with respect to any Residual
Certificate, (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) a Person that is a Disqualified
Non-U.S. Person or a U.S. Person with respect to whom income from a Residual
Certificate is attributable to a foreign permanent establishment or fixed base,
within the meaning of an applicable income tax treaty, of such Person or any
other U.S. Person, (vi) an “electing large partnership” within the meaning
of Section 775 of the Code and (vii) any other Person so designated by
the Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any REMIC formed
hereby to fail to qualify as a REMIC at any time that the Certificates are
outstanding. The terms “United States”, “State” and “international organization”
shall have the meanings set forth in Section 7701 of the Code or successor
provisions. A corporation will not be treated as an instrumentality of the
United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception
of
Xxxxxxx Mac, a majority of its board of directors is not selected by such
government unit.
-36-
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
Physical
Certificates:
As
specified in the Preliminary Statement.
Pool
Stated Principal Balance:
As to
any Distribution Date, the aggregate of the Stated Principal Balances of the
Mortgage Loans for such Distribution Date that were Outstanding Mortgage Loans
on the Due Date in the related Due Period.
Prepayment
Charge:
Any
prepayment premium, penalty or charge collected by a Servicer with respect
to a
Mortgage Loan from a Mortgagor in connection with any Principal Prepayment
pursuant to the terms of the related Mortgage Note.
Prepayment
Interest Excess:
With
respect to each Servicer, as applicable, the meaning assigned to such term
in
the related Servicing Agreement
Prepayment
Interest Shortfall:
With
respect to each Servicer, the meaning assigned to such term in the related
Servicing Agreement.
Prepayment
Period:
With
respect to each Servicer, the meaning assigned to such term (or to the term
“Principal Prepayment Period” with respect to Xxxxx Fargo) in the related
Servicing Agreement.
Primary
Mortgage Insurance Policy:
Any
mortgage guaranty insurance, if any, on an individual Mortgage Loan as evidenced
by a policy or certificate, whether such policy is obtained by the related
Mortgage Loan Seller, the lender or the borrower.
Principal
Payment Amount:
For any
Distribution Date, the sum of (i) the Basic Principal Payment Amount for
such Distribution Date and (ii) the Extra Principal Payment Amount for such
Distribution Date.
Principal
Prepayment:
Any
full or partial payment or other recovery of principal on a Mortgage Loan
(including upon liquidation of a Mortgage Loan) that is received in advance
of
its scheduled Due Date, excluding any Prepayment Charge thereon, and that is
not
accompanied by an amount of interest representing scheduled interest due on
any
date or dates in any month or months subsequent to the month of prepayment.
Principal
Prepayment in Full:
Any
Principal Prepayment made by a Mortgagor of the entire principal balance of
a
Mortgage Loan.
-37-
Principal
Remittance Amount:
With
respect to any Distribution Date, the amount equal to the sum of the following
amounts (without duplication) with respect to the related Due Period:
(i) each scheduled payment of principal on a Mortgage Loan due during such
Due Period and received by the Servicers on or prior to the related
Determination Date or advanced by the Servicers for the related Remittance
Date,
(ii) all Principal Prepayments received during the related Prepayment
Period; (iii) all net Liquidation Proceeds, Condemnation Proceeds and
Insurance Proceeds on the Mortgage Loans allocable to principal, and all
Subsequent Recoveries, actually collected by the Servicers during the related
Prepayment Period; (iv) the portion of the Repurchase Price allocable to
principal with respect to each Mortgage Loan repurchased by a Mortgage Loan
Seller or the Sponsor, as the case may be, that was repurchased on or prior
to
the related Determination Date; (v) all Substitution Adjustment Amounts
allocable to principal with respect to the substitutions of Mortgage Loans
that
occur on or prior to the related Determination Date; and (vi) the allocable
portion of the proceeds received with respect to the termination of the Trust
Fund pursuant to clause (a) of Section 11.01 (to the extent such
proceeds relate to principal).
Private
Certificates:
As
specified in the Preliminary Statement.
Prospectus:
The
Prospectus, dated April 27, 2007, as supplemented by the Prospectus
Supplement.
Prospectus
Supplement:
The
Prospectus Supplement, dated May 3, 2007, relating to the Offered
Certificates.
PTCE:
As
defined in Section 5.02(b).
Purchase
Agreement:
The
Mortgage Loan Purchase Agreement, dated as of April 1, 2007, between the
Depositor and the Sponsor.
Rating
Agency:
Each of
the Rating Agencies specified in the Preliminary Statement. If such organization
or a successor is no longer in existence, “Rating Agency” shall be such
nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall
be
given to the Trustee and the Securities Administrator. References herein to
a
given rating or rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers. For purposes of
Section 12.05, the addresses for notices to each Rating Agency shall be the
address specified therefor in the definition corresponding to the name of such
Rating Agency, or such other address as either such Rating Agency may hereafter
furnish to the Depositor and the Securities Administrator.
Realized
Losses:
With
respect to any date of determination and any Liquidated Mortgage Loan, the
amount, if any, by which (a) the unpaid principal balance of such
Liquidated Mortgage Loan together with accrued and unpaid interest thereon
exceeds (b) the Liquidation Proceeds with respect thereto net of the
expenses incurred by the applicable Servicer in connection with the liquidation
of such Liquidated Mortgage Loan and net of the amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
-38-
Record
Date:
With
respect to any Distribution Date and any Certificate (other than a Certificate
issued in definitive form), the close of business on the Business Day
immediately preceding such Distribution Date; provided,
however,
that,
for any Certificate issued in definitive form, the Record Date shall be the
close of business on the last Business Day of the month preceding the month
in
which such applicable Distribution Date occurs (or, in the case of the first
Distribution Date, the Closing Date).
Reference
Bank:
As
defined in Section 4.04.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Regulation
S:
Regulation S promulgated under the Securities Act or any successor provision
thereto, in each case as the same may be amended from time to time; and all
references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition
or
term, as the case may be, or any successor thereto, in each case as the same
may
be amended from time to time.
Regulation
S Investment Letter:
As
defined in Section 5.02(b).
Regular
Certificates:
As
specified in the Preliminary Statement.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to the parties having reporting obligations
hereunder, as set forth on Exhibit S attached hereto. For clarification
purposes, multiple parties can have responsibility for the same Relevant
Servicing Criteria. With respect to any Servicing Function Participant engaged
by the Master Servicer, the Securities Administrator, the Custodian or any
Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the
Relevant Servicing Criteria applicable to such parties.
Relief
Act Interest Shortfall:
With
respect to any Distribution Date and any Mortgage Loan, any reduction in the
amount of interest collectible on such Mortgage Loan for the most recently
ended
Due Period as a result of the application of the Servicemembers Civil Relief
Act
or any applicable similar state statutes.
REMIC:
Each
pool of assets in the Trust Fund designated as a REMIC pursuant to the
Preliminary Statement.
REMIC
1:
As
described in the Preliminary Statement.
REMIC
2:
As
described in the Preliminary Statement.
REMIC
2 Net Funds Cap:
For any
Distribution Date (and the related Interest Accrual Period) and any Class of
LIBOR Certificates, an amount equal to (i) the weighted average of the interest
rates on the Lower Tier Interests in REMIC 2 (other than any interest-only
regular interest), weighted in proportion to their Class Certificate Balances
as
of the beginning of the related Interest Accrual Period, multiplied by (ii)
the
quotient of (a) 30, divided by (b) the actual number of days in the Interest
Accrual Period.
-39-
REMIC
3:
As
described in the Preliminary Statement.
REMIC
Provisions:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
promulgated thereunder, as the foregoing may be in effect from time to time
as
well as provisions of applicable state laws.
Remittance
Date:
To the
extent provided in the related Servicing Agreement, (i) with respect to Xxxxx
Fargo, as Servicer, the 18th
calendar
day of any month, or if such 18th
day is
not a Business Day, the first Business Day immediately following, and (ii)
with
respect to Countrywide Servicing, either the 21st
day of
any month, or if such 21st
day is
not a Business Day, the first Business Day immediately preceding, or the
24thday
of
any month, or if such 24th
day is
not a Business Day, the first Business Day immediately preceding.
REO
Disposition:
The
final sale by a Servicer of any REO Property.
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Reportable
Event:
As
defined in Section 8.12(a)(iii).
Reporting
Servicer:
As
defined in Section 8.12(a)(ii).
Repurchase
Price:
With
respect to any Mortgage Loan, an amount equal to the sum of (i) the unpaid
principal balance of such Mortgage Loan as of the date of repurchase,
(ii) interest on such unpaid principal balance of such Mortgage Loan at the
Mortgage Rate from the last date through which interest has been paid to the
date of repurchase, (iii) all unreimbursed Servicing Advances, (iv) the
amount of any costs and damages incurred by the Trust Fund as a result of any
violation of any applicable federal, state or local predatory- or
abusive-lending law arising from or in connection with the origination of such
Mortgage Loan and (v) all expenses incurred by the Master Servicer, the
related Servicer or Trustee arising out of the Master Servicer’s, the related
Servicer’s or Trustee’s enforcement of the applicable Mortgage Loan Seller’s or
Sponsor’s repurchase obligation hereunder.
Request
for Release:
The
Request for Release submitted by a Servicer to the Trustee, substantially in
the
form of Exhibit J.
Residual
Certificates:
As
specified in the Preliminary Statement.
Responsible
Officer:
When
used with respect to the Trustee, the Securities Administrator, the Master
Servicer, any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer, any associate, or any other officer of
the
Trustee, the Securities Administrator or the Master Servicer customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers to whom, with respect to a
particular matter, such matter is referred because of such officer’s knowledge
of and familiarity with the particular subject and who, in each case, shall
have
direct responsibility for the administration of this Agreement.
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Rolling
Three Month Delinquency Rate:
With
respect to any Distribution Date, the average of the Delinquency Rates for
each
of the three (or one or two, in the case of the first and second Distribution
Dates) immediately preceding calendar months.
Rule 144A
Investment Letter:
As
defined in Section 5.02(b).
Xxxxxxxx-Xxxxx
Act:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
Xxxxxxxx-Xxxxx
Certification:
A
written certification signed by an officer of the Master Servicer that complies
with (i) the Xxxxxxxx-Xxxxx Act, and (ii) Exchange Act Rules 13a-14(d) and
15d-14(d), as in effect from time to time; provided that if, after the Closing
Date (a) the Xxxxxxxx-Xxxxx Act is amended, (b) the Rules referred to in clause
(ii) are modified or superseded by any subsequent statement, rule or regulation
of the Commission or any statement of a division thereof, or (c) any future
releases, rules and regulations are published by the Commission from time to
time pursuant to the Xxxxxxxx-Xxxxx Act, which in any such case affects the
form
or substance of the required certification and results in the required
certification being, in the reasonable judgment of the Master Servicer,
materially more onerous that then form of the required certification as of
the
Closing Date, the Xxxxxxxx-Xxxxx Certification shall be as agreed to by the
Master Servicer and the Depositor following a negotiation in good faith to
determine how to comply with any such new requirements.
Scheduled
Payment:
The
scheduled monthly payment on a Mortgage Loan due on any Due Date allocable
to
principal and/or interest on such Mortgage Loan which, unless otherwise
specified herein, shall give effect to any related Debt Service Reduction and
any Deficient Valuation that affects the amount of the monthly payment due
on
such Mortgage Loan.
Securities
Act:
The
Securities Act of 1933, as amended and the rules and regulations
thereunder.
Securities
Administrator:
Xxxxx
Fargo and any successors in interest, and if a successor securities
administrator is appointed hereunder, such successor.
Securities
Administrator Float Period:
With
respect to the Distribution Date and the related amounts in the Distribution
Account, the period commencing on the Remittance Date immediately preceding
such
Distribution Date and ending on such Distribution Date.
Senior
Interest Payment Amount:
With
respect to any Distribution Date and any Class of Class A
Certificates, the sum of the Interest Payment Amount and the Interest Carry
Forward Amount, if any, for that Distribution Date for that
Class.
-41-
Servicer:
Each of
Xxxxx Fargo and Countrywide Servicing, and any successors in
interest.
Service(s)(ing):
In
accordance with Regulation AB, the act of servicing and administering the
Mortgage Loans or any other assets of the Trust Fund by an entity that meets
the
definition of “servicer’ set forth in Item 1101 of Regulation AB and is subject
to the disclosure requirements set forth in Item 1108 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term in this
Agreement shall have the meaning commonly understood by participants in the
residential mortgage-backed securitization market.
Servicing
Advances:
With
respect to the Servicers and the Master Servicer (including the Trustee in
its
capacity as successor master servicer), all customary and reasonable “out of
pocket” costs and expenses (including reasonable attorneys’ fees and expenses)
incurred by the Servicers in the performance of its servicing obligations under
the related Servicing Agreement or by the Master Servicer (including the Trustee
in its capacity as successor master servicer) in the performance of its
obligations hereunder, 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) any other expenses
permitted to be reimbursed as Servicing Advances under the related Servicing
Agreement, as applicable.
Servicing
Agreement:
Each
reconstituted servicing agreement or assignment, assumption and recognition
agreement set forth on Exhibit M hereto relating to a Servicer and the servicing
of the related Mortgage Loans by such Servicer, as the same may be amended
from
time to time.
Servicing
Criteria:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
Servicing
Fee:
With
respect to each Servicer, the meaning assigned to such term in the related
Servicing Agreement.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the rate specified in the related Servicing
Agreement.
Servicing
File:
With
respect to each Servicer, the meaning assigned to such term in the related
Servicing Agreement.
Servicing
Function Participant:
Any
Sub-Servicer or Subcontractor of a Servicer, the Master Servicer, the Custodian
or the Securities Administrator, respectively.
Servicing
Officer:
Any
officer of a Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans whose name and facsimile signature appear on
a
list of servicing officers furnished to the Master Servicer and the Trustee
by
such Servicer on the Closing Date, as such list may from time to time be
amended.
Similar
Law:
As
defined in Section 5.02(b).
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60+
Day Delinquent Mortgage Loan:
Each
Mortgage Loan with respect to which any portion of a Scheduled Payment is,
as of
the last day of the prior Due Period, two months or more past due (including
any
such Mortgage Loan in foreclosure, any such Mortgage Loan related to REO
Property and any such Mortgage Loan where the related Mortgagor has filed for
bankruptcy), without giving effect to any grace period.
Sponsor:
HSBC
Bank USA, National Association, a national banking association, and its
successors in interest.
Standard &
Poor’s:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. If Standard & Poor’s is designated as a Rating Agency
in the Preliminary Statement, for purposes of Section 12.05 the address for
notices to Standard & Poor’s shall be Standard & Poor’s, 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage
Surveillance Group - HASCO (HSI Asset Securitization Corporation Trust,
Series 2007-HE2), or such other address as Standard & Poor’s may
hereafter furnish to the Depositor and the Securities
Administrator.
Standard &
Poor’s Glossary:
The
Standard & Poor’s LEVELS® Glossary, as may be in effect from time to
time.
Startup
Day:
The
Closing Date.
Stated
Principal Balance:
As to
each Mortgage Loan and as of any date of determination, (i) the principal
balance of the Mortgage Loan at the Cut-off Date after giving effect to payments
of principal due on or before such date (whether or not received), minus
(ii) all amounts previously remitted to the Securities Administrator with
respect to the related Mortgage Loan representing payments or recoveries of
principal including advances in respect of scheduled payments of principal.
For
purposes of any Distribution Date, the Stated Principal Balance of any Mortgage
Loan will give effect to any scheduled payments of principal received by the
related Servicer on or prior to the related Determination Date or advanced
by
the related Servicer for the related Remittance Date and any unscheduled
principal payments and other unscheduled principal collections received during
the related Prepayment Period, and the Stated Principal Balance of any Mortgage
Loan that has prepaid in full or has become a Liquidated Mortgage Loan during
the related Prepayment Period shall be zero.
Stepdown
Date:
The
earlier to occur of (i) the first Distribution Date following the Distribution
Date on which the aggregate Class Certificate Balances of the Class A
Certificates have been reduced to zero and (ii) the later to occur of (a) the
Distribution Date in May 2010 and (b) the first Distribution Date on which
the
Credit Enhancement Percentage for the Class A Certificates (calculated for
this
purpose only after taking into account payments of principal applied to reduce
the Stated Principal Balance of the Mortgage Loans for that Distribution Date
but prior to any applications of Principal Payment Amount to the Certificates
on
that Distribution Date) is greater than or equal to 49.40%.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing of the Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of any Servicer (or a Sub-Servicer of any Servicer),
the Master Servicer, the Custodian or the Securities
Administrator.
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Subsequent
Recovery:
With
respect to any Mortgage Loan or related Mortgaged Property that became a
Liquidated Mortgage Loan or was otherwise disposed of, all amounts received
in
respect of such Liquidated Mortgage Loan after an Applied Realized Loss Amount
related to such Mortgage Loan or Mortgaged Property is allocated to reduce
the
Class Certificate Balance of any Class of Class M Certificates.
Any Subsequent Recovery that is received during a Prepayment Period will be
included as part of the Principal Remittance Amount for the related Distribution
Date.
Sub-Servicer:
Any
Person that services Mortgage Loans on behalf of a Servicer, and is responsible
for the performance (whether directly or through sub-servicers or
Subcontractors) of servicing functions required to be performed under this
Agreement, any related Servicing Agreement or any sub-servicing agreement that
are identified in Item 1122(d) of Regulation AB.
Substitute
Mortgage Loan:
A
Mortgage Loan substituted by a Mortgage Loan Seller or the Sponsor for a Deleted
Mortgage Loan which must, in the case of a Mortgage Loan substituted by the
Sponsor, on the date of such substitution, as confirmed in a Request for
Release, substantially in the form of Exhibit J,
(i) have a Stated Principal Balance, after deduction of all Scheduled
Payments due in the month of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) be accruing interest at a rate
not lower than and not more than 1.00% higher than that of the Deleted Mortgage
Loan; (iii) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Deleted Mortgage Loan; (iv) be of
the same type as the Deleted Mortgage Loan; and (v) conforms to each
representation and warranty applicable to the Deleted Mortgage Loan made in
the
Purchase Agreement.
Substitution
Adjustment Amount: As
defined in Section 2.03.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 4.06 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Supplemental Interest Trust Account, the Swap Account, the Excess
Reserve Fund Account, the Cap Agreement, the Cap Account, the Collateral
Account, the right to receive the Class X Distributable Amount as provided
in
Section 4.02(a)(iii)(I), the Class LT3-I Interest in REMIC 3 and the right
to
receive Class I Shortfalls.
Supplemental
Interest Trust Account:
The
Account created pursuant to Section 4.06(a).
Supplemental
Interest Trust Trustee:
The
trustee of the Supplemental Interest Trust appointed pursuant to Section
4.06(a), which is initially Xxxxx Fargo.
Swap
Account:
The
sub-account of the Supplemental Interest Trust Account created pursuant to
Section 4.06(a).
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Swap
Agreement:
The
interest rate swap agreement entered into by the Supplemental Interest Trust
and
the Swap Counterparty, dated May 4, 2007, which agreement provides for, among
other things, a Net Swap Payment to be paid pursuant to the conditions provided
therein, commencing with the Distribution Date in June 2007 and ending on the
Distribution Date in October 2010, together with any schedules, confirmations
or
other agreements relating thereto, attached hereto as Exhibit O.
Swap
Amount:
With
respect to each Distribution Date and the related Swap Payment Date, the sum
of
any Net Swap Payment and any Swap Termination Payment deposited in the Swap
Account.
Swap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Swap Agreement, and
any successor in interest or assigns. Initially, the Swap Counterparty shall
be
Wachovia Bank, National Association.
Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of a Swap Default with
respect to which the Swap Counterparty is a Defaulting Party, a Termination
Event (other than a “Tax Event” or “Illegality” as such terms are defined in the
Master Agreement) with respect to which the Swap Counterparty is the sole
Affected Party or an Additional Termination Event with respect to which the
Swap
Counterparty is the sole Affected Party has occurred.
Swap
Default:
Any of
the circumstances constituting an “Event of Default” under the Swap
Agreement.
Swap
LIBOR:
With
respect to any Distribution Date (and the Accrual Period relating to such
Distribution Date), the product of (i) the Floating Rate Option (as defined
in
the Swap Agreement) for the related Swap Payment Date, (ii) two, and (iii)
the
quotient of (a) the actual number of days in the Accrual Period for the LIBOR
Certificates and (b) 30, as calculated by the Swap Counterparty and furnished
to
the Securities Administrator.
Swap
Payment Date:
For so
long as the Swap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day immediately preceding each Distribution Date.
Swap
Replacement Receipts:
As
defined in Section 4.08(a)(i).
Swap
Replacement Receipts Account:
As
defined in Section 4.08(a)(i).
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment required to be made by the Supplemental Interest Trust to the Swap
Counterparty, or by the Swap Counterparty to the Supplemental Interest Trust,
as
applicable, pursuant to the terms of the Swap Agreement, and any unpaid amounts
due on previous Distribution Dates and accrued interest thereon as provided
in
the Swap Agreement, as calculated by the Swap Counterparty and furnished to
the
Securities Administrator.
Swap
Termination Receipts:
As
defined in Section 4.08(a)(i).
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Swap
Termination Receipts Account:
As
defined in Section 4.08(a)(i).
Tax
Matters Person:
The Holder of the Class R Certificates designated as “tax matters person” of
each REMIC created hereunder in the manner provided under Treasury Regulations
Section 1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1.
Termination
Event:
The
occurrence of a termination event under the termination provision of the Cap
Agreement or Swap Agreement, as applicable.
Termination
Price:
As
defined in Section 11.01.
Total
Monthly Excess Spread:
As to
any Distribution Date, an amount equal to the excess, if any, of (i) the
interest on the Mortgage Loans (other than Prepayment Interest Excesses)
received by the Servicers on or prior to the related Determination Date or
advanced by the Servicers for the related Remittance Date (net of Expense Fees)
over (ii) the sum of the amounts payable to the Certificates pursuant to
Section 4.02(a)(i)(A) through (C) on such Distribution Date.
Transfer:
Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Transfer
Affidavit:
As
defined in Section 5.02(c).
Transfer
Agreement:
The
various agreements by which the Sponsor purchased the Mortgage Loans from the
Mortgage Loan Sellers.
Transferor
Certificate:
As
defined in Section 5.02(b).
Trigger
Event:
Either
a Cumulative Loss Trigger Event or a Delinquency Trigger Event.
Trust:
The
express trust created hereunder in Section 2.01(c).
Trust
Fund:
The
corpus of the trust created hereunder consisting of (i) the Mortgage Loans
and all interest and principal with respect thereto received on or after the
related Cut-off Date, other than such amounts which were due on the Mortgage
Loans on or prior to the related Cut-off Date; (ii) the Collection Account,
the Distribution Account, the Cap Termination Receipts Account, the Cap
Replacement Receipts Account the Swap Termination Receipts Account, the Swap
Replacement Receipts Account and
all
amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been
acquired by foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the
Depositor’s rights under the Purchase Agreement, each Transfer Agreement and
each Servicing Agreement; (v) the Insurance Policies; and (vi) all
proceeds of the conversion, voluntary or involuntary, of any of the
foregoing.
Trustee:
Deutsche Bank National Trust Company, a national banking association, and its
successors in interest and, if a successor trustee is appointed hereunder,
such
successor.
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Underwriters’
Exemption:
Any
exemption listed under footnote 1 of, and amended by, Prohibited Transaction
Exemption 96-84, 61 Fed. Reg. 58234 (1996), as amended by XXX 00-00,
00 Xxx. Xxx. 00000 (1997), PTE 2000-58, 65 Fed. Reg. 67765 (2000), PTE
2002-41, 67 Fed. Reg. 54487 (2002) and PTE 2007-5, 72Fed. Reg. 13130
(2007), or any successor exemption.
Unpaid
Realized Loss Amount:
With
respect to any Class of Class M Certificates and as to any
Distribution Date, is the excess of (i) Applied Realized Loss Amounts with
respect to such Class over (ii) the sum of (a) all distributions
in reduction of such Applied Realized Loss Amounts on all previous Distribution
Dates, and (b) the amount by which the Class Certificate Balance of
such Class has been increased due to the distribution of any Subsequent
Recoveries on all previous Distribution Dates. Any amounts distributed to a
Class of Class M Certificates in respect of any Unpaid Realized Loss
Amount will not be applied to reduce the Class Certificate Balance of such
Class.
Upper
Tier REMIC:
As
described in the Preliminary Statement.
Upper
Tier REMIC Regular Interest:
As
described in the Preliminary Statement.
U.S.
Person:
(i) A citizen or resident of the United States; (ii) a corporation (or
entity treated as a corporation for tax purposes) created or organized in the
United States or under the laws of the United States or of any State thereof,
including, for this purpose, the District of Columbia; (iii) a partnership
(or entity treated as a partnership for tax purposes) organized in the United
States or under the laws of the United States or of any State thereof,
including, for this purpose, the District of Columbia (unless provided otherwise
by future Treasury regulations); (iv) an estate whose income is includible
in gross income for United States income tax purposes regardless of its source;
or (v) a trust, if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more U.S.
Persons have authority to control substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue
to
be U.S. Persons.
Voting
Rights:
The
portion of the voting rights of all of the Certificates which is allocated
to
any Certificate. As of any date of determination, 1.00% of all Voting Rights
shall be allocated to each of the Class X, Class P and Class R
Certificates, if any (such Voting Rights to be allocated among the holders
of
Certificates of each such Class in accordance with their respective
Percentage Interests) and the remaining Voting Rights shall be allocated among
Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
Xxxxx
Fargo:
Xxxxx
Fargo Bank, N.A., a national banking association, and its successors in
interest.
-47-
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
REPRESENTATIONS
AND WARRANTIES
Section
2.01 Conveyance
of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee
for the benefit of the Certificateholders, without recourse, all the right,
title and interest of the Depositor in and to the Trust Fund including all
interest and principal received on or with respect to the Mortgage Loans on
or
after the Cut-off Date (other than Scheduled Payments due on the Mortgage Loans
on or before the Cut-off Date).
Concurrently
with the execution of this Agreement, the Derivative Agreements shall be
delivered to the Securities Administrator. In connection therewith, the
Depositor hereby directs the Securities Administrator (solely in its capacity
as
Supplemental Interest Trust Trustee) and the Securities Administrator is hereby
authorized to execute and deliver each of the Derivative Agreements on behalf
of
the Supplemental Interest Trust, for the benefit of Certificateholders. The
Depositor, the Sponsor, the Master Servicer, the Credit Risk Manager and the
Certificateholders (by their acceptance of such Certificates) acknowledge and
agree that the Securities Administrator is executing and delivering the
Derivative Agreements solely in its capacity as Supplemental Interest Trust
Trustee and not in its individual capacity. The Securities Administrator shall
have no duty or responsibility to enter into any other interest rate swap
agreement upon the expiration or termination of the Swap Agreement or interest
rate cap agreement upon the termination of the Cap Agreement unless so directed
by the Depositor.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under (i) the Purchase
Agreement, including the right to enforce the Sponsor’s obligation to repurchase
or substitute defective Mortgage Loans under Section 4 of the Purchase Agreement
and (ii) each Servicing Agreement and each Transfer Agreement, to the extent
assigned under the Purchase Agreement. The Trustee hereby accepts such
assignment, and as set forth herein in Section 2.03(d), shall be entitled to
exercise all the rights of the Depositor under the Purchase Agreement as if,
for
such purpose, it were the Depositor.
(b) In
connection with the transfer and assignment of each Mortgage Loan, the Depositor
has delivered or caused to be delivered to the Custodian for the benefit of
the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the
original Mortgage Note bearing all intervening endorsements necessary to show
a
complete chain of endorsements from the original payee, endorsed in blank,
“Pay
to the order of _____________, without recourse”, and, if previously endorsed,
signed in the name of the last endorsee by a duly qualified officer of the
last
endorsee;
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(ii) the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording. The Mortgage shall be assigned, with assignee’s name
left blank;
(iii) the
original of each guarantee executed in connection with the Mortgage Note, if
any;
(iv) the
original recorded Mortgage, with evidence of recording thereon. If in connection
with any Mortgage Loan, the original Mortgage cannot be delivered with evidence
of recording thereon on or prior to the Closing Date because of a delay caused
by the public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the Depositor shall
deliver or cause to be delivered to the Custodian, (A) in the case of a
delay caused by the public recording office, a copy of such Mortgage certified
by the applicable Mortgage Loan Seller, escrow agent, title insurer or closing
attorney to be a true and complete copy of the original recorded Mortgage and
(B) in the case where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after recordation
in a
public recording office, a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage;
(v) originals
or a certified copy of each modification agreement, if any;
(vi) the
originals of all intervening assignments of Mortgage with evidence of recording
thereon evidencing a complete chain of ownership from the originator of the
Mortgage Loan to the last assignee, or if any such intervening assignment of
Mortgage has not been returned from the applicable public recording office
or
has been lost or if such public recording office retains the original recorded
intervening assignments of Mortgage, a photocopy of such intervening assignment
of Mortgage, together with (A) in the case of a delay caused by the public
recording office, an officer’s certificate of the applicable Mortgage Loan
Seller, escrow agent, closing attorney or the title insurer insuring the
Mortgage stating that such intervening assignment of Mortgage has been delivered
to the appropriate public recording office for recordation and that such
original recorded intervening assignment of Mortgage or a copy of such
intervening assignment of Mortgage certified by the appropriate public recording
office to be a true and complete copy of the original recorded intervening
assignment of Mortgage will be promptly delivered to the Custodian upon receipt
thereof by the party delivering the officer’s certificate or by the applicable
Mortgage Loan Seller; or (B) in the case of an intervening assignment of
mortgage where a public recording office retains the original recorded
intervening assignment of Mortgage or in the case where an intervening
assignment of Mortgage is lost after recordation in a public recording office,
a
copy of such intervening assignment of Mortgage with recording information
thereon certified by such public recording office to be a true and complete
copy
of the original recorded intervening assignment of Mortgage;
(vii) if
the
Mortgage Note, the Mortgage, any Assignment of Mortgage or any other related
document has been signed by a Person on behalf of the Mortgagor, the copy of
the
power of attorney or other instrument that authorized and empowered such Person
to sign;
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(viii) the
original lender’s title insurance policy (or a marked title insurance
commitment, in the event that an original lender’s title insurance policy has
not yet been issued) in the form of an ALTA mortgage title insurance policy,
containing all required endorsements and insuring the Trustee and its successors
and assigns as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan;
(ix) if
applicable, the original of any Primary Mortgage Insurance Policy or certificate
or, an electronic certification, evidencing the existence of the Primary
Mortgage Insurance Policy or certificate, if private mortgage guaranty insurance
is required; and
(x) original
of any security agreement, chattel mortgage or equivalent document executed
in
connection with the Mortgage, if any.
From
time
to time, a Mortgage Loan Seller, the Depositor or a Servicer, as applicable,
shall forward to the Custodian additional original documents, additional
documents evidencing an assumption, modification, consolidation or extension
of
a Mortgage Loan, in accordance with the terms of this Agreement, the Transfer
Agreements and the Servicing Agreements, upon receipt of such documents. All
such mortgage documents held by the Custodian as to each Mortgage Loan shall
constitute the “Custodial
File”.
Assignments
of Mortgage shall not be required to be completed and submitted for recording
with respect to any Mortgage Loan if the Trustee and each Rating Agency have
received an Opinion of Counsel from the Depositor, satisfactory in form and
substance to the Trustee and each Rating Agency to the effect that the
recordation of such Assignments of Mortgage in any specific jurisdiction is
not
necessary to protect the Trust Fund’s interest in the related Mortgage Note. If
the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned
by
the Mortgage Loan Seller to “Deutsche Bank National Trust Company, as trustee
under the Pooling and Servicing Agreement dated as of April 1, 2007, for HSI
Asset Securitization Corporation Trust 2007-HE2”.
(c) The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust (the
“Trust”)
to be
known, for convenience, as “HSI Asset Securitization Corporation Trust 2007-HE2”
and Deutsche Bank National Trust Company is hereby appointed as Trustee and
Xxxxx Fargo Bank, N.A. is appointed as Securities Administrator in accordance
with the provisions of this Agreement. The parties hereto acknowledge and agree
that it is the policy and intention of the Trust to acquire only Mortgage Loans
meeting the requirements set forth in the Transfer Agreements and in the
Purchase Agreement.
(d) The
Trust
shall have the capacity, power and authority, and the Trustee on behalf of
the
Trust is hereby authorized, to accept the sale, transfer, assignment, set over
and conveyance by the Depositor to the Trust of all the right, title and
interest of the Depositor in and to the Trust Fund (including, without
limitation, the Mortgage Loans) pursuant to Section 2.01(a).
-50-
Section
2.02 Acceptance
by the Custodian of the Mortgage Loans.
The
Custodian shall acknowledge, on the Closing Date, receipt by the Custodian
of
the documents identified in the Initial Certification in the form annexed hereto
as Exhibit E (“Initial
Certification”),
and
declares that it holds and will hold such documents and the other documents
delivered to it pursuant to Section 2.01, and that it holds or will hold
such other assets as are included in the Trust Fund, in trust for the exclusive
use and benefit of all present and future Certificateholders. The Custodian
shall maintain possession of the related Mortgage Notes in the States of
Minnesota, California, and Utah unless otherwise permitted by the Rating
Agencies.
In
connection with the Closing Date, the Custodian shall be required to deliver
via
facsimile (with original to follow the next Business Day) to the Depositor,
the
Securities Administrator, the Trustee and the Servicers an Initial Certification
prior to the Closing Date, or, as the Depositor agrees on the Closing Date,
certifying receipt of a Mortgage Note and Assignment of Mortgage for each
Mortgage Loan. The Custodian shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodian File.
Within
90 days of the Closing Date, the Custodian shall ascertain that all
documents identified in the Document Certification and Exception Report in
the
form attached hereto as Exhibit F are in its possession, and shall deliver
to the Depositor, the Securities Administrator, the Trustee and the Servicers,
a
Document Certification and Exception Report, in the form annexed hereto as
Exhibit F, to the effect that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in such certification as an exception
and
not covered by such certification): (i) all documents identified in the
Document Certification and Exception Report and required to be reviewed by
it
are in its possession; (ii) such documents have been reviewed by it and
appear regular on their face and relate to such Mortgage Loan; (iii) based
on its examination and only as to the foregoing documents, the Mortgage Loan
identifying number, the state and five-digit ZIP code of the Mortgaged Property
and the original principal balance of the Mortgage Loan is correct; and
(iv) each Mortgage Note has been endorsed as provided in Section 2.01
of this Agreement. Neither the Trustee nor the Custodian shall be responsible
to
verify the validity, sufficiency or genuineness of any document in any Custodial
File.
