Exhibit 4.1
EXECUTION COPY
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor,
XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities Administrator,
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee,
and
PHH MORTGAGE CORPORATION,
as Servicer
----------
POOLING AND SERVICING AGREEMENT
Dated as of January 1, 2007
----------
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST SERIES MLCC 2007-1
MORTGAGE PASS-THROUGH CERTIFICATES
TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS................................................... 6
Section 1.01. Definitions.......................................... 6
Section 1.02. Calculations Respecting Mortgage Loans............... 35
ARTICLE II. DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES............... 36
Section 2.01. Creation and Declaration of Trust Fund; Conveyance
of Mortgage Loans.................................... 36
Section 2.02. Acceptance of Trust Fund by Trustee; Review of
Documentation for Trust Fund......................... 39
Section 2.03. Representations and Warranties of the Depositor...... 41
Section 2.04. Representations and Warranties Concerning the
Master Servicer, the Securities Administrator and
the Servicer......................................... 43
Section 2.05. Discovery of Breach; Repurchase or Substitution of
Mortgage Loans....................................... 47
Section 2.06. Grant Clause......................................... 49
ARTICLE III. THE CERTIFICATES............................................ 50
Section 3.01. The Certificates..................................... 50
Section 3.02. Registration......................................... 51
Section 3.03. Transfer and Exchange of Certificates................ 51
Section 3.04. Cancellation of Certificates......................... 55
Section 3.05. Replacement of Certificates.......................... 55
Section 3.06. Persons Deemed Owners................................ 56
Section 3.07. Temporary Certificates............................... 56
Section 3.08. Appointment of Paying Agent.......................... 56
Section 3.09. Book-Entry Certificates.............................. 56
ARTICLE IV. ADMINISTRATION OF THE ISSUING ENTITY......................... 58
Section 4.01. Collection Accounts; Master Servicer Collection
Account; Distribution Account........................ 58
Section 4.02. Permitted Withdrawals from the Master Servicer
Collection Account and the Distribution Account...... 60
Section 4.03. Reports to Certificateholders........................ 62
ARTICLE V. DISTRIBUTIONS TO HOLDERS OF CERTIFICATES...................... 64
Section 5.01. Distributions Generally.............................. 64
Section 5.02. Distributions from the Distribution Account.......... 65
Section 5.03. Allocation of Losses................................. 68
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TABLE OF CONTENTS
(continued)
PAGE
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Section 5.04. Advances............................................. 69
ARTICLE VI. CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR;
EVENTS OF DEFAULT............................................ 70
Section 6.01. Duties of Trustee and Securities Administrator....... 70
Section 6.02. Certain Matters Affecting the Trustee and the
Securities Administrator............................. 72
Section 6.03. Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans....................... 74
Section 6.04. Trustee and Securities Administrator May Own
Certificates......................................... 74
Section 6.05. Eligibility Requirements for Trustee and Securities
Administrator........................................ 74
Section 6.06. Resignation and Removal of Trustee and Securities
Administrator........................................ 75
Section 6.07. Successor Trustee or Successor Securities
Administrator........................................ 75
Section 6.08. Merger or Consolidation of Trustee or Securities
Administrator........................................ 76
Section 6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian............................................ 76
Section 6.10. Authenticating Agents................................ 78
Section 6.11. Indemnification of Trustee and Securities
Administrator........................................ 79
Section 6.12. Fees and Expenses of the Trustee and the Securities
Administrator........................................ 79
Section 6.13. Collection of Monies................................. 79
Section 6.14. Servicer Events of Default and Master Servicer
Events of Default; Master Servicer or Trustee To
Act; Appointment of Successor Servicer; Appointment
of Successor Master Servicer......................... 80
Section 6.15. Additional Remedies of the Master Servicer and the
Trustee Upon Event of Default........................ 84
Section 6.16. Waiver of Servicer Events of Default and Master
Servicer Events of Default........................... 84
Section 6.17. Notification to Holders.............................. 85
Section 6.18. Directions by Certificateholders and Duties of
Trustee During Servicer and Master Servicer Event of
Default.............................................. 85
Section 6.19. Preparation of Tax Returns and Other Reports......... 85
ARTICLE VII. PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE ISSUING
ENTITY...................................................... 86
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TABLE OF CONTENTS
(continued)
PAGE
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Section 7.01. Purchase of Mortgage Loans; Termination of Issuing
Entity Upon Purchase or Liquidation of All Mortgage
Loans................................................ 86
Section 7.02. Procedure Upon Termination of Issuing Entity......... 87
Section 7.03. Additional Issuing Entity Termination Requirements... 88
ARTICLE VIII. RIGHTS OF CERTIFICATEHOLDERS............................... 89
Section 8.01. Limitation on Rights of Holders...................... 89
Section 8.02. Access to List of Holders............................ 89
Section 8.03. Acts of Holders of Certificates...................... 90
ARTICLE IX. ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS........... 91
Section 9.01. Servicer to Act as Servicer.......................... 91
Section 9.02. Title, Management and Disposition of REO Property.... 92
Section 9.03. Master Servicer's and Depositor's Right to Examine