The
Custodian shall retain possession and custody of each Custodial File in
accordance with and subject to the terms and conditions set forth
herein.
Section
2.03 Remedies
for Breaches of Representations and Warranties with Respect to the Mortgage
Loans.
(a) Upon
the
removal of a Deleted Mortgage Loan and the substitution of a Substititute
Mortgage Loan and the deposit to the related Collection Account of the amount
required to be deposited therein in connection with such substitution, the
Custodian shall release the Mortgage File held for the benefit of the
Certificateholders relating to such Deleted Mortgage Loan to the applicable
Mortgage Loan Seller and the Trustee, upon receipt of a Request for Release
certifying that all amounts required to be deposited in accordance with this
Section 2.03(a) have been deposited in the related Collection Account, shall
execute and deliver at the applicable Mortgage Loan Seller’s direction such
instruments of transfer or assignment prepared by the applicable Mortgage Loan
Seller in each case without recourse, as shall be necessary to vest title in
the
applicable Mortgage Loan Seller of the Trustee’s interest in any Deleted
Mortgage Loan substituted for pursuant to this
Section 2.03.
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(b) In
addition to the repurchase or substitution obligations referred to in
Section 2.03(d) below, the Sponsor shall indemnify the Depositor, any of
its Affiliates, the Master Servicer, each Servicer, the Securities
Administrator, the Trustee and the Trust and hold such parties harmless against
any losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses (including,
without limitation, any taxes payable by the Trust) resulting from any third
party claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach by the Sponsor of any of its representations and
warranties or obligations contained in this Agreement.
(c) Upon
receipt of a Request for Release substantially in the form of Exhibit J
hereto, the Custodian shall release the related Custodial File held for the
benefit of the Certificateholders to the related Mortgage Loan Seller or the
Sponsor, as applicable, as directed by the applicable Servicer, and the Trustee
shall execute and deliver at such Person’s direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. In accordance with
Section 12.05(a), the Securities Administrator shall promptly notify each
Rating Agency of a purchase of a Mortgage Loan pursuant to this
Section 2.03 or pursuant to a Transfer Agreement.
(d) The
Trustee acknowledges that, except as provided in Section 5 of the Purchase
Agreement, the Sponsor shall not have any obligation or liability with respect
to any breach of a representation or warranty made by it with respect to a
Mortgage Loan sold by it, provided that such representation or warranty was
also
made by a Mortgage Loan Seller with respect to the related Mortgage Loan. It
is
understood and agreed that the representations and warranties of the Sponsor
set
forth in Section 4 of the Purchase Agreement and assigned to the Trustee by
the
Depositor hereunder shall survive the transfer of the Mortgage Loans by the
Depositor to the Trustee on the Closing Date, and shall inure to the benefit
of
the Trustee and the Certificateholders notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or Assignment of Mortgage and shall
continue throughout the term of this Agreement. Upon the discovery by any of
the
Sponsor, the Depositor, the Securities Administrator, the Trustee, the Master
Servicer or any Servicer of a breach of any of the Sponsor’s representations and
warranties set forth in Section 4 of the Purchase Agreement, the party
discovering the breach shall give prompt written notice to the others. Within
30 days of the earlier of either discovery by or notice to the Sponsor of
any breach of any of the foregoing representations or warranties that materially
and adversely affects the value of any Mortgage Loan or the interest of the
Trustee or the Certificateholders therein, the Sponsor shall use its best
efforts to cure such breach in all material respects and, if such defect or
breach cannot be remedied, the Sponsor shall, at the Depositor’s instructions as
specified in writing and provided to the Sponsor and the Trustee, (i) if
such 30-day period expires prior to the second anniversary of the Closing Date,
remove such Mortgage Loan from the Trust Fund and substitute in its place a
Substitute Mortgage Loan, in the same manner and subject to the same conditions
set forth in this Section 2.03 or (ii) repurchase such Mortgage Loan
at the Repurchase Price; provided,
however,
that
any such substitution pursuant to clause (i) above shall not be
effected prior to the delivery to the Custodian of a Request for Release
substantially in the form of Exhibit J, and the delivery of the Mortgage
File to the Custodian for any such Substitute Mortgage Loan. It is understood
and agreed that the obligations of the Sponsor under this Agreement to cure,
repurchase or substitute any Mortgage Loan as to which a breach of a
representation and warranty has occurred and is continuing, together with any
related indemnification obligations of the Sponsor set forth in Section 2.03(b),
shall constitute the sole remedies against the Sponsor available to the
Certificateholders, the Depositor and any of its affiliates, or the Trustee
on
their behalf.
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The
provisions of this Section 2.03 shall survive delivery of the respective
Custodial Files to the Custodian for the benefit of the
Certificateholders.
Section
2.04 Execution
and Delivery of Certificates.
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator
has
executed and delivered to, or upon the order of the Depositor, the Certificates
in authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates.
Section
2.05 REMIC
Matters.
The
Preliminary Statement sets forth the designations for federal income tax
purposes of all interests created hereby. The “Startup
Day”
for
purposes of the REMIC Provisions shall be the Closing Date. The
“latest
possible maturity date”
is
the
Distribution Date occurring three years after the month in which the
latest Mortgage Loan maturity date (of the Mortgage Loans held in the Trust
on
the Closing Date) occurs.
Section
2.06 Representations
and Warranties of the Depositor.
The
Depositor hereby represents, warrants and covenants to the other parties to
this
agreement that as of the date of this Agreement or as of such date specifically
provided herein:
(a) The
Depositor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) The
Depositor has the power and authority to convey the Mortgage Loans and to
execute, deliver and perform, and to enter into and consummate transactions
contemplated by, this Agreement;
(c) This
Agreement has been duly and validly authorized, executed and delivered by the
Depositor, all requisite company action having been taken, and, assuming the
due
authorization, execution and delivery hereof by the other parties hereto,
constitutes or will constitute the legal, valid and binding agreement of the
Depositor, enforceable against the Depositor in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless
of
whether such enforcement is considered in a proceeding in equity or at
law);
(d) No
consent, approval, authorization or order of, or registration or filing with,
or
notice to, any governmental authority or court is required for the execution,
delivery and performance of or compliance by the Depositor with this Agreement
or the consummation by the Depositor of any of the transactions contemplated
hereby, except as have been received or obtained on or prior to the Closing
Date;
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(e) None
of
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby or thereby, or the fulfillment of or compliance
with the terms and conditions of this Agreement, (i) conflicts or will
conflict with or results or will result in a breach of, or constitutes or will
constitute a default or results or will result in an acceleration under
(A) the charter or bylaws of the Depositor, or (B) of any term,
condition or provision of any material indenture, deed of trust, contract or
other agreement or instrument to which the Depositor or any of its subsidiaries
is a party or by which it or any of its subsidiaries is bound; (ii) results
or will result in a violation of any law, rule, regulation, order, judgment
or
decree applicable to the Depositor of any court or governmental authority having
jurisdiction over the Depositor or its subsidiaries; or (iii) results in
the creation or imposition of any lien, charge or encumbrance which would have
a
material adverse effect upon the Mortgage Loans or any documents or instruments
evidencing or securing the Mortgage Loans;
(f) There
are
no actions, suits or proceedings before or against or investigations of, the
Depositor pending, or to the knowledge of the Depositor, threatened, before
any
court, administrative agency or other tribunal, and no notice of any such
action, which, in the Depositor’s reasonable judgment, might materially and
adversely affect the performance by the Depositor of its obligations under
this
Agreement, or the validity or enforceability of this Agreement;
(g) The
Depositor is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any federal, state, municipal or governmental
agency that would materially and adversely affect its performance hereunder;
and
(h) Immediately
prior to the transfer and assignment by the Depositor to the Trustee on the
Closing Date, the Depositor had good title to, and was the sole owner of each
Mortgage Loan, free of any interest of any other Person, and the Depositor
has
transferred all right, title and interest in each Mortgage Loan to the Trustee.
The transfer of the Mortgage Note and the Mortgage as and in the manner
contemplated by this Agreement is sufficient either (i) fully to transfer
to the Trustee, for the benefit of the Certificateholders, all right, title,
and
interest of the Depositor thereto as note holder and mortgagee or (ii) to
grant to the Trustee, for the benefit of the Certificateholders, the security
interest referred to in Section 12.04.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.06 shall survive delivery of the respective
Mortgage Files to the Custodian and shall inure to the benefit of the
Trustee.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
Section
3.01 Establishment
of Certain Accounts.
(a) (i) The Securities Administrator shall establish and maintain
the Excess Reserve Fund Account as an asset of the Supplemental Interest Trust,
on behalf of the Class X Certificateholders, to receive any Basis Risk
Payment and to secure their limited recourse obligation to pay to the LIBOR
Certificateholders any Basis Risk Carryover Amounts. The Excess Reserve Fund
Account shall be funded on the Closing Date with an initial deposit of $1,000
by
the Depositor.
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(ii) On
each
Distribution Date, the Securities Administrator shall deposit the amount of
any
Basis Risk Payment for such date into the Excess Reserve Fund
Account.
(b) (i) On
each
Distribution Date on which there exists a Basis Risk Carryover Amount on any
Class of LIBOR Certificates, the Securities Administrator shall
(1) withdraw from the Distribution Account and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.02(a)(iii)(D), the lesser
of (x) the Class X Distributable Amount (without regard to the
reduction in the definition thereof with respect to the Basis Risk Payment
(to
the extent remaining after the distributions specified in
Sections 4.02(a)(iii)(A)
through (I)) and (y) the aggregate Basis Risk Carryover Amounts for such
Distribution Date and (2) withdraw from the Excess Reserve Fund Account
amounts necessary to pay to such Class or Classes of LIBOR Certificates the
applicable Basis Risk Carryover Amount. Such payments shall be allocated to
those Classes on a pro rata
basis
based upon the amount of Basis Risk Carryover Amount owed to each such
Class and shall be paid in the priority set forth in
Sections 4.02(a)(iii)(E).
(ii) The
Securities Administrator shall account for the Excess Reserve Fund Account
as an
asset of a grantor trust under subpart E, Part I of subchapter J
of the Code and not as an asset of any REMIC created pursuant to this Agreement.
The beneficial owners of the Excess Reserve Fund Account are the Class X
Certificateholders. For all federal tax purposes, amounts transferred by the
Upper Tier REMIC to the Excess Reserve Fund Account shall be treated as
distributions by the Securities Administrator to the Class X
Certificateholders.
(iii) Any
Basis
Risk Carryover Amounts paid by the Securities Administrator to the LIBOR
Certificateholders shall be accounted for by the Securities Administrator as
amounts paid first to the Holders of the Class X Certificates and then to
the respective Class or Classes of LIBOR Certificates. In addition, the
Securities Administrator shall account for such Certificateholders’ rights to
receive payments of Basis Risk Carryover Amounts as rights in a limited recourse
notional principal contract written by the Class X Certificateholders in
favor of such Certificateholders.
(iv) Notwithstanding
any provision contained in this Agreement, the Securities Administrator shall
not be required to make any payments to and from the Excess Reserve Fund Account
except as expressly set forth in this Section 3.01(b) and
Sections 4.02(a)(iii)(D), (E) and (J).
(c) The
Securities Administrator shall establish and maintain the Distribution Account
on behalf of the Certificateholders. The Master Servicer shall, promptly upon
receipt, deposit in the Distribution Account and retain therein the
following:
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(i) the
aggregate amount remitted by the Servicers to the Master Servicer pursuant
to
the Servicing Agreements ;
(ii) any
amount deposited by the Servicers pursuant to the Servicing Agreements in
connection with any losses on Permitted Investments; and
(iii) any
other
amounts deposited hereunder which are required to be deposited in the
Distribution Account.
In
the
event that a Servicer shall remit any amount not required to be remitted, it
may
at any time direct the Securities Administrator in writing to withdraw such
amount from the Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering notice to
the
Securities Administrator which describes the amounts deposited in error in
the
Distribution Account. All funds deposited in the Distribution Account shall
be
held by the Securities Administrator in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 4.02.
Section
3.02 Investment
of Funds in the Distribution Account.
(a) The Securities Administrator may invest funds in the Distribution
Account during the Securities Administrator’s Float Period, in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the date on which such funds are required to be withdrawn from such account
pursuant to this Agreement; provided,
however,
that
any such Permitted Investment managed by or advised by the Securities
Administrator or any of its Affiliates may mature, unless payable on demand,
no
later than the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement. All such Permitted Investments shall be
held
to maturity, unless payable on demand. Any investment of funds in the
Distribution Account shall be made in the name of the Securities Administrator.
The Securities Administrator shall be entitled to sole possession over each
such
investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Securities Administrator or its
agent, as applicable, together with any document of transfer necessary to
transfer title to such investment to the Securities Administrator or its agent,
as applicable. In the event amounts on deposit in the Distribution Account
are
at any time invested in a Permitted Investment payable on demand, the Securities
Administrator may:
|
(x)
|
consistent
with any notice required to be given thereunder, demand that payment
thereon be made on the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of (1) all amounts
then payable thereunder and (2) the amount required to be withdrawn
on such date; and
|
|
(y)
|
demand
payment of all amounts due thereunder that such Permitted Investment
would
not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Distribution
Account.
|
(b) All
income and gain realized from the investment of funds deposited in the
Distribution Account held by the Securities Administrator during the Securities
Administrator’s Float Period, shall be for the benefit of the Securities
Administrator, and shall be subject to the Securities Administrator’s withdrawal
in the manner set forth in Section 4.01. Notwithstanding anything in this
Section 3.02(b), the Securities Administrator shall be liable to the Trust
for
any loss on any funds it has invested under this Section 3.02(b) only during
the
Securities Administrator Float Period, and the Securities Administrator 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 account
immediately upon realization of such loss.
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(c) The
Securities Administrator or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Securities Administrator’s
economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to
effect transactions in certain Permitted Investments and (iii) effecting
transactions in certain Permitted Investments. Such compensation shall not
be
considered an amount that is reimbursable for payable pursuant to this
Agreement.
Section
3.03 Report
on Assessment of Compliance with Relevant Servicing Criteria.
On
or
before March 15th
of each
calendar year, commencing in March 2008, the Master Servicer, the Securities
Administrator and the Custodian, each at its own expense, shall furnish or
otherwise make available, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Securities
Administrator and the Depositor, a report on an assessment of compliance with
the Relevant Servicing Criteria set forth in Exhibit S that contains (A) a
statement by such party of its responsibility for assessing compliance with
the
Relevant Servicing Criteria, (B) a statement that such party used the Relevant
Servicing Criteria to assess compliance with the Relevant Servicing Criteria,
(C) such party’s assessment of compliance with the Relevant Servicing Criteria
as of and for the fiscal year covered by the Form 10-K required to be filed
pursuant to Section 8.12, including, if there has been any material instance
of
noncompliance with the Relevant Servicing Criteria, a discussion of each such
failure and the nature and status thereof, and (D) a statement that a registered
public accounting firm has issued an attestation report on such party’s
assessment of compliance with the Relevant Servicing Criteria as of and for
such
period.
Promptly
after receipt of each such report on assessment of compliance as well as the
reports on assessment of compliance provided to the Depositor under the
Servicing Agreements, (i) the Depositor shall review each such report and,
if
applicable, consult with the Master Servicer, the Securities Administrator,
the
Custodian, any Servicer and any Servicing Function Participant engaged by any
such party as to the nature of any material instance of noncompliance with
the
Relevant Servicing Criteria by each such party, and (ii) the Securities
Administrator shall confirm that the assessments, taken as a whole, address
all
of the Servicing Criteria and taken individually address the Relevant Servicing
Criteria for each party as set forth on Exhibit S or as set forth in the
applicable Servicing Agreement.
The
Master Servicer shall enforce any obligation of each Servicer to cause to be
delivered to the Securities Administrator an annual report on assessment of
compliance within the time frame set
forth
in the applicable Servicing Agreement, and in such form and
substance as may be required by the applicable Servicing Agreement.
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In
the
event the Master Servicer, the Securities Administrator, the Custodian or any
Servicing Function Participant engaged by any such party is terminated, assigns
its rights and obligations under, or resigns pursuant to, the terms of this
Agreement, or any other applicable agreement, as the case may be, such party
shall provide a report on assessment of compliance pursuant to this Section
3.03, or to such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
Section
3.04 Report
on Attestation of Compliance with Relevant Servicing Criteria.On
or
before March 15th
of each
calendar year, commencing in March 2008, the Master Servicer, the Securities
Administrator and the Custodian, each at its own expense, shall cause, and
each
such party shall cause any Servicing Function Participant engaged by it to
cause, each at its own expense, a registered public accounting firm (which
may
also render other services to the Master Servicer, the Securities Administrator,
the Custodian or such other Servicing Function Participants, as the case may
be)
that is a member of the American Institute of Certified Public Accountants
to
furnish an attestation report to the Securities Administrator and the Depositor,
to the effect that (i) it has obtained a representation regarding certain
matters from the management of such party, which includes an assertion that
such
party has complied with the Relevant Servicing Criteria, and (ii) on the basis
of an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the Public Company Accounting
Oversight Board, it is expressing an opinion as to whether such party’s
compliance with the Relevant Servicing Criteria was fairly stated in all
material respects, or it cannot express an overall opinion regarding such
party’s assessment of compliance with the Relevant Servicing Criteria. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such
an
opinion. Such report must be available for general use and not contain
restricted use language.
Promptly
after receipt of each such assessment of compliance and attestation report
as
well as the assessment of compliance and attestation report provided the
Depositor under the Servicing Agreements, the Securities Administrator shall
confirm that each assessment submitted pursuant to Section 3.03 and the
Servicing Agreements is coupled with an attestation meeting the requirements
of
this Section and notify the Depositor of any exceptions.
The
Master Servicer shall enforce any obligation of each Servicer to cause to be
delivered to the Master Servicer an attestation within the time
frame set
forth
in the applicable Servicing Agreement, and in such form and
substance as may be required by the applicable Servicing Agreement.
In
the
event the Master Servicer, the Securities Administrator, the Custodian or any
Servicing Function Participant engaged by any such party, is terminated, assigns
its rights and duties under, or resigns pursuant to the terms of, this Agreement
or any other applicable agreement, as the case may be, such party shall cause
a
registered public accounting firm to provide an attestation pursuant to this
Section 3.04, or to such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
Section
3.05 Annual
Officer’s Certificates.(a)
Each
Form 10-K filed with the Commission shall include a Xxxxxxxx-Xxxxx Certification
exactly as set forth in Exhibit L attached hereto, required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each of the Master Servicer,
the
Custodian and the Securities Administrator shall, and shall cause any Servicing
Function Participant engaged by it to, provide to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the “Certifying
Person”),
by
March 10th
of each
year in which the Trust is subject to the reporting requirements of the Exchange
Act, commencing in March 2008, and otherwise within a reasonable period of
time
upon request, a certification (each, a “Back-Up
Certification”),
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 Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of
the
Trust. Such officer of the Certifying Person can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
or by
facsimile at 000-000-0000. In the event any such party or any Servicing Function
Participant engaged by any such party is terminated or resigns pursuant to
the
terms of this Agreement, or any applicable sub-servicing agreement, as the
case
may be, such party shall provide a Back-Up Certification to the Certifying
Person pursuant to this Section 3.05 with respect to the period of time it
was
subject to this Agreement or any applicable sub-servicing agreement, as the case
may be. Notwithstanding the foregoing, (i) the Master Servicer and the
Securities Administrator shall not be required to deliver a Back-Up
Certification to each other if both are the same Person and the Master Servicer
is the Certifying Person and (ii) the Master Servicer shall not be obligated
to
sign the Xxxxxxxx-Xxxxx Certification in the event that it does not receive
any
Back-Up Certification required to be furnished to it pursuant to this section
or
any Servicing Agreement.
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(b) On
or
before March 15th
of each
calendar year, commencing in March 2008, the Master Servicer and the Securities
Administrator shall deliver (or otherwise make available) (and the Master
Servicer and Securities Administrator shall cause any Servicing Function
Participant engaged by it to deliver) to the Depositor and the Securities
Administrator, an Officer’s Certificate substantially in the form of Exhibit U
stating, as to the signer thereof, that (A) a review of such party’s activities
during the preceding calendar year or portion thereof and of such party’s
performance under this Agreement, or such other applicable agreement in the
case
of a Servicing Function Participant, has been made under such officer’s
supervision and (B) to the best of such officer’s knowledge, based on such
review, such party has fulfilled all its obligations under this Agreement,
or
such other applicable agreement in the case of a Servicing Function Participant,
in all material respects throughout such year or portion thereof, or, if there
has been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature and status
thereof.
In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by any such party is terminated or resigns pursuant
to the terms of this Agreement, or any applicable agreement in the case of
a
Servicing Function Participant, as the case may be, such party shall provide
an
Officer’s Certificate pursuant to this Section 3.05 or to such applicable
agreement, as the case may be, notwithstanding any such termination, assignment
or resignation.
Section
3.06 Indemnification.(a) Each
of
the Depositor, the Master Servicer, the Securities Administrator, the Custodian,
the Trustee (only in the case of any failure to deliver any information, data
or
materials required to be included in any Additional Form 10-D Disclosure,
Additional Form 10-K Disclosure or Form 8-K Disclosure Information that the
Trustee is obligated to provide, and only with respect to the Depositor, the
Master Servicer and the Securities Administrator) and any Servicing Function
Participant (each, an “Indemnifying Party”) engaged by any such party, shall
indemnify and hold harmless each other Indemnifying Party, and each of its
directors, officers, employees, agents, and affiliates from and against any
and
all claims, losses, damages, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgments and other costs and expenses arising out
of or
based upon (a) any breach by such party of any if its obligations hereunder,
including particularly its obligations to provide any annual statement of
compliance, annual assessment of compliance with Servicing Criteria or
attestation report or any information, data or materials required to be included
in any Exchange Act report, (b) any material misstatement or omission in any
information, data or materials provided by such party including any material
misstatement or material omission in (i) any annual statement of compliance,
annual assessment of compliance with Servicing Criteria or attestation report
delivered by it, or by any Servicing Function Participant engaged by it,
pursuant to this Agreement, or (ii) any Additional Form 10-D Disclosure,
Additional Form 10-K Disclosure or Form 8-K Disclosure Information provided
by
it, or (c) the negligence, bad faith or willful misconduct of such indemnifying
party in connection with its performance hereunder. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the Master
Servicer, the Securities Administrator, the Trustee, the Custodian or the
Depositor, as the case may be, then each Indemnifying Party agrees that it
shall
contribute to the amount paid or payable by the Master Servicer, the Securities
Administrator, the Trustee, the Custodian or the Depositor, as applicable,
as a
result of any claims, losses, damages or liabilities incurred by such party
in
such proportion as is appropriate to reflect the relative fault of the
indemnified party on the one hand and the indemnifying party on the other.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
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(b) The
Depositor, the Securities Administrator,
the
Custodian
and the Trustee shall immediately notify the Master Servicer if a claim is
made
by a third party with respect to this Agreement or the Mortgage Loans which
would entitle the Depositor, the Securities Administrator,
the
Custodian,
the Trustee or the Trust to indemnification from the Master Servicer, whereupon
the Master Servicer shall assume the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it
or
them in respect of such claim. If the Master Servicer and any such indemnified
party have a conflict of interest with respect to any such claim, the
indemnified party shall have the right to retain separate counsel.
Section
3.07 Advances.
(a) To the extent provided in the related Servicing Agreement, the
amount of P&I Advances to be made by each Servicer for any Remittance Date
shall equal, subject to Section 3.07(c), the sum of (i) the aggregate
amount of Scheduled Payments (with each interest portion thereof net of the
related Servicing Fee), due during the Due Period immediately preceding such
Remittance Date in respect of the Mortgage Loans, which Scheduled Payments
were
not received as of the close of business on the related Determination Date,
plus
(ii) with respect to each REO Property, which REO Property was acquired
during or prior to the related Prepayment Period and as to which such REO
Property an REO Disposition did not occur during the related Prepayment Period,
an amount equal to the excess, if any, of the Scheduled Payments (with each
interest portion thereof net of the related Servicing Fee) that would have
been
due on the related Due Date in respect of the related Mortgage Loans, over
the
net income from such REO Property transferred to the Collection Account for
distribution on such Remittance Date.
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(b) To
the
extent provided in the related Servicing Agreement, on each Remittance Date,
each Servicer shall remit in immediately available funds to the Master Servicer
an amount equal to the aggregate amount of P&I Advances, if any, to be made
in respect of the Mortgage Loans and REO Properties for the related Remittance
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 the
Collection Account that Amounts Held for Future Distribution have been, as
permitted by this Section 3.07, used by it in discharge of any such P&I
Advance) or (iii) in the form of any combination of (i) and
(ii) aggregating the total amount of P&I Advances to be made by the
applicable Servicer with respect to the Mortgage Loans and REO Properties.
To
the extent provided in the related Servicing Agreement, any Amounts Held for
Future Distribution and so used shall be appropriately reflected in the
applicable Servicer’s records and replaced by such Servicer by deposit in the
Collection Account on or before any future Remittance Date to the extent
required.
(c) To
the
extent provided in the related Servicing Agreement, the obligation of each
Servicer to make such P&I Advances is mandatory, notwithstanding any other
provision of this Agreement but subject to (d) below, and, with respect to
any Mortgage Loan or REO Property, shall continue until a Final Recovery
Determination in connection therewith or the removal thereof from coverage
under
this Agreement, except as otherwise provided in this Section.
(d) To
the
extent provided in the related Servicing Agreement, notwithstanding anything
herein to the contrary, no P&I Advance or Servicing Advance shall be
required to be made hereunder by any Servicer if such P&I Advance or
Servicing Advance would, if made, constitute a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. To the extent provided in the related
Servicing Agreement, the determination by any Servicer that it has made a
Nonrecoverable P&I Advance or a Nonrecoverable Servicing Advance or that any
proposed P&I Advance or Servicing Advance, if made, would constitute a
Nonrecoverable P&I Advance or a Nonrecoverable Servicing Advance,
respectively, shall be evidenced by a Servicing Officer’s certificate of the
applicable Servicer delivered to the Master Servicer. In addition, to the extent
provided in the related Servicing Agreement, the Servicer shall not be required
to advance any Relief Act Interest Shortfalls.
(e) To
the
extent provided in the related Servicing Agreement, except as otherwise provided
herein, the Servicer shall be entitled to reimbursement pursuant the applicable
section of its related Servicing Agreement for Servicing Advances from
recoveries from the related Mortgagor or from all Liquidation Proceeds and
other
payments or recoveries (including Insurance Proceeds, Condemnation Proceeds
and
Subsequent Recoveries) with respect to the related Mortgage
Loan.
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ARTICLE
IV
DISTRIBUTIONS
Section
4.01 The
Distribution Account.
On each
Remittance Date, the Master Servicer shall deposit in the Distribution Account
all funds remitted to it by the Servicers pursuant to the Servicing Agreements.
The Securities Administrator may retain or withdraw from the Distribution
Account, (i) the Master Servicing Fee, (ii) amounts necessary to reimburse
the
Servicers pursuant to the Servicing Agreements, (iii) amounts necessary to
reimburse the Master Servicer for any previously unreimbursed Advances and
any
Advances the Master Servicer deems to be nonrecoverable from the related
Mortgage Loan proceeds, (iv) an amount to indemnify the Master Servicer or
the
Servicers for amounts due in accordance with this Agreement, (v) all amounts
representing Prepayment Charges (payable to the Class P
Certificateholders), (vi) to reimburse the Master Servicer, any Servicer or
the
Trustee, as the case may be, for expenses reasonably incurred in respect of
any
breach or defect giving rise to the repurchase obligation of a Mortgage Loan
Seller under a Transfer Agreement or the Sponsor under this Agreement that
were
included in the Repurchase Price of the Mortgage Loan, including any expenses
arising out of the enforcement of the repurchase obligation, to the extent
not
otherwise paid pursuant to the terms hereof and (vii) any other amounts that
each of the Depositor, Trustee, Master Servicer and the Securities Administrator
is entitled to receive hereunder for reimbursement, indemnification or
otherwise.
Section
4.02 Priorities
of Distribution.
(a) On each Distribution Date (or, in the case of deposits into the
Supplemental Interest Trust, on the Derivative Payment Date), the Securities
Administrator shall make the disbursements and transfers from amounts then
on
deposit in the Distribution Account and from amounts that are available for
payment to the Swap Counterparty, and shall allocate such amounts to the
interests issued in respect of each REMIC created pursuant to this Agreement
and
shall distribute such amounts in the following order of priority and to the
extent of the Available Funds remaining:
(i) to
the
Supplemental Interest Trust and the holders of each Class of LIBOR
Certificates in the following order of priority:
(A) from
the
Interest Remittance Amount related to both Loan Groups, for deposit into the
Supplemental Interest Trust Account, the amount of any Net Derivative Payment
or
Swap Termination Payment (other than a Swap Termination Payment resulting from
a
Swap Counterparty Trigger Event) owed to the Derivative Counterparty, including
any such amounts remaining unpaid from previous Distribution Dates;
(B) concurrently:
(1)
from
the remaining Interest Remittance Amount related to the Group I Mortgage Loans,
to the Class I-A Certificates, the related Senior Interest Payment Amount for
such Class of Certificates on such Distribution Date; and
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(2)
from
the remaining Interest Remittance Amount related to the Group II Mortgage Loans,
to the Class II-A-1, Class II-A-2, Class II-A-3 and Class II-A-4 Certificates,
pro
rata,
based
on the amounts distributable under this clause (i)(B)(2), the related Senior
Interest Payment Amount for each such Class of Certificates on such Distribution
Date;
provided, that,
if the
Interest Remittance Amount for either Loan Group is insufficient to make the
related payments set forth in clauses (i)(B)(1) or (i)(B)(2) above, any Interest
Remittance Amount relating to the other Loan Group remaining after payment
of
the Senior Interest Payment Amount to the related Certificate Group will be
available to cover that shortfall, such amounts to be allocated to those Classes
experiencing such shortfall on a pro
rata
basis in
proportion to the amounts of such shortfall; and
(C) from
any
remaining Interest Remittance Amount after taking into account the distributions
made under clauses (i)(A) and (i)(B) above, sequentially, to each Class of
Class
M Certificates, in ascending order by numerical Class designation, the Interest
Payment Amount for such Class and such Distribution Date;
(ii) (A) on
each Distribution Date (or, in the case of deposits into the Supplemental
Interest Trust, on the Derivative Payment Date) (1) before the Stepdown
Date or (2) with respect to which a Trigger Event is in effect, to the
Supplemental Interest Trust and to the holders of the Class or Classes of
LIBOR Certificates then entitled to distributions of principal as set forth
below, from amounts remaining on deposit in the Distribution Account after
making distributions pursuant to paragraph (a)(i) of this Section 4.02, an
amount equal to, in the aggregate, the Principal Payment Amount, in the
following amounts and order of priority:
(a) for
deposit into the Supplemental Interest Trust Account, any Net Derivative Payment
or Swap Termination Payment (other than a Swap Termination Payment resulting
from a Swap Counterparty Trigger Event) owed to the Derivative Counterparty
to
the extent unpaid pursuant to clause (a)(i)(A) of this Section
4.02;
(b) concurrently,
(1) to the Class I-A Certificates, the Group I Principal Payment Amount, until
the Class Certificate Balance of the Class I-A Certificates is reduced to zero
and (2) to the Group II Certificates, the Group II Principal Payment Amount,
until their respective Class Certificate Balances are reduced to zero, allocated
in each case among such Classes of a Certificate Group as set forth in Section
4.02(c);
(c) sequentially,
to each Class of Class M Certificates, in ascending order by numerical
Class designation, until their respective Class Certificate Balances are
reduced to zero; and
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(B) on
each
Distribution Date (or, in the case of deposits into the Supplemental Interest
Trust, on the Derivative Payment Date) on and after the Stepdown Date and as
long as a Trigger Event is not in effect, to the Supplemental Interest Trust
and
to the holders of the Class or Classes of LIBOR Certificates then entitled
to distributions of principal, from amounts remaining on deposit in the
Distribution Account after making distributions pursuant to paragraph (a)(i)
of
this Section 4.02, an amount equal to, in the aggregate, the Principal Payment
Amount, in the following amounts and order of priority:
(a) for
deposit into the Supplemental Interest Trust Account, any Net Derivative Payment
or Swap Termination Payment (other than a Swap Termination Payment resulting
from a Swap Counterparty Trigger Event) owed to the Derivative Counterparty
to
the extent unpaid pursuant to clause (a)(i)(A) of this Section
4.02;
(b) concurrently
(1) to the Class I-A Certificates, the Group I Senior Principal Payment Amount,
until the Class Certificate Balance of the Class I-A Certificates is reduced
to
zero and (2) to the Group II Certificates, the Group II Senior Principal Payment
Amount, until their respective Class Certificate Balances are reduced to zero,
allocated in each case among such Classes of a Certificate Group as described
in
Section 4.02(c);
(c) sequentially,
to each Class of Class M Certificates, in the order set forth in the
definition of Class M Principal Payment Amount, the Class M Principal
Payment Amount for the related Class of Class M certificates, until their
respective Class Certificate Balances are reduced to zero;
(iii) any
amounts remaining after the distributions in paragraphs (i) and (ii) of
this Section 4.02(a), plus, as specifically indicated below, from amounts on
deposit in the Excess Reserve Fund Account, shall be distributed in the
following order of priority, such distributions to be made immediately after
distributions for such Distribution Date pursuant to Section
4.02(e):
(A) to
the
extent not paid pursuant to Section 4.02(a)(i)(B) and Section 4.02(e)(iii),
to
the Class A Certificates, any Senior Interest Payment Amount, allocated
pro
rata
among
such Classes in proportion to the amount of the unpaid Senior Interest Payment
Amount for such Classes;
(B) sequentially,
to each Class of Class M Certificates, in ascending order by numerical
Class designation, to the extent not paid for such Distribution Date pursuant
to
Section 4.02(a)(i)(C) and Section 4.02(e)(iii), any Interest Payment Amount
for
any such Class;
(C) sequentially,
to each Class of Class M Certificates, in ascending order by numerical Class
designation, first
to the
extent not paid for such Distribution Date pursuant to Section 4.02(e)(v),
any
Interest Carry Forward Amount for that Class, and second,
to the
extent not paid for such Distribution Date pursuant to Section 4.02(e)(v),
any
Unpaid Realized Loss Amount for that Class;
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(D) to
the
extent not paid for such Distribution Date pursuant to Section 4.02(e)(vi),
to
the Excess Reserve Fund Account, the amount of any Basis Risk Payment for such
Distribution Date;
(E) to
the
extent not paid for such Distribution Date pursuant to Section 4.02(e)(vii),
from amounts on deposit in the Excess Reserve Fund Account with respect to
such
Distribution Date, an amount equal to any unpaid Basis Risk Carryover Amount
with respect to each Class of LIBOR Certificates for such Distribution Date,
allocated in the same order and priority as set forth in clauses (a)(i)(B)
and
(a)(i)(C) of this Section 4.02;
(F) to
the
extent not paid for such Distribution Date pursuant to Section 4.02(e)(viii),
to
the Credit Risk Manager, the Credit Risk Manager Fee;
(G) On
the
Distribution Date occurring in May 2010 (or the next succeeding Distribution
Date on which sufficient funds are available in the Distribution Account to
make
such distributions to the Class P Certificates), $100 to the Class P
Certificates in payment of its Class P Principal Amount;
(H) to
the
extent not paid for such Distribution Date pursuant to Section 4.02(e)(x),
to
the Swap Counterparty, any Swap Termination Payment resulting from a Swap
Counterparty Trigger Event;
(I) to
the
Class M-10 Certificates, until the Class Certificate Balance of such Class
is
reduced to zero; provided,
however,
the
Class M-10 Certificates will not be entitled to receive any
Overcollateralization Reduction Amount;
(J) to
the
extent not distributed pursuant to Sections 4.02(a)(iii)(A) through (I) and
Section 4.02(e)(xi), to the holders of the Class X Certificates, the
remainder of the Class X Distributable Amount; and
(K) to
the
holders of the Class R Certificates, any remaining amount;
If
on any
Distribution Date, as a result of the foregoing allocation rules, any
Class of Class A Certificates does not receive in full the related
Senior Interest Payment Amount, then such shortfall will be allocated to the
Holders of such Class, with interest thereon, on future Distribution Dates,
as
Interest Carry Forward Amounts, subject to the priorities described
above.
(b) On
each
Distribution Date, prior to any distributions on any other Class of
Certificates, all amounts representing Prepayment Charges from the Mortgage
Loans received during the related Prepayment Period shall be distributed by
the
Securities Administrator to the holders of the Class P
Certificates.
(c) All
principal distributions to the holders of the Class A Certificates on any
Distribution Date prior to the Stepdown Date will be allocated concurrently
to
(i) the Group I Certificates and (ii) the Group II Certificates based on the
Group Principal Allocation Percentage for the Group I Certificates and the
Group
II Certificates, as applicable, for that Distribution Date. On or after the
Stepdown Date, as long as no Trigger Event is in effect, principal distributions
to the holders of the Certificates of either Certificate Group will be
determined based on the Group I Senior Principal Payment Amount or Group II
Senior Principal Payment Amount, as applicable. However, if the Class
Certificate Balances of the Certificates in either Certificate Group are reduced
to zero before the Stepdown Date, then the remaining amount of principal
distributions distributable to the Certificates of the retired Certificate
Group
on that Distribution Date, and on all subsequent Distribution Dates, will be
distributed to the holders of the Certificates in the other Certificate Group
remaining outstanding, in accordance with the principal distribution priorities
described in Section 4.02(a)(ii)(A)(b) for such Certificate Group and this
Section 4.02(c). If the Class Certificate Balances of the Certificates in either
Certificate Group are reduced to zero on or after the Stepdown Date, then the
remaining Principal Payment Amount distributable to the Certificates of the
retired Certificate Group on that Distribution Date, and all subsequent
Distribution Dates, will be distributed to the holders of the Certificates
of
the Certificate Group remaining outstanding, in accordance with the priorities
described in Section 4.02(a)(ii)(B)(b) for such Certificate Group and this
Section 4.02(c), except that the remaining Certificate Group’s Senior Principal
Payment Amount will be computed without regard to that Certificate Group’s
Principal Payment Amount.
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Any
principal distributions allocated to the Group II Certificates will be allocated
sequentially as follows:
(i) to
the
Class II-A-1 Certificates, until the Class Certificate Balance of such Class
has
been reduced to zero;
(ii)
to the
Class II-A-2 Certificates, until the Class Certificate Balance of such Class
has
been reduced to zero;
(iii) to
the
Class II-A-3 Certificates, until the Class Certificate Balance of such Class
has
been reduced to zero; and
(iv) to
the
Class II-A-4 Certificates, until the Class Certificate Balance of such Class
has
been reduced to zero.
Notwithstanding
the above paragraph, on and after the Distribution Date on which the aggregate
Class Certificate Balances of the Class M Certificates and the
Overcollateralization Amount have been reduced to zero, any principal
distributions allocated to the Group II Certificates are required to be
allocated pro
rata
among
the Classes of Group II Certificates, based upon their respective Class
Certificate Balances.
(d) On
any
Distribution Date, any Relief Act Shortfalls and Net Prepayment Interest
Shortfalls for such Distribution Date shall be allocated by the Securities
Administrator as a reduction in the following order:
(i) First,
to the
amount of interest payable to the Class X Certificates;
and
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(ii) Second,
pro
rata,
as a
reduction of the Interest Payment Amount for the Class A and Class M
Certificates, based on the amount of interest to which such Classes would
otherwise be entitled.
(e) On
any
Distribution Date (or any Derivative Payment Date, as applicable), the
Securities Administrator shall distribute any Swap Amount and Cap Amount for
such date as follows, such distributions to be made immediately before
distributions for such Distribution Date under Section
4.02(a)(iii):
(i) to
the
Derivative Counterparty, any Net Derivative Payment owed to the Derivative
Counterparty pursuant to the Swap Agreement for such Derivative Payment Date
to
the extent not previously paid pursuant to Sections 4.02(a)(i)(A),
4.02(a)(ii)(A) or 4.02(a)(ii)(B);
(ii) to
the
Swap Counterparty, any Swap Termination Payment not resulting from a Swap
Counterparty Trigger Event owed to the Swap Counterparty pursuant to the Swap
Agreement for such Derivative Payment Date;
(iii) to
the
extent not paid and in the order of priority provided in clauses (a)(i)(B)
and
(a)(i)(C) of this Section 4.02, to the Class A Certificates any Senior Interest
Payment Amounts, and to the Class M Certificates, in ascending order by
numerical class designation, any Interest Payment Amounts;
(iv) to
the
Class A Certificates and the Class M Certificates in the order of priority
set
forth in clauses (a)(ii)(A)(b), (a)(ii)(A)(c), (a)(ii)(B)(b) and (a)(ii)(B)(c)
of this Section 4.02, an amount necessary to maintain the Overcollateralization
Target Amount for such Distribution Date;
(v) sequentially,
to each Class of Class M Certificates, in ascending order by numerical Class
designation, first,
any
Interest Carry Forward Amount for that Class, and second,
any
Unpaid Realized Loss Amount for that Class;
(vi) to
the
Excess Reserve Fund Account, the amount of any Basis Risk Payment for such
Distribution Date;
(vii) to
the
LIBOR Certificates, any remaining unpaid Basis Risk Carryover Amount with
respect to such Certificates for that Distribution Date, allocated in the same
order and priority as set forth in clauses (a)(i)(B) and (a)(i)(C) of this
Section 4.02;
(viii) to
the
Credit Risk Manager, the Credit Risk Manager Fee;
(ix) if
applicable, to the Swap Termination Receipts Account or Cap Termination Receipts
Account for application to the purchase of a replacement swap agreement or
replacement cap agreement pursuant to Section 4.08;
(x) to
the
Swap Counterparty, any Swap Termination Payment resulting from a Swap
Counterparty Trigger Event; and
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(xi) to
the
holders of the Class X Certificates, the remainder of the Class X
Distributable Amount.
With
respect to each Distribution Date, the sum of all amounts distributed pursuant
to priorities (e)(iv) and (e)(v) second
of this
Section 4.02(e) cannot exceed the amount of cumulative Realized Losses incurred
up to such Distribution Date minus any distributions made on previous
Distribution Dates pursuant to such priorities.
Section
4.03 Monthly
Statements to Certificateholders
.
(a) Not
later than each Distribution Date, the Securities Administrator shall make
available to each Certificateholder, the Master Servicer, the Servicers, the
Credit Risk Manager, the Depositor, the Trustee, the Derivative Counterparty
and
each Rating Agency a statement, based on information provided by the Servicers
and the Derivative Counterparty, setting forth with respect to the related
distribution:
(i) the
amount thereof allocable to principal, separately identifying the aggregate
amount of any Principal Prepayments, Liquidation Proceeds and Subsequent
Recoveries;
(ii) the
amount thereof allocable to interest, any Interest Carry Forward Amounts
included in such distribution and any remaining Interest Carry Forward Amounts
after giving effect to such distribution, any Basis Risk Carryover Amount for
such Distribution Date and the amount of all Basis Risk Carryover Amount covered
by withdrawals from the Excess Reserve Fund Account on such Distribution
Date;
(iii) if
the
distribution to the Holders of such Class of Certificates is less than the
full amount that would be distributable to such Holders if there were sufficient
funds available therefor, the amount of the shortfall and the allocation thereof
as between principal and interest, including any Basis Risk Carryover Amount
not
covered by amounts in the Excess Reserve Fund Account;
(iv) the
Class Certificate Balance of each Class of Certificates after giving
effect to the distribution of principal on such Distribution Date;
(v) the
Pool
Stated Principal Balance for the following Distribution Date;
(vi) the
amount of the Expense Fees (in the aggregate and separately stated) paid to
or
retained by the Servicers, any Subservicer and the Master Servicer with respect
to such Distribution Date;
(vii) the
Interest Rate for each such Class of Certificates) with respect to such
Distribution Date;
(viii) the
amount of P&I Advances included in the distribution on such Distribution
Date and the aggregate amount of P&I Advances outstanding as of the close of
business on the Determination Date immediately preceding such Distribution
Date;
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(ix) by
Loan
Group and in the aggregate, the number and aggregate outstanding principal
balances of Mortgage Loans (except those Mortgage Loans that are liquidated
as
of the end of the related Prepayment Period) (1) as to which the Scheduled
Payment is delinquent 31 to 60 days, 61 to 90 days and 91 or
more days, (2) that have become REO Property, (3) that are in
foreclosure and (4) that are in bankruptcy, in each case as of the close of
business on the last Business Day of the immediately preceding
month;
(x) by
Loan
Group and in the aggregate, with respect to Mortgage Loans that became REO
Properties during the preceding calendar month, the number and the aggregate
Stated Principal Balance of such Mortgage Loans as of the close of business
on
the Determination Date preceding such Distribution Date and the date of
acquisition thereof;
(xi) by
Loan
Group and in the aggregate, the total number and aggregate principal balance
of
any REO Properties as of the close of business on the Determination Date
preceding such Distribution Date;
(xii) whether
a
Trigger Event has occurred and is continuing;
(xiii) the
amount on deposit in the Excess Reserve Fund Account (after giving effect to
distributions on such Distribution Date);
(xiv) in
the
aggregate and for each Class of Certificates, the aggregate amount of
Applied Realized Loss Amounts incurred during the preceding calendar month
and
aggregate Applied Realized Loss Amounts through such Distribution
Date;
(xv) the
amount of any Net Monthly Excess Cash Flow on such Distribution Date and the
allocation thereof to the Certificateholders with respect to Applied Realized
Loss Amounts and Interest Carry Forward Amounts;
(xvi) the
Overcollateralization Amount and Overcollateralization Target
Amount;
(xvii) Prepayment
Charges collected by the Servicers;
(xviii) the
Cumulative Loss Percentage and the Rolling Three Month Delinquency
Rate;
(xix) the
amount of Credit Risk Management Fees paid during the Due Period to which such
Distribution Date relates; and
(xx) the
amount of any Net Derivative Payment made to the Supplemental Interest Trust
pursuant to Section 4.02, any Net Derivative Payment made to the Derivative
Counterparty pursuant to Section 4.02, any Swap Termination Payment or Cap
Termination Payment made to the Supplemental Interest Trust pursuant to Section
4.02 and any Swap Termination Payment made to the Swap Counterparty pursuant
to
Section 4.02.
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(b) For
purposes of preparing the Monthly Statement, delinquencies shall be determined
and reported by the Master Servicer based on the so-called “OTS” methodology
irrespective of the method for determining delinquencies utilized by the
Servicers on mortgage loans similar to the Mortgage Loans. By way of example,
a
Mortgage Loan would be delinquent with respect to a Scheduled Payment due on
a
Due Date if such Scheduled Payment is not made by the close of business on
the
Mortgage Loan’s next succeeding Due Date, and a Mortgage Loan would be more than
30-days Delinquent with respect to such Scheduled Payment if such Scheduled
Payment were not made by the close of business on the Mortgage Loan’s second
succeeding Due Date.
(c) The
Securities Administrator’s responsibility for making available the above
statement to the Certificateholders, each Rating Agency, the Master Servicer,
each Servicer, the Trustee and the Depositor is limited to the availability,
timeliness and accuracy of the information derived from the Master Servicer
and
the Servicers. The Securities Administrator will provide the above statement
via
the Securities Administrator’s internet website. The Securities Administrator’s
website will initially be located at xxxxx://xxx.xxxxxxx.xxx
and
assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at (000) 000-0000. Parties that are unable
to use the above distribution method are entitled to have a paper copy mailed
to
them via first Class mail by calling the customer service desk and indicating
such. The Securities Administrator shall have the right to change the manner
in
which the above statement is distributed in order to make such distribution
more
convenient and/or more accessible, and the Securities Administrator shall
provide timely and adequate notification to the Certificateholders and the
parties hereto regarding any such changes. A paper copy of the statement will
also be made available upon request.
(d) Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall, upon request, cause to be furnished to each Person who
at
any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii) and (a)(vi)
of this Section 4.03 aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder. Such
obligation of the Securities Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall have
previously been provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time in effect.
Section
4.04 Certain
Matters Relating to the Determination of LIBOR.
LIBOR
shall be calculated by the Securities Administrator in accordance with the
definition of LIBOR. Until all of the LIBOR Certificates are paid in full,
the
Securities Administrator will at all times retain at least four Reference Banks
for the purpose of determining LIBOR with respect to each LIBOR Determination
Date. The Securities Administrator initially shall designate the Reference
Banks
(after consultation with the Depositor). Each “Reference
Bank”
shall
be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by, or
be
under common control with, the Securities Administrator and shall have an
established place of business in London. If any such Reference Bank should
be
unwilling or unable to act as such or if the Securities Administrator should
terminate its appointment as Reference Bank, the Securities Administrator shall
promptly appoint or cause to be appointed another Reference Bank (after
consultation with the Depositor). The Securities Administrator shall have no
liability or responsibility to any Person for (i) the selection of any
Reference Bank for purposes of determining LIBOR or (ii) any inability to
retain at least four Reference Banks which is caused by circumstances beyond
its
reasonable control.
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The
Interest Rate for each Class of LIBOR Certificates for each Interest
Accrual Period shall be determined by the Securities Administrator on each
LIBOR
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement. The Securities Administrator shall not have any liability
or responsibility to any Person for its inability, following a good-faith
reasonable effort, to obtain quotations from the Reference Banks or to determine
the arithmetic mean referred to in the definition of LIBOR, all as provided
for
in this Section 4.04 and the definition of LIBOR. The establishment of
LIBOR and each Interest Rate for the LIBOR Certificates by the Securities
Administrator shall (in the absence of manifest error) be final, conclusive
and
binding upon each Holder of a Certificate and the Trustee.
Section
4.05 Allocation
of Applied Realized Loss Amounts.
Any
Applied Realized Loss Amounts shall be allocated by the Securities Administrator
to the most junior Class of Class M Certificates then outstanding in
reduction of the Class Certificate Balance thereof.
Section
4.06 Supplemental
Interest Trust. (a)
A
separate trust is hereby established (the “Supplemental
Interest Trust”),
the
corpus of which shall be held by the Supplemental Interest Trust Trustee for
the
benefit of the Class X Certificateholders. The Securities Administrator is
hereby appointed Supplemental Interest Trust Trustee. The Supplemental Interest
Trust Trustee shall establish an account (the “Supplemental Interest Trust
Account”) consisting of two sub-accounts (the “Swap
Account”
and
the
“Cap
Account,”
respectively), into each of which the Depositor shall deposit $500 on the
Closing Date. The Supplemental Interest Trust Account shall be an Eligible
Account, and funds on deposit therein shall be held separate and apart from,
and
shall not be commingled with, any other monies, including, without limitation,
other monies of the Securities Administrator held pursuant to this Agreement.
(b) In
addition, the Supplemental Interest Trust Trustee shall establish a collateral
account (the “Collateral
Account”).
The
Collateral Account shall be an Eligible Account, and funds on deposit therein
shall be held separate and apart from, and shall not be commingled with, any
other monies, including, without limitation, other monies of the Securities
Administrator held pursuant to this Agreement.
(c) The
Supplemental Interest Trust Trustee shall deposit into the Swap Account any
Net
Derivative Payment required pursuant to Sections 4.02(a)(i)(A),
4.02(a)(ii)(A)(a) and 4.02(a)(ii)(B)(a), any Swap Termination Payment required
pursuant to Sections 4.02(a)(i)(A), 4.02(a)(ii)(A)(a), 4.02(a)(ii)(B)(a) and
4.02(a)(iii)(G), and any amounts received from the Swap Counterparty under
the
Swap Agreement, and shall distribute from the Supplemental Interest Trust
Account any Net Derivative Payment required pursuant to Section 4.02(e)(i)
or
any Swap Termination Payment required pursuant to Sections 4.02(e)(ii) or
4.02(e)(x), as applicable.
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(d) The
Supplemental Interest Trust Trustee shall deposit into the Cap Account any
amounts received from the Cap Counterparty under the Cap Agreement.
(e) Funds
in
the Swap Account shall be invested in Permitted Investments constituting time
deposits under clause (ii) of the definition thereof. Any earnings on such
amounts shall be distributed on each Distribution Date pursuant to Section
4.02(e). The Class X Certificates shall evidence ownership of the Swap Account
for federal income tax purposes and the Holder thereof shall direct the
Supplemental Interest Trust Trustee, in writing, as to investment of amounts
on
deposit therein. The Sponsor shall be liable for any losses incurred on such
investments. In the absence of written instructions from the Class X
Certificateholders as to investment of funds on deposit in the Swap Account,
such funds shall be invested in the Xxxxx Fargo Advantage Prime Investment
Money
Market Fund or a comparable investment vehicle. Any amounts on deposit in the
Swap Account in excess of the Swap Amount on any Distribution Date shall be
held
for distribution pursuant to Section 4.02(e) on the following Distribution
Date.
(f) Funds
in
the Cap Account shall be invested in Permitted Investments constituting time
deposits under clause (ii) of the definition thereof. Any earnings on such
amounts shall be distributed on each Distribution Date pursuant to Section
4.02(e). The Class X Certificates shall evidence ownership of the Cap Account
for federal income tax purposes and the Holder thereof shall direct the
Supplemental Interest Trust Trustee, in writing, as to investment of amounts
on
deposit therein. The Sponsor shall be liable for any losses incurred on such
investments. In the absence of written instructions from the Class X
Certificateholders as to investment of funds on deposit in the Cap Account,
such
funds shall be invested in the Xxxxx Fargo Advantage Prime Investment Money
Market Fund or a comparable investment vehicle. Any amounts on deposit in the
Cap Account in excess of the Cap Amount on any Distribution Date shall be held
for distribution pursuant to Section 4.02(e) on the following Distribution
Date.
(g) Funds
required to be held pursuant to the Credit Support Annex shall be deposited
into
the Collateral Account. Funds posted by the Cap Counterparty (or its credit
support provider) and/or the Swap Counterparty (or its credit support provider)
in the Collateral Account shall be invested in Permitted Investments at the
written direction of the Cap Counterparty and/or Swap Counterparty, as
applicable. Any interest earnings on such amounts shall be remitted to the
Cap
Counterparty and/or Swap Counterparty, as applicable, pursuant to the terms
of
the Credit Support Annex. The Supplemental Interest Trust Trustee shall not
be
liable for any losses incurred on such investments. In the absence of prior
written instructions from the Cap Counterparty (or its credit support provider)
and/or the Swap Counterparty (or its credit support provider) as to investment
of funds on deposit in the Collateral Account, such funds shall be invested
in
the Xxxxx Fargo Advantage Prime Investment Money Market Fund or a comparable
investment vehicle. On the Distribution Date immediately following a Swap
Payment Date where a shortfall exists with respect to a Net Swap Payment or
a
Swap Termination Payment owed by the Swap Counterparty as a result of its
failure to make payments pursuant to the Swap Agreement, amounts necessary
to
cover such shortfall shall be removed from the Collateral Account, remitted
to
the Swap Account and distributed as all or a portion of such Net Swap Payment
or
Swap Termination Payment pursuant to Section 4.02(e). On the Distribution Date
where a shortfall exists with respect to Cap Amounts owed by the Cap
Counterparty as a result of its failure to make payments pursuant to the Cap
Agreement, amounts necessary to cover such shortfall shall be removed from
the
Collateral Account, remitted to the Cap Account and distributed as all or a
portion of such Cap Amount pursuant to Section 4.02(e). Any amounts on deposit
in the Collateral Account required to be returned to the Cap Counterparty (or
its credit support provider) and/or the Swap Counterparty (or its credit support
provider), as applicable, as a result of (i) the termination of the Swap
Agreement or Cap Agreement, as applicable, (ii) the procurement of a guarantor,
(iii) the reinstatement of required ratings or (iv) otherwise pursuant to the
Swap Agreement, shall be released directly to the Swap Counterparty and/or
the
Cap Counterparty, as applicable, pursuant to the terms of the Credit Support
Annex
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(h) Upon
termination of the Trust Fund, any amounts remaining in the Swap Account or
the
Cap Account shall be distributed pursuant to the priorities set forth in Section
4.02(e).
(i) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the holder of the Class X Certificates unless and until
the date when either (i) there is more than one Class X Certificateholder or
(ii) any Class of Certificates in addition to the Class X Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust for
federal income tax purposes. Neither the Securities Administrator nor the
Trustee shall be responsible for any entity level tax reporting for the
Supplemental Interest Trust.
(j) Any
obligation of the Securities Administrator with respect to the Supplemental
Interest Trust under the Swap Agreement or Cap Agreement shall be deemed to
be
an obligation of the Supplemental Interest Trust.
(k) In
the
event that the Swap Counterparty or the Cap Counterparty fails to perform any
of
its obligations under the Swap Agreement and the Cap Agreement, respectively,
(including, without limitation, its obligations to make any payment or transfer
collateral), or breaches any of its representations and warranties under the
Swap Agreement or the Cap Agreement, as applicable, or in the event that an
Event of Default, Termination Event, or Additional Termination Event occurs
(as
such terms are defined in the Swap Agreement and the Cap Agreement), the
Supplemental Interest Trust Trustee shall, no later than the next Business
Day
following such failure, breach or occurrence, notify the Swap Counterparty
or
Cap Counterparty, as applicable, and make any demand for payment pursuant to
the
Swap Agreement or Cap Agreement, as applicable. In the event that the Swap
Counterparty’s or Cap Counterparty’s obligations are at any time guaranteed by a
third party, then to the extent that the Swap Counterparty or Cap Counterparty
fails to make any payment or delivery required under terms of the Swap Agreement
or the Cap Agreement, as applicable, the Supplemental Interest Trust Trustee
shall, no later than the next Business Day following such failure, demand that
such guarantor make any and all payments then required to be made by the
applicable guarantor.
Section
4.07 Rights
of the Swap Counterparty.The
Swap
Counterparty shall be deemed a third-party beneficiary of this Agreement to
the
same extent as if it were a party hereto and shall have the right to enforce
its
rights under this Agreement, which rights include but are not limited to the
obligation of the Supplemental Interest Trust Trustee (A) to deposit any Net
Derivative Payment required pursuant to Sections 4.02(a)(i)(A),
4.02(a)(ii)(A)(a) and 4.02(a)(ii)(B)(a), and any Swap Termination Payment
required pursuant to Sections 4.02(a)(i)(A), 4.02(a)(ii)(A)(a),
4.02(a)(ii)(B)(a) and 4.02(a)(iii)(H), into the Supplemental Interest Trust
Account (B) to pay any Net Derivative Payment required pursuant to Section
4.02(e)(i) or Swap Termination Payment required pursuant to Sections 4.02(e)(ii)
or Section 4.02(e)(x), as applicable, to the Swap Counterparty and (C) to
establish and maintain the Swap Account, to make such deposits thereto,
investments therein and distributions therefrom as are required pursuant to
Section 4.06. For the protection and enforcement of the provisions of this
Section the Swap Counterparty shall be entitled to such relief as can be given
either at law or in equity.
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Section
4.08 Termination
Receipts.(a)(i)
In
the event of a “Termination Event” as defined under the Swap Agreement, (a) any
Swap Termination Payment made by the Swap Counterparty to the Swap Account
and
paid pursuant to Section 4.02(e)(ix) (“Swap
Termination Receipts”)
will
be deposited in a segregated non-interest bearing account which shall be an
Eligible Account established by the Securities Administrator (the “Swap
Termination Receipts Account”)
and
(b) any amounts received from a replacement swap counterparty (“Swap
Replacement Receipts”)
will
be deposited in a segregated non-interest bearing account which shall be an
Eligible Account established by the Securities Administrator (the “Swap
Replacement Receipts Account”).
The
Securities Administrator shall invest, or cause to be invested, funds held
in
the Swap Termination Receipts Account and the Swap Replacement Receipts Account
in time deposits of the Securities Administrator as permitted pursuant to clause
(ii) of the definition of Permitted Investments or as otherwise directed in
writing by a majority of the Certificateholders. All such Permitted Investments
must be payable on demand or mature on a Distribution Date or such other date
as
directed by the Certificateholders. All such Permitted Investments will be
made
in the name of the Supplemental Interest Trust Trustee (in its capacity as
such)
or its nominee. All income and gain realized from any such investment shall
be
deposited in the Termination Receipts Account or the Replacement Receipts
Account, as applicable, and all losses, if any, shall be borne by the related
account.
(ii) Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for a replacement swap agreement(s)
or
procure a replacement guarantor, if applicable, and the Securities Administrator
shall promptly, with the assistance and cooperation of the Depositor, use
amounts on deposit in the Swap Termination Receipts Account, if necessary,
to
enter into any replacement swap agreement(s) or to execute any other agreements
with respect to such replacement guarantor, if applicable, which shall be
executed and delivered by the Supplemental Interest Trust Trustee upon receipt
of written confirmation from each Rating Agency (if required pursuant to the
terms of the Swap Agreement) that such replacement swap agreement(s) will not
result in the reduction or withdrawal of the rating of any outstanding Class
of
Certificates with respect to which it is a Rating Agency.
Amounts
on deposit in the Swap Replacement Receipts Account shall be held for the
benefit of the related Swap Counterparty and paid to such Swap Counterparty
if
the Supplemental Interest Trust is required to make a payment to such Swap
Counterparty following an event of default or termination event with respect
to
the Supplemental Interest Trust under the related Swap Agreement. Any amounts
not so applied shall, following the termination or expiration of such Swap
Agreement, be paid to the Class X Certificates.
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(b) (i)
In
the event of a “Termination Event” as defined under the Cap Agreement, (a) any
Cap Termination Payment made by the Cap Counterparty to the Cap Account and
paid
pursuant to Section 4.02(e)(ix) (“Cap Termination Receipts”) shall be deposited
in a segregated non-interest bearing account which shall be an Eligible Account
established by the Securities Administrator (the “Cap Termination Receipts
Account”) and (b) any amounts received from a replacement cap counterparty (“Cap
Replacement Receipts”) will be deposited in a segregated non-interest bearing
account which shall be an Eligible Account established by the Securities
Administrator (the “Cap Replacement Receipts Account”). The Securities
Administrator shall invest, or cause to be invested, funds held in the Cap
Termination Receipts Account in time deposits of the Securities Administrator
as
permitted by clause (ii) of the definition of Permitted Investments or as
otherwise directed in writing by a majority of the Certificateholders. All
such
Permitted Investments must be payable on demand or mature on a Cap Payment
Date,
a Distribution Date or such other date as directed by the Certificateholders.
All such Permitted Investments shall be made in the name of the Supplemental
Interest Trust Trustee (in its capacity as such) or its nominee. All income
and
gain realized from any such investment shall be deposited in the Cap Termination
Receipts Account and all losses, if any, shall be borne by such account.
(ii) Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for one or more replacement interest
rate cap agreements and the Securities Administrator shall promptly, with the
assistance and cooperation of the Depositor, use amounts on deposit in the
Cap
Termination Receipts Account, if necessary, to enter into any such replacement
interest rate cap agreement which shall be executed and delivered by the
Supplemental Interest Trust Trustee upon receipt of written confirmation from
each Rating Agency that any such replacement interest rate cap agreement 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.
ARTICLE
V
THE
CERTIFICATES
Section
5.01 The
Certificates.
The
Certificates shall be substantially in the forms attached hereto as exhibits.
The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one Certificate
in each Class may be issued in a different amount) and aggregate
denominations per Class set forth in the Preliminary
Statement.
The
Depositor hereby directs the Securities Administrator to register the
Class X, Class P and Class R Certificates in the name of HSBC
Securities (USA) Inc. or its designee. On a date as to which the Depositor
notifies the Securities Administrator, the Securities Administrator shall
transfer the Class X and Class P Certificates in the name of the NIM
Trustee, or such other name or names as the Depositor shall request, and to
deliver the Class X and Class P Certificates to the NIM Trustee or to
such other Person or Persons as the Depositor shall request.
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Subject
to Section 11.02 respecting the final distribution on the Certificates, on
each Distribution Date the Securities Administrator shall make distributions
to
each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder
at a
bank or other entity having appropriate facilities therefor, if such Holder
has
so notified the Securities Administrator at least five Business Days prior
to
the related Record Date or (y) by check mailed by first Class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register; provided,
however,
so long
as such Certificate is a Book-Entry Certificate, all distributions on such
Certificate will be made through the Depository or the Depository
Participant.
The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Securities Administrator by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time such
signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that
such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to
any
benefit under this Agreement, or be valid for any purpose, unless authenticated
by the Securities Administrator by manual signature, and such authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly executed and delivered hereunder. All
Certificates shall be dated the date of their authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
Section
5.02 Certificate
Register; Registration of Transfer and Exchange of Certificates.
(a) The Securities Administrator shall maintain, or cause to be
maintained in accordance with the provisions of Section 5.06, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe,
the Securities Administrator shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided. Upon
surrender for registration of transfer of any Certificate, the Securities
Administrator shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to
be
exchanged at the office or agency of the Securities Administrator. Whenever
any
Certificates are so surrendered for exchange, the Securities Administrator
shall
execute, authenticate, and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by
a
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the holder thereof or his attorney duly
authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
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All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Securities Administrator in
accordance with the Securities Administrator’s customary
procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. In determining whether a transfer
is being made pursuant to an effective registration statement, the Securities
Administrator shall be entitled to rely solely upon a written notice to such
effect from the Depositor. Except with respect to (i) the transfer of the
Class X, Class P or Class R Certificates to the Depositor or an
Affiliate of the Depositor, (ii) the transfer of the Class X or
Class P Certificates to the NIM Issuer or the NIM Trustee, or (iii) a
transfer of the Class X or Class P Certificates from the NIM Issuer or
the NIM Trustee to the Depositor or an Affiliate of the Depositor, in the event
that a transfer of a Private Certificate which is a Physical Certificate is
to
be made in reliance upon an exemption from the Securities Act and such laws,
in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer shall certify to the
Securities Administrator in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit H (the “Transferor
Certificate”)
and
either (i) there shall be delivered to the Securities Administrator a
letter in substantially the form of Exhibit I-A (the “Rule 144A
Investment Letter”)
or
Exhibit I-B (the “Regulation
S Investment Letter”)
or
(ii) there shall be delivered to the Securities Administrator at the
expense of the transferor an Opinion of Counsel stating that such transfer
may
be made without registration under the Securities Act. In the event that a
transfer of a Private Certificate which is a Book-Entry Certificate is to be
made in reliance upon an exemption from the Securities Act and such laws, in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer will be deemed to have made
as of the transfer date each of the certifications set forth in the Transferor
Certificate in respect of such Certificate and the transferee will be deemed
to
have made as of the transfer date each of the certifications set forth in the
Rule 144A Investment Letter or Regulation S Investment Letter, as
applicable, in respect of such Certificate, in each case as if such Certificate
were evidenced by a Physical Certificate. As directed by the Depositor, the
Securities Administrator shall provide to any Holder of a Private Certificate
and any prospective transferee designated by any such Holder, information
regarding the related Certificates and the Mortgage Loans and such other
information as shall be necessary to satisfy the condition to eligibility set
forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Depositor, the Master Servicer and the
Trustee shall cooperate with the Securities Administrator in providing the
Rule 144A information referenced in the preceding sentence, including
providing to the Securities Administrator such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund
as
the Securities Administrator shall reasonably determine to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring
to
effect such transfer shall, and does hereby agree to, indemnify the Securities
Administrator, the Trustee, each Servicer, the Master Servicer 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.
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Except
with respect to (i) the transfer of the Class X, Class P or
Class R Certificates to the Depositor or an Affiliate of the Depositor,
(ii) the transfer of the Class X or Class P Certificates to the
NIM Issuer or the NIM Trustee, or (iii) a transfer of the Class X or
Class P Certificates from the NIM Issuer or the NIM Trustee to the
Depositor or an Affiliate of the Depositor, no transfer of an ERISA-Restricted
Certificate shall be made unless the Securities Administrator shall have
received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the
Securities Administrator (in the event such Certificate is a Private Certificate
or a Residual Certificate, such requirement is satisfied only by the Securities
Administrator’s receipt of a representation letter from the transferee
substantially in the form of Exhibit I-A or Exhibit I-B), to the effect
that such transferee is not an employee benefit plan or arrangement subject
to
Section 406 of ERISA, a plan subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law (“Similar
Law”)
materially similar to the foregoing provisions of ERISA or the Code, nor a
person acting on behalf of any such plan or arrangement nor using the assets
of
any such plan or arrangement to effect such transfer, or (ii) in the case
of an ERISA-Restricted Certificate (other than a Residual Certificate, Class
X
Certificate or a Class P Certificate) that has been the subject of an
ERISA-Qualifying Underwriting, and the purchaser is an insurance company, a
representation that the purchaser is an insurance company that is purchasing
such Certificates with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption (“PTCE”)
95-60)
and that the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60 or (iii) in the case of any such
ERISA-Restricted Certificate other than a Residual Certificate, Class X
Certificate or Class P Certificate presented for registration in the name
of an employee benefit plan subject to Title I of ERISA, a plan or
arrangement subject to Section 4975 of the Code (or comparable provisions
of any subsequent enactments), or a plan subject to Similar Law, or a trustee
of
any such plan or any other person acting on behalf of any such plan or
arrangement or using such plan’s or arrangement’s assets, an Opinion of Counsel
satisfactory to the Securities Administrator, which Opinion of Counsel shall
not
be an expense of the Depositor, the Trustee, the Master Servicer, any Servicer,
the Securities Administrator or the Trust Fund, addressed to the Securities
Administrator, to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the
Code or any Similar Law and will not subject the Trustee, the Depositor, the
Securities Administrator, the Master Servicer or any Servicer to any obligation
in addition to those expressly undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Physical Certificate or a Residual Certificate, in
the
event the representation letter referred to in the preceding sentence is not
furnished, such representation shall be deemed to have been made to the
Securities Administrator by the transferee’s (including an initial acquirer’s)
acceptance of the ERISA-Restricted Certificates. Notwithstanding anything else
to the contrary herein, (a) any purported transfer of an ERISA-Restricted
Certificate that is a Physical Certificate, other than a Class P
Certificate, Class X Certificate or Residual Certificate, to or on behalf of
an
employee benefit plan subject to ERISA, the Code or Similar Law without the
delivery to the Securities Administrator of a representation letter or an
Opinion of Counsel satisfactory to the Securities Administrator as described
above shall be void and of no effect and (b) any purported transfer of a
Class P Certificate, Class X Certificate or Residual Certificate to a
transferee that does not make the representation in clause (i) above
shall be void and of no effect.