Servicer Records..................................... 93
Section 9.04. Legal Proceedings Involving the Servicer and/or the
Mortgage Loans....................................... 94
Section 9.05. Material Changes..................................... 94
Section 9.06. Servicer Shall Provide Information as Reasonably
Required............................................. 95
Section 9.07. Servicer Not to Resign............................... 95
Section 9.08. Collection Accounts and Escrow Accounts.............. 95
Section 9.09. Assumption Processing................................ 96
Section 9.10. Books and Records.................................... 96
Section 9.11. Annual Statement as to Compliance.................... 96
Section 9.12. [Reserved]........................................... 97
Section 9.13. Reports on Assessment of Compliance and Attestation.. 97
Section 9.14. Servicing Compensation............................... 99
Section 9.15. Indemnification...................................... 100
Section 9.16. Non Solicitation..................................... 101
Section 9.17. Successor to the Servicer............................ 101
Section 9.18. Statements to the Master Servicer.................... 102
Section 9.19. Merger or Consolidation of the Servicer.............. 102
Section 9.20. Limitation on Liability of the Servicer.............. 103
Section 9.21. Periodic Filings..................................... 103
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TABLE OF CONTENTS
(continued)
PAGE
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Section 9.22. Compliance with Regulation AB........................ 109
Section 9.23. Maintenance of Hazard Insurance and Errors and
Omissions and Fidelity Coverage...................... 110
ARTICLE IXA. THE MASTER SERVICER
Section 9A.01 Master Servicer...................................... 111
Section 9A.02 Monitoring of the Servicer........................... 111
Section 9A.03 Power to Act; Procedures............................. 112
Section 9A.04 Liabilities of the Master Servicer................... 113
Section 9A.05 Merger or Consolidation of the Master Servicer....... 113
Section 9A.06 Indemnification from the Master Servicer............. 113
Section 9A.07 Limitations on Liability of the Master Servicer and
Others............................................... 114
Section 9A.08 Master Servicer Not to Resign........................ 116
Section 9A.09 Successor Master Servicer............................ 116
Section 9A.10 Sale and Assignment of Master Servicing.............. 116
Section 9A.11 Compensation for the Master Servicer................. 116
ARTICLE X. REMIC ADMINISTRATION.......................................... 117
Section 10.01. REMIC Administration................................. 117
Section 10.02. Prohibited Transactions and Activities............... 118
Section 10.03. Indemnification with Respect to Prohibited
Transactions or Loss of REMIC Status................. 119
Section 10.04. REO Property......................................... 119
ARTICLE XI. MISCELLANEOUS PROVISIONS..................................... 120
Section 11.01. Binding Nature of Agreement; Assignment.............. 120
Section 11.02. Entire Agreement..................................... 120
Section 11.03. Amendment............................................ 120
Section 11.04. Voting Rights........................................ 122
Section 11.05. Provision of Information............................. 122
Section 11.06. Governing Law........................................ 123
Section 11.07. Notices.............................................. 123
Section 11.08. Severability of Provisions........................... 123
Section 11.09. Indulgences; No Waivers.............................. 123
Section 11.10. Headings Not To Affect Interpretation................ 124
Section 11.11. Benefits of Agreement................................ 124
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TABLE OF CONTENTS
(continued)
PAGE
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Section 11.12. Special Notices to the Rating Agencies............... 124
Section 11.13. [Reserved]........................................... 125
Section 11.14. Counterparts......................................... 125
Section 11.15. No Petitions......................................... 125
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EXHIBITS
Exhibit A Form of Certificates
Exhibit B Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit C Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit D-1 Standard Layout for Monthly Defaulted Loan Report
Exhibit D-2 Standard Layout for Monthly Remittance Advice
Exhibit D-3 Standard Layout for Realized Loss Report
Exhibit E Mortgage Loan Sale and Assignment Agreement
Exhibit F List of Limited Purpose Surety Bonds
Exhibit G Form of Rule 144A Transfer Certificate
Exhibit H Form of Purchaser's Letter for Institutional Accredited Investor
Exhibit I Form of ERISA Transfer Affidavit
Exhibit J Form of Letter of Representations with the Depository Trust
Company
Exhibit K Form of Initial Certification
Exhibit L Form of Final Certification
Exhibit M List of Servicing Officers
Exhibit N Request for Release
Exhibit O [Reserved]
Exhibit P [Reserved]
Exhibit Q Form of Back-up Xxxxxxxx-Xxxxx Certification
Exhibit R [Reserved]
Exhibit S-1 Form of Assessment of Compliance
Exhibit S-2 Servicing Criteria to be Addressed in Assessment of Compliance
Exhibit T Form of Xxxxxxxx-Xxxxx Certification
Exhibit U Additional Disclosure Notification
Exhibit V Form of Officer's Certificate of Servicer
Exhibit W Form 8-K Disclosure Information
Exhibit X Additional Form 10-D Disclosure
Exhibit Y Additional Form 10-K Disclosure
Schedule A Mortgage Loan Schedule
i
This POOLING AND SERVICING AGREEMENT, dated as of January 1, 2007 (the
"Agreement"), by and among XXXXXXX XXXXX MORTGAGE INVESTORS, INC., a Delaware
corporation, as depositor (the "Depositor"), HSBC BANK USA, NATIONAL
ASSOCIATION, a national banking association, as trustee (the "Trustee"), XXXXX
FARGO BANK, N.A., as Master Servicer (in such capacity, the "Master Servicer")
and Securities Administrator (in such capacity, the "Securities Administrator"),
and PHH MORTGAGE CORPORATION, as Servicer (the "Servicer"), and acknowledged by
XXXXXXX XXXXX MORTGAGE LENDING, INC. a Delaware corporation, as sponsor (the
"Sponsor"), for purposes of Section 2.05.