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None
of
the Class R, Class X or Class P Certificates may be sold to any
employee benefit plan subject to Title I of ERISA, any plan subject to
Section 4975 of the Code, or any plan subject to any Similar Law or any
person investing on behalf or with plan assets of such plan.
No
transfer of an ERISA-Restricted Trust Certificate prior to the termination
of
the Cap Agreement and the Swap Agreement shall be made unless the Securities
Administrator shall have received a representation letter from the transferee
of
such Certificate, substantially in the form set forth in Exhibit I-A or Exhibit
I-B, to the effect that either (i) such transferee is neither an employee
benefit plan or arrangement subject to Section 406 of ERISA, a plan subject
to
Section 4975 of the Code or a plan subject to Similar Law nor a Person acting
on
behalf of any such Plan or using the assets of any such Plan to effect such
transfer or (ii) the acquisition and holding of the ERISA-Restricted Trust
Certificate are eligible for exemptive relief under the statutory exemption
for
non-fiduciary service providers under Section 408(b)(17) of ERISA and Section
4975(d)(20) of the Code, XXXX 00-00, XXXX 00-0, XXXX 91-38, PTCE 95-60 or PTCE
96-23 or some other applicable exemption. Notwithstanding anything else to
the
contrary herein, any purported transfer of an ERISA-Restricted Trust Certificate
prior to the termination of the Cap Agreement and the Swap Agreement on behalf
of such Plan without the delivery to the Securities Administrator of a
representation letter as described above shall be void and of no effect. If
the
ERISA-Restricted Trust Certificate is a Book-Entry Certificate, the transferee
will be deemed to have made a representation as provided in clause (i) or (ii)
of this paragraph, as applicable.
If
any
ERISA-Restricted Trust Certificate, or any interest therein, is acquired or
held
in violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of an
ERISA-Restricted Trust Certificate, or interest therein, was effected in
violation of the provisions of the preceding paragraph shall indemnify to the
extent permitted by law and hold harmless the Depositor, the Securities
Administrator, the Trustee, each Servicer and the Master Servicer from and
against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Securities Administrator shall be under no liability to any Person for
any
registration of transfer of any ERISA-Restricted Certificate or ERISA-Restricted
Trust Certificate that is in fact not permitted by this Section 5.02(b) or
for making any payments due on such Certificate to the Holder thereof or taking
any other action with respect to such Holder under the provisions of this
Agreement so long as, in the case of a Physical Certificate, the transfer was
registered by the Securities Administrator in accordance with the foregoing
requirements.
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
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(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Securities
Administrator of any change or impending change in its status as a Permitted
Transferee;
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
subparagraph (b) above, the Securities Administrator shall have been
furnished with an affidavit (a “Transfer
Affidavit”)
of the
initial owner or the proposed transferee in the form attached hereto as
Exhibit G;
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to
whom such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such Person is acting as nominee, trustee or agent in connection with any
Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is a Non-Permitted Transferee;
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported Transferee.
If any purported transferee shall become a Holder of a Residual Certificate
in
violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. The Securities Administrator shall be under no liability to any
Person for any registration of Transfer of a Residual Certificate that is in
fact not permitted by Section 5.02(a) and this Section 5.02(c) or for
making any payments due on such Certificate to the Holder thereof or taking
any
other action with respect to such Holder under the provisions of this Agreement
so long as the Transfer was registered after receipt of the related Transfer
Affidavit, Transferor Certificate and the Rule 144A Investment Letter. The
Securities Administrator shall be entitled but not obligated to recover from
any
Holder of a Residual Certificate that was in fact a Non-Permitted Transferee
at
the time it became a Holder or, at such subsequent time as it became a
Non-Permitted Transferee, all payments made on such Residual Certificate at
and
after either such time. Any such payments so recovered by the Securities
Administrator shall be paid and delivered by the Securities Administrator to
the
last preceding Permitted Transferee of such Certificate; and
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Securities Administrator, all information necessary to compute
any tax imposed under Section 860E(e) of the Code as a result of a Transfer
of an Ownership Interest in a Residual Certificate to any Holder who is a
Non-Permitted Transferee.
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The
restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund,
the
Trustee, the Securities Administrator or any Servicer, to the effect that the
elimination of such restrictions will not cause any REMIC created hereunder
to
fail to qualify as a REMIC at any time that the Certificates are outstanding
or
result in the imposition of any tax on the Trust Fund, a Certificateholder
or
another Person. Each Person holding or acquiring any Ownership Interest in
a
Residual Certificate hereby consents to any amendment of this Agreement which,
based on an Opinion of Counsel furnished to the Securities Administrator, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Residual Certificate is not transferred, directly
or
indirectly, to a Person that is a Non-Permitted Transferee and (b) to
provide for a means to compel the Transfer of a Residual Certificate which
is
held by a Person that is a Non-Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of
the parties to such transfers.
(e) Except
as
provided below, the Book-Entry Certificates shall at all times remain registered
in the name of the Depository or its nominee and at all times:
(i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Book-Entry Certificates;
(iii) ownership and transfers of registration of the Book-Entry
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iv) the Depository may collect its
usual and customary fees, charges and expenses from its Depository Participants;
(v) the Securities Administrator shall deal with the Depository, Depository
Participants and indirect participating firms as representatives of the
Certificate Owners of the Book-Entry Certificates for purposes of exercising
the
rights of holders under this Agreement, and requests and directions for and
votes of such representatives shall not be deemed to be inconsistent if they
are
made with respect to different Certificate Owners; and (vi) the Securities
Administrator may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants and
furnished by the Depository Participants with respect to indirect participating
firms and persons shown on the books of such indirect participating firms as
direct or indirect Certificate Owners.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures.
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If
(x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the
Securities Administrator or the Depositor is unable to locate a qualified
successor, or (y) the Depositor notifies the Depository (and the Securities
Administrator consents) of its intent to terminate the book-entry system through
the Depository and, upon receipt of notice of such intent from the Depository,
the Depository Participants holding beneficial interests in the Book-Entry
Certificates agree to initiate such termination, the Securities Administrator
shall notify all Certificate Owners, through the Depository, of the occurrence
of any such event and of the availability of definitive, fully registered
Certificates (the “Definitive
Certificates”)
to
Certificate Owners requesting the same. Upon surrender to the Securities
Administrator of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Securities Administrator shall issue the Definitive Certificates. None of the
Servicers, the Depositor or the Securities Administrator shall be liable for
any
delay in delivery of such instruction and each may conclusively rely on, and
shall be protected in relying on, such instructions. The Depositor shall provide
the Securities Administrator with an adequate inventory of Certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations imposed
upon or to be performed by the Depository shall be deemed to be imposed upon
and
performed by the Securities Administrator, to the extent applicable with respect
to such Definitive Certificates and the Securities Administrator shall recognize
the Holders of the Definitive Certificates as Certificateholders hereunder;
provided,
that
the Securities Administrator shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each
Private Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer and
accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments)
or W-9 in form satisfactory to the Securities Administrator, duly executed
by
the Certificateholder or his attorney duly authorized in writing. Each
Certificate presented or surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the Securities Administrator
in accordance with its customary practice. No service charge shall be made
for
any registration of transfer or exchange of Private Certificates, but the
Securities Administrator may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Private Certificates.
Section
5.03 Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(a) any mutilated Certificate is surrendered to the Securities
Administrator, or the Securities Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and
(b) there is delivered to the Depositor, the Securities Administrator and
the Trustee such security or indemnity as may be required by them to hold each
of them harmless, then, in the absence of notice to the Securities Administrator
that such Certificate has been acquired by a bona fide purchaser, the Securities
Administrator shall execute, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Class, tenor and Percentage Interest. In connection with
the
issuance of any new Certificate under this Section 5.03, the Securities
Administrator 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 Securities Administrator)
connected therewith. Any replacement Certificate issued pursuant to this
Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
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Section
5.04 Persons
Deemed Owners.
The
Trustee, the Depositor, the Securities Administrator and any agent of the
Trustee, the Depositor or the Securities Administrator may treat the Person
in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for
all
other purposes whatsoever, and neither the Trustee, the Depositor, the
Securities Administrator nor any agent of the Trustee, the Depositor or the
Securities Administrator shall be affected by any notice to the
contrary.
Section
5.05 Access
to List of Certificateholders’ Names and Addresses.
If
three or more Certificateholders (a) request such information in writing
from the Securities Administrator, (b) state that such Certificateholders
desire to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates and (c) provide a copy of
the communication which such Certificateholders propose to transmit, or if
the
Depositor or any Servicer shall request such information in writing from the
Securities Administrator, then the Securities Administrator shall, within ten
Business Days after the receipt of such request, provide the Depositor, the
applicable Servicer or such Certificateholders at such recipients’ expense the
most recent list of the Certificateholders of such Trust Fund held by the
Securities Administrator, if any. The Depositor and every Certificateholder,
by
receiving and holding a Certificate, agree that the Securities Administrator
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless
of
the source from which such information was derived.
Section
5.06 Maintenance
of Office or Agency.
The
Securities Administrator will maintain or cause to be maintained at its expense
an office or offices or agency or agencies where Certificates may be surrendered
for registration of transfer or exchange. The Securities Administrator initially
designates its offices located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 for such purposes. The Securities Administrator
shall give prompt written notice to the Certificateholders of any change in
such
location of any such office or agency.
ARTICLE
VI
THE
DEPOSITOR
Section
6.01 Liabilities
of the Depositor.
The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically and respectively imposed upon and undertaken by it
herein.
Section
6.02 Merger
or Consolidation of the Depositor.
(a) The Depositor will keep in full effect its existence, rights and
franchises as a corporation, under the laws of the United States or under the
laws of one of the states thereof and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction
in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
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(b) Any
Person into which the Depositor may be merged or consolidated, or any Person
resulting from any merger or consolidation to which the Depositor shall be
a
party, or any person succeeding to the business of the Depositor, shall be
the
successor of the Depositor 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.
Section
6.03 Limitation
on Liability of the Depositor and Others. Neither
the Depositor nor any of its respective directors, officers, employees or
agents, shall be under any liability to the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant
to
this Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Depositor or any such Person against any
breach of representations or warranties made by it herein or protect the
Depositor or any such Person from any liability which would otherwise be imposed
by reasons of willful misfeasance, bad faith or negligence (or gross negligence
in the case of the Depositor) in the performance of duties or by reason of
reckless disregard of obligations and duties hereunder. The Depositor, its
Affiliates and any of their respective directors, officers, employees or agents
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder. The
Depositor, its Affiliates, and any of their respective directors, officers,
employees or agents shall be indemnified by the Trust Fund and held harmless
against any loss, liability or expense incurred in connection with any audit,
controversy or judicial proceeding relating to a governmental taxing authority
or any legal action relating to this Agreement or the Certificates other than
any loss, liability or expense related to any specific Mortgage Loan or Mortgage
Loans (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement and any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or gross negligence in
the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. The Depositor shall not be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided,
however,
that
the Depositor may in its discretion undertake any such action (or direct the
Trustee to undertake such actions pursuant to Section 2.03 for the benefit
of the Certificateholders) that it may deem necessary or desirable in respect
of
this Agreement and the rights and duties of the parties hereto and interests
of
the Trustee and the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall
be
expenses, costs and liabilities of the Trust Fund, and the Depositor shall
be
entitled to be reimbursed therefor out of the Distribution Account.
ARTICLE
VII
DEFAULT
Section
7.01 Master
Servicer to Act; Appointment of Successor.
(a) The
Master Servicer or the Trustee (as successor master servicer), as applicable,
shall be entitled to terminate the rights and obligations of any Servicer under
the applicable Servicing Agreement in accordance with the terms and conditions
of such Servicing Agreement and without any
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limitation
by virtue of this Agreement. Upon termination of a Servicer under the applicable
Servicing Agreement, the Master Servicer or the Trustee (as successor master
servicer), as applicable, shall, subject to the rights of the Master Servicer
or
the Trustee (as successor master servicer), as applicable, to appoint a
successor servicer pursuant to this Section 7.01, be the successor to such
Servicer in its capacity as servicer under the applicable Servicing Agreement,
provided,
however,
that
the Master Servicer or the Trustee (as successor master servicer), as
applicable, shall not be (i) liable for losses of the predecessor Servicer
with
respect to such predecessor’s investment of funds in its Collection Account;
(ii) obligated to effectuate repurchases or substitutions of Mortgage Loans
hereunder, including but not limited to repurchases or substitutions pursuant
to
Section 2.03, (iii) responsible for expenses of the predecessor servicer related
to any repurchase or substitution of Mortgage Loans hereunder, including but
not
limited to repurchases or substitutions pursuant to Section 2.03, (iv) deemed
to
have made any of the representations and warranties of the terminated Servicer
under the applicable Servicing Agreement or (v) liable for any obligations
of
the predecessor Servicer incurred prior to its termination. It is understood
and
acknowledged by the parties hereto that there will be a period of transition
before the transfer of servicing obligations is fully effective. Notwithstanding
the foregoing, the Master Servicer or the Trustee (as successor master
servicer), as applicable, will have a period (not to exceed 90 days) to
complete the transfer of all servicing data and correct or manipulate such
servicing data as may be required by the Master Servicer or the Trustee (as
successor master servicer), as applicable, to correct any errors or
insufficiencies in the servicing data or otherwise enable the Master Servicer
or
the Trustee (as successor master servicer), as applicable, to service the
Mortgage Loans in accordance with the applicable Servicing Agreement. Except
as
provided in Section 7.01(c) below, the Master Servicer or the Trustee (as
successor master servicer), as applicable, shall be entitled to be reimbursed
from each Servicer (or by the Trust Fund, if such Servicer is unable to fulfill
such obligation) for all costs associated with the transfer of servicing from
the predecessor servicer, including without limitation, any costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data, as may be required by the
Master Servicer or the Trustee (as successor master servicer), as applicable,
to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Master Servicer or the Trustee (as successor master servicer), as
applicable, to service the Mortgage Loans properly and effectively. As
compensation in its role as successor servicer, the Master Servicer or the
Trustee (as successor master servicer), as applicable, shall be entitled to
the
applicable Servicing Fee and any income on investments or gain related to the
related Collection Account. Notwithstanding the foregoing, if the Master
Servicer or the Trustee (as successor master servicer), as applicable, has
become the successor to a Servicer pursuant to an Event of Default, the Master
Servicer or the Trustee (as successor master servicer), as applicable, may,
if
it shall be unwilling to so act, or shall, if it is prohibited by applicable
law
from making P&I Advances and Servicing Advances pursuant to the applicable
Servicing Agreement, if it is otherwise unable to so act, or at the written
request of Certificateholders entitled to at least a majority of the Voting
Rights, appoint, or petition a court of competent jurisdiction to appoint,
any
established mortgage loan servicing institution the appointment of which does
not adversely affect the then current rating of the Certificates by each Rating
Agency, as the successor to the Servicer under the applicable Servicing
Agreement in the assumption of all or any part of the responsibilities, duties
or liabilities of such Servicer thereunder. Any successor to a Servicer shall
be
an institution which is willing to service the Mortgage Loans and which executes
and delivers to the Depositor, the
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Master
Servicer and the Trustee (as successor master servicer) an agreement accepting
such delegation and assignment, containing an assumption by such Person of
the
rights, powers, duties, responsibilities, obligations and liabilities of the
applicable Servicer (other than liabilities of the predecessor servicer incurred
prior to its termination), with like effect as if originally named as a party
to
such Servicing Agreement; provided,
that
each Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced, as a result of such assignment and delegation. Pending appointment
of a
successor to a Servicer under any Servicing Agreement, the Master Servicer
or
the Trustee (as successor master servicer), as applicable, unless such party
is
prohibited by law from so acting, shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Master
Servicer or the Trustee (as successor master servicer), as applicable, may
make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree in accordance with the
applicable Servicing Agreement; provided,
however,
that no
such compensation shall be in excess of the applicable Servicing Fee and any
income on investments or gain related to the related Collection Account. The
Master Servicer or the Trustee (as successor master servicer), as applicable,
and such successor servicer shall take such action, consistent with this
Agreement and the applicable Servicing Agreement, as shall be necessary to
effectuate any such succession. Neither the Master Servicer nor the Trustee
(as
successor master servicer) shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder
or
any portion thereof or any failure to perform, or any delay in performing,
any
duties or responsibilities hereunder, in either case caused by the failure
of
any Servicer to deliver or provide, or any delay in delivering or providing,
any
cash, information, documents or records to it.
(b) Notwithstanding
the foregoing, the parties hereto agree that the Master Servicer or the Trustee
(as successor master servicer), as applicable, in its capacity as successor
servicer, immediately shall assume all of the obligations of such terminated
Servicer to make Advances and the Master Servicer or the Trustee (as successor
master servicer), as applicable, will assume the other duties of such Servicer
as soon as practicable, but in no event later than 90 days after the Master
Servicer or the Trustee (as successor master servicer), as applicable, becomes
successor servicer pursuant to the preceding paragraph. If the Master Servicer
or the Trustee (as successor master servicer), as applicable, acts as a
successor servicer, it will have no obligation to make an Advance if it
determines in its reasonable judgment that such Advance is non-recoverable.
To
the extent that the Master Servicer or the Trustee (as successor master
servicer) is unable to find a successor servicer that is willing to service
the
Mortgage Loans for the Servicing Fee because of the obligation of the applicable
Servicer to make Advances regardless of whether such Advance is recoverable,
the
applicable Servicing Agreement may be amended to provide that the successor
servicer shall have no obligation to make an Advance if it determines in its
reasonable judgment that such Advance is non-recoverable and provides an
Officer’s Certificate to such effect to the Master Servicer and the Trustee.
Notwithstanding the foregoing, the Master Servicer or the Trustee (as successor
master servicer), as applicable, 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; provided,
however,
that
any failure to perform any duties or responsibilities caused by such Servicer’s
failure to provide information required by this Agreement shall not be
considered a default by the Trustee (as successor master servicer) hereunder.
In
the Trustee’s capacity as such successor, the Trustee (as successor master
servicer) shall have the same limitations on liability granted to the Servicer
under this Agreement and the related Servicing Agreement.
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(c) In
the
event that the Master Servicer or the Trustee (as successor master servicer),
as
applicable, is the terminated Servicer (except in the case where the Master
Servicer in its role as successor servicer is being terminated pursuant to
an
Event of Default caused solely by the Master Servicer as the successor servicer
and not by the predecessor Servicer’s actions or omissions), such costs shall be
paid by such prior terminated Servicer promptly upon presentation of reasonable
documentation of such costs.
Section
7.02 Notification
to Certificateholders.
(a) Upon any termination of or appointment of a successor to any
Servicer, the Securities Administrator shall give prompt written notice thereof
to Certificateholders, each Rating Agency and the Derivative
Counterparty.
(b) Within
60 days after the occurrence of any Event of Default, the Securities
Administrator shall transmit by mail to all Certificateholders, each Rating
Agency and the Derivative Counterparty notice of each such Event of Default
hereunder known to the Securities Administrator, unless such event shall have
been cured or waived.
ARTICLE
VIII
CONCERNING
THE TRUSTEE
Section
8.01 Duties
of the Trustee.
The
Trustee, before the occurrence of a Master Servicer Event of Default and after
the curing of all Master Servicer Events of Default that may have occurred,
shall undertake to perform such duties and only such duties as are specifically
set forth in this Agreement. In case a Master Servicer Event of Default has
occurred and remains uncured, the Trustee shall exercise such of the rights
and
powers vested in it by this Agreement, and use the same degree of care and
skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee that
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they are in the form required
by this Agreement. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order, or other instrument.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own willful misconduct.
Unless
an
Event of Default known to the Trustee has occurred and is
continuing:
(a) the
duties and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for the
performance of the duties and obligations specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trustee, and the Trustee may conclusively rely, as to the truth
of
the statements and the correctness of the opinions expressed therein, upon
any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believes in good faith to be genuine
and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
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(b) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it is finally
proven that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the
Trustee shall not be liable with respect to any action taken, suffered, or
omitted to be taken by it in good faith in accordance with the direction of
the
Holders of Certificates evidencing not less than 25.00% of the Voting Rights
of
Certificates relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or
power conferred upon the Trustee under this Agreement.
Section
8.02 Certain
Matters Affecting the Trustee.
Except
as otherwise provided in Section 8.01:
(a) the
Trustee may rely upon and shall be protected in acting or refraining from acting
upon any resolution, Officer’s Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties and the
Trustee shall have no responsibility to ascertain or confirm the genuineness
of
any signature of any such party or parties;
(b) the
Trustee may consult with counsel, financial advisers or accountants and the
advice of any such counsel, financial advisers or accountants and any Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(c) the
Trustee shall not be liable for any action taken, suffered or omitted by it
in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(d) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by the Holders of Certificates evidencing
not less than 25.00% of the Voting Rights allocated to each Class of
Certificates;
(e) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, accountants, custodians,
nominees or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
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(f) the
Trustee shall not be required to risk or expend its own funds or otherwise
incur
any financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers hereunder if it shall have reasonable
grounds for believing that repayment of such funds or indemnity satisfactory
to
it against such risk or liability is not assured to it;
(g) the
Trustee shall not be liable for any loss on any investment of funds pursuant
to
this Agreement;
(h) unless
a
Responsible Officer of the Trustee has actual knowledge of the occurrence of
a
Master Servicer Event of Default or an Event of Default, the Trustee shall
not
be deemed to have knowledge of a Master Servicer Event of Default or an Event
of
Default until a Responsible Officer of the Trustee shall have received written
notice thereof;
(i) the
Trustee shall be under no obligation to exercise any of the trusts, rights
or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction
of
any of the Certificateholders, pursuant to this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby;
(j) if
the
Trustee, in its role as successor master servicer under this Agreement, assumes
the servicing or master servicing with respect to any of the Mortgage Loans,
it
shall not assume liability for the representations and warranties of a Servicer
or Master Servicer, as applicable, or for any errors or omissions of a Servicer
or Master Servicer, as applicable;
(k) in
order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering (“Applicable Law”), the
Trustee is required to obtain, verify and record certain information relating
to
individuals and entities which maintain a business relationship with the
Trustee. Accordingly, each of the parties agrees to provide to the Trustee
upon
its request from time to time such identifying information and documentation
as
may be available to such party in order to enable the Trustee to comply with
Applicable Law; and
(l) the
Depositor hereby authorizes and directs the Trustee to execute each of the
Servicing Agreements.
Section
8.03 Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement, the Cap Agreement, the Swap Agreement, or of
the
Certificates or of any Mortgage Loan or related document. The Trustee shall
not
be accountable for the use or application by the Depositor, the Master Servicer,
a Servicer, the Securities Administrator or the Derivative Counterparty of
any
funds paid to the Depositor, the Master Servicer, a Servicer, the Securities
Administrator or the Derivative Counterparty in respect of the Mortgage Loans
or
deposited in or withdrawn from any Collection Account, the Distribution Account
or any other fund or account with respect to the Certificates by the Depositor,
the Master Servicer, a Servicer, the Securities Administrator or the Derivative
Counterparty.
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The
Trustee shall have no responsibility for filing or recording any financing
or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder.
Section
8.04 Trustee
May Own Certificates.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not the
Trustee.
Section
8.05 Trustee’s
Fees Indemnification and Expenses.
(a) As compensation for its activities under this Agreement, the Trustee
shall be paid its fee by the Master Servicer from the Master Servicer’s own
funds pursuant to a separate agreement. The Trustee shall have no lien on the
Trust Fund for the payment of such fees.
(b) The
Trustee shall be entitled to be reimbursed, from funds on deposit in the
Distribution Account, amounts sufficient to indemnify and hold harmless the
Trustee and any director, officer, employee, or agent of the Trustee against
any
loss, liability, or expense (including reasonable attorneys’ fees) incurred in
connection with any claim or legal action relating to:
(i) this
Agreement or any Servicing Agreement, and any other document executed in
connection therewith,
(ii) the
Certificates, or
(iii) the
performance of any of the Trustee’s duties under this Agreement or any Servicing
Agreement, and any other document executed in connection therewith,
other
than any loss, liability, or expense (i) resulting from any breach of a
Servicer’s obligations in connection with its respective Servicing Agreement for
which such Servicer has performed its obligation to indemnify the Trustee,
(ii) resulting from any breach of a Mortgage Loan Seller’s obligations in
connection with its respective Transfer Agreement for which such Mortgage Loan
Seller has performed its obligation to indemnify the Trustee,
(iii) resulting from any breach of the Master Servicer’s obligation
hereunder for which the Master Servicer has performed its obligation to
indemnify the Trustee pursuant to this Agreement or (iv) incurred because
of willful misconduct, bad faith, or negligence in the performance of any of
the
Trustee’s duties under this Agreement or any Servicing Agreement. Without
limiting the foregoing, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any expense, disbursement, or advance
arising from the Trustee’s negligence, bad faith, or willful misconduct, the
Trust Fund shall pay or reimburse the Trustee for all reasonable expenses,
disbursements, and advances incurred or made by the Trustee in accordance with
this Agreement with respect to:
(A) the
reasonable compensation, expenses, and disbursements of its counsel not
associated with the closing of the issuance of the Certificates,
and
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(B) the
reasonable compensation, expenses, and disbursements of any accountant,
engineer, or appraiser that is not regularly employed by the Trustee, to the
extent that the Trustee must engage them to perform services under this
Agreement.
The
Trustee’s right to indemnity and reimbursement under this Section 8.05(b) shall
survive the termination of this Agreement and the resignation or removal of
the
Trustee under this Agreement.
Except
as
otherwise provided in this Agreement or a separate letter agreement between
the
Trustee and the Depositor, the Trustee shall not be entitled to payment or
reimbursement for any routine ongoing expenses incurred by the Trustee in the
ordinary course of its duties as Trustee under this Agreement or for any other
routine expenses incurred by the Trustee; provided,
further,
that no
expense shall be reimbursed hereunder if it would not constitute an
“unanticipated expense incurred by the REMIC” within the meaning of the REMIC
Provisions.
The
Trustee shall not be (a) liable for any acts or omissions of any Servicer (other
than where the Trustee (as successor master servicer) is such Servicer), (b)
obligated to make any Advance if it is prohibited from doing so under applicable
law, (c) responsible for expenses of any Servicer (other than where the Trustee
(as successor master servicer) is such Servicer) pursuant to the terms a
Servicing Agreement, (d) liable for any amount necessary to induce any successor
servicer to act as successor servicer under a Servicing Agreement and enter
into
the transactions set forth or provided for therein.
Section
8.06 Eligibility
Requirements for the Trustee.
The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause any of the Rating Agencies to reduce their respective then current
ratings of the Certificates (or having provided such security from time to
time
as is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with this Section 8.06,
the Trustee shall resign immediately in the manner and with the effect specified
in Section 8.07. The entity serving as Trustee may have normal banking and
trust relationships with the Depositor and its affiliates, the Master Servicer,
the Securities Administrator or any Servicer and its affiliates; provided,
however,
that
such entity cannot be an affiliate of the Depositor or any Servicer other than
the Trustee in its role as successor to the Master Servicer.
Section
8.07 Resignation
and Removal of the Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Master Servicer,
the Securities Administrator and each Rating Agency not less than 60 days
before the date specified in such notice, when, subject to Section 8.08,
such resignation is to take effect and acceptance by a successor trustee in
accordance with Section 8.08 meeting the qualifications set forth in
Section 8.06. If no successor trustee meeting such qualifications shall
have been so appointed and have accepted appointment within 30 days after
the giving of such notice or resignation, the resigning Trustee may petition
any
court of competent jurisdiction for the appointment of a successor
trustee.
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If
at any
time the Trustee shall cease to be eligible in accordance with Section 8.06
and shall fail to resign after written request thereto by the Depositor, or
if
at any time the Trustee shall become incapable of acting, or shall be adjudged
as bankrupt or insolvent, or a receiver of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation
or
liquidation, or a tax is imposed with respect to the Trust Fund by any state
in
which the Trustee or the Trust Fund is located and the imposition of such tax
would be avoided by the appointment of a different trustee, then the Depositor
may remove the Trustee and, subject to the approval of the Rating Agencies,
appoint a successor trustee by written instrument, in triplicate, one copy
of
which shall be delivered to the Trustee, one copy to each of the Servicers
and
one copy to the successor trustee.
The
Holders of Certificates entitled to at least a majority of the Voting Rights
may
at any time remove the Trustee and, subject to the approval of the Rating
Agencies, appoint a successor trustee by written instrument or instruments,
in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which shall be delivered by the successor Trustee to each
Servicer, one complete set to the Trustee so removed and one complete set to
the
successor so appointed. The successor trustee shall notify each Rating Agency
of
any removal of the Trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to this Section 8.07 shall become effective upon acceptance of
appointment by the successor trustee as provided in
Section 8.08.
Section
8.08 Successor
Trustee.
Any
successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and
each
Servicer 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
herein. The Depositor and the predecessor trustee shall execute and deliver
such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties, and obligations.
No
successor trustee shall accept appointment as provided in this Section 8.08
unless at the time of its acceptance, the successor trustee is eligible under
Section 8.06 and its appointment does not adversely affect then the current
rating of the Certificates.
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Upon
acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section
8.09 Merger
or Consolidation of the Trustee.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided,
that
such corporation shall be eligible under Section 8.06 without the execution
or filing of any paper or further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section
8.10 Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 8.10,
such powers, duties, obligations, rights and trusts as the Trustee may consider
appropriate. No co-trustee or separate trustee hereunder shall be required
to
meet the terms of eligibility as a successor trustee under Section 8.06 and
no notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) To
the
extent necessary to effectuate the purposes of this Section 8.10, all
rights, powers, duties and obligations conferred or imposed upon the Trustee,
except for the obligation of the Trustee (as successor master servicer) under
this Agreement to advance funds on behalf of the Master Servicer, 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 Master Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title
to
the applicable Trust Fund or any portion thereof in any such jurisdiction)
shall
be exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(b) No
trustee hereunder shall be held personally liable because of any act or omission
of any other trustee hereunder and such appointment shall not, and shall not
be
deemed to, constitute any such separate trustee or co-trustee as agent of the
Trustee;
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(c) The
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee; and
(d) The
Trust
Fund, and not the Trustee, shall be liable for the payment of reasonable
compensation, reimbursement and indemnification to any such separate trustee
or
co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee
or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating
to
the conduct of, affecting the liability of, or affording protection and
indemnity to, the Trustee. Every such instrument shall be filed with the Trustee
and a copy thereof given to the Master Servicer and the Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section
8.11 Tax
Matters.
It is
intended that the assets with respect to which any REMIC election pertaining
to
the Trust Fund is to be made, as set forth in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a “real estate mortgage investment conduit”
as defined in and in accordance with the REMIC Provisions. In furtherance of
such intention, the Securities Administrator covenants and agrees that it shall
act as agent (and the Securities Administrator is hereby appointed to act as
agent) on behalf of each REMIC created hereunder and that in such capacity
it
shall:
(a) prepare
and file in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
(REMIC) Income Tax Return (Form 1066 or any successor form adopted by the
Internal Revenue Service), which return the Trustee shall sign upon receipt
from
the Securities Administrator, and the Securities Administrator shall prepare
and
file with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with respect
to each REMIC hereunder containing such information and at the times and in
the
manner as may be required by the Code or state or local tax laws, regulations,
or rules, and furnish to Certificateholders the schedules, statements or
information at such times and in such manner as may be required
thereby;
(b) within
thirty days of the Closing Date, apply for an employer identification
number from the Internal Revenue Service via Form SS-4 or any other
acceptable method for all tax entities and shall also furnish to the Internal
Revenue Service, on Form 8811 or as otherwise may be required by the Code,
the name, title, address, and telephone number of the person that the holders
of
the Certificates may contact for tax information relating thereto, together
with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the
Code;
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(c) make
an
election that each REMIC created hereunder be treated as a REMIC on the federal
tax return for its first taxable year (and, if necessary, under applicable
state
law);
(d) prepare
and forward to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as
and
when required to be provided to them in accordance with the REMIC Provisions,
including the calculation of any original issue discount using the prepayment
assumption (as described in the Prospectus Supplement);
(e) provide
information necessary for the computation of tax imposed on the transfer of
a
Residual Certificate to a Person that is a Non-Permitted Transferee, or an
agent
(including a broker, nominee or other middleman) of a Non-Permitted Transferee,
or a pass-through entity in which a Non-Permitted Transferee is the record
holder of an interest (the reasonable cost of computing and furnishing such
information may be charged to the Person liable for such tax);
(f) to
the
extent that they are under its control, conduct matters relating to such assets
at all times that any Certificates are outstanding so as to maintain the status
of each REMIC created hereunder as a REMIC under the REMIC
Provisions;
(g) not
knowingly or intentionally take any action or omit to take any action that
would
cause the termination of the REMIC status of any of the REMICs created
hereunder;
(h) pay,
from
the sources specified in the last paragraph of this Section 8.11, the
amount of any federal or state tax, including prohibited transaction taxes
as
described below, imposed on each REMIC created hereunder before its termination
when and as the same shall be due and payable (but such obligation shall not
prevent the Securities Administrator or any other appropriate Person from
contesting any such tax in appropriate proceedings and shall not prevent the
Securities Administrator from withholding payment of such tax, if permitted
by
law, pending the outcome of such proceedings);
(i) cause
federal, state or local income tax or information returns to be signed by the
Securities Administrator or, if required by applicable tax law, the Trustee
or
such other person as may be required to sign such returns by the Code or state
or local laws, regulations or rules; and
(j) maintain
records relating to each REMIC created hereunder, including the income,
expenses, assets, and liabilities thereof on a calendar year basis and on the
accrual method of accounting and the adjusted basis of the assets determined
at
such intervals as may be required by the Code, as may be necessary to prepare
the foregoing returns, schedules, statements or information.
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The
Holder of the largest Percentage Interest of the Class R Certificates shall
act as Tax Matters Person for each REMIC created hereunder, within the meaning
of Treasury Regulations Section 1.860F-4(d), and the Securities
Administrator is hereby designated as agent of such Certificateholder for such
purpose (or if the Securities Administrator is not so permitted, such Holder
shall be the Tax Matters Person in accordance with the REMIC Provisions). In
such capacity, the Securities Administrator shall, as and when necessary and
appropriate, represent each REMIC created hereunder in any administrative or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year
of
each REMIC created hereunder, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of each REMIC created hereunder, and otherwise act on behalf of each
REMIC in relation to any tax matter or controversy involving it.
The
Securities Administrator shall treat the beneficial owners of the Certificates
(other than the Class P, Class X and Class R Certificates) as having entered
into a notional principal contract with the beneficial owners of the Class
X
Certificates. Pursuant to each such notional principal contract, all beneficial
owners of the LIBOR Certificates shall be treated as having agreed to pay,
on
each Distribution Date, to the beneficial owners of the Class X Certificates
an
aggregate amount equal to the excess, if any, of (i) the amount payable on
such
Distribution Date on the interest in the Upper Tier REMIC corresponding to
such
Class of Certificates over (ii) the amount payable on such Class of Certificates
on such Distribution Date (such excess, a “Class I Shortfall”). A Class I
Shortfall payable from interest collections shall be allocated to each Class
of
Certificates (other than the Class P, Class X and Class R Certificates) to
the
extent that interest accrued on such Class for the related Interest Accrual
Period at the Interest Rate for a Class, computed by substituting “REMIC 2 Net
Funds Cap” for “Group I Available Funds Cap,” “Group II Available Funds Cap” or
“Class M Available Funds Cap,” as applicable, exceeds the amount of interest
accrued for the related Interest Accrual Period based on the applicable
Available Funds Cap, and a Class I Shortfall payable from principal collections
shall be allocated to the most subordinate Class of Certificates with an
outstanding principal balance to the extent of such balance. In addition,
pursuant to such notional principal contract, the beneficial owner of the Class
X Certificates shall be treated as having agreed to pay Basis Risk Carryover
Amounts to the Owners of the LIBOR Certificates in accordance with the terms
of
this Agreement. Any payments to the Certificates in light of the foregoing
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
of a Class I Shortfall shall be treated for tax purposes as having been received
by the beneficial owners of such Certificates in respect of their Interests
in
the Upper Tier REMIC and as having been paid by such beneficial owners to the
Supplemental Interest Trust pursuant to the notional principal
contract. Thus,
each Certificate (other than a Class P and Class R Certificate) shall be treated
as representing not only ownership of regular interests in the Upper Tier REMIC,
but also ownership of an interest in (and obligations with respect to) a
notional principal contract. For tax purposes, the notional principal contract
shall be deemed to have a value in favor of the Certificates entitled to receive
Basis Risk Carryover Amounts of $10,000 as of the Closing Date.
Notwithstanding
the priority and sources of payments set forth in Article IV hereof or
otherwise, the Securities Administrator shall account for all distributions
on
the Certificates as set forth in this Section 8.11. In no event shall any
payments of Basis Risk Carryover Amounts provided for in this Section 8.11
be
treated as payments
with respect to a “regular interest” in a REMIC within the meaning of Code
Section 860G(a)(1). The
Securities Administrator shall file or cause to be filed with the IRS together
with Form 1041 or such other form as may be applicable and shall furnish or
cause to be furnished, to the Class X Certificateholders and the LIBOR
Certificateholders, the respective amounts described above that are received,
in
the time or times and in the manner required by the Code.
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To
enable
the Securities Administrator to perform its duties under this Agreement, the
Depositor shall provide to the Securities Administrator within ten days
after the Closing Date all information or data that the Securities Administrator
requests in writing and determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including the price, yield,
prepayment assumption, and projected cash flows of the Certificates and the
Mortgage Loans. Moreover, the Depositor shall provide information to the
Securities Administrator concerning the value to each Class of Certificates
of the right to receive Basis Risk Carryover Amounts from the Excess Reserve
Fund Account. Unless otherwise advised by the Depositor, for federal income
tax
purposes, the Securities Administrator is hereby directed to assign a value
of
zero to the right of each Holder allocating the purchase price of an initial
Offered Certificateholder between such right and the related Upper Tier Regular
Interest. Thereafter, the Depositor shall provide to the Securities
Administrator promptly upon written request therefor any additional information
or data that the Securities Administrator may, from time to time, reasonably
request to enable the Securities Administrator to perform its duties under
this
Agreement; provided,
however,
that
the Depositor shall not be required to provide any information regarding the
Mortgage Loans that a Servicer is required to provide to the Securities
Administrator pursuant to any Servicing Agreement. The Depositor hereby
indemnifies the Securities Administrator for any losses, liabilities, damages,
claims, or expenses of the Securities Administrator arising from any errors
or
miscalculations of the Securities Administrator that result from any failure
of
the Depositor to provide, pursuant to this paragraph, accurate information
or
data to the Securities Administrator on a timely basis.
None
of the Master Servicer, the Securities Administrator or the Trustee shall (i)
permit the creation of any interests in any REMIC other than the regular and
residual interests set forth in the Preliminary Statement, (ii) receive any
amount representing a fee or other compensation for services (except as
otherwise permitted by this Agreement or the related Mortgage Loan documents)
or
(iii) otherwise knowingly or intentionally take any action, cause the Trust
Fund
to take any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of any REMIC as a REMIC or (ii)
result in the imposition of a tax upon any REMIC or the Trust Fund (including
but not limited to the tax on “prohibited transactions” as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code, or the tax on “net income from foreclosure
property”) unless the Securities Administrator receives an Opinion of Counsel
(at the expense of the party seeking to take such action or, if such party
fails
to pay such expense, and the Securities Administrator determines that taking
such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Securities Administrator) to the effect that the contemplated
action will not, with respect to the Trust Fund or any REMIC created hereunder,
endanger such status or result in the imposition of such a
tax).
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If
any
tax is imposed on “prohibited transactions” of a REMIC created hereunder as
defined in Section 860F(a)(2) of the Code, on the “net income from
foreclosure property” of any REMIC created hereunder as defined in
Section 860G(c) of the Code, on any contribution to any REMIC created
hereunder after the Startup Day pursuant to Section 860G(d) of the Code, or
any other tax is imposed, including any minimum tax imposed on either REMIC
pursuant to Sections 23153 and 24874 of the California Revenue and Taxation
Code, if not paid as otherwise provided for herein, the tax shall be paid by
(i) the Master Servicer, the Trustee, or the Securities Administrator, as
applicable, if such tax arises out of or results from negligence of the Master
Servicer, the Trustee or the Securities Administrator, as applicable, in the
performance of any of its obligations under this Agreement, (ii) the Sponsor,
if
such tax arises out of or results from the Sponsor’s obligation to repurchase a
Mortgage Loan pursuant to Section 2.03(k), or (iii) in all other cases, or
if the Master Servicer, the Trustee or the Securities Administrator fails to
honor its obligations under the preceding clause (i) or (ii), any such
tax will be paid with amounts otherwise to be distributed to the
Certificateholders, as provided in Section 4.02(a).
Section
8.12 Commission
Reporting.
(a) The
Securities Administrator shall, in accordance with industry standards, prepare
and file with the Commission, via XXXXX, the following reports in respect of
the
Trust as and to the extent required under the Exchange Act:
(i) (A)
Within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act), the Securities Administrator shall prepare and file
on
behalf of the Trust any Form 10-D required by the Exchange Act, in form and
substance as required by the Exchange Act. The Securities Administrator shall
file each Form 10-D with a copy of the related Monthly Statement attached
thereto. Any disclosure in addition to the Monthly Statement that is required
to
be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be reported
by the parties set forth on Exhibit V to the Depositor and the Securities
Administrator and directed and approved by the Depositor pursuant to the
following paragraph and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional
Form
10-D Disclosure, except to the extent of its obligations set forth in the next
paragraph.
(B)
As
set forth on Exhibit V hereto, within 5 calendar days after the related
Distribution Date, (i) the parties specified in Exhibit V hereto, shall be
required to provide to the Securities Administrator and to the Depositor, to
the
extent known, in XXXXX-compatible format, or in such other format as agreed
upon
by the Securities Administrator and such party, the form and substance of any
Additional Form 10-D Disclosure, if applicable, together with an Additional
Disclosure Notification, and (ii) 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 Securities Administrator has no duty
under this Agreement to monitor or enforce the performance by the parties listed
on Exhibit V of their duties under this paragraph or proactively solicit or
procure from such parties any Additional Form 10-D Disclosure information.
The
Depositor shall be responsible for any reasonable fees and expenses assessed
or
incurred by the Securities Administrator in connection with including any
Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph.
-98-
(C)
After
preparing the Form 10-D, the Securities Administrator shall, upon request,
forward electronically a copy of the Form 10-D to the Depositor (provided that
such Form 10-D includes any Additional Form 10-D Disclosure). 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 Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D. In the absence of receipt of any written
changes or approval, or if the Depositor does not request a copy of a Form
10-D,
the Securities Administrator shall be entitled to assume that such Form 10-D
is
in final form and the Securities Administrator may proceed with the process
for
execution and filing of the Form 10-D. A duly authorized representative of
the
Master Servicer shall sign each Form 10-D. If a Form 10-D cannot be filed on
time or if a previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in paragraph (d) of this
Section 8.12. Promptly (but no later than one Business Day) after filing with
the Commission, the Securities Administrator will make available on its internet
website (located at xxx.xxxxxxx.xxx)
a final
executed copy of each Form 10-D prepared and filed by the Securities
Administrator. Each party to this Agreement acknowledges that the performance
by
each of the Master Servicer and the Securities Administrator of its duties
under
this Section 8.12(a)(i) related to the timely preparation, execution and filing
of Form 10-D is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 8.12(a)(i).
The
Depositor acknowledges that the performance by each of the Master Servicer
and
the Securities Administrator of its duties under this Section 8.12(i) related
to
the timely preparation, execution and filing of Form 10-D is also contingent
upon any Servicing Function Participant strictly observing deadlines no later
than those set forth in this paragraph that are applicable to the parties to
this Agreement in the delivery to the Securities Administrator of any necessary
Additional Form 10-D Disclosure pursuant to any applicable agreement. Neither
the Master Servicer nor the Securities Administrator shall have any liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare, execute and/or timely file such Form 10-D, where
such failure results from the Securities Administrator’s inability or failure to
receive, on a timely basis, any information from any other party hereto or
any
Servicing Function Participant needed to prepare, arrange for execution or
file
such Form 10-D, not resulting from its own negligence, bad faith or willful
misconduct.
(D)
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 instructs the
Securities Administrator to check “Yes” for each item, unless the Depositor
shall notify the Securities Administrator 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, that the answer to either item should be “no.” The
Depositor 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 Depositor was required to file such reports) and it has been subject to
such
filing requirement for the past 90 days.” The Securities Administrator shall be
entitled to rely on such representations in preparing, executing and/or filing
any such Form 10-D.
-99-
(ii) (A)
On or
prior to the 90th
day
after the end of each fiscal year of the Trust or such earlier date as may
be
required by the Exchange Act (the “10-K
Filing Deadline”)
(it
being understood that the fiscal year for the Trust ends on December
31st
of each
year), for so long as the Depositor is required to file reports with respect
to
the Trust under the Exchange Act, commencing in March 2008, the Securities
Administrator shall prepare and file on behalf of the Trust a Form 10-K, in
form
and substance as required by the Exchange Act. Each such Form 10-K shall include
the following items, in each case to the extent they have been delivered to
the
Securities Administrator within the applicable time frames set forth in this
Agreement or the Servicing Agreements, (i) an annual compliance statement for
each Servicer, the Master Servicer and the Securities Administrator and any
Servicing Function Participant engaged by any such party (together with the
Custodian, each a “Reporting
Servicer”)
as
described under Section 3.05(b), (ii)(A) the annual reports on assessment of
compliance with Servicing Criteria for each Reporting Servicer, as described
under Section 3.03, and (B) if each Reporting Servicer’s report on assessment of
compliance with Servicing Criteria described under Section 3.03 identifies
any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if each Reporting Servicer’s report on assessment of
compliance with Servicing Criteria described under Section 3.03 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, provided,
however,
that
the Securities Administrator, at its discretion, may omit from the Form 10-K
any
assessment of compliance or attestation report described in clause (iii) below
that is not required to be filed with such Form 10-K pursuant to Regulation
AB;
(iii)(A) the registered public accounting firm attestation report for each
Reporting Servicer, as described under Section 3.04, and (B) if any registered
public accounting firm attestation report described under Section 3.04
identifies any material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, and (iv) a Xxxxxxxx-Xxxxx Certification as described in Section 3.05.
Any disclosure or information in addition to (i) through (iv) above that is
required to be included on Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be reported by the parties set forth on Exhibit W to the Depositor and the
Securities Administrator and directed and approved by the Depositor pursuant
to
the following paragraph and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Additional
Form
10-K Disclosure, except to the extent of its obligations set forth in the next
paragraph.
-100-
(B)
As
set forth on Exhibit W hereto, no later than March 10 (with a 5 calendar day
cure period, but in no event later than March 15) of each year that the Trust
is
subject to the Exchange Act reporting requirements, commencing in 2008, (i)
the
parties specified on Exhibit W shall be required to provide to the Securities
Administrator and to the Depositor, to the extent known, in XXXXX-compatible
format, or in such other format as agreed upon by the Securities Administrator
and such party, the form and substance of any Additional Form 10-K Disclosure,
if applicable, together with an Additional Disclosure Notification, and (ii)
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
Securities Administrator has no duty under this Agreement to monitor or enforce
the performance by the parties listed on Exhibit W of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-K Disclosure information. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
on Form 10-K pursuant to this Section 8.12 (a) (ii) (B).
(C)
After
preparing the Form 10-K, the Securities Administrator shall, upon request,
forward electronically a copy of the Form 10-K to the Depositor. Within three
Business Days after receipt of such copy, but no later than March 25th
in each
year that the Trust is subject to the reporting requirements of the Exchange
Act, commencing in March 2008, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-K. In the absence of receipt of any written
changes or approval, or if the Depositor does not request a copy of a Form
10-K,
the Securities Administrator shall be entitled to assume that such Form 10-K
is
in final form and the Securities Administrator may proceed with the process
for
execution and filing of the Form 10-K. A senior officer of the Master Servicer
in charge of the master servicing function shall sign the Form 10-K. If a Form
10-K cannot be filed on time or if a previously filed Form 10-K needs to be
amended, the Securities Administrator will follow the procedures set forth
in
paragraph (d) of this Section 8.12. Promptly (but no later than one Business
Day) after filing with the Commission, the Securities Administrator will make
available on its internet website a final executed copy of each Form 10-K
prepared and filed by the Securities Administrator. The parties to this
Agreement acknowledge that the performance by the Securities Administrator
of
its duties under this Section 8.12(a)(ii) related to the timely preparation,
execution and filing of Form 10-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Section 8.12(a)(ii) and Sections 3.03, 3.04 and 3.05. The Depositor acknowledges
that the performance by the Master Servicer and the Securities Administrator
of
its duties under this Section 8.12(ii) related to the timely preparation,
execution and filing of Form 10-K is also contingent upon any Servicing Function
Participant strictly observing deadlines no later than those set forth in this
paragraph that are applicable to the parties to this Agreement in the delivery
to the Securities Administrator of any necessary Additional Form 10-K
Disclosure, any annual statement of compliance and any assessment of compliance
and attestation pursuant to any applicable agreement. Neither the Master
Servicer nor the Securities Administrator shall have any liability for any
loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, execute and/or timely file such Form 10-K, where such failure results
from the Securities Administrator’s inability or failure to obtain or receive,
on a timely basis, any information from any other party hereto or any Servicing
Function Participant needed to prepare, arrange for execution or file such
Form
10-K, not resulting from its own negligence, bad faith or willful
misconduct.
-101-
(D) 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 requirement for the past 90 days.” The Depositor hereby instructs the
Securities Administrator to check “Yes” for each item, unless the Depositor
shall notify the Securities Administrator 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, commencing in March 2008, that the answer
to
either item should be “no.” The Depositor 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 Depositor was required to file such
reports) and it has been subject to such filing requirement for the past 90
days.” The Securities Administrator shall be entitled to rely on such
representations in preparing, executing and/or filing any such Form 10-K.
(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”),
if
directed by the Depositor, the Securities Administrator shall prepare and file
on behalf of the Trust Fund any Form 8-K, as required by the Exchange Act,
provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K (“Form
8-K Disclosure Information”)
shall
be reported by the parties set forth on Exhibit X to the Depositor and the
Securities Administrator and directed and approved by the Depositor pursuant
to
the following paragraph and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except to the extent of its obligations
set forth in the next paragraph.
(B)
As
set forth on Exhibit X hereto, for so long as the Trust is subject to the
Exchange Act reporting requirements, no later than the close of business New
York City time on the 2nd Business Day after the occurrence of a Reportable
Event (i) the parties hereto shall be required to provide to the Securities
Administrator and the Depositor, to the extent known, in XXXXX-compatible
format, or in such other format as agreed upon by the Securities Administrator
and such party, the form and substance of any Form 8-K Disclosure Information,
if applicable, together with an Additional Disclosure Notification, and (ii)
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. The Depositor will
be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Form 8-K Disclosure
Information on Form 8-K pursuant to this paragraph.
-102-
(C)
After
preparing the Form 8-K, the Securities Administrator shall, upon request,
forward electronically a copy of the Form 8-K to the Depositor. Promptly, but
no
later than the close of business on the third Business Day after the Reportable
Event, the Depositor shall notify the Securities Administrator in writing (which
may be furnished electronically) of any changes to or approval of such Form
8-K.
In the absence of receipt of any written changes or approval, or if the
Depositor does not request a copy of a Form 8-K, the Securities Administrator
shall be entitled to assume that such Form 8-K is in final form and the
Securities Administrator may proceed with the process for execution and filing
of the Form 8-K. A duly authorized representative of the Master Servicer shall
sign each Form 8-K. If a Form 8-K cannot be filed on time or if a previously
filed Form 8-K needs to be amended, the Securities Administrator will follow
the
procedures set forth in paragraph (d) of this Section 8.12. Promptly (but no
later than one Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website (located at
xxx.xxxxxxx.xxx)
a final
executed copy of each Form 8-K prepared and filed by the Securities
Administrator. The parties to this Agreement acknowledge that the performance
by
the Securities Administrator of its duties under this Section 8.12(d)(iii)
related to the timely preparation, execution and filing of Form 8-K is
contingent upon such parties strictly observing all applicable deadlines in
the
performance of their duties under this Section 8.12(d)(iii). The Depositor
acknowledges that the performance by the Master Servicer and the Securities
Administrator of its duties under this Section 8.12(iii) related to the timely
preparation, execution and filing of Form 8-K is also contingent upon any
Servicing Function Participant strictly observing deadlines no later than those
set forth in this paragraph that are applicable to the parties to this Agreement
in the delivery to the Securities Administrator of any necessary Form 8-K
Disclosure Information pursuant to the related any applicable agreement. The
Securities Administrator 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 Securities
Administrator’s inability or failure to obtain or receive, on a timely basis,
any information from any other party hereto or any Servicing Function
Participant needed to prepare, arrange for execution or file such Form 8-K,
not
resulting from its own negligence, bad faith or willful misconduct.
(b) The
Depositor acknowledges and agrees that the Securities Administrator may include
in any Exchange Act report all relevant information, data, and exhibits as
the
Securities Administrator may receive in connection with such report irrespective
of any provision or Regulation AB that may permit the exclusion of such
material. By the way of example, the Securities Administrator may file all
assessments of compliance, attestation reports and compliance statements timely
received from any Item 1122 Servicing Function Participant irrespective of
any
applicable minimum pool asset percentage requirement for disclosure related
to
such Servicing Function Participant.
-103-
(c) The
Depositor agrees to furnish promptly to the Securities Administrator, from
time
to time upon request, such additional information, data, reports, documents,
and
financial statements within the Depositor’s possession or control as the
Securities Administrator reasonably requests as necessary or appropriate to
prepare and file the foregoing reports. The Securities Administrator shall
make
available to the Depositor copies of all Exchange Act reports filed
hereunder.
(d)
(i) On
or
before January 30 of the first year in which the Securities Administrator is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 relating to the automatic suspension of reporting in respect
of the Trust under the Exchange Act.
(ii)
In
the event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth
in
this Agreement or for any other reason, the Securities Administrator will
promptly notify electronically the Depositor. In the case of Form 10-D and
10-K,
the parties to this Agreement will cooperate to prepare and file a Form 12b-25
and a 10-DA and 10-KA as applicable, pursuant to Rule 12b-25 of the Exchange
Act. In the case of Form 8-K, the Securities Administrator will, upon receipt
of
all required Form 8-K Disclosure Information and upon the approval and direction
of the Depositor, include such disclosure information on the next Form 10-D.
In
the event that any previously filed Form 8-K, 10-D or 10-K needs to be amended
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 Securities
Administrator will notify electronically the Depositor and such other parties
to
this Agreement as are affected by this Amendment and such parties will cooperate
to prepare any necessary 8-KA, 10-DA or 10-KA. Any Form 15, Form 12b-25 or
any
amendment to Form 8-K, 10-D or 10-K shall be signed by a duly authorized
representative or senior officer in charge of master servicing, as applicable,
of the Master Servicer. The parties to this Agreement acknowledge that the
performance by each of the Master Servicer and the Securities Administrator
of
its duties under this Section 8.12(d) related to the timely preparation,
execution and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K,
10-D or 10-K is contingent upon each such party performing its duties under
this
Section. Neither the Master Servicer nor the Securities Administrator shall
have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file any
such
Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, where such
failure results from the Securities Administrator’s inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto or any Servicing Function Participant needed to prepare, arrange for
execution or file such Form 15, Form 12b-25 or any amendments to Forms 8-K,
10-D
or 10-K, not resulting from its own negligence, bad faith or willful misconduct.
The Depositor shall be responsible for all costs and expenses of the Securities
Administrator related to the preparation and filing of any such amendment.
Notwithstanding the foregoing, if any Form 10-D needs to be amended solely
to
change the information contained in the Monthly Statement, the Securities
Administrator shall not be required to notify the Depositor of such
amendment.
-104-
(e) Other
than the Exchange Act reports specified above, the Securities Administrator
shall have no responsibility to file any items or reports with the Commission
under the Exchange Act or otherwise; provided,
however,
the
Securities Administrator and Master Servicer will cooperate with the Depositor
in connection with any additional filings with respect to the Trust as the
Depositor deems necessary under the Exchange Act.
(f) The
Depositor shall pay all costs and expenses of the Securities Administrator
related to the preparation and filing of any current report on Form 8-K, any
periodic report on Form 10-D (other than the costs and expense of the Securities
Administrator associated with the preparation and filing of the Monthly
Statement), or any amendment to any Exchange Act report. Except as otherwise
provided herein, all expenses incurred by the Securities Administrator in
connection with its preparation and filing of Exchange Act reports hereunder
shall not be reimbursable from the Trust.
(g) Any
notice required under this Section 8.12 may be given by facsimile or by
electronic mail.
Section
8.13 Tax
Classification of the Excess Reserve Fund Account and the Supplemental Interest
Trust.
For
federal income tax purposes, the Securities Administrator shall treat the Excess
Reserve Fund Account and the Supplemental Interest Trust as a disregarded entity
for so long as a single holder owns all of the Class X Certificates.
ARTICLE
IX
ADMINISTRATION
OF THE MORTGAGE LOANS
BY
THE MASTER SERVICER
Section
9.01 Duties
of the Master Servicer; Enforcement of Servicer’s Obligations.(a)
The Master Servicer, on behalf of the Trustee, the Securities Administrator,
the
Depositor and the Certificateholders, shall monitor the performance of the
obligations of the Servicers under their respective Servicing Agreements, and
(except as set forth below) shall use its reasonable good faith efforts to
cause
each Servicer to duly and punctually perform its duties and obligations under
its related Servicing Agreement. Upon the occurrence of an Event of Default
of
which a Responsible Officer of the Master Servicer or, if the Master Servicer
and a Servicer are the same entity, the Trustee, has actual knowledge, the
Master Servicer or the Trustee, as applicable, shall promptly notify the
Securities Administrator and the Trustee, as applicable, and shall specify
in
such notice the action, if any, the Master Servicer or the Trustee, as
applicable, plans to take in respect of such default. So long as an Event of
Default shall occur and be continuing, the Master Servicer or the Trustee,
as
applicable, shall take the actions specified in Article VII.
Notwithstanding anything in this Agreement or any Credit Risk Management
Agreement to the contrary, the Master Servicer or the Trustee, as applicable,
shall have no duty or obligation to enforce any such Credit Risk Management
Agreement or to supervise, monitor or oversee the activities of a Servicer
under
such Credit Risk Management Agreement with respect to any action taken or not
taken by such Servicer at the direction of the Sponsor or pursuant to a
recommendation of the Credit Risk Manager.
-105-
If
(i) a Servicer reports a delinquency on a monthly report and (ii) such
Servicer, by 11 a.m. (New York Time) on the related Remittance Date, neither
makes an Advance nor provides the Securities Administrator, the Master Servicer
and the Trustee with an Officer’s Certificate certifying that such an Advance
would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance,
then the Master Servicer or, if the Master Servicer and such Servicer are the
same entity, the Trustee, shall deposit in the Distribution Account not later
than the Business Day immediately preceding the related Distribution Date an
Advance in an amount equal to the difference between (x) with respect to
each Monthly Payment due on a Mortgage Loan that is delinquent (other than
Relief Act Interest Shortfalls) and for which such Servicer was required to
make
an Advance pursuant to the related Servicing Agreement and (y) amounts
deposited in the related Collection Account to be used for Advances with respect
to such Mortgage Loan, except to the extent the Master Servicer or the Trustee,
as applicable, determines any such Advance to be a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance. Subject to the foregoing and
Section 7.01, the Master Servicer or the Trustee, as applicable, shall
continue to make such Advances for so long as such Servicer is required to
do so
under its respective Servicing Agreement. If applicable, on the Business Day
immediately preceding the Distribution Date, the Master Servicer shall deliver
an Officer’s Certificate to the Trustee stating that the Master Servicer elects
not to make an Advance in a stated amount and detailing the reason(s) it deems
the Advance to be a Nonrecoverable P&I Advance or Nonrecoverable Servicing
Advance. Any amounts deposited by the Master Servicer or the Trustee, as
applicable, pursuant to this Section 9.01 shall be net of the Servicing Fee
for the related Mortgage Loans.
(b) The
Master Servicer or the Trustee (as successor master servicer), as applicable,
shall pay the costs of monitoring the Servicers (including costs associated
with
(i) termination of a Servicer, (ii) the appointment of a successor
servicer or (iii) the transfer to and assumption of the servicing by the
Master Servicer or the Trustee, as applicable) and shall, to the extent
permitted under the related Servicing Agreement, seek reimbursement therefor
initially from the terminated Servicer. In the event the full costs associated
with the transition of servicing responsibilities to the Master Servicer or
the
Trustee (as successor master servicer), as applicable, are not paid for by
the
predecessor or successor servicer (provided such successor servicer is not
the
Master Servicer or the Trustee (as successor master servicer)), the Master
Servicer or the Trustee, as applicable, may be reimbursed therefor by the Trust
for all costs incurred by the Master Servicer or the Trustee (as successor
master servicer), as applicable, associated with any such transfer of servicing
duties from a Servicer to the Master Servicer or the Trustee, as applicable,
or
any other successor servicer.
(c) If
the
Master Servicer or the Trustee (as successor master servicer), as applicable,
assumes the servicing with respect to any of the Mortgage Loans, it will not
assume liability for the representations and warranties of the Servicer it
replaces or for any errors or omissions of such Servicer.
-106-
(d) Neither
the Depositor nor the Securities Administrator shall consent to the assignment
by any Servicer of such Servicer’s rights and obligations under that Servicer’s
Servicing Agreement without the prior written consent of the Master Servicer
and
the Trustee, which consent shall not be unreasonably withheld.
Section
9.02 [Reserved].
Section
9.03 [Reserved].
Section
9.04 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, directors, employees and other Persons
acting on such Master Servicer’s behalf, and covering errors and omissions in
the performance of the Master Servicer’s obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form and
amount generally acceptable for entities serving as master servicers or
trustees.
Section
9.05 Representations
and Warranties of the Master Servicer.
(a) The
Master Servicer hereby represents and warrants to the Depositor, the Securities
Administrator and the Trustee, for the benefit of the Certificateholders, as
of
the Closing Date that:
(i) it
is a
national banking association validly existing and in good standing under the
laws of the United States of America, and as Master Servicer has full power
and
authority to transact any and all business contemplated by this Agreement and
to
execute, deliver and comply with its obligations under the terms of this
Agreement, the execution, delivery and performance of which have been duly
authorized by all necessary corporate action on the part of the Master
Servicer;
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not
(A) violate the Master Servicer’s charter or bylaws, (B) violate any
law or regulation or any administrative decree or order to which it is subject
or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach of,
any material contract, agreement or other instrument to which the Master
Servicer is a party or by which it is bound or to which any of its assets are
subject, which violation, default or breach would materially and adversely
affect the Master Servicer’s ability to perform its obligations under this
Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
-107-
(iv) the
Master Servicer is not in default with respect to any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument or
subject to any charter provision, bylaw or any other corporate restriction
or
any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Master
Servicer of its obligations under this Agreement;
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering into
this Agreement or performing its obligations under this Agreement;
(vii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been obtained;
and
(viii) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer.
(b) It
is
understood and agreed that the representations and warranties set forth in
this
Section shall survive the execution and delivery of this Agreement. The Master
Servicer shall indemnify the Depositor, Securities Administrator, the Trustee
and the Trust and hold them harmless against any loss, damages, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and
other reasonable costs and expenses resulting from any claim, demand, defense
or
assertion based on or grounded upon, or resulting from, a material breach of
the
Master Servicer’s representations and warranties contained in
Section 9.05(a) above. It is understood and agreed that the enforcement of
the obligation of the Master Servicer set forth in this Section 9.05 to
indemnify the Depositor, the Securities Administrator, the Trustee and the
Trust
constitutes the sole remedy of the Depositor, the Securities Administrator,
the
Trustee and the Trust respecting a breach of the foregoing representations
and
warranties. Such indemnification shall survive any termination of the Master
Servicer as Master Servicer hereunder, any termination of this Agreement and
resignation or removal of the Trustee.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by either the Depositor, the Master Servicer,
Securities Administrator or the Trustee or notice thereof by any one of such
parties to the other parties.
Section
9.06 Master
Servicer Events of Default.
Each of
the following shall constitute a “Master
Servicer Event of Default”:
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(a) any
failure by the Master Servicer to deposit in the Distribution Account any
payment received by it from a Servicer to make any P&I Advance or required
to be made by the Master Servicer under the terms of this Agreement which
continues unremedied for a period of two (2) Business Days after the date
upon which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer by any other party
hereto;
(b) failure
by the Master Servicer to duly observe or perform, in any material respect,
any
other covenants, obligations or agreements of the Master Servicer as set forth
in this Agreement which failure continues unremedied for a period of thirty
(30) days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Master Servicer by the
Trustee or to the Master Servicer and Trustee by the holders of Certificates
evidencing at least 25.00% of the Voting Rights;
(c) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order shall
have remained in force, undischarged or unstayed for a period of sixty
(60) days;
(d) the
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of
assets and liabilities or similar proceedings of or relating to the Master
Servicer or relating to all or substantially all of its property;
(e) the
Master Servicer shall admit in writing its inability to pay its debts 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 for three (3) Business
Days;
(f) Except
as
otherwise set forth herein, the Master Servicer attempts to assign this
Agreement or its responsibilities hereunder or to delegate its duties hereunder
(or any portion thereof) without the consent of the Securities Administrator
and
the Depositor;
(g) the
indictment of the Master Servicer for the taking of any action by the Master
Servicer, any Affiliate or any director or employee thereof that constitutes
fraud or criminal activity in the performance of its obligations under this
Agreement, in each case, where such indictment materially and adversely affects
the ability of the Master Servicer to perform its obligations under this
Agreement (subject to the condition that such indictment is not dismissed within
ninety (90) days); or
(h) failure
of the Master Servicer to timely provide the Depositor with the assessment,
attestation and annual statement of compliance required by Item 1122 of
Regulation AB in accordance with Sections 3.03, 3.04 and 3.05.
In
each
and every such case, so long as a Master Servicer Event of Default shall not
have been remedied, in addition to whatever rights the Trustee may have at
law
or equity or to damages, including injunctive relief and specific performance,
the Trustee, by notice in writing to the Master Servicer, may, and upon the
request of the Holders of Certificates representing at least 51.00% of the
Voting Rights shall, terminate with cause all the rights and obligations of
the
Master Servicer under this Agreement.
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Upon
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, shall pass to and be vested in
any
successor master servicer appointed hereunder which accepts such appointments.
Upon written request from the Trustee or the Depositor, the Master Servicer
shall prepare, execute and deliver to the successor entity designated by the
Trustee any and all documents and other instruments related to the performance
of its duties hereunder as the Master Servicer and, place in such successor’s
possession all such documents with respect to the master servicing of the
Mortgage Loans and do or cause to be done all other acts or things necessary
or
appropriate to effect the purposes of such notice of termination, at the Master
Servicer’s sole expense. The Master Servicer shall cooperate with the Trustee
and such successor master servicer in effecting the termination of the Master
Servicer’s responsibilities and rights hereunder, including without limitation,
the transfer to such successor master servicer for administration by it of
all
cash amounts which shall at the time be credited to the Distribution Account
or
are thereafter received with respect to the Mortgage Loans.
Section
9.07 Waiver
of Xxxxxxx.Xx
a
written notice, the Trustee may at the direction of Holders of Certificates
evidencing at least 51.00% of the Voting Rights waive any default by the Master
Servicer in the performance of its obligations hereunder and its consequences.