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from the Sponsor and at the
Closing Date is the owner of the Mortgage Loans and the other property being
conveyed by the Depositor to the Trustee hereunder for inclusion in the Trust
Fund. On the Closing Date, the Depositor will acquire the Certificates from the
Trustee as consideration for the Depositor's transfer to the Trust Fund of the
Mortgage Loans and the other property constituting the Trust Fund. The Depositor
has duly authorized the execution and delivery of this Agreement to provide for
the conveyance to the Trustee of the Mortgage Loans and the other property
constituting the Trust Fund. All covenants and agreements made by the Sponsor in
the Mortgage Loan Sale and Assignment Agreement and in this Agreement and all
covenants and agreements made by the Depositor, the Master Servicer, the
Servicer, the Securities Administrator and the Trustee herein with respect to
the Mortgage Loans and the other property constituting the Trust Fund are for
the benefit of the Holders from time to time of the Certificates. The Depositor,
the Master Servicer, the Servicer, the Securities Administrator and the Trustee
are entering into this Agreement, and the Trustee is accepting the Trust Fund
created hereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
As provided herein, the Securities Administrator shall elect that the Trust
Fund be treated for federal income tax purposes as comprising three real estate
mortgage investment conduits (each a "REMIC" or, in the alternative, "REMIC 1,"
"REMIC 2" and the "Upper Tier REMIC," respectively) in a tiered structure. The
Certificates, other than the Class A-R Certificate, shall represent ownership of
regular interests in the Upper Tier REMIC. The Class A-R Certificate represents
the sole class of residual interest in each of REMIC 1, REMIC 2 and the Upper
Tier REMIC.
The Upper Tier REMIC shall hold as its assets the several classes of
uncertificated REMIC 2 Regular Interests. REMIC 2 shall hold as its assets the
several classes of uncertificated REMIC 1 Regular Interests. REMIC 1 shall hold
as its assets the property of the Trust Fund other than the REMIC 1 Interests
and REMIC 2 Interests.
Each Upper Tier REMIC Regular Interest is hereby designated as a regular
interest in the Upper Tier REMIC for purposes of the REMIC Provisions. Each
REMIC 2 Regular Interest is hereby designated as a regular interest in REMIC 2
for purposes of the REMIC Provisions. Each REMIC 1 Regular Interest is hereby
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions.
The Class LT1-R Interest is hereby designated as the sole class of residual
interest in REMIC 1 for purposes of the REMIC Provisions. The Class LT2-R
Interest is hereby designated as the sole class of residual interest in REMIC 2
for purposes of the REMIC provisions. The Class A-R Certificate, other than the
portion thereof representing the right to receive payments in
1
respect of the Class LT1-R Interest or the Class LT2-R Interest is hereby
designated as the sole class of residual interest in the Upper Tier REMIC for
purposes of the REMIC provisions and will also represent the Class LT1-R
Interest and the Class LT2-R Interest.
THE REMIC 1 INTERESTS
The following table sets forth (or describes) the class designation,
interest rate, initial principal amount, and related pool of Mortgage Loans for
each class of REMIC 1 Interests:
Interest Related Mortgage Pool
Class Designation Principal Amount Rate or Pools
----------------- ----------------- -------- ---------------------------------
LT11A $ 18,553.4301 (2) Pool 1
LT11B $ 570,843.4301 (3) Pool 1
LT12A $ 70,428.1920 (2) Pool 2
LT12B $ 2,166,718.1920 (4) Pool 2
LT13A $ 9,815.9494 (2) Pool 3
LT13B $ 301,895.9494 (5) Pool 3
LT14A $ 51,442.8224 (2) Pool 4
LT14B $ 1,582,772.8224 (6) Pool 4
LT1Z $457,450,568.6022 (2) Pool 1, Pool 2, Pool 3 and Pool 4
LT1-R (1) (1) N/A
----------
(1) The Class LT1-R Interest represents the sole class of residual interest in
REMIC 1 and has neither a principal amount nor an interest rate. The Class
LT1-R Interest shall be represented by the Class A-R Certificate.
(2) The Class LT11A Interest, the Class LT12A Interest, the Class LT13A
Interest, the Class LT14A Interest and the Class LT1Z Interest shall have
an interest rate for each Distribution Date (and the related Accrual
Period) equal to the Net WAC.
(3) The Class LT11B Interest shall have an interest rate for any Distribution
Date (and the related Accrual Period) equal to the Pool 1 Net WAC.
(4) The Class LT12B Interest shall have an interest rate for any Distribution
Date (and the related Accrual Period) equal to the Pool 2 Net WAC.
(5) The Class LT13B Interest shall have an interest rate for any Distribution
Date (and the related Accrual Period) equal to the Pool 3 Net WAC.
(6) The Class LT14B Interest shall have an interest rate for any Distribution
Date (and the related Accrual Period) equal to the Pool 4 Net WAC.
On each Distribution Date, the Securities Administrator shall first pay or
charge as an expense of REMIC 1 all expenses of the Issuing Entity for such
Distribution Date.