Upon any waiver of a past default, such default shall cease to exist, and any
Master Servicer Event of Default arising therefrom shall be deemed to have
been
remedied for every purpose of this Agreement. No such waiver shall extend to
any
subsequent or other default or impair any right consequent thereon except to
the
extent expressly so waived.
Section
9.08 Successor
to the Master Servicer.Upon
termination of the Master Servicer’s responsibilities and duties under this
Agreement, the Depositor shall use its reasonable good faith efforts to appoint
a successor, which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Master Servicer under this
Agreement prior to the termination of the Master Servicer. Any successor shall
be a Xxxxxx Xxx and Xxxxxxx Mac approved servicer in good standing and
acceptable to the Depositor and the Rating Agencies. In connection with such
appointment and assumption, the Depositor may make such arrangements for the
compensation of such successor as it and such successor shall agree. In the
event that the Master Servicer’s duties, responsibilities and liabilities under
this Agreement are terminated, the Master Servicer shall continue to discharge
its duties and responsibilities hereunder until the effective date of such
termination with the same degree of diligence and prudence which it is obligated
to exercise under this Agreement and shall take no action whatsoever that might
impair or prejudice the rights of its successor. The termination of the Master
Servicer shall not become effective until a successor shall be appointed
pursuant hereto and shall in no event (i) relieve the Master Servicer of
responsibility for the representations and warranties made pursuant to
Section 9.05(a) hereof and the remedies available to the Trustee under
Section 9.05(b) hereof, it being understood and agreed that the provisions
of Section 9.05 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this Agreement; or (ii) affect the
right of the Master Servicer to receive payment and/or reimbursement of any
amounts accruing to it hereunder prior to the date of termination (or during
any
transition period in which the Master Servicer continues to perform its duties
hereunder prior to the date the successor master servicer fully assumes its
duties).
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If
no
successor master servicer has accepted its appointment within 90 days of
the time the Trustee receives the resignation of the Master Servicer, the
Trustee shall be the successor master servicer in all respects under this
Agreement and shall have all the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto, including the
obligation to make Advances; provided,
however,
that
any failure to perform any duties or responsibilities caused by the Master
Servicer’s failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In the Trustee’s capacity as
such successor, the Trustee shall have the same limitations on liability herein
granted to the Master Servicer. Notwithstanding anything herein to the contrary,
the Trustee in its role as successor master servicer shall have no obligation
to
monitor or supervise any Servicer, shall only have the obligation to make
Advances if it terminates the Servicer pursuant to an Event of Default (in
its
role as successor master servicer), and shall make such Advances only pursuant
to Section 7.01. As compensation therefor, the Trustee shall be entitled to
receive the compensation, reimbursement and indemnities otherwise payable to
the
Master Servicer, including the fees and other amounts payable pursuant to
Section 9.09 hereof.
Any
successor master servicer appointed as provided herein, shall execute,
acknowledge and deliver to the Master Servicer, the Depositor and to the Trustee
an instrument accepting such appointment, wherein the successor shall make
the
representations and warranties set forth in Section 9.05 hereof, and
whereupon such successor shall become fully vested with all of the rights,
powers, duties, responsibilities, obligations and liabilities of the Master
Servicer, with like effect as if originally named as a party to this Agreement.
Any termination or resignation of the Master Servicer or termination of this
Agreement shall not affect any claims that the Trustee may have against the
Master Servicer arising out of the Master Servicer’s actions or failure to act
prior to any such termination or resignation or in connection with the Trustee’s
assumption of such obligations, duties and responsibilities.
Upon
a
successor’s acceptance of appointment as such, the Master Servicer shall notify
by mail the Trustee and the Depositor of such appointment.
Section
9.09 Compensation
of the Master Xxxxxxxx.Xx
compensation for its activities under this Agreement, the Master Servicer shall
be paid the Master Servicing Fee.
Section
9.10 Merger
or Consolidation.Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to
the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided,
however,
that
the successor or resulting Person to the Master Servicer shall (i) be a
Person (or have an Affiliate) that is qualified and approved to service mortgage
loans for Xxxxxx Xxx and Xxxxxxx Mac (provided further
that a
successor master servicer that satisfies subclause (i) through an
Affiliate agrees to service the Mortgage Loans in accordance with all applicable
Xxxxxx Mae and Xxxxxxx Mac guidelines) and (ii) have a net worth of not
less than $25,000,000.
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Section
9.11 Resignation
of the Master Servicer.Except
as
otherwise provided in Sections 9.08 and 9.10 hereof, the Master Servicer
shall not resign from the obligations and duties hereby imposed on it unless
the
Master Servicer’s duties hereunder are no longer permissible under applicable
law or are in material conflict by reason of applicable law with any other
activities carried on by it and cannot be cured. Any such determination
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel that shall be independent to such effect delivered to the
Trustee. No such resignation shall become effective until the Trustee shall
have
assumed, or a successor master servicer satisfactory to the Trustee and the
Depositor shall have assumed, the Master Servicer’s responsibilities and
obligations under this Agreement. Notice of such resignation shall be given
promptly by the Master Servicer and the Depositor to the Trustee.
If
at any
time, Xxxxx Fargo, as Master Servicer, resigns under this Section 9.11, or
is removed as Master Servicer pursuant to Section 9.06, then at such time
Xxxxx Fargo shall also resign (and shall be entitled to resign) as Securities
Administrator under this Agreement.
Section
9.12 Assignment
or Delegation of Duties by the Master Servicer.Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any other Person to perform
any
of the duties, covenants or obligations to be performed by the Master Servicer;
provided,
however,
that
the Master Servicer shall have the right with the prior written consent of
the
Depositor (which shall not be unreasonably withheld or delayed), and upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency
to
the effect that such action shall not result in a downgrade of the ratings
assigned to any of the Certificates, to delegate or assign to or subcontract
with or authorize or appoint any qualified Person to perform and carry out
any
duties, covenants or obligations to be performed and carried out by the Master
Servicer hereunder. Notice of such permitted assignment shall be given promptly
by the Master Servicer to the Depositor and the Trustee. If, pursuant to any
provision hereof, the duties of the Master Servicer are transferred to a
successor master servicer, the entire compensation payable to the Master
Servicer pursuant hereto shall thereafter be payable to such successor master
servicer but in no event shall the fee payable to the successor master servicer
exceed that payable to the predecessor master servicer.
Section
9.13 Limitation
on Liability of the Master Servicer.Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer shall be under any liability to the Trustee or the
Certificateholders for any action taken or for refraining from the taking of
any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided,
however,
that
this provision shall not protect the Master Servicer or any such person against
any liability that would otherwise be imposed by reason of willful malfeasance,
bad faith or negligence in the performance of its duties or by reason of
reckless disregard for its obligations and duties under this Agreement. The
Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document prima facie properly executed
and submitted by any Person respecting any matters arising hereunder. The Master
Servicer shall be under no obligation to appear in, prosecute or defend any
legal action that is not incidental to its duties as Master Servicer with
respect to the Mortgage Loans under this Agreement and that in its opinion
may
involve it in any expenses or liability; provided,
however,
that
the Master Servicer may in its sole discretion undertake any such action that
it
may deem necessary or desirable in respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom, shall be liabilities of the Trust, and the Master
Servicer shall be entitled to be reimbursed therefor out of the Distribution
Account in accordance with the provisions of Section 9.09 and
Section 9.14.
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The
Master Servicer shall not be liable under this Agreement for any acts or
omissions of any Servicer except to the extent that damages or expenses are
incurred as a result of such acts or omissions and such damages and expenses
would not have been incurred but for the negligence, willful malfeasance, bad
faith or recklessness of the Master Servicer in supervising, monitoring and
overseeing the performance of the obligations of any Servicer as required under
this Agreement.
Section
9.14 Indemnification;
Third Party Claims.The
Master Servicer agrees to indemnify and hold harmless the Trustee as successor
master servicer from and against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses (including reasonable attorneys’ fees) that the
Trustee may sustain as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee’s assumption (not including the
Trustee’s performance, except to the extent that costs or liability of the
Trustee are created or increased as a result of negligent or wrongful acts
or
omissions of the Master Servicer prior to its replacement as Master Servicer)
of
the Master Servicer’s obligations, duties or responsibilities under such
agreement.
The
Trust
will indemnify the Master Servicer and hold it harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses that the Master
Servicer may incur or sustain in connection with, arising out of or related
to
this Agreement or the Certificates, except to the extent that any such loss,
liability or expense is related to (i) a material breach of the Master
Servicer’s representations and warranties in this Agreement, (ii) the
Master Servicer’s willful malfeasance, bad faith or negligence or by reason of
its reckless disregard of its duties and obligations under this Agreement or
(iii) failure to provide the assessment, attestation and annual statement of
compliance in accordance with Sections 3.03, 3.04 and 3.05; provided that any
such loss, liability or expense constitutes an “unanticipated expense incurred
by the REMIC” within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii). The Master Servicer shall be entitled to
reimbursement for any such indemnified amount from funds on deposit in the
Distribution Account. The Master Servicer shall not be liable for any course
of
action taken by a Servicer with respect to loss mitigation of defaulted Mortgage
Loans at the direction of the Credit Risk Manager or the Sponsor pursuant to
a
Credit Risk Management Agreement or otherwise. Further, the Master Servicer
shall not be liable for the performance by a Servicer under any Credit Risk
Management Agreement.
Section
9.15 Duties
of the Credit Risk Manager.
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(a) The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint OfficeTiger Global Real Estate Services Inc., formerly known as
MortgageRamp, Inc., as Credit Risk Manager. For and on behalf of the Depositor
and the Trust, the Credit Risk Manager will provide reports and recommendations
concerning certain delinquent and defaulted Mortgage Loans, and as to the
collection of any Prepayment Charges with respect to the Mortgage Loans. Such
reports and recommendations will be based upon the Monthly Statement and
information provided by the Servicers (other than Countrywide Servicing) and
the
Master Servicer pursuant to the Credit Risk Management Agreements. The Credit
Risk Manager shall look solely to the Servicers, the Master Servicer and to
the
Monthly Statement for all information and data (including loss and delinquency
information and data) and loan level information and data relating to the
servicing of the Mortgage Loans and neither the Securities Administrator nor
the
Trustee shall have any obligation to provide any such information to the Credit
Risk Manager and shall not otherwise have any responsibility under any Credit
Risk Management Agreement. The Credit Risk Manager shall be entitled to
compensation from the Trust equal to the Credit Risk Manager Fee.
(b) On
or
about the 15th calendar day of each month, the Credit Risk Manager shall have
prepared and shall make available to the Depositor, the following
reports:
(i) Executive
Summary:
The Executive Summary will consist of a brief high level summary of certain
key
performance metrics as well as a narrative summary of loans identified and
reviewed for follow-up actions by the Servicer.
(ii) General
Pool Characteristics:
This report will contain a listing of various characteristics of the mortgage
loan pool (including history and stratification) such as documentation levels,
occupancy status, weighted aging, CLTV, NOO rate, junior lien percentage,
etc.
(iii) Performance
Report:
This report will graphically summarize the delinquency rates as well as the
loss
mitigation, foreclosure, REO, CPR and loss severity and related summary
information.
(iv) Prepayment
Analysis:
This report will consist of a compilation and summary of various loan
characteristics for Mortgage Loans that have prepaid, along with prepayment
premium analytics.
(v) Servicer
Remittance Report:
This report will consist of an analysis of any discrepancy between the monthly
servicer remittance file and the final monthly trust report including, without
limitation, the collection of prepayment premiums.
(vi) OfficeTiger
Loan Review Report:
This report will consist of a narrative summary with respect to the individual
loans that have been flagged for manual review and follow-up consultation with
the Servicer. This report may also include narrative summaries of the
recommendation of the Credit Risk Manager.
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Section
9.16 Limitation
Upon Liability of the Credit Risk Manager.
Neither
the Credit Risk Manager, nor any of the directors, officers, employees or agents
of the Credit Risk Manager, shall be under any liability to the Trustee, the
Securities Administrator, the Certificateholders or the Depositor for any action
taken or for refraining from the taking of any action in good faith pursuant
to
this Agreement, in reliance upon information provided by any Servicer (other
than Countrywide Servicing) and the Master Servicer under the Credit Risk
Management Agreements or for errors in judgment; provided, however,
that
this provision shall not protect the Credit Risk Manager or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties
or
by reason of reckless disregard for its obligations and duties under this
Agreement or the Credit Risk Management Agreements. The Credit Risk Manager
and
any director, officer, employee or agent of the Credit Risk Manager 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, and may rely
in good faith upon the accuracy of information furnished by the Servicers (other
than Countrywide Servicing) and the Master Servicer pursuant to the Credit
Risk
Management Agreements in the performance of its duties thereunder and
hereunder.
Section
9.17 Removal
and Resignation of Credit Risk Manager.
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than 66-2/3% of the Voting Rights of Certificates, in the
exercise of its or their sole discretion, at any time, without cause, upon
ten
(10) days prior written notice. The Certificateholders shall provide such
written notice to the Trustee and upon receipt of such notice, the Trustee
shall
provide written notice to the Credit Risk Manager of its removal, effective
upon
receipt of such notice. In addition, on May 4, 2012 and each anniversary date
thereafter, upon thirty (30) days prior written notice, the Credit Risk Manager
will have the option to resign as Credit Risk Manager and the Depositor shall
have the option to terminate the Credit Risk Manager without cause.
ARTICLE
X
CONCERNING
THE SECURITIES ADMINISTRATOR
Section
10.01 Duties
of Securities Administrator.The
Securities Administrator shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement.
The
Securities Administrator, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Securities Administrator that are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they are in the form required by this Agreement; provided,
however,
that
the Securities Administrator shall not be responsible for the accuracy or
content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument. If any such instrument is found not to
conform in any material respect to the requirements of this Agreement, the
Securities Administrator shall notify the Certificateholders of such
non-conforming instrument in the event the Securities Administrator, after
so
requesting, does not receive a satisfactorily corrected
instrument.
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No
provision of this Agreement shall be construed to relieve the Securities
Administrator of liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided,
however,
that:
(i) the
duties and obligations of the Securities Administrator shall be determined
solely by the express provisions of this Agreement, the Securities Administrator
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 Securities
Administrator and the Securities Administrator 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 Securities Administrator
and
conforming to the requirements of this Agreement which it believed in good
faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the
Securities Administrator shall not be liable for any error of judgment made
in
good faith by a Responsible Officer or Responsible Officers of the Securities
Administrator, unless it shall be conclusively determined by a court of
competent jurisdiction, such determination not subject to appeal, that the
Securities Administrator was negligent in ascertaining the pertinent
facts;
(iii) the
Securities Administrator shall not be liable with respect to any action or
inaction taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates evidencing not less
than 25.00% of the Voting Rights of Certificates relating to the time, method
and place of conducting any proceeding for any remedy available to the
Securities Administrator, or exercising or omitting to exercise any trust or
power conferred upon the Securities Administrator under this Agreement;
and
(iv) the
Securities Administrator shall not be accountable, shall have no liability
and
makes no representation as to any acts or omissions hereunder of the Master
Servicer or the Trustee.
Section
10.02 Certain
Matters Affecting the Securities Administrator.Except
as
otherwise provided in Section 10.01:
(i) the
Securities Administrator may request and conclusively rely upon and shall be
fully protected in acting or refraining from acting upon any resolution,
Officer’s Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and
to
have been signed or presented by the proper party or parties and the Securities
Administrator shall have no responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties;
(ii) the
Securities Administrator may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
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(iii) the
Securities Administrator shall not be liable for any action or inaction 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;
(iv) the
Securities Administrator shall not be bound to make any investigation into
the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing so to do by Holders of Certificates
evidencing not less than 25.00% of the Voting Rights allocated to each
Class of Certificates; provided,
however,
that if
the payment within a reasonable time to the Securities Administrator of the
costs, expenses or liabilities likely to be incurred by it in the making of
such
investigation is, in the opinion of the Securities Administrator, not reasonably
assured to the Securities Administrator by the security afforded to it by the
terms of this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so proceeding.
Nothing in this clause (iv) shall derogate from the obligation of the
Securities Administrator to observe any applicable law prohibiting disclosure
of
information regarding the Mortgagors, provided that the Securities Administrator
shall have no liability for disclosure required by this Agreement;
(v) the
Securities Administrator 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 the Securities Administrator shall not be
responsible for any misconduct or negligence on the part of any such agent,
attorney or custodian appointed by the Securities Administrator with due
care;
(vi) the
Securities Administrator shall not be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it, and none of
the
provisions contained in this Agreement shall in any event require the Securities
Administrator to perform, or be responsible for the manner of performance of,
any of the obligations of the Master Servicer or the Trustee under this
Agreement;
(vii) the
Securities Administrator shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the
Securities Administrator reasonable security or indemnity satisfactory to the
Securities Administrator against the costs, expenses and liabilities which
may
be incurred therein or thereby; and
(viii) the
Securities Administrator shall have no obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties hereunder and
which
in its opinion may involve it in any expense or liability; provided,
however,
that in the event of a breach or default by the Derivative
Counterparty
under the Cap Agreement or the Swap Agreement, the Securities Administrator
shall pursue all legal remedies available against the Derivative
Counterparty
under the Cap Agreement or the Swap Agreement, as applicable, in consultation
with the Depositor; provided,
further,
that
the Securities Administrator may in its discretion undertake any such action
that 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 Trustee, the
Securities Administrator and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Securities Administrator shall be entitled to be reimbursed therefor out of
the
Collection Account.
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The
Securities Administrator shall have no duty (A) to undertake or ensure any
recording, filing, or depositing of this Agreement or any agreement referred
to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof,
(B) to procure or maintain any insurance or (C) to pay or discharge
any tax, assessment, or other governmental charge or any lien or encumbrance
of
any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Distribution
Account.
Section
10.03 Securities
Administrator Not Liable for Certificates or Mortgage Loans.The
recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor or the transferor, as the case may be, and the
Securities Administrator assumes no responsibility for their correctness. The
Securities Administrator makes no representations as to the validity or
sufficiency of this Agreement, the Cap Agreement, the Swap Agreement, or of
the
Certificates or of any Mortgage Loan or related document other than with respect
to the Securities Administrator’s execution and authentication of the
Certificates. The Securities Administrator shall not be accountable for the
use
or application by the Depositor, the Trustee, the Master Servicer, or the
Derivative Counterparty of any funds paid to the Depositor, the Trustee, the
Master Servicer or the Derivative Counterparty in respect of the Mortgage Loans
or deposited in or withdrawn from any Collection Account or any other fund
or
account with respect to the Certificates by the Depositor, the Trustee, the
Master Servicer or the Derivative Counterparty.
The
Securities Administrator executes and authenticates the Certificates not in
its
individual capacity but solely as Securities Administrator of the Trust Fund
created by this Agreement, in the exercise of the powers and authority conferred
and vested in it by this Agreement. Each of the undertakings and agreements
made
on the part of the Securities Administrator on behalf of the Trust Fund in
the
Certificates is made and intended not as a personal undertaking or agreement
by
the Securities Administrator but is made and intended for the purpose of binding
only the Trust Fund.
Section
10.04 Securities
Administrator May Own Certificates.The
Securities Administrator in its individual or any other capacity may become
the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were
not
the Securities Administrator.
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Section
10.05 Securities
Administrator’s Fees and Expenses.The
Securities Administrator shall be entitled to the investment income earned
on
amounts in the Distribution Account during the Securities Administrator Float
Period. The Securities Administrator and any director, officer, employee, agent
or “control person” within the meaning of the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended (“Control
Person”),
of
the Securities Administrator shall be indemnified by the Trust and held harmless
against any loss, liability or expense (including reasonable attorney’s fees)
(i) incurred in connection with any claim or legal action relating to
(a) this Agreement, (b) the Mortgage Loans or (c) the
Certificates, other than any loss, liability or expense incurred by reason
of
willful misfeasance, bad faith or negligence in the performance of any of the
Securities Administrator’s duties hereunder, (ii) incurred in connection
with the performance of any of the Securities Administrator’s duties hereunder,
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of any of the Securities
Administrator’s duties hereunder or (iii) incurred by reason of any action
of the Securities Administrator taken at the direction of the
Certificateholders, provided that any such loss, liability or expense
constitutes an “unanticipated expense incurred by the REMIC” within the meaning
of Treasury Regulations Section 1.860G 1(b)(3)(ii). Such indemnity shall
survive the termination of this Agreement or the resignation or removal of
the
Securities Administrator hereunder. Without limiting the foregoing, and except
for any such expense, disbursement or advance as may arise from the Securities
Administrator’s negligence, bad faith or willful misconduct, or which would not
be an “unanticipated expense” within the meaning of the second preceding
sentence, the Securities Administrator shall be reimbursed by the Trust for
all
reasonable expenses, disbursements and advances incurred or made by the
Securities Administrator in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the expenses
and disbursements of its counsel not associated with the closing of the issuance
of the Certificates, (B) the reasonable compensation, expenses and
disbursements of any accountant, engineer, appraiser or other agent that is
not
regularly employed by the Securities Administrator, to the extent that the
Securities Administrator must engage such Persons to perform acts or services
hereunder and (C) printing and engraving expenses in connection with
preparing any Definitive Certificates. The Trust shall fulfill its obligations
under this paragraph from amounts on deposit from time to time in the
Distribution Account.
The
Securities Administrator shall be required to pay all expenses incurred by
it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement.
Section
10.06 Eligibility
Requirements for Securities Administrator.The
Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with
a
credit rating of at least investment grade. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the
purposes of this Section 10.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
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Any
successor securities administrator (i) may not be a Mortgage Loan Seller,
the Master Servicer, a Servicer, the Depositor or an affiliate of the Depositor
unless such successor securities administrator’s functions are operated through
an institutional trust department of the Securities Administrator,
(ii) must be authorized to exercise corporate trust powers under the laws
of its jurisdiction of organization, and (iii) must be rated at least
“A/F1” by Fitch, if Fitch is a Rating Agency and if rated by Fitch, or the
equivalent rating by Standard & Poor’s or Moody’s. If no successor
securities administrator shall have been appointed and shall have accepted
appointment within 60 days after the Securities Administrator ceases to be
the Securities Administrator pursuant to Section 10.07, then the Trustee
may (but shall not be obligated to) become the successor securities
administrator. The Depositor shall appoint a successor to the Securities
Administrator in accordance with Section 10.07. The Trustee shall notify
the Rating Agencies of any change of Securities Administrator.
Section
10.07 Resignation
and Removal of Securities Administrator.The
Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than 60 days before the date specified in such notice when, subject to
Section 10.08, such resignation is to take effect, and acceptance by a
successor securities administrator in accordance with Section 10.08 meeting
the qualifications set forth in Section 10.06. If no successor securities
administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Securities Administrator may petition
any court of competent jurisdiction for the appointment of a successor
securities administrator.
If
at any
time the Securities Administrator shall cease to be eligible in accordance
with
the provisions of Section 10.06 hereof and shall fail to resign after
written request thereto by the Depositor, or if at any time the Securities
Administrator shall become incapable of acting, or shall be adjudged as bankrupt
or insolvent, or a receiver of the Securities Administrator or of its property
shall be appointed, or any public officer shall take charge or control of the
Securities Administrator or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect
to
the Trust Fund by any state in which the Securities Administrator or the Trust
Fund is located and the imposition of such tax would be avoided by the
appointment of a different securities administrator, then the Depositor may
remove the Securities Administrator and appoint a successor securities
administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of
which
shall be delivered to the Master Servicer and one copy to the successor
securities administrator.
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The
Holders of Certificates entitled to at least 51.00% of the Voting Rights may
at
any time remove the Securities Administrator and appoint a successor securities
administrator by written instrument or instruments, in triplicate, signed by
such Holders or their attorneys in fact duly authorized, one complete set of
which instruments shall be delivered by the successor securities administrator
to the Trustee, one complete set to the Securities Administrator so removed
and
one complete set to the successor so appointed. Notice of any removal of the
Securities Administrator shall be given to the Derivative Counterparty and
each
Rating Agency by the successor securities administrator.
Any
resignation or removal of the Securities Administrator and appointment of a
successor securities administrator pursuant to any of the provisions of this
Section 10.07 shall become effective upon acceptance by the successor
securities administrator of appointment as provided in Section 10.08
hereof.
If
at any
time, Xxxxx Fargo, as Securities Administrator, resigns under this
Section 10.07, or is removed as Securities Administrator pursuant to this
Section 10.07, then at such time Xxxxx Fargo shall also resign (and shall
be entitled to resign) as Master Servicer under this Agreement.
Section
10.08 Successor
Securities Administrator.Any
successor securities administrator (which may be the Trustee) appointed as
provided in Section 10.07 hereof shall execute, acknowledge and deliver to
the Depositor and to its predecessor Securities Administrator and the Trustee
an
instrument accepting such appointment hereunder and thereupon the resignation
or
removal of the predecessor Securities Administrator shall become effective
and
such successor securities administrator, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as Securities Administrator herein. The Depositor, the Trustee, the Master
Servicer and the predecessor Securities Administrator shall execute and deliver
such instruments and do such other things as may reasonably be required for
more
fully and certainly vesting and confirming in the successor securities
administrator all such rights, powers, duties, and obligations.
No
successor securities administrator shall accept appointment as provided in
this
Section 10.08 unless at the time of such acceptance such successor
securities administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon
acceptance by a successor securities administrator of appointment as provided
in
this Section 10.08, the Depositor shall mail notice of the succession of
such Securities Administrator hereunder to all Holders of Certificates and
the
Derivative Counterparty. If the Depositor fails to mail such notice within
10 days after acceptance by the successor securities administrator of
appointment, the successor securities administrator shall cause such notice
to
be mailed at the expense of the Depositor.
Section
10.09 Merger
or Consolidation of Securities Administrator.Any
corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation
or
other entity resulting from any merger, conversion or consolidation to which
the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of
Section 10.06 hereof, without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
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Section
10.10 Assignment
or Delegation of Duties by the Securities Administrator.Except
as
expressly provided herein, the Securities Administrator shall not assign or
transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed
by
the Securities Administrator; provided,
however,
that
the Securities Administrator shall have the right with the prior written consent
of the Depositor (which shall not be unreasonably withheld or delayed), and
upon
delivery to the Trustee, the Derivative Counterparty and the Depositor of a
letter from each Rating Agency to the effect that such action shall not result
in a downgrade of the ratings assigned to any of the Certificates, to delegate
or assign to or subcontract with or authorize or appoint any qualified Person
to
perform and carry out any duties, covenants or obligations to be performed
and
carried out by the Securities Administrator hereunder. Notice of such permitted
assignment shall be given promptly by the Securities Administrator to the
Depositor and the Trustee. If, pursuant to any provision hereof, the duties
of
the Securities Administrator are transferred to a successor securities
administrator, the entire compensation payable to the Securities Administrator
pursuant hereto shall thereafter be payable to such successor securities
administrator but in no event shall the fee payable to the successor securities
administrator exceed that payable to the predecessor securities
administrator.
ARTICLE
XI
TERMINATION
Section
11.01 Termination
upon Liquidation or Purchase of the Mortgage Loans.
Subject
to Section 11.03, the obligations and responsibilities of the Depositor,
the Master Servicer, the Credit Risk Manager, the Securities Administrator
and
the Trustee created hereby with respect to the Trust Fund shall terminate upon
the earlier of (a) the exercise of an Option to Purchase, on or after the
Optional Termination Date, in the aggregate of all Mortgage Loans (and REO
Properties) at the price (the “Termination
Price”)
equal
to the sum of (i) 100.00% of the unpaid principal balance of each Mortgage
Loan (other than in respect of REO Property) plus accrued and unpaid interest
thereon at the applicable Mortgage Rate, (ii) the lesser of (x) the
appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Master
Servicer at the expense of that Trust Fund and (y) the unpaid principal
balance of each Mortgage Loan related to any REO Property, in each case plus
accrued and unpaid interest thereon at the applicable Mortgage Rate,
(iii) amounts in reimbursement for Advances previously made with respect to
the Mortgage Loans and other amounts as to which the Servicer, the Depositor,
the Master Servicer, the Securities Administrator, the Credit Risk Manager
or
the Trustee are entitled to be paid or reimbursed pursuant to this Agreement
and
(iv) any Net Swap Payments remaining unpaid and any Swap Termination Payments
payable to the Swap Counterparty as a result of a termination pursuant to this
Section 11.01 and (b) the later of (i) the maturity or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement. In no event shall the trusts
created hereby continue beyond the expiration of 21 years from the death of
the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the
United States to the Court of St. James’s, living on the date
hereof.
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Notwithstanding
anything to the contrary contained herein, no such purchase by the Master
Servicer (either upon instruction from the Depositor or voluntarily) shall
be
permitted unless (i) after distribution of the proceeds thereof to the
Certificateholders (other than the Holders of the Class X, Class P and
Residual Certificates and any other Classes of Certificates which constitute
NIM
Securities) pursuant to Section 11.02, the distribution of the remaining
proceeds to the Class X and Class P Certificates is sufficient to pay
the outstanding principal amount of and accrued and unpaid interest on the
NIM
Securities, to the extent the NIM Securities are then outstanding, or
(ii) prior to such purchase, the Master Servicer, remits to the Securities
Administrator an amount that, together with such remaining proceeds, will be
sufficient to pay the outstanding principal amount of, and accrued and unpaid
interest on, the NIM Securities, to the extent the NIM Securities are then
outstanding.
Section
11.02 Final
Distribution on the Certificates.
If on
any Remittance Date, the Master Servicer determines that there are no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund other
than the funds in any Collection Account, the Master Servicer shall direct
the
Securities Administrator promptly to send a Notice of Final Distribution to
each
Certificateholder and to the Swap Counterparty. If the Master Servicer (upon
instruction from the Depositor or voluntarily) elects to exercise their option
to purchase the Mortgage Loans pursuant to clause (a) of
Section 11.01, at least 20 days prior to the date the Notice of Final
Distribution is to be mailed to the affected Certificateholders, the Master
Servicer shall notify the Depositor, the Derivative Counterparty and the
Securities Administrator of (a) the date on which the Master Servicer
intends to exercise such purchase option and (b) the Termination
Price.
A
Notice
of Final Distribution, specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to Certificateholders mailed not earlier than the 10th
day and not later than the 15th day of the month of such final distribution.
Any
such Notice of Final Distribution shall specify (a) the Distribution Date
upon which final distribution on the Certificates will be made upon presentation
and surrender of Certificates at the office therein designated, (b) the
amount of such final distribution, (c) the location of the office or agency
at which such presentation and surrender must be made and (d) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Securities Administrator
will
give such Notice of Final Distribution to the Swap Counterparty and to each
Rating Agency at the time such Notice of Final Distribution is given to
Certificateholders.
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Upon
the
final deposit with respect to the Trust Fund and the receipt by the Custodian
of
a Request for Release therefor, the Custodian shall promptly release to the
Servicers the Custodial Files for the Mortgage Loans.
Upon
presentation and surrender of the Certificates, the Securities Administrator
shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due to the Servicers under the
Servicing Agreements and the Master Servicer, the Securities Administrator,
the
Depositor, the Trustee and the Swap Counterparty hereunder and payment of any
amounts due to the Supplemental Interest Trust as provided under Section 4.02),
in each case on the final Distribution Date and in the order set forth in
Section 4.02, in proportion to their respective Percentage Interests, with
respect to Certificateholders of the same Class, up to an amount equal to
(i) as to each Class of Regular Certificates (except the Class X
Certificates), the Certificate Balance thereof plus for each such Class and
the Class X Certificates accrued interest thereon in the case of an
interest-bearing Certificate and all other amounts to which such Classes are
entitled pursuant to Section 4.02 and (ii) as to the Residual
Certificates, the amount, if any, which remains on deposit in the Distribution
Account (other than the amounts retained to meet claims) after application
pursuant to clause (i) above.
In
the
event that any affected Certificateholders shall not surrender Certificates
for
cancellation within six months after the date specified in the Notice of Final
Distribution, the Securities Administrator shall give a second written notice
to
the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after such second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Securities Administrator may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates,
and
the cost thereof shall be paid out of the funds and other assets which remain
a
part of the Trust Fund. If within one year after the second notice all
Certificates shall not have been surrendered for cancellation, the Class R
Certificateholders shall be entitled to all unclaimed funds and other assets
of
the Trust Fund which remain subject hereto.
Section
11.03 Additional
Termination Requirements.
In the
event an Option to Purchase is exercised with respect to the Mortgage Loans
as
provided in Section 11.01, the Trust Fund shall be terminated in accordance
with the following additional requirements, unless the Trustee has been supplied
with an Opinion of Counsel, at the expense of the party upon whose instruction
causes the exercise of an Option to Purchase, to the effect that the failure
to
comply with the requirements of this Section 11.03 will not (i) result
in the imposition of taxes on “prohibited transactions” on any REMIC formed
hereby as defined in Section 860F of the Code or (ii) cause any REMIC
formed hereby to fail to qualify as a REMIC at any time that any Certificates
are outstanding:
(a) The
Securities Administrator on behalf of the Trustee shall sell all of the assets
of the Trust Fund to the party exercising the Option to Purchase, and, within
90 days of such sale, shall distribute to the Certificateholders the
proceeds of such sale in complete liquidation of each REMIC formed hereby;
and
(b) The
Securities Administrator shall attach a statement to the final federal income
tax return for each REMIC formed hereby stating that pursuant to Treasury
Regulations Section 1.860F-1, the first day of the 90-day liquidation
period for each such REMIC was the date on which the Securities Administrator
on
behalf of the Trustee sold the assets of the Trust Fund to the Master
Servicer.
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ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Amendment.
(a)
This Agreement may be amended from time to time by the Depositor, the Master
Servicer, the Securities Administrator and the Trustee, without the consent
of
any of the Certificateholders or the Derivative Counterparty (except to the
extent that the rights or obligations of the Derivative Counterparty under
the
Cap Agreement or the Swap Agreement are affected thereby, and except to the
extent that the ability of the Securities Administrator to perform fully and
timely its obligations under the Cap Agreement or the Swap Agreement is
adversely affected, in which case prior written consent of the Derivative
Counterparty is required) (i) to cure any ambiguity or mistake,
(ii) to correct any defective provision herein or to supplement any
provision herein which may be inconsistent with any other provision herein,
(iii) to add to the duties of the Depositor, the Master Servicer, the
Securities Administrator or the Trustee, (iv) to add any other provisions
with respect to matters or questions arising hereunder, (v) to modify,
alter, amend, add to or rescind any of the terms or provisions contained in
this
Agreement, (vi) to comply with the requirements of the Internal Revenue Code
or
(vii) to conform this agreement to the Offering Documents provided to investors
in connection with the offering of the Certificates; provided,
that
any action pursuant to clause (iv) or (v) above shall not, as
evidenced by an Opinion of Counsel (which Opinion of Counsel shall not be an
expense of the Trustee, the Master Servicer, the Securities Administrator or
the
Trust Fund), adversely affect in any material respect the interests of any
Certificateholder; provided,
further,
that
any such action pursuant to clause (iv) or (v) above shall not be
deemed to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter
from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor, the Master Servicer
and
the Securities Administrator also may at any time and from time to time amend
this Agreement, but without the consent of the Certificateholders or the
Derivative Counterparty (except to the extent that the rights or obligations
of
the Derivative Counterparty hereunder or under the Cap Agreement or the Swap
Agreement are affected thereby, and except to the extent that the ability of
the
Supplemental Interest Trust Trustee to perform fully and timely its obligations
under the Cap Agreement or the Swap Agreement is adversely affected, in which
case prior written consent of the Derivative Counterparty is required) to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary or helpful to (i) maintain the qualification of each REMIC
created hereunder under the Code, (ii) avoid or minimize the risk of the
imposition of any tax on any REMIC created hereunder pursuant to the Code that
would be a claim at any time prior to the final redemption of the Certificates
or (iii) comply with any other requirements of the Code; provided,
that
the Trustee and the Master Servicer have been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but
in
any case shall not be an expense of the Trustee or the Trust Fund, to the effect
that such action is necessary or helpful to, as applicable, (i) maintain
such qualification, (ii) avoid or minimize the risk of the imposition of
such a tax or (iii) comply with any such requirements of the
Code.
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This
Agreement may also be amended from time to time by the Depositor, the Master
Servicer, the Securities Administrator and the Trustee, but with the consent
of
the Holders of Certificates evidencing Percentage Interests aggregating not
less
than 662/3%
of each
Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of
this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments required to be distributed on any Certificate without the
consent of the Holder of such Certificate, (ii) adversely affect in any
material respect the interests of the Holders of any Class of Certificates
in a manner other than as described in clause (i), without the consent of
the Holders of Certificates of such Class evidencing, as to such Class,
Percentage Interests aggregating not less than 662/3%,
(iii) reduce the aforesaid percentages of Certificates the Holders of which
are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding or (iv) adversely affect
the
rights or obligations of the Derivative Counterparty hereunder or under the
Cap
Agreement or the Swap Agreement or the rights of the Securities Administrator,
as the Supplemental Interest Trust Trustee, to fully and timely perform its
obligations under the Cap Agreement or the Swap Agreement without obtaining
the
prior written consent of the Derivative Counterparty.
Notwithstanding
any contrary provision of this Agreement, the Trustee and the Master Servicer
shall not consent to any amendment to this Agreement unless (i) it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee, the Master Servicer or the Trust Fund, to the effect that such
amendment will not cause the imposition of any tax on any REMIC created
hereunder or the Certificateholders or cause any such REMIC to fail to qualify
as a REMIC or the grantor trust to fail to qualify as a grantor trust at any
time that any Certificates are outstanding and (ii) the party seeking such
amendment shall have provided written notice to the Rating Agencies (with a
copy
of such notice to the Trustee, the Master Servicer and the Derivative
Counterparty) of such amendment, stating the provisions of the Agreement to
be
amended.
Notwithstanding
the foregoing provisions of this Section 12.01(a), with respect to any
amendment that significantly modifies the permitted activities of the Trustee,
any Certificate beneficially owned by the Depositor shall be deemed not to
be
outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 12.01(a) have been
obtained.
Promptly
after the execution of any amendment to this Agreement requiring the consent
of
Certificateholders, the Trustee shall furnish written notification of the
substance or a copy of such amendment to each Certificateholder and each Rating
Agency.
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It
shall
not be necessary for the consent of Certificateholders under this
Section 12.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing
in this Agreement shall require the Trustee, the Master Servicer or the
Securities Administrator to enter into an amendment without receiving an Opinion
of Counsel (which opinion shall not be an expense of the Trustee, the Master
Servicer, the Securities Administrator or the Trust Fund), satisfactory to
the
Trustee, the Master Servicer and the Securities Administrator, as applicable,
that (i) such amendment is permitted and is not prohibited by this
Agreement and that all requirements for amending this Agreement have been
complied with and (ii) either (A) the amendment does not adversely
affect in any material respect the interests of any Certificateholder or
(B) the conclusion set forth in the immediately preceding
clause (A) is not required to be reached pursuant to this
Section 12.01(a).
(b)
No
party hereto shall agree to amend any Servicing Agreement unless the party
requesting such amendment, at such party’s expense, has delivered to the Trustee
and the Master Servicer an Opinion of Counsel that such amendment (i) is
permitted under the terms of the applicable Servicing Agreement and (ii) will
not materially adversely affect the interest of the Certificateholders in the
Mortgage Loans or the NIM Securities to be issued in the NIMS
Transaction.
Section
12.02 Recordation
of Agreement; Counterparts.
This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Securities Administrator at the direction and expense of the
Depositor, but only upon receipt of an Opinion of Counsel to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
Section
12.03 Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section
12.04 Intention
of Parties.
(a) It
is intended that the conveyance of the Depositor’s right, title and interest in
and to property constituting the Trust Fund pursuant to this Agreement shall
constitute, and shall be construed as, a sale of such property and not a grant
of a security interest to secure a loan. However, if such conveyance is deemed
to be in respect of a loan, it is intended that: (1) the rights and obligations
of the parties shall be established pursuant to the terms of this Agreement;
(2)
the Depositor hereby grants to the Trustee for the benefit of the Holders of
the
Certificates a first priority security interest to secure repayment of an
obligation in an amount equal to the aggregate Class Certificate Balances of
the
Certificates in all of the Depositor’s right, title and interest in, to and
under, whether now owned or hereafter acquired, the Trust Fund and the
Supplemental Interest Trust and all proceeds of any and all property
constituting the Trust Fund and the Supplemental Interest Trust to secure
payment of the Certificates (such security interest being, to the extent of
the
assets that constitute the Supplemental Interest Trust, pari
passu
with the
security interest as provided in clause (4) below); (3) this Agreement shall
constitute a security agreement under applicable law; and (4) the Derivative
Counterparty shall be deemed, during the term of such agreement and while such
agreement is the property of the Trustee, to have a security interest in all
of
the assets that constitute the Supplemental Interest Trust, but only to the
extent of such Derivative Counterparty’s right to payment under the Derivative
Agreements (such security interest being pari
passu
with the
security interest as provided in clause (2) above). If such conveyance is deemed
to be in respect of a loan and the trust created by this Agreement terminates
prior to the satisfaction of the claims of any Person holding any Certificate,
the security interest created hereby shall continue in full force and effect
and
the Trustee shall be deemed to be the collateral agent for the benefit of such
Person, and all proceeds shall be distributed by the Securities Administrator
as
herein provided.
-127-
(b) The
Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and shall
be
maintained as such throughout the term of this Agreement. The Depositor shall,
at its own expense, make all initial filings on or about the Closing Date and
shall forward a copy of such filing or filings to the Trustee. Without limiting
the generality of the foregoing, the Depositor shall prepare and forward for
filing, or shall cause to be forwarded for filing, at the expense of the
Depositor, all filings necessary to maintain the effectiveness of any original
filings necessary under the relevant UCC to perfect the Trustee’s security
interest in or lien on the Mortgage Loans, including without limitation (x)
continuation statements, and (y) such other statements as may be occasioned
by
(1) any change of name of the Sponsor, the Depositor or the Trustee, (2) any
change of location of the jurisdiction of organization of the Sponsor or the
Depositor, (3) any transfer of any interest of the Sponsor or the Depositor
in
any Mortgage Loan or (4) any change under the relevant UCC or other applicable
laws. Neither the Sponsor nor the Depositor shall organize under the law of
any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of
such action to its immediate and intermediate transferee, including the Trustee.
Before effecting such change, the Sponsor or the Depositor proposing to change
its jurisdiction of organization shall prepare and file in the appropriate
filing office any financing statements or other statements necessary to continue
the perfection of the interests of its immediate and intermediate transferees,
including the Trustee, in the Mortgage Loans. In connection with the
transactions contemplated by this Agreement, each of the Sponsor and the
Depositor authorizes its immediate or intermediate transferee to file in any
filing office any initial financing statements, any amendments to financing
statements, any continuation statements, or any other statements or filings
described in this paragraph (b).
-128-
Section
12.05 Notices.
(a) The Securities Administrator shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
1. Any
material change or amendment to this Agreement;
2. The
occurrence of any Event of Default that has not been cured;
3. The
resignation or termination of a Servicer, the Master Servicer, the Securities
Administrator or the Trustee and the appointment of any successor;
4. The
repurchase or substitution of Mortgage Loans pursuant to Section 2.03 or
pursuant to a Transfer Agreement;
5. The
final
payment to Certificateholders; and
6. An
Early
Termination Event with respect to the Cap Agreement or the Swap
Agreement.
(b) In
addition, the Securities Administrator shall promptly make available on its
internet website to each Rating Agency copies of the following:
1. Each
report to Certificateholders described in Section 4.03; and
2. Any
notice of a purchase of a Mortgage Loan pursuant to
Section 2.03.
(c) All
directions, demands, consents and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered to:
(i) in
the
case of the Depositor,
HSI
Asset Securitization Corporation, 000 Xxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Head MBS Principal Finance, or such other
address as may be hereafter furnished to the other parties by the Depositor
in
writing;
(ii) in
the
case of the Master Servicer,
Xxxxx
Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client
Manager - HASCO 2007-HE2, with a copy to 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Client Manager - HASCO 2007-HE2, or such other
address as may be hereafter furnished to the other parties by Xxxxx Fargo in
writing;
(iii) in
the
case of the Trustee,
the
Corporate Trust Office (Attention: Corporate Trust Services - HB07H2), or such
other address as may be hereafter furnished to the to the other parties by
the
Trustee in writing;
-129-
(iv) in
the
case of the Derivative Counterparty,
Wachovia Bank, National Association, 000 Xxxxx Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx,
Xxxxx Xxxxxxxx, 00000-0000, Attention: Xxxxx X. Xxxxx;
(v) in
the
case of the Credit Risk Manager,
OfficeTiger Global Real Estate Services Inc., Xxx Xxxxxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxxx, Xx. 30328, Attention: President; and
(vi) in
the
case of each of the Rating Agencies,
the
address specified therefor in the definition corresponding to the name of such
Rating Agency.
Notices
to Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate
Register
Section
12.06 Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
Section
12.07 Limitation
on Rights of Certificateholders.
The
death or incapacity of any Certificateholder shall not operate to terminate
this
Agreement or the trust created hereby, nor entitle such Certificateholder’s
legal representative or heirs to claim an accounting or to take any action
or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities
of
the parties hereto or any of them.
No
Certificateholder shall have any right to vote (except as provided herein)
or in
any manner otherwise control the operation and management of the Trust Fund,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third party by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as herein provided, and unless the
Holders of Certificates evidencing not less than 25.00% of the Voting Rights
evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute
any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself
or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or
seek
to obtain priority over or preference to any other such Holder or to enforce
any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement
of
the provisions of this Section 12.08, each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law
or in
equity.
-130-
Section
12.08 Certificates
Nonassessable and Fully Paid.
It is
the intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
Section
12.09 Rule of
Construction.
Article
and section headings are for the convenience of the reader and shall not be
considered in interpreting this Agreement or the intent of the parties
hereto.
Section
12.10 Waiver
of Jury Trial.
EACH
PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
[SIGNATURE
PAGE FOLLOWS]
-131-
IN
WITNESS WHEREOF, each of the parties below have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day
and
year first above written.
HSI
ASSET
SECURITIZATION
CORPORATION,
as Depositor
By
/s/
Xxxxxx
Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee
By:
/s/
Xxxxxx
Xxxxx
Name: Xxxxxx Xxxxx
Title: Authorized Signer
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee
By:
/s/
Xxxxxxxx
Mermansader
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Associate
XXXXX
FARGO BANK, N.A., as Master
Servicer
By:
/s/
Xxxxxx
Xxxx
Name: Xxxxxx Xxxx
Title: Vice President
XXXXX
FARGO BANK, N.A., as Securities
Administrator
By:
/s/
Xxxxxx
Xxxx
Name: Xxxxxx Xxxx
Title: Vice president
XXXXX
FARGO BANK, N.A., as Custodian
By:
/s/
Xxxxxxx X
Xxxxxxx
Name: Xxxxxxx X Xxxxxxx
Title: Vice President
OFFICETIGER
GLOBAL REAL ESTATE
SERVICES
INC., as Credit Risk Manager
By:
/s/ D
Xxxxx
Xxxxxxxx
Name: D Xxxxx Xxxxxxxx
Title: SVP
ACKNOWLEDGED
BY HSBC BANK USA, NATIONAL ASSOCIATION,
as
Sponsor, solely for the purposes of Section 2.03(d).
By:
/s/
Xxxxxx Priest____________________
Name:
Xxxxxx Xxxxxx
Title:
Officer #15253
SCHEDULE
I
Mortgage
Loan Schedule
[To
be
retained in a separate closing binder entitled “HASCO 2007-HE2 Mortgage Loan
Schedules” at the Washington, D.C. offices of XxXxx Xxxxxx LLP]
SCH.
I-1
EXHIBIT
A
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN
A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”),
AND
CERTAIN OTHER ASSETS.
PRIOR
TO TERMINATION OF THE SWAP AGREEMENT AND THE CAP AGREEMENT, NO TRANSFER OF
THIS
CERTIFICATE SHALL BE MADE UNLESS THE SECURITIES ADMINISTRATOR SHALL HAVE
RECEIVED A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO
THE
EFFECT THAT EITHER (I) SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN
OR
OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO SECTION 406 OF ERISA AND/OR
SECTION 4975 OF THE CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE SUCH
PLAN’S OR ARRANGEMENT’S ASSETS BY REASON OF THEIR INVESTMENT IN THE ENTITY (A
“PLAN”) NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
ANY SUCH PLAN TO EFFECT SUCH TRANSFER OR (II) THE ACQUISITION AND HOLDING OF
THIS CERTIFICATE ARE ELIGIBLE FOR EXEMPTIVE RELIEF UNDER THE
STATUTORY EXEMPTION FOR NON-FIDUCIARY SERVICE PROVIDERS UNDER SECTION
408(b)(17)
OF ERISA AND SECTION 4975(d)(20)
OF THE CODE, PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 84-14, XXXX 00-0,
XXXX 00-00, XXXX 95-60 OR PTCE 96-23 OR ANOTHER EXEMPTION.
ANY PURPORTED TRANSFER OF THIS CERTIFICATE PRIOR TO THE TERMINATION OF THE
SWAP
AGREEMENT AND THE CAP AGREEMENT TO OR ON BEHALF OF A PLAN WITHOUT THE DELIVERY
TO THE SECURITIES ADMINISTRATOR OF A REPRESENTATION LETTER AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT. IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE,
THE TRANSFEREE WILL BE DEEMED TO HAVE MADE A REPRESENTATION AS PROVIDED IN
CLAUSE (I) OR (II) OF THIS PARAGRAPH, AS APPLICABLE.
EXHIBIT
A-1
|
Certificate
No:
|
1
|
|
|
Cut-off
Date:
|
April
1, 2007
|
|
|
First
Distribution Date:
|
May
25, 2007
|
|
|
Initial
Certificate Balance of this Certificate (“Denomination”):
|
$[
]
|
|
|
Initial
Certificate Balances of all Certificates of this Class:
|
I-A
|
$
326,874,000
|
|
II-A-1
|
$
132,967,000
|
|
|
II-A-2
|
$
26,376,000
|
|
|
II-A-3
|
$
49,252,000
|
|
|
II-A-4
|
$
3,688,000
|
|
|
M-1
|
$
29,714,000
|
|
|
M-2
|
$
27,567,000
|
|
|
M-3
|
$
16,468,000
|
|
|
M-4
|
$
14,320,000
|
|
|
M-5
|
$
13,963,000
|
|
|
M-6
|
$
11,814,000
|
|
|
M-7
|
$
11,814,000
|
|
|
M-8
|
$
10,740,000
|
|
|
M-9
|
$
8,592,000
|
|
|
M-10
|
$
13,604,000
|
EXHIBIT
A-2
|
Interest
Rate:
|
X-X-0
|
Xxxxxxxx
|
|
XX-X-0
|
Xxxxxxxx
|
|
|
XX-X-0
|
Variable
|
|
|
II-A-3
|
Variable
|
|
|
II-A-4
|
Variable
|
|
|
X-0
|
Xxxxxxxx
|
|
|
X-0
|
Xxxxxxxx
|
|
|
X-0
|
Variable
|
|
|
X-0
|
Xxxxxxxx
|
|
|
X-0
|
Variable
|
|
|
X-0
|
Xxxxxxxx
|
|
|
X-0
|
Xxxxxxxx
|
|
|
X-0
|
Variable
|
|
|
X-0
|
Xxxxxxxx
|
|
|
X-00
|
Variable
|
|
|
CUSIP:
|
X-X-0
|
00000X
XX0
|
|
XX-X-0
|
40430R
AB2
|
|
|
II-A-2
|
40430R
AC0
|
|
|
II-A-3
|
40430R
AD8
|
|
|
II-A-4
|
40430R
AE6
|
|
|
M-1
|
40430R
AF3
|
|
|
M-2
|
40430R
AG1
|
|
|
M-3
|
40430R
AH9
|
|
|
M-4
|
00000X
XX0
|
|
|
M-5
|
40430R
AK2
|
|
|
M-6
|
40430R
XX0
|
|
|
X-0
|
40430R
XX0
|
|
|
X-0
|
40430R
AN6
|
|
|
M-9
|
40430R
AP1
|
|
|
M-10
|
40430R
AQ9
|
|
|
ISIN:
|
X-X-0
|
XX00000XXX00
|
|
XX-X-0
|
XX00000XXX00
|
|
|
II-A-2
|
US40430RAC07
|
|
|
XX-X-0
|
XX00000XXX00
|
|
|
XX-X-0
|
XX00000XXX00
|
|
|
M-1
|
US40430RAF38
|
|
|
M-2
|
US40430RAG11
|
|
|
M-3
|
US40430RAH93
|
|
|
M-4
|
US40430RAJ59
|
|
|
M-5
|
US40430RAK23
|
EXHIBIT
X-0
|
X-0
|
XX00000XXX00
|
|
|
M-7
|
US40430RAM88
|
|
|
M-8
|
US40430RAN61
|
|
|
M-9
|
US40430RAP10
|
|
|
M-10
|
US40430RAQ92
|
EXHIBIT
A-4
HSI
ASSET
SECURITIZATION CORPORATION
HSI
Asset
Securitization Corporation Trust, 2007-HE2
Mortgage
Pass-Through Certificates, Series 2007-HE2
Class
[A-__][M-__]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Trustee or any other party to the Agreement referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that [____________] is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate of the denominations of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions of
principal and interest pursuant to a Pooling and Servicing Agreement dated
as of
the Cut-off Date specified above (the “Agreement”)
among
HSI Asset Securitization Corporation, as depositor (the “Depositor”),
Xxxxx
Fargo Bank, N.A., as master servicer, (in such capacity, the “Master
Servicer”)
securities administrator (in such capacity, the “Securities
Administrator”)
and
custodian, OfficeTiger Global Real Estate Services Inc., as credit risk manager,
and Deutsche Bank National Trust Company, as trustee (the “Trustee”).
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually authenticated by an authorized signatory of
the
Securities Administrator.
* * *
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
|
Dated:
|
EXHIBIT
A-5
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity, but solely as
Securities
Administrator
By:
_____________________________
Authenticated:
By:
_________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity,
but
solely as Securities Administrator
EXHIBIT
A-6
HSI
ASSET
SECURITIZATION CORPORATION
HSI
Asset
Securitization Corporation Trust 2007-HE2
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
HSI
Asset Securitization Corporation Trust 2007-HE2 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the “Certificates”),
and
representing a beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely
to the
funds on deposit in the Distribution Account or Supplemental Interest Trust
Account for payment hereunder and that neither the Trustee nor the Securities
Administrator is liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such day is not a Business Day, the Business Day immediately
following (the “Distribution
Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement. The Record Date applicable
to
each Distribution Date is the Business Day immediately preceding such
Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Securities Administrator in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or,
if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment
and
surrender of such Certificate at the offices designated by the Securities
Administrator for such purposes or such other location specified in the notice
to Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any of
the
Certificates.
EXHIBIT
A-7
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 Securities Administrator upon surrender of this Certificate for registration
of transfer at the offices designated by the Securities Administrator for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by the holder hereof or such
holder’s attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Securities Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith.
The
Trustee, the Depositor and the Securities Administrator and any agent of the
Trustee, the Depositor or the Securities Administrator may treat the Person
in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee, the Depositor, the Securities Administrator nor any
such agent shall be affected by any notice to the contrary.
The
Master Servicer shall have the option to purchase the Mortgage Loans and
therefore cause the termination of the Trust on any Optional Termination Date,
which is any Distribution Date in which the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period is less
than
or equal to 10% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
EXHIBIT
A-8
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Securities Administrator 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
EXHIBIT
B
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR LETTER IN
THE
FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER
(I) THE SECURITIES ADMINISTRATOR RECEIVES EITHER A RULE 144A INVESTMENT
LETTER OR REGULATION S INVESTMENT LETTER IN THE FORM OF EXHIBIT I-A AND
EXHIBIT I-B, RESPECTIVELY, TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE
SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, STATING THAT SUCH TRANSFER MAY BE MADE WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER
TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”),
OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY
SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR
LAW”)
OR A
PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT
THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO
A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO
SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON
ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY
SUCH
PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND
OF
NO EFFECT.
|
Certificate
No.
|
:
|
P-1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Percentage
Interest of this Certificate
|
:
|
100%
|
|
Interest
|
:
|
None
|
|
CUSIP
|
:
|
40430R
AS5
|
|
ISIN
|
:
|
US40430RAS58
|
EXHIBIT
B-1
HSI
ASSET
SECURITIZATION CORPORATION
HSI
Asset
Securitization Corporation Trust 2007-HE2
Mortgage
Pass-Through Certificates, Series 2007-HE2
Class
P
evidencing
a percentage interest in the distribution of Prepayment Charges allocable to
the
Certificates of the above-referenced Class.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Certificate does not evidence an obligation of, or an interest in, and
is
not guaranteed by the Depositor, the Trustee or any other party to the Agreement
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This
certifies that [____________] is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions of Prepayment
Charges pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”)
among
HSI Asset Securitization Corporation, as depositor (the “Depositor”),
Xxxxx
Fargo Bank, N.A., as master servicer, (in such capacity, the “Master
Servicer”)
securities administrator (in such capacity, the “Securities
Administrator”)
and
custodian, OfficeTiger Global Real Estate Services Inc., as credit risk manager,
and Deutsche Bank National Trust Company, as trustee (the “Trustee”).
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This
Certificate does not have an Interest Rate and will solely be entitled to
receive distributions of Prepayment Charges to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any remaining assets
of the Trust will be made only upon presentment and surrender of this
Certificate at the offices designated by the Securities Administrator for such
purpose, or such other location specified in the notice to
Certificateholders.
No
transfer of a Certificate of this Class shall be made unless such disposition is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”),
and
any applicable state securities laws or is made in accordance with the 1933
Act
and such laws. In the event of any such transfer, the Securities Administrator
shall require the transferor to execute a transferor certificate (in
substantially the form attached to the Agreement) and deliver either (i) a
Rule 144A Investment Letter or a Regulation S Investment Letter, as
applicable, in either case substantially in the form attached as Exhibit I-A
and
Exhibit I-B, respectively, to the Agreement, or (ii) a written Opinion of
Counsel to the Securities Administrator that such transfer may be made pursuant
to an exemption, describing the applicable exemption and the basis therefor,
from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion
of
Counsel shall be an expense of the transferor.
EXHIBIT
B-2
No
transfer of a Certificate of this Class shall be made unless the Securities
Administrator shall have received a representation letter from the transferee
of
such Certificate, acceptable to and in form and substance satisfactory to the
Securities Administrator, to the effect that such transferee is not an employee
benefit plan subject to Section 406 of ERISA, Section 4975 of the Code
or any materially similar provisions of applicable federal, state or local
law
(“Similar
Law”),
or a
person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Securities
Administrator.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually authenticated by an authorized signatory of
the
Securities Administrator.
* * *
EXHIBIT
B-3
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
|
Dated:
|
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity, but solely as
Securities
Administrator
By:
______________________________
Authenticated:
By:
___________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity,
but
solely as Securities Administrator
EXHIBIT
B-4
HSI
ASSET
SECURITIZATION CORPORATION
HSI
Asset
Securitization Corporation Trust 2007-HE2
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
HSI
Asset Securitization Corporation Trust 2007-HE2 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the “Certificates”),
and
representing a beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely
to the
funds on deposit in the Distribution Account or constituting Prepayment Charges
for payment hereunder and that neither the Trustee nor the Securities
Administrator is liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such day is not a Business Day, the Business Day immediately
following (the “Distribution
Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement. The Record Date applicable
to
each Distribution Date is the last Business Day of the month next preceding
the
month of such Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Securities Administrator in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or,
if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment
and
surrender of such Certificate at the offices designated by the Securities
Administrator for such purposes or such other location specified in the notice
to Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any of
the
Certificates.
EXHIBIT
B-5
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 Securities Administrator upon surrender of this Certificate for registration
of transfer at the offices designated by the Securities Administrator for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by the holder hereof or such
holder’s attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Securities Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith.
The
Trustee, the Depositor and the Securities Administrator and any agent of the
Trustee, the Depositor or the Securities Administrator may treat the Person
in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee, the Depositor, the Securities Administrator nor any
such agent shall be affected by any notice to the contrary.
The
Master Servicer shall have the option to purchase the Mortgage Loans and
therefore cause the termination of the Trust on any Optional Termination Date,
which is any Distribution Date in which the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period is less
than
or equal to 10% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
EXHIBIT
B-6
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Securities Administrator to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
______________________________________________________________________________
|
Dated:
|
______________________________
Signature
by or on behalf of assignor
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
,
_____________
_________________________________________________________________________________________________,
for
the
account of
___________________________________________________________________________________,
account
number __________, or, if mailed by check, to
_______________________________________________________.
_________________________________________________________________________________________________,
Applicable
statements should be mailed to
________________________________________________________________,
_________________________________________________________________________________________________
This
information is provided by
___________________________________________________________,
the
assignee named above, or
__________________________________________________________________________,
as
its
agent.
EXHIBIT
B-7
EXHIBIT
C
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN TWO “REAL ESTATE MORTGAGE INVESTMENT CONDUITS,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED (I) TO A PERSON
OTHER THAN A PERMITTED TRANSFEREE IN COMPLIANCE WITH SECTION 5.02I OF THE
AGREEMENT OR (II) UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES
ADMINISTRATOR A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS
NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY
SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR
LAW”)
OR A
PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT
THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO
A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO
SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON
ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY
SUCH
PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND
OF
NO EFFECT.
|
Certificate
No.
|
:
|
R-1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Percentage
Interest of this Certificate
|
:
|
100.00%
|
|
Interest
Rate
|
:
|
None
|
|
CUSIP
|
:
|
40430R
AT3
|
|
ISN
|
:
|
US40430RAT32
|
EXHIBIT
C-1
HSI
ASSET
SECURITIZATION CORPORATION
HSI
Asset
Securitization Corporation Trust 2007-HE2
Mortgage
Pass-Through Certificates, Series 2007-HE2
Class
R
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Class R Certificate has no Certificate Balance and is not entitled to
distributions in respect of principal or interest. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Trustee or any other party to the Agreement referred to below
or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that [____________] is the registered owner of the Percentage Interest
specified above of any monthly distributions due to the Class R
Certificates pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the “Agreement”)
among
HSI Asset Securitization Corporation, as depositor (the “Depositor”),
Xxxxx
Fargo Bank, N.A., as master servicer, (in such capacity, the “Master
Servicer”)
securities administrator (in such capacity, the “Securities
Administrator”)
and
custodian, OfficeTiger Global Real Estate Services Inc., as credit risk manager,
and Deutsche Bank National Trust Company, as trustee (the “Trustee”).
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Any
distribution of the proceeds of any remaining assets of the Trust will be made
only upon presentment and surrender of this Class R Certificate at the
offices designated by the Securities Administrator for such purpose, or such
other location specified in the notice to Certificateholders.
No
transfer of a Class R Certificate shall be made unless the Securities
Administrator shall have received a representation letter from the transferee
of
such Certificate, acceptable to and in form and substance satisfactory to the
Securities Administrator, to the effect that such transferee is not an employee
benefit plan or arrangement subject to Section 406 of ERISA, a plan or
arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Trustee, the Securities
Administrator, the Depositor, the Master Servicer or the Trust Fund. In the
event that such representation is violated, or any attempt is made to transfer
to a plan or arrangement subject to Section 406 of ERISA or a plan subject
to Section 4975 of the Code or a plan subject to Similar Law, or a person
acting on behalf of any such plan or arrangement or using the assets of any
such
plan or arrangement, such attempted transfer or acquisition shall be void and
of
no effect.
EXHIBIT
C-2
Each
Holder of this Class R Certificate shall be deemed by the acceptance or
acquisition an Ownership Interest in this Class R Certificate to have
agreed to be bound by the following provisions, and the rights of each Person
acquiring any Ownership Interest in this Class R Certificate are expressly
subject to the following provisions: (i) each Person holding or acquiring
any Ownership Interest in this Class R Certificate shall be a Permitted
Transferee and shall promptly notify the Securities Administrator of any change
or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class R Certificate may be registered on the
Closing Date or thereafter transferred, and the Securities Administrator shall
not register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have
been furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement,
(iii) each Person holding or acquiring any Ownership Interest in this
Class R Certificate shall agree (A) to obtain a Transfer Affidavit
from any other Person to whom such Person attempts to Transfer its Ownership
Interest this Class R Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or agent
in
connection with any Transfer of this Class R Certificate, (C) not to
cause income with respect to the Class R Certificate to be attributable to
a foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other U.S. Person and
(D) not to Transfer the Ownership Interest in this Class R Certificate
or to cause the Transfer of the Ownership Interest in this Class R
Certificate to any other Person if it has actual knowledge that such Person
is a
Non-Permitted Transferee and (iv) any attempted or purported Transfer of
the Ownership Interest in this Class R Certificate in violation of the
provisions herein shall be absolutely null and void and shall vest no rights
in
the purported Transferee.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be valid
for any purpose unless manually authenticated by an authorized signatory of
the
Securities Administrator.
* * *
EXHIBIT
C-3
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
|
Dated:
|
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity, but solely as
Securities
Administrator
By:
_____________________________
Authenticated:
By:
_______________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity,
but
solely as Securities Administrator
EXHIBIT
C-4
HSI
ASSET
SECURITIZATION CORPORATION
HSI
Asset
Securitization Corporation Trust 2007-HE2
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
HSI
Asset Securitization Corporation Trust 2007-HE2 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the “Certificates”),
and
representing a beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely
to the
funds on deposit in the Distribution Account or Supplemental Interest Trust
Account for payment hereunder and that neither the Trustee nor the Securities
Administrator is liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such day is not a Business Day, the Business Day immediately
following (the “Distribution
Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement. The Record Date applicable
to
each Distribution Date is the last Business Day of the month next preceding
the
month of such Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Securities Administrator in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or,
if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment
and
surrender of such Certificate at the offices designated by the Securities
Administrator for such purpose, or such other location specified in the notice
to Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any of
the
Certificates.
EXHIBIT
C-5
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 Securities Administrator upon surrender of this Certificate for registration
of transfer at the offices designated by the Securities Administrator for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by the holder hereof or such
holder’s attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Securities Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith.
The
Trustee, the Depositor and the Securities Administrator and any agent of the
Trustee, the Depositor or the Securities Administrator may treat the Person
in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee, the Depositor, the Securities Administrator nor any
such agent shall be affected by any notice to the contrary.
The
Master Servicer shall have the option to purchase the Mortgage Loans and
therefore cause the termination of the Trust on any Optional Termination Date,
which is any Distribution Date in which the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period is less
than
or equal to 10% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
EXHIBIT
C-6
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Securities Administrator to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
______________________________________________________________________________
|
Dated:
|
______________________________
Signature
by or on behalf of assignor
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
,
_____________
_________________________________________________________________________________________________,
for
the
account of
___________________________________________________________________________________,
account
number __________, or, if mailed by check, to
_______________________________________________________.
_________________________________________________________________________________________________,
Applicable
statements should be mailed to
________________________________________________________________,
_________________________________________________________________________________________________
This
information is provided by
___________________________________________________________,
the
assignee named above, or
__________________________________________________________________________,
as
its
agent.
EXHIBIT
C-7
EXHIBIT
D
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN
A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)
AND
CERTAIN OTHER ASSETS.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR LETTER IN
THE
FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER
(I) THE SECURITIES ADMINISTRATOR RECEIVES EITHER A RULE 144A INVESTMENT
LETTER OR A REGULATION S INVESTMENT LETTER IN THE FORM OF EXHIBIT I-A AND
EXHIBIT I-B, RESPECTIVELY, TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE
SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER
TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”),
OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY
SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR
LAW”)
OR A
PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT
THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO
A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO
SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON
ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY
SUCH
PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND
OF
NO EFFECT.
|
Certificate
No.
|
:
|
X-1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Percentage
Interest of this Certificate
|
:
|
100%
|
|
Interest
Rate
|
:
|
None
|
|
CUSIP
|
:
|
40430R
AR7
|
|
ISIN
|
:
|
US40430RAR75
|
EXHIBIT
D-1
HSI
ASSET
SECURITIZATION CORPORATION
HSI
Asset
Securitization Corporation Trust 2007-HE2
Mortgage
Pass-Through Certificates, Series 2007-HE2
Class
X
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Certificate does not evidence an obligation of, or an interest in, and
is
not guaranteed by the Depositor, the Trustee or any other party to the Agreement
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This
certifies that [____________] is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate of the denominations of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”)
among
HSI Asset Securitization Corporation, as depositor (the “Depositor”),
Xxxxx
Fargo Bank, N.A., as master servicer, (in such capacity, the “Master
Servicer”)
securities administrator (in such capacity, the “Securities
Administrator”)
and
custodian, OfficeTiger Global Real Estate Services Inc., as credit risk manager,
and Deutsche Bank National Trust Company, as trustee (the “Trustee”).