Principal distributions shall be deemed to be made on the REMIC 1 Interests
first, so as to keep the uncertificated principal balance of each REMIC 1
Interest ending with the designation "A" equal to 1% of the excess of (x) the
aggregate Stated Principal Balance of the Mortgage Loans in the related Mortgage
Pool over (y) the aggregate class principal amounts of the Certificates in the
Certificate Group related to such Mortgage Pool (except that if 1% of any such
excess is greater than the principal amount of the corresponding REMIC 1
Interest ending with the designation "A", the least amount of principal shall be
distributed to such REMIC 1 Interests
2
such that the REMIC 1 Subordinate Balance Ratio is maintained); second, to each
REMIC 1 Interest ending with the designation "B" so as to keep the
uncertificated principal balance of each such REMIC 1 Interest equal to 1% of
the aggregate Stated Principal Balance of the Mortgage Loans in the related
Mortgage Pool and finally, all remaining principal amounts shall be distributed
in respect of the Class LT1Z Interest. Realized Losses with respect to principal
shall be allocated among the REMIC 1 Interests first, so as to keep the
uncertificated principal balance of each REMIC 1 Interest ending with the
designation "A" equal to 1% of the excess of (x) the aggregate Stated Principal
Balance of the Mortgage Loans in the related Mortgage Pool over (y) the
aggregate class principal amounts of the Certificates in the Certificate Group
related to such Mortgage Pool (except that if 1% of any such excess is greater
than the principal amount of the corresponding REMIC 1 Interest ending with the
designation "A", the least amount of losses shall be allocated to such REMIC 1
Interests such that the REMIC 1 Subordinate Balance Ratio is maintained);
second, to each REMIC 1 Interest ending with the designation "B" so as to keep
the uncertificated principal balance of each such REMIC 1 Interest equal to 1%
of the aggregate Stated Principal Balance of the Mortgage Loans in the related
Mortgage Pool and finally, all remaining Realized Losses with respect to
principal shall be distributed in respect of the Class LT1Z Interest.
If on any Distribution Date the Certificate Principal Amount of any Class
of Certificates is increased pursuant to the penultimate sentence of the
definition of "Certificate Principal Amount", then there shall be an equivalent
aggregate increase in the principal amounts of the REMIC 1 Regular Interests,
with such increase allocated (before the making of distributions and the
allocation of losses on the REMIC 1 Regular Interests on such Distribution Date)
among the REMIC 1 Regular Interests as follows: (i) first, to each REMIC 1
Interest ending with the designation "B" so as to keep the uncertificated
principal balance of each such REMIC 1 Interest equal to 1% of the aggregate
Stated Principal Balance of the Mortgage Loans in the related Mortgage Pool,
(ii) second, to each REMIC 1 Regular Interest ending with the designation "A",
so that the uncertificated principal balance of each REMIC 1 Regular Interest
ending with the designation "A" is as close as possible to (but does not exceed)
1% of the excess of (x) the aggregate Stated Principal Balance of the Mortgage
Loans in related Mortgage Pool over (y) the aggregate class principal balance of
the Certificates in the Certificate Group related to such Mortgage Pool;
provided, however, that (a) the REMIC 1 Subordinate Balance Ratio is maintained
and (b) amounts allocated to any REMIC 1 Regular Interest pursuant to this
clause (ii) shall not exceed the amount of any previous realized losses
allocated to such REMIC 1 Regular Interest not previously offset by
distributions or increases in the principal amount of such REMIC 1 Regular
Interest and (iii) finally, all remaining amounts to the Class LT1Z Interest.
All computations with respect to the REMIC 1 Interests shall be computed to
eight decimal places.
THE REMIC 2 INTERESTS
The following table sets forth (or describes) the class designation,
interest rate, initial principal amount, and corresponding class of certificates
or components for each class of REMIC 2 Interests:
Interest Corresponding Classes of
Class Designation Principal Amount Rate Certificates
----------------- ---------------- -------- ----------------------------------
LT2IA1 $ 53,434,000.00 (2) Class X-X-0
XX0XX0 $ 1,795,000.00 (2) Class I-A-2
LT2IIA1 $202,816,000.00 (3) Class II-A-1
3
Interest Corresponding Classes of
Class Designation Principal Amount Rate Certificates
----------------- ---------------- -------- ----------------------------------
LT2IIA2 $ 6,813,000.00 (3) Class II-A-2
LT2IIIA $ 29,208,000.00 (4) Class III-A
LT2IVA1234 $153,133,000.00 (5) Class IV-A-1, Class IV-A-2, Class
IV-A-3, Class IV-A-4, Class IV-A-X
LT2M1 $ 5,779,000.00 (6) Class M-1
LT2M2 $ 3,004,000.00 (6) Class M-2
LT2M3 $ 1,848,000.00 (6) Class X-0
XX0X0 $ 2,080,000.00 (6) Class B-1
LT2B2 $ 1,386,000.00 (6) Class B-2
LT2B3 $ 927,039.39 (6) Class B-3
LT2AR $ 100.00 (2) Class A-R
LT2-R (1) (1) N/A
----------
(1) The Class LT2-R Interest represents the sole class of residual interest in
REMIC 2 and has neither a principal amount nor an interest rate. The Class
LT2-R Interest shall be represented by the Class A-R Certificate.
(2) The Class LT2IA1, Class LT2IA2 and Class LT2AR Interests shall have an
interest rate for each Distribution Date (and the related Accrual Period)
equal to the Pool 1 Net WAC.
(3) The Class LT2IIA1 and Class LT2IIA2 Interests shall have an interest rate
for each Distribution Date (and the related Accrual Period) equal to the
Pool 2 Net WAC.
(4) The Class LT2IIIA Interest shall have an interest rate for each
Distribution Date (and the related Accrual Period) equal to the Pool 3 Net
WAC.
(5) The Class LT2IVA1234 Interest shall have an interest rate for each
Distribution Date (and the related Accrual Period) equal to the Pool 4 Net
WAC.
(6) Each of the Class LT2M1 Interest, the Class LT2M2 Interest, the Class LT2M3
Interest, the Class LT2B1 Interest, the Class LT2B2 Interest and the Class
LT2B3 Interest shall have an interest rate for each Distribution Date (and
the related Accrual Period) equal to the Subordinate Net WAC which is the
numerical equivalent of the weighted average of the interest rates on the
Class LT11A Interest, the Class LT12A Interest, the Class LT13A Interest
and the Class LT14A Interest (treating, for purposes of computing this
weighted average, the Class LT11A Interest as subject to a cap and a floor
equal to the interest rate on the Class LT11B Interest, the Class LT12A
Interest as subject to a cap and a floor equal to the interest rate on the
Class LT12B Interest, the Class LT13A Interest as subject to a cap and a
floor equal to the interest rate on the Class LT13B Interest, and the Class
LT14A Interest as subject to a cap and a floor equal to the interest rate
on the Class LT14B Interest).
Payments shall be deemed made and Realized Losses and shortfalls shall be
allocated among the REMIC 2 Interests in the same manner as such payments are
made or such Realized Losses and shortfalls are allocated among the
Corresponding Classes of Certificates (treating the initial Class Principal
Amount of the Class B-3 Certificates, for purposes of this sentence, as being
$927,039.39, treating the first $0.39 of distributions to the Class A-R
Certificate under Section 5.02(a)(iv) from principal payments on the Mortgage
Loans as distributed to the Class B-3 Certificates and disregarding Section
5.03(c)).
The principal amount of each REMIC 2 Regular Interest shall be increased on any
Distribution Date on which, and in the amount by which, the Certificate
Principal Amount of any Corresponding Class of Certificates is increased
pursuant to the penultimate sentence of "Certificate Principal Amount."
THE CERTIFICATES
The following table sets forth (or describes) the Class designation,
Certificate Interest Rate, initial Class Principal Amount (or initial Class
Notional Amount), and minimum
4
denomination for each Class of Certificates comprising interests in the Trust
Fund created hereunder.
Related Class or
Classes of Initial Class Principal Minimum
Class interests in the Certificate Amount or Notional Denominations or
Designation Upper Tier REMIC Interest Rate Amount Percentage Interest
----------- ---------------- ------------- ----------------------- -------------------
Class I-A-1 Class I-A-1 (1) $ 53,433,900.00 $ 25,000.00
Class I-A-2 Class I-A-2 (1) $ 1,795,000.00 $ 25,000.00
Class II-A-1 Class II-A-1 (2) $202,816,000.00 $ 25,000.00
Class II-A-2 Class II-A-2 (2) $ 6,813,000.00 $ 25,000.00
Class III-A Class III-A (3) $ 29,208,000.00 $ 25,000.00
Class IV-A-1 Class IV-A-1 (4) $ 95,124,000.00 $ 25,000.00
Class IV-A-2 Class IV-A-2 (4) $ 10,577,000.00 $ 25,000.00
Class IV-A-3 Class IV-A-3 (4) $ 42,455,000.00 $ 25,000.00
Class IV-A-4 Class IV-A-4 (4) $ 4,977,000.00 $ 25,000.00
Class IV-A-X Class IV-A-X 0.5547%(5) $153,133,000.00(5) $1,000,000.00
Class A-R Class A-R (1) $ 100.00 100%
Class M-1 Class M-1 (6) $ 5,779,000.00 $ 25,000.00
Class M-2 Class M-2 (6) $ 3,004,000.00 $ 25,000.00
Class M-3 Class M-3 (6) $ 1,848,000.00 $ 25,000.00
Class B-1 Class B-1 (6) $ 2,080,000.00 $ 100,000.00
Class B-2 Class B-2 (6) $ 1,386,000.00 $ 100,000.00
Class B-3 Class B-3 (6) $ 927,039.00 $ 100,000.00
----------
(1) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class I-A-1, Class I-A-2 Certificates
and the Class A-R Certificate will be the Pool 1 Net WAC.
(2) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class II-A-1 Certificates and the Class
II-A-2 Certificates will be the Pool 2 Net WAC.
(3) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class III-A Certificates will be the
Pool 3 Net WAC.
(4) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class IV-A-1, Class IV-A-2, Class
IV-A-3 Certificates and the Class IV-A-4 Certificates until and including
the Distribution Date in November 2018 will be the difference between (i)
Pool 4 Net WAC and (ii) 0.5547%. On and after the Distribution Date in
December 2018, the Certificate Interest Rate with respect to any
Distribution Date (and the related Accrual Period) for the Class IV-A-1,
Class IV-A-2, Class IV-A-3 Certificates and the Class IV-A-4 Certificates
will be the Pool 4 Net WAC
(5) The Class IV-A-X Certificates are interest-only certificates. The Class
IV-A-X Certificates will accrue interest on their Class Notional Amount
until and including the Distribution Date in November 2018 and will not be
entitled to distributions thereafter.
5
(6) The Certificate Interest Rates with respect to any Distribution Date (and
the related Accrual Period) for the Class M-1, Class M-2, Class M-3, Class
B-1, Class B-2 and Class B-3 Certificates will be equal to the Subordinate
Net WAC.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $462,223,039.39.
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Securities Administrator, the Servicer and the Trustee
hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Definitions.
The following words and phrases, unless the context otherwise requires,
shall have the following meanings:
10-K Filing Deadline: As defined in Section 9.21(h).
Accepted Master Servicing Practices: The Master Servicer's normal servicing
practices, which will conform to the mortgage servicing practices of prudent
mortgage lending institutions which service for their own account mortgage loans
of the same type as the Mortgage Loans in the jurisdictions in which the related
Mortgaged Properties are located.
Accepted Servicing Practices: The Servicer's normal servicing practices,
which will conform to the mortgage servicing practices of prudent mortgage
lending institutions which service for their own account mortgage loans of the
same type as the Mortgage Loans in the jurisdictions in which the related
Mortgaged Properties are located.
Accountant: A Person engaged in the practice of accounting who (except when
this Agreement provides that an Accountant must be Independent) may be employed
by or affiliated with the Depositor or an Affiliate of the Depositor.
Accountant's Attestation: As defined in Section 9.13.
Accrual Period: With respect to any Distribution Date, the calendar month
immediately preceding the month in which the related Distribution Date occurs.
Interest shall accrue on all Classes of Certificates and on all Lower Tier REMIC
Interests on the basis of a 360-day year consisting of twelve 30-day months.
Additional Collateral: With respect to any Additional Collateral Mortgage
Loan, the meaning assigned thereto in the Mortgage Loan Sale and Assignment
Agreement.
Additional Collateral Mortgage Loan: Each Mortgage Loan identified as such
in the Mortgage Loan Schedule.
Additional Disclosure Notification: As defined in Section 9.21(b).
Additional Form 10-D Disclosure: As defined in Section 9.21(e).
6
Additional Form 10-K Disclosure: As defined in Section 9.21(h).
Adjustment Date: As to any Mortgage Loan, the date on which the related
Mortgage Rate adjusts in accordance with the terms of the related Mortgage Note.
Advance: With respect to a Mortgage Loan, the payments required to be made
with respect to any Distribution Date by the Servicer pursuant this Agreement,
by the Master Servicer, solely in its capacity as successor servicer pursuant to
this Agreement, or by the Trustee, solely in its capacity as successor master
servicer pursuant to this Agreement, the amount of any such payment being equal
to the aggregate of the payments of principal and interest (net of the
applicable Servicing Fee and net of any net income in the case of any REO
Property) on the Mortgage Loans that were due on the related Due Date and not
received as of the close of business on the related Determination Date, less the
aggregate amount of any such delinquent payment that any of the Servicer, the
Master Servicer or the Trustee has determined would constitute Nonrecoverable
Advances if advanced.
Adverse REMIC Event: As defined in Section 10.01(f) hereof.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Senior Percentage: As to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate of the Class
Principal Amounts of the Class I-A-1, Class I-A-2, Class II-A-1, Class II-A-2,
Class III-A, Class IV-A-1, Class IV-A-2, Class IV-A-3, Class IV-A-4 and Class
A-R Certificates and the denominator of which is the Aggregate Stated Principal
Balance, but in no event greater than 100%.
Aggregate Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances for all Mortgage Loans (and when such
term is used with respect to a particular Mortgage Pool, the aggregate of the
Stated Principal Balances of the Mortgage Loans in such Mortgage Pool) which
were outstanding on the Due Date in the month preceding the month of such
Distribution Date.
Aggregate Subordinate Percentage: As to any Distribution Date, the
difference between 100% and the Aggregate Senior Percentage for such
Distribution Date, but in no event less than zero.
Aggregate Voting Interests: The aggregate of the Voting Interests of all
the Certificates under this Agreement.
Agreement: This Pooling and Servicing Agreement and all amendments and
supplements hereto.
Ancillary Fees: With respect to any Mortgage Loan, (i) all late charges,
(ii) all returned-item charges (e.g. insufficient funds charges), (iii)
modification or conversion fees and (iv) all fees payable pursuant to PHH's
"Speed Pay" program.
7
Applicable Credit Support Percentage: As to any Class of Subordinate
Certificates and any Distribution Date, the sum of the Class Subordination
Percentages of such Class and the aggregate Class Subordination Percentage of
all other Classes of Subordinate Certificates having a more junior payment
priority than such Class.
Apportioned Principal Balance: As to any Distribution Date, each Class of
Subordinate Certificates and any Mortgage Pool, the Class Principal Amount
thereof multiplied by a fraction, the numerator of which is the applicable Pool
Subordinate Amount (i.e., the Pool 1 Subordinate Amount, the Pool 2 Subordinate
Amount, the Pool 3 Subordinate Amount or the Pool 4 Subordinate Amount as the
case may require), and the denominator of which is the sum of such Pool
Subordinate Amounts on such date.
Appraised Value: With respect to any Mortgage Loan, the Appraised Value of
the related Mortgaged Property shall be: (i) with respect to a Mortgage Loan
other than a Refinancing Mortgage Loan, the lesser of (a) the value of the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Mortgage Loan and (b) the sales price of the Mortgaged Property at the
time of the origination of such Mortgage Loan; and (ii) with respect to a
Refinancing Mortgage Loan, the value of the Mortgaged Property based upon the
appraisal made at the time of the origination of such Refinancing Mortgage Loan.
Assessment of Compliance: As defined in Section 9.13.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer
or equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
sale of the Mortgage to the Trustee, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties located in the same
jurisdiction, if permitted by law; provided, however, that the Trustee shall not
be responsible for determining whether any such assignment is in recordable
form.
Authenticating Agent: The Securities Administrator or any authenticating
agent appointed by the Securities Administrator pursuant to Section 6.10 until
any successor authenticating agent for the Certificates is named, and thereafter
"Authenticating Agent" shall mean any such successor.
Authorized Officer: Any Person who may execute an Officer's Certificate on
behalf of the Depositor.
Available Distribution Amount: With respect to any Distribution Date and
each Mortgage Pool, the total amount of all cash received by the Securities
Administrator on the Mortgage Loans in such Mortgage Pool from the Master
Servicer or otherwise through the Distribution Account Deposit Date for deposit
into the Distribution Account in respect of such Distribution Date, including
(1) all scheduled installments of interest (net of the Servicing Fee) and
principal collected on the related Mortgage Loans and due during the Due Period
related to such Distribution Date, together with any Advances in respect
thereof, (2) all Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries
and the proceeds of any Additional Collateral from the related Mortgage Loans,
in each case for such Distribution Date, (3) all partial or full Principal
Prepayments, together with any accrued interest thereon, identified as having
been received from the related Mortgage Loans during the related Prepayment
Period, (4) any amounts received from the Servicer in respect of Prepayment
Interest Shortfalls with respect to the related Mortgage Loans; and (5) the
aggregate Purchase Price of all Defective Mortgage Loans and
8
Converted Mortgage Loans (if any) in such Mortgage Pool purchased from the
Issuing Entity during the related Prepayment Period, minus the sum of the
following amounts:
(A) all related fees, charges and amounts payable or reimbursable to the
Trustee, Master Servicer, and Securities Administrator under this Agreement, to
the extent that, if paid by the Issuing Entity, such fees, charges or other
amounts would constitute "unanticipated expenses" (within the meaning of
Treasury Regulations Section 1.860G-1(b)(3)(ii)) of any of the REMICs provided
for herein and up to an aggregate maximum amount equal to $300,000 annually;
provided, such annual aggregate maximum amount shall exclude (i) any Servicing
Transfer Costs, or amounts reimbursable to the Servicer under this Agreement and
(ii) any costs, damages or expenses incurred by the Trustee in connection with
any "high cost" home loans or any predatory or abusive lending laws, which
amounts shall in no case be subject to any such limitation;
(B) in the case of (2), (3), (4) and (5) above, any related unreimbursed
expenses incurred by the Servicer in connection with a liquidation or
foreclosure and any unreimbursed Advances or Servicing Advances due to the
Servicer (or, pursuant to Section 5.04, the Trustee);
(C) any related unreimbursed Nonrecoverable Advances due to the Master
Servicer or the Servicer (or, pursuant to Section 5.04, the Trustee); and
(D) in the case of (1) through (4) above, any related amounts collected
which are determined to be attributable to a subsequent Due Period or Prepayment
Period.
Bankruptcy: As to any Person, the making of an assignment for the benefit
of creditors, the filing of a voluntary petition in bankruptcy, adjudication as
a bankrupt or insolvent, the entry of an order for relief in a bankruptcy or
insolvency proceeding, the seeking of reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief, or seeking, consenting
to or acquiescing in the appointment of a trustee, receiver or liquidator,
dissolution, or termination, as the case may be, of such Person pursuant to the
provisions of either the Bankruptcy Code or any other similar state laws.
Bankruptcy Code: The United States Bankruptcy Code of 1986, as amended.
BBA: The British Banker's Association.
Book-Entry Certificates: Beneficial interests in Certificates designated as
"Book-Entry Certificates" in this Agreement, ownership and transfers of which
shall be evidenced or made through book entries by a Clearing Agency as
described in Section 3.09; provided, that after the occurrence of a Book-Entry
Termination whereupon book-entry registration and transfer are no longer
permitted and Definitive Certificates are to be issued to Certificate Owners,
such Book-Entry Certificates shall no longer be "Book-Entry Certificates." As of
the Closing Date, the following Classes of Certificates constitute Book-Entry
Certificates: Class I-A-1, Class I-A-2, Class II-A-1, Class II-A-2, Class III-A,
Class IV-A-1, Class IV-A-2, Class IV-A-3, Class IV-A-4, Class IV-A-X, Class M-1,
Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3.
Book-Entry Termination: The occurrence of any of the following events: (i)
the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Book Entry Certificates, and the Depositor
is unable to locate a qualified successor; or (ii) the Depositor at its option
advises the Trustee and the Certificate Registrar in writing that it elects to
terminate the book-entry system through the Clearing Agency.
9
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in New York, New York or, if other than New York,
any city in which the Corporate Trust Office of the Trustee or the Securities
Administrator is located, or the States of Maryland or Minnesota, are authorized
or obligated by law or executive order to be closed.
Certificate: Any one of the certificates signed by the Securities
Administrator and authenticated by the Authenticating Agent in substantially the
forms attached hereto as Exhibit A.
Certificate Group: Each of the Group 1 Certificates, Group 2 Certificates,
Group 3 Certificates and the Group 4 Certificates.
Certificate Interest Rate: With respect to each Class of Certificates and
any Distribution Date, the applicable per annum rate described in the
Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the Person who
is the owner of such Book-Entry Certificate, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly or as an indirect participant, in accordance with the
rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate (other than
the Class IV-A-X Certificates), at the time of determination, the maximum
specified dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the initial principal amount set
forth on the face of such Certificate, less (i) the amount of all principal
distributions previously made with respect to such Certificate; (ii) all
Realized Losses allocated to such Certificate; and (iii) in the case of a
Subordinate Certificate, any Subordinate Certificate Writedown Amount allocated
to such Certificates. Notwithstanding the foregoing, on any Distribution Date
relating to a Due Period in which a Subsequent Recovery has been received by the
Servicer, the Certificate Principal Amount of any Class of Certificates then
outstanding for which any Realized Loss or any Subordinate Certificate Writedown
Amount has been applied will be increased, in order of seniority, by an amount
equal to the lesser of (i) the amount such Class of Certificates has been
written down in respect of Realized Losses or Subordinate Certificate Writedown
Amounts, to the extent not previously offset by increases in Certificate
Principal Amount pursuant to this sentence and (ii) the total of any Subsequent
Recovery distributed on such date to the Certificateholders (reduced (x) by the
amount of the increase in the Certificate Principal Amount of any more senior
Class of Certificates pursuant to this sentence on such Distribution Date and
(y) to reflect a proportionate amount of the increase in the Certificate
Principal Amount of any pari passu Class of Certificates on such Distribution
Date pursuant to this sentence). For purposes of Article V hereof, unless
specifically provided to the contrary, Certificate Principal Amounts shall be
determined as of the close of business of the immediately preceding Distribution
Date, after giving effect to all distributions made on such date.
Certificate Register and Certificate Registrar: The register maintained and
the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of "Holder."
Civil Relief Act: The Servicemembers Civil Relief Act.
Class: Collectively, Certificates bearing the same class designation. In
the case of any REMIC, the term "Class" refers to all REMIC Interests having the
same alphanumeric designation.
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Class A-R Certificate: The Class A-R Certificate executed by the Securities
Administrator, and authenticated and delivered by the Authenticating Agent,
substantially in the form annexed hereto as Exhibit A, and evidencing the
ownership of the Class LT1-R Interest, the Class LT2-R Interest and the residual
interest in the Upper Tier REMIC.
Class LT1-R Interest: The sole class of "residual interest" in REMIC 1.
Class LT2-R Interest: The sole class of "residual interest" in REMIC 2.
Class Notional Amount: The Class Notional Amount of the Class IV-A-X
Certificates on any Distribution Date is equal to the aggregate Class Principal
Amount of the Class IV-A-1, Class IV-A-2, Class IV-A-3 and Class IV-A-4
Certificates.
Class Principal Amount: With respect to each Class of Certificates (other
than the Class IV-A-X Certificates) the aggregate of the Certificate Principal
Amounts of all Certificates of such Class at the date of determination.
Class Subordination Percentage: With respect to each Class of Subordinate
Certificates, for each Distribution Date, the percentage obtained by dividing
the Class Principal Amount of such Class immediately prior to such Distribution
Date by the sum of the Class Principal Amounts of all Classes of Certificates
immediately prior to such Distribution Date.
Clearing Agency: An organization registered as a "clearing agency" pursuant
to Section 17A of the Securities Exchange Act of 1934, as amended. As of the
Closing Date, the Clearing Agency shall be The Depository Trust Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
Closing Date: January 30, 2007.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Account: The separate trust account or accounts created and
maintained by the Servicer, which shall be entitled "PHH Mortgage Corporation,
as Servicer for HSBC Bank USA, National Association, as Trustee, f/b/o the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC
2007-1 Mortgage Pass-Through Certificates". The Collection Account shall be an
Eligible Account.
Commission: Securities and Exchange Commission.
Compensating Interest Payment: As to any Distribution Date, the lesser of
(1) the Servicing Fee for such date and (2) any Prepayment Interest Shortfall
for such date.
Cooperative Corporation: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements constituting the
Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
11
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Corporate Trust Office: With respect to the Trustee, the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business in connection with this Agreement shall be
administered, which office at the date of the execution of this instrument is
located at HSBC Bank USA, National Association, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Corporate Trust and Loan Agency - Xxxxxxx Xxxxx Mortgage
Investors, Inc., MLCC Series 2007-1, or at such other address as the Trustee may
designate from time to time by notice to the Certificateholders, the Depositor
and the Master Servicer and with respect to the Securities Administrator, for
Certificate transfer purposes, Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attn: Corporate Trust