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This
Certificate does not have a Certificate Balance or an Interest Rate and will
be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Securities Administrator for such purpose, or such
other location specified in the notice to Certificateholders.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”),
and
any applicable state securities laws or is made in accordance with the 1933
Act
and such laws. In the event of any such transfer, the Securities Administrator
shall require the transferor to execute a transferor certificate (in
substantially the form attached to the Agreement) and deliver either (i) a
Rule 144A Investment Letter or Regulation S Investment Letter, as
applicable, in either case substantially in the form attached to the Agreement,
or (ii) a written Opinion of Counsel to the Securities Administrator that
such transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant
to
the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
EXHIBIT
D-2
No
transfer of a Certificate of this Class shall be made unless the Securities
Administrator shall have received a representation letter from the transferee
of
such Certificate, acceptable to and in form and substance satisfactory to the
Securities Administrator, to the effect that such transferee is not an employee
benefit plan subject to Section 406 of ERISA, Section 4975 of the Code
or any materially similar provisions of applicable federal, state or local
law
(“Similar
Law”),
or a
person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Securities
Administrator.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually authenticated by an authorized signatory of
the
Securities Administrator.
* * *
EXHIBIT
D-3
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
|
Dated:
|
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity, but solely as
Securities
Administrator
By:
________________________________
Authenticated:
By:
___________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity,
but
solely as Securities Administrator
EXHIBIT
D-4
HSI
ASSET
SECURITIZATION CORPORATION
HSI
Asset
Securitization Corporation Trust 2007-HE2
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
HSI
Asset Securitization Corporation Trust 2007-HE2 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the “Certificates”),
and
representing a beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely
to the
funds on deposit in the Distribution Account or Supplemental Interest Trust
Account for payment hereunder and that neither the Trustee nor the Securities
Administrator is liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution
Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement. The Record Date applicable
to
each Distribution Date is the last Business Day of the month next preceding
the
month of such Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Securities Administrator in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or,
if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment
and
surrender of such Certificate at the offices designated by the Securities
Administrator for such purposes or such other location specified in the notice
to Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any of
the
Certificates.
EXHIBIT
D-5
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 Securities Administrator upon surrender of this Certificate for registration
of transfer at the offices designated by the Securities Administrator for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by the holder hereof or such
holder’s attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Securities Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith.
The
Trustee, the Depositor and the Securities Administrator and any agent of the
Trustee, the Depositor or the Securities Administrator may treat the Person
in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee, the Depositor, the Securities Administrator nor any
such agent shall be affected by any notice to the contrary.
The
Master Servicer shall have the option to purchase the Mortgage Loans and
therefore cause the termination of the Trust on any Optional Termination Date,
which is any Distribution Date in which the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period is less
than
or equal to 10% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning
EXHIBIT
D-6
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Securities Administrator to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
______________________________________________________________________________
|
Dated:
|
______________________________
Signature
by or on behalf of assignor
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
,
_____________
_________________________________________________________________________________________________,
for
the
account of
___________________________________________________________________________________,
account
number __________, or, if mailed by check, to
_______________________________________________________.
_________________________________________________________________________________________________,
Applicable
statements should be mailed to
________________________________________________________________,
_________________________________________________________________________________________________
This
information is provided by
___________________________________________________________,
the
assignee named above, or
__________________________________________________________________________,
as
its
agent.
EXHIBIT
D-7
EXHIBIT
E
FORM
OF
INITIAL CERTIFICATION OF CUSTODIAN
[date]
|
HSI
Asset Securitization Corporation
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Xxxxx
Fargo Bank, N.A.
1
Home Campus
Xxx
Xxxxxx, Xxxx 00000-0000
|
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000-0000
|
Countrywide
Home Loans Servicing LP
0000
Xxxx Xxxxxxx
Xxxxxxx,
Xxxxxxxxxx 00000
|
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
|
|
Re:
|
HSI
Asset Securitization Corporation, Series
2007-HE2
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement (the
“Pooling
and Servicing Agreement”)
dated
as of April 1, 2007 among HSI Asset Securitization Corporation, as depositor,
Xxxxx Fargo Bank, N.A., as master servicer, securities administrator and
custodian, OfficeTiger Global Real Estate Services Inc., as credit risk manager,
and Deutsche Bank National Trust Company, as trustee, for each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan listed in
the
attached schedule), it has received:
(i) the
original Mortgage Note, endorsed as provided in the following form: “Pay to the
order of ________, without recourse”; and
(ii) a
duly
executed assignment of the Mortgage (which may be included in a blanket
assignment or assignments).
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Custodian 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 Custodian makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
EXHIBIT
E-1
XXXXX
FARGO BANK, N.A., as Custodian
By:
______________________________
Name:
________________________
Title:
_________________________
EXHIBIT
E-2
EXHIBIT
F
FORM
OF
DOCUMENT CERTIFICATION
AND
EXCEPTION REPORT OF CUSTODIAN
______,
20___
|
HSI
Asset Securitization Corporation
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Xxxxx
Fargo Bank, N.A.
1
Home Campus
Xxx
Xxxxxx, Xxxx 00000-0000
|
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000-0000
|
Countrywide
Home Loans Servicing LP
0000
Xxxx Xxxxxxx
Xxxxxxx,
Xxxxxxxxxx 00000
|
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
|
|
Re:
|
HSI
Asset Securitization Corporation, Series
2007-HE2
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement (the
“Pooling
and Servicing Agreement”)
dated
as of April 1, 2007 among HSI Asset Securitization Corporation, as depositor,
Xxxxx Fargo Bank, N.A., as master servicer, securities administrator and
custodian, OfficeTiger Global Real Estate Services Inc., as credit risk manager,
and Deutsche Bank National Trust Company, as trustee, the undersigned, as
Custodian, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attached Document Exception Report) it has received:
(i) The
original Mortgage Note, endorsed in the form provided in Section 2.01 of
the Pooling and Servicing Agreement, with all intervening endorsements showing
a
complete chain of endorsement from the mortgage loan seller to the last
endorsee.
(ii) The
original recorded Mortgage.
(iii) A
duly
executed assignment of the Mortgage in the form provided in Section 2.01 of
the Pooling and Servicing Agreement; or, if the Mortgage Loan Seller has
certified or the Custodian otherwise knows that the related Mortgage has not
been returned from the applicable recording office, a copy of the assignment
of
the Mortgage (excluding information to be provided by the recording
office).
EXHIBIT
F-1
(iv) The
original or duplicate original recorded assignment or assignments of the
Mortgage showing a complete chain of assignment from the mortgage loan seller
to
the last endorsee.
(v) The
original or duplicate original lender’s title policy and all riders thereto or,
any one of an original title binder, an original preliminary title report or
an
original title commitment, or a copy thereof certified by the title
company.
Based
on
its review and examination and only as to the foregoing documents, (a) such
documents appear regular on their face and related to such Mortgage Loan, and
(b) the information set forth in items (1), (2), (3), (15), (18) and
(22) of the Data Tape Information accurately reflects information set forth
in
the Custodial File.
The
Custodian has made no independent examination of any documents contained in
each
Mortgage File beyond the review of the Custodial File specifically required
in
the Pooling and Servicing Agreement. The Custodian makes no representation
as
to: (i) the validity, legality, sufficiency, enforceability or genuineness
of any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Custodian has made no
determination and makes no representations as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the
party
so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note
or
(ii) any assignment is in recordable form or sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to which
the assignment relates.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
XXXXX
FARGO BANK, N.A., as Custodian
By:
__________________________
Name:
____________________
Title:
_____________________
EXHIBIT
F-2
EXHIBIT
G
FORM
OF
RESIDUAL TRANSFER AFFIDAVIT
HSI
Asset
Securitization Corporation Trust 2007-HE2
Mortgage
Pass-Through Certificates, Series 2007-HE2
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of ___________________, the proposed Transferee of
an
Ownership Interest in a Class R Certificate (the “Certificate”)
issued
pursuant to the Pooling and Servicing Agreement (the “Agreement”),
relating to the above-referenced Series, dated as of April 1, 2007 among HSI
Asset Securitization Corporation, as depositor, Xxxxx Fargo Bank, N.A., as
master servicer, securities administrator and custodian, OfficeTiger Global
Real
Estate Services Inc., as credit risk manager, and Deutsche Bank National Trust
Company, as trustee. Capitalized terms used, but not defined herein, shall
have
the meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee
for the benefit of the Depositor, the Securities Administrator and the
Trustee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account. The Transferee has no knowledge
that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be
imposed on Transfers of the Certificate to Persons that are Non-Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman)
for
a Person that is a Non-Permitted Transferee, on the agent; and (iii) the
Person otherwise liable for the tax shall be relieved of liability for the
tax
if the subsequent Transferee furnished to such Person an affidavit that such
subsequent Transferee is a Permitted Transferee and, at the time of Transfer,
such Person does not have actual knowledge that the affidavit is
false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is a Non-Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
EXHIBIT
G-1
5. The
Transferee has reviewed the provisions of Section 5.02(c) of the Agreement
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions
on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by
the provisions of Section 5.02(c) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and agrees
that
any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person that
the Transferee knows is a Non-Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Securities
Administrator a certificate substantially in the form set forth as
Exhibit H to the Agreement (a “Transferor
Certificate”)
to the
effect that, among other things, such Transferee has no actual knowledge that
the Person to which the Transfer is to be made is a Non-Permitted
Transferee.
7. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the Certificate. The
Transferee has historically paid its debts as they have come due and intends
to
pay its debts as they come due in the future. The Transferee intends to pay
all
taxes due with respect to the Certificate as they become due.
8. The
Transferee’s taxpayer identification number is __________.
9. The
Transferee is not a Disqualified Non-U.S. Person as defined in the
Agreement.
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee will not cause income from the Residual Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
U.S.
Person.
EXHIBIT
G-2
12. Check
the
applicable paragraph:
o
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.
o
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.
o
None
of the above.
EXHIBIT
G-3
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__.
_____________________________________
Print
Name of Transferee
By:
__________________________________
Name:
Title:
[Corporate
Seal]
ATTEST:
__________________________
[Assistant]
Secretary
Personally
appeared before me the above-named __________, known or proved to me to be
the
same person who executed the foregoing instrument and to be the ___________
of
the Transferee, and acknowledged that he executed the same as his free act
and
deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this ___ day of _______, 20__.
_____________________________________
NOTARY
PUBLIC
My
Commission expires the __ day
of
_________, 20__
EXHIBIT
G-4
EXHIBIT
H
FORM
OF
TRANSFEROR CERTIFICATE
__________,
20__
HSI
Asset
Securitization Corporation
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Head MBS Principal Finance
Xxxxx
Fargo Bank, N.A.,
as
Securities Administrator
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
Corporate Trust Services - HASCO 2007-HE2
|
Re:
|
HSI
Asset Securitization Corporation Trust 2007-HE2 Mortgage Pass-Through
Certificates, Series 2007-HE2, Class
[__]
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that
(a) we understand that the Certificates have not been registered under the
Securities Act of 1933, as amended (the “Act”),
and
are being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates
to, or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that
would be deemed, or taken any other action which would result in, a violation
of
Section 5 of the Act and (c) to the extent we are disposing of a
Residual Certificate, (i) we have no knowledge the Transferee is a
Non-Permitted Transferee, (ii) after conducting a reasonable investigation
of the financial condition of the Transferee, we have no knowledge and no reason
to believe that the Transferee will not pay all taxes with respect to the
Residual Certificates as they become due and (iii) we have no reason to
believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee’s Residual Transfer Affidavit are false.
In
connection with any disposition of the above Certificates in accordance with
Rule 904 of Regulation S we hereby certify that:
|
a.
|
the
offer of the Certificates was not made to a person in the United
States;
|
|
b.
|
at
the time the buy order was originated, the transferee was outside
the
United States or the Transferor and any person acting on its behalf
responsibly believed
the transferee was outside the United
States;
|
EXHIBIT
H-1
|
c.
|
no
directed selling efforts have been made in contravention of the
requirements of Rule 903 or Rule 904 of Regulation S, as
applicable;
|
|
d.
|
the
transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act, as amended;
and
|
|
e.
|
the
transferee is not a U.S. person (as defined in Regulation
S).
|
Very
truly yours,
__________________________________
Print
Name of Transferor
By:
_______________________________
Authorized
Officer
EXHIBIT
H-2
EXHIBIT
I-A
FORM
OF
RULE 144A INVESTMENT LETTER
____________,
20__
HSI
Asset
Securitization Corporation
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Head MBS Principal Finance
Xxxxx
Fargo Bank, N.A.,
as
Securities Administrator
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
Corporate Trust Services - HASCO 2007-HE2
|
Re:
|
HSI
Asset Securitization Corporation Trust
2007-HE2
|
|
Mortgage
Pass-Through Certificates, Series 2007-HE2, Class
[__]
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that
(a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the “Act”),
or
any state securities laws and are being transferred to us in a transaction
that
is exempt from the registration requirements of the Act and any such laws,
(b) we have such knowledge and experience in financial and business matters
that we are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Depositor concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed necessary
to our decision to purchase the Certificates, (d) in the case of an
ERISA-Restricted Certificate, we are not an employee benefit plan that is
subject to Title I of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”),
or a
plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended, or a plan subject to materially similar provisions
of
applicable federal, state or local law, nor are we acting on behalf of any
such
plan or arrangement nor using the assets of any such plan or arrangement to
effect such acquisition or, with respect to an ERISA-Restricted Certificate
other than a Class P Certificate, a Class X Certificate or a Residual
Certificate, such Certificate has been the subject of an ERISA-Qualifying
Underwriting and the purchaser is an insurance company that is purchasing this
certificate with funds contained in an “insurance company general account” (as
such term is defined in Section V(e) of Prohibited Transaction Class
Exemption (“PTCE”)
95-60)
and that the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60, (e) in the case of an
ERISA-Restricted Trust Certificate prior to the termination of the swap
agreement and the cap agreement, either (i) we are not an employee benefit
plan
that is subject to Title I of ERISA, or a plan or arrangement that is
subject to Section 4975 of the Internal Revenue
EXHIBIT
I-A-1
Code
of
1986, as amended, nor a person acting on behalf of any such plan, nor are we
using the assets of any such plan to effect such transfer or (ii) our
acquisition and holding of the ERISA-Restricted Trust Certificate is eligible
for exemptive relief under the statutory exemption for non-fiduciary service
providers under Section 408(b)(17) of ERISA and Section 4975(d)(20) of the
Code,
XXXX 00-00, XXXX 00-0, XXXX 91-38, PTCE 95-60 or PTCE 96-23 or some other
applicable exemption, (f) 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 (g) 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.
EXHIBIT
I-A-2
ANNEX
1 TO EXHIBIT I
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of
1933, as amended (“Rule 144A”),
because (i) the Buyer owned and/or invested on a discretionary basis
$________ 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.
|
___________________
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.
EXHIBIT
I-A-3
|
____
|
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.
EXHIBIT
I-A-4
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each of
the parties to which this certification is made of any changes in the
information and conclusions herein. Until such notice is given, the Buyer’s
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is
a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after
they
become available.
_________________________________
Print
Name of Transferee
By:
___________________________________
Name:
Title:
Date:
_________________________________
EXHIBIT
I-A-5
ANNEX
2 TO EXHIBIT I
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That Are Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the
Securities Act of 1933, as amended (“Rule 144A”),
because Buyer is part of a Family of Investment Companies (as defined below),
is
such an officer of the Adviser.
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 Buyer’s Family of
Investment Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information with
respect to the cost of those securities has been published. If clause (ii)
in the preceding sentence applies, the securities may be valued at
market.
|
____
|
The
Buyer owned $_______ in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year
(such amount being calculated in accordance with
Rule 144A).
|
|
____
|
The
Buyer is part of a Family of Investment Companies which owned in
the
aggregate $_______ in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year
(such amount being calculated in accordance with
Rule 144A).
|
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.
EXHIBIT
I-A-6
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 Transferee
By:
___________________________________
Name:
Title:
IF
AN
ADVISER:
_________________________________
Print
Name of Buyer
Date:
_________________________________
EXHIBIT
I-A-7
EXHIBIT
I-B
FORM
OF
REGULATION S INVESTMENT LETTER
____________,
20__
HSI
Asset
Securitization Corporation
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Head MBS Principal Finance
Xxxxx
Fargo Bank, N.A.,
as
Securities Administrator
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
Corporate Trust Services - HASCO 2007-HE2
|
Re:
|
HSI
Asset Securitization Corporation Trust 2007-HE2
|
Mortgage
Pass-Through Certificates, Series 2007-HE2, Class [__]
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that
(a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the “Act”),
or
any state securities laws and are being transferred to us in a transaction
that
is exempt from the registration requirements of the Act and any such laws,
(b) we have such knowledge and experience in financial and business matters
that we are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Depositor concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed necessary
to our decision to purchase the Certificates, (d) in the case of an
ERISA-Restricted Certificate, we are not an employee benefit plan that is
subject to Title I of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”),
or a
plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended, or a plan subject to materially similar provisions
of
applicable federal, state or local law, nor are we acting on behalf of any
such
plan or arrangement nor using the assets of any such plan or arrangement to
effect such acquisition or, with respect to an ERISA-Restricted Certificate
other than a Class P Certificate, a Class X Certificate or a Residual
Certificate, such Certificate has been the subject of an ERISA-Qualifying
Underwriting and the purchaser is an insurance company that is purchasing this
certificate with funds contained in an “insurance company general account” (as
such term is defined in Section V(e) of Prohibited Transaction Class
Exemption (“PTCE”)
95-60)
and that the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60, (e) in the case of an
ERISA-Restricted Trust Certificate prior to the termination of the swap
agreement and the cap agreement, either (i) we are not an employee benefit
plan
that is subject to Title I of ERISA, or a plan or arrangement that is
subject to Section 4975 of the Internal Revenue
EXHIBIT
I-B-1
Code
of
1986, as amended, nor a person acting on behalf of any such plan, nor are we
using the assets of any such plan to effect such transfer or (ii) our
acquisition and holding of the ERISA-Restricted Trust Certificate is eligible
for exemptive relief under the statutory exemption for non-fiduciary service
providers under Section 408(b)(17) of ERISA and Section 4975(d)(20) of the
Code,
XXXX 00-00, XXXX 00-0, XXXX 91-38, PTCE 95-60 or PTCE 96-23 or some other
applicable exemption, (f) 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 (g) we are not a U.S. person within the meaning of
Regulation S of the Securities Act and was at the time the buy order was
originated for the Class [ ] Certificates outside the United States. We are
aware that the sale to us is being made in reliance on Regulation S of the
Securities Act and we understand (x) that until the expiration of the
40-day distribution
compliance period (within the meaning of Regulation S), no offer, sale, pledge
or other transfer of such Certificates or any interest therein shall be made
in
the United States or to or for the account or benefit of a U.S. person (each
as
defined in Regulation S), (y) if in the future we decide to offer, resell,
pledge or otherwise transfer such Certificates, such Certificates may be
offered, resold, pledged or transferred only to (A) a person which the seller
reasonably believes is a “qualified institutional buyer” (a “QIB”) as defined in
Rule 144A under the Securities Act, that is purchasing such Certificate for
its
own account or for the account of a QIB in reliance on Rule 144A or (B) in
an
offshore transaction (as defined in Regulation S) in compliance with the
provisions of Regulation S, in each case in compliance with the requirements
of
the Agreement; and we will notify such transferee of the transfer restrictions
specified in the Agreement.
EXHIBIT
I-B-2
_________________________________
Print
Name of Transferee
By:
___________________________________
Name:
Title:
IF
AN
ADVISER:
_________________________________
Print
Name of Buyer
Date
EXHIBIT
I-B-3
EXHIBIT
J
FORM
OF
REQUEST FOR RELEASE
(for
Custodian)
|
To:
|
Xxxxx
Fargo Bank, N.A.
|
00
Xxxxxxxxx Xxxx
Xxxxxx,
Xxxxxxxxxx 00000
|
Re:
|
Pooling
and Servicing Agreement (the “Pooling and Servicing Agreement”) dated as
of April 1, 2007 among HSI Asset Securitization Corporation, as depositor,
Xxxxx Fargo Bank, N.A., as master servicer, securities administrator
and
custodian, OfficeTiger Global Real Estate Services Inc., as credit
risk
manager, and Deutsche Bank National Trust Company, as
trustee.
|
In
connection with the administration of the Mortgage Loans held by you as the
Custodian on behalf of the Certificateholders, we request the release, and
acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor’s
Name, Address & Zip Code:
Mortgage
Loan Number:
Send
Custodial File to:
Delivery
Method (check one)
|
____1.
|
Regular
mail
|
|
____2.
|
Overnight
courier (Tracking information:
)
|
If
neither box 1 nor 2 is checked, regular mail shall be assumed.
Reason
for Requesting Documents
(check
one)
|
____1.
|
Mortgage
Loan Paid in Full.
(The Servicer hereby certifies that all amounts received in connection
therewith have been credited to the Collection Account as provided
in the
Pooling and Servicing Agreement.)
|
|
____2.
|
Mortgage
Loan Repurchase Pursuant to Subsection 2.03 of the Pooling and Servicing
Agreement.
(The Servicer hereby certifies that the repurchase price has been
credited
to the Collection Account as provided in the Pooling and Servicing
Agreement.)
|
|
____3.
|
Mortgage
Loan Liquidated by _________________. (The Servicer hereby certifies
that
all proceeds of foreclosure, insurance, condemnation or other liquidation
have been finally received and credited to the Collection Account
pursuant
to the Pooling and Servicing
Agreement.)
|
EXHIBIT
J-1
|
____4.
|
Mortgage
Loan in Foreclosure.
|
____5. Other
(explain).
If
box 1,
2 or 3 above is checked, and if all or part of the Custodial File was previously
released to us, please release to us our previous request and receipt on file
with you, as well as any additional documents in your possession relating to
the
specified Mortgage Loan.
If
box 4
or 5 above is checked, upon our return of all of the above documents to you
as
the Trustee, please acknowledge your receipt by signing in the space indicated
below, and returning this form if requested by us.
[ ]
By:
______________________________
Name:
Title:
Date:
ACKNOWLEDGED
AND AGREED:
XXXXX
FARGO BANK, N.A.
By:
________________________________
Name:
Title:
Date:
EXHIBIT
J-2
EXHIBIT
K
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Depositor and
which shall be retained by the Servicer or delivered to and retained by the
Custodian:
(a) The
documents or instruments set forth as items (i) to (ix) in Section 2.01(b)
of the Pooling and Servicing Agreement.
(b) Residential
loan application.
(c) Mortgage
Loan closing statement.
(d) Verification
of employment and income.
(e) Verification
of acceptable evidence of source and amount of downpayment.
(f) Credit
report on Mortgagor.
(g) Residential
appraisal report.
(h) Photograph
of the Mortgaged Property.
(i) Survey
of
the Mortgaged Property.
(j) Copy
of
each instrument necessary to complete identification of any exception set forth
in the exception schedule in the title policy, i.e., map or plat, restrictions,
easements, sewer agreements, home association declarations, etc.
(k) All
required disclosure statements and statement of Mortgagor confirming receipt
thereof.
(l) If
available, termite report, structural engineer’s report, water potability and
septic certification.
(m) Sales
contract, if applicable.
(n) Hazard
insurance policy.
(o) Tax
receipts, insurance premium receipts, ledger sheets, payment history from date
of origination, insurance claim files, correspondence, current and historical
computerized data files, and all other processing, underwriting and closing
papers and records which are customarily contained in a mortgage loan file
and
which are required to document the Mortgage Loan or to service the Mortgage
Loan.
EXHIBIT
K-1
(p) Amortization
schedule, if available.
(q) Payment
history for Mortgage Loans that have been closed for more than 90
days.
EXHIBIT
K-2
EXHIBIT
L
FORM
OF
XXXXXXXX-XXXXX CERTIFICATION TO BE
PROVIDED
BY MASTER SERVICER (OR OTHER
CERTIFICATION
PARTY) WITH FORM 10-K
HSI
Asset
Securitization Corporation Trust 2007-HE2
Mortgage
Pass-Through Certificates
Series
2007-HE2
This
Certification is being made pursuant to Section 3.05 and Section 8.12 of
the Pooling and Servicing Agreement dated as of April 1, 2007 (the “Pooling
and Servicing Agreement”)
relating to the above-referenced Series, among HSI Asset Securitization
Corporation, as depositor, Xxxxx Fargo Bank, N.A., as master servicer,
securities administrator and custodian, OfficeTiger Global Real Estate Services
Inc., as credit risk manager, and Deutsche Bank National Trust Company, as
trustee. Capitalized terms used but not defined herein shall have the meanings
assigned in the Pooling and Servicing Agreement.
1. I
have
reviewed this annual 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 HSI Asset Securitization Corporation Trust 2007-HE2 (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 Form 10-D for the period covered by this report is included
in the Exchange Act periodic reports;
4. I
am
responsible for reviewing the activities performed by each Servicer and based
on
my knowledge and the compliance review conducted in preparing the Servicer
compliance statement required in this report under Item 1123 of Regulation
AB,
and except as disclosed in the Exchange Act periodic reports, each Servicer
has
fulfilled its obligations under its related 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 report on Form
10-K.
EXHIBIT
L-1
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following parties: [ ]
XXXXX
FARGO BANK, N.A.
as
Master
Servicer
By:
____________________________
Name:
Title:
Date:
EXHIBIT
L-2
EXHIBIT
M
LIST
OF
SERVICING AGREEMENTS
1. Servicing
Agreement, dated as of June 30, 2006, by and among HSBC Bank (USA) Inc. and
Xxxxx Fargo Bank, N.A., as servicer, as reconstituted pursuant to a
Reconstituted Servicing Agreement, dated as of April 1, 2007, by and among
HSBC
Bank USA, National Association, HSI Asset Securitization Corporation and Xxxxx
Fargo Bank, N.A., as servicer, and acknowledged by Xxxxx Fargo Bank, N.A.,
as
master servicer, and Deutsche Bank National Trust Company, as
trustee.
2. Mortgage
Loan Servicing Rights Purchase and Servicing Agreement as amended by Amendment
Reg AB, each dated as of December 1, 2006, each among HSBC Bank USA, National
Association, Countrywide Home Loans, Inc. and Countrywide Home Loans Servicing
LP, each as reconstituted pursuant to an Assignment, Assumption and Recognition
Agreement, dated as of April 1, 2007, among HSBC Bank (USA), National
Association, HSI Asset Securitization Corporation, Countrywide Home Loans,
Inc.,
Countrywide Home Loans Servicing LP, Xxxxx Fargo Bank, N.A., as master servicer,
and Deutsche Bank National Trust Company, as trustee.
3. Servicing
Agreement as amended by Amendment Reg AB, each dated as of August 30, 2006,
each
between HSBC Bank USA, National Association, and Countrywide Home Loans, Inc.,
each as reconstituted pursuant to an Assignment, Assumption and Recognition
Agreement, dated as of April 1, 2007, among HSBC Bank (USA), National
Association, HSI Asset Securitization Corporation, Countrywide Home Loans,
Inc.,
Countrywide Home Loans Servicing LP, Xxxxx Fargo Bank, N.A., as master servicer,
and Deutsche Bank National Trust Company, as trustee.
EXHIBIT
M-1
EXHIBIT
N-1
[RESERVED]
EXHIBIT
N-1-1
EXHIBIT
N-2
[RESERVED]
EXHIBIT
N-2-1
EXHIBIT
N-3
[RESERVED]
EXHIBIT
N-3-1
EXHIBIT
O
FORM
OF SWAP AGREEMENT
EXHIBIT
O-1
EXHIBIT
P
FORM
OF CAP AGREEMENT
EXHIBIT
P-1
EXHIBIT
Q
TRANSFER
AGREEMENTS
EXHIBIT
Q-1
EXHIBIT
R
[Reserved]
EXHIBIT
R-1
EXHIBIT
S
SERVICING
CRITERIA MATRIX
The
assessment of compliance to be delivered by Xxxxx Fargo Bank, N.A. (“Xxxxx
Fargo”), in its capacities as Master Servicer, Securities Administrator and
Custodian, shall address, at a minimum, the criteria identified as below as
“Applicable Servicing Criteria”.
Capitalized
terms used herein but not defined herein shall have the meanings assigned to
them in the Pooling and Servicing Agreement dated as of April 1, 2007 (the
“Pooling and Servicing Agreement”), by and among HSI Asset Securitization
Corporation, as depositor, Xxxxx Fargo Bank, N.A., as master servicer,
securities administrator and custodian, OfficeTiger Global Real Estate Services
Inc., as credit risk manager, and Deutsche Bank National Trust Company, as
trustee.
|
Reg
AB Reference
|
Servicing
Criteria
|
Xxxxx
Fargo
|
|
General Servicing
Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the 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
|
|
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
|
|
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
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
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
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
EXHIBIT
S-1
|
Reg
AB Reference
|
Servicing
Criteria
|
Xxxxx
Fargo
|
|
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
|
|
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
|
|
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
|
|
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
|
|
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
|
|
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
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
EXHIBIT
S-2
|
Reg
AB Reference
|
Servicing
Criteria
|
Xxxxx
Fargo
|
|
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).
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
[X]
if
obligated under transaction documents
|
EXHIBIT
S-3
EXHIBIT
T
Trustee:
Deutsche Bank National Trust Company
Securities
Administrator:
Xxxxx
Fargo Bank, N.A.
Master
Servicer:
Xxxxx
Fargo Bank, N.A.
Derivative
Counterparty:
Wachovia Bank, National Association
Servicers:
Xxxxx
Fargo Bank, N.A. and Countrywide Home Loans Servicing LP
Primary
Originators:
Decision One Mortgage Company, LLC and WMC Mortgage Corp.
Custodian:
Xxxxx
Fargo Bank, N.A.
Sponsor:
HSBC
Bank USA, National Association
Credit
Risk Manager:
OfficeTiger Global Real Estate Services Inc.
EXHIBIT
T-1
EXHIBIT
U
FORM
OF ANNUAL COMPLIANCE CERTIFICATE
Via
Overnight Delivery
[DATE]
HSI
Asset
Securitization Corporation,
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Head MBS Principal Finance
Xxxxx
Fargo Bank, N.A.,
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Manager - HASCO 2007-HE2
|
RE:
|
Annual
officer’s certificate delivered pursuant to Section 3.05 of that certain
Pooling Servicing Agreement, dated as of April 1, 2007 (the “Pooling
and Servicing Agreement”),
among HSI Asset Securitization Corporation, as depositor (the
“Depositor”),
Xxxxx Fargo Bank, N.A., master servicer (the “Master
Servicer”),
securities administrator (the “Securities
Administrator”)
and custodian, OfficeTiger Global Real Estate Services Inc., as credit
risk manager, and Deutsche Bank National Trust Company, as trustee
(the
“Trustee”)
|
[_______],
the undersigned, a duly authorized [_______] of [Master Servicer] [Securities
Administrator] [Subservicer], does hereby certify the following for the
[calendar year][identify other period] ending on December 31,
20[__]:
|
1.
|
A
review of the activities of the [Master Servicer] [Securities
Administrator] during the preceding calendar year (or portion thereof)
and
of its performance under the Agreement for such period has been made
under
my supervision.
|
|
2.
|
To
the best of my knowledge, based on such review, the [Master Servicer]
[Securities Administrator] [Subservicer] has fulfilled all of its
obligations under the Agreement in all material respects throughout
such
year (or applicable portion thereof), or, if there has been a failure
to
fulfill any such obligation in any material respect, I have specifically
identified to the Depositor and the Securities Administrator each
such
failure known to me and the nature and status thereof, including
the steps
being taken by the [Master Servicer] [Securities Administrator]
[Subservicer] to remedy such
default.
|
EXHIBIT
U-1
Certified
By:
______________________________
Name:
Title:
EXHIBIT
U-2
EXHIBIT
V
ADDITIONAL
FORM 10-D DISCLOSURE
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the [Monthly Statement]
|
Master
Servicer, Servicer(1)
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the [Monthly
Statement]
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Master
Servicer, Securities Administrator, Servicer(1)
and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Servicer
|
Servicer(1)
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer(1)
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
EXHIBIT
V-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Securities
Administrator
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
EXHIBIT
V-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
(1)
This
information is provided pursuant to the applicable Servicing
Agreement.
EXHIBIT
V-3
EXHIBIT
W
ADDITIONAL
FORM 10-K DISCLOSURE
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-K if updated information
is required pursuant to the Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-K if updated information
is required pursuant to the Item.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-K if updated information
is required pursuant to the Item.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
EXHIBIT
W-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Issuing Entity (Trust Fund)
|
Master
Servicer, Securities Administrator, Servicer(1)
and
Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Servicer
|
Servicer(1)
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Servicer, Master Servicer
or
Securities Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Servicer
|
Servicer(1)
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(1)
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivative Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand, and
(b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
EXHIBIT
W-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Servicer
|
Servicer(1)
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor/Sponsor
|
|
▪
Any other 1108(a)(3) servicer
|
Depositor/Sponsor
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivative Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two years
and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Servicer
|
Servicer(1)
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor/Sponsor
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(1)
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
(1)
This
information is provided pursuant to the applicable Servicing
Agreement.
EXHIBIT
W-3
EXHIBIT
X
FORM
8-K DISCLOSURE INFORMATION
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties other than the Trustee
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties other than the Trustee
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer(1)
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Servicer(1)
|
|
▪
Other material servicers
|
Servicer(1)
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
EXHIBIT
X-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Securities
Administrator
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer(1)
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer(1)/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
EXHIBIT
X-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Securities
Administrator
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties other than the Trustee
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
(1)
This
information is provided pursuant to the applicable Servicing
Agreement.
EXHIBIT
X-3
EXHIBIT
Y
ADDITIONAL
DISCLOSURE NOTIFICATION
**SEND
TO XXXXX FARGO VIA FAX TO 000-000-0000 AND VIA EMAIL TO
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx AND VIA OVERNIGHT MAIL TO THE ADDRESS
IMMEDIATELY BELOW. SEND TO THE DEPOSITOR AT THE ADDRESS
BELOW**
Xxxxx
Fargo Bank, N.A. as Securities Administrator
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail:
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
HSI
Asset
Securitization Corporation
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Head MBS Principal Finance
Attn:
Client Manager - [DEAL NAME]-SEC REPORT PROCESSING
RE:
**Additional Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Pooling and Servicing Agreement, dated as
of
[ ] [ ], 2007, among [ ], as [ ], [ ], as [ ], [ ], as [ ] and [ ], as [ ].
The
Undersigned, as [ ], hereby notifies you that certain events have come to our
attention that [will][may] need to be disclosed on Form [ ].
Description
of Additional Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this notification should be directed to [ ], phone number:
[ ]; email address: [ ].
EXHIBIT
Y-1
[NAME
OF
PARTY]
as
[role]
By:
__________________
Name:
Title:
EXHIBIT
Y-2
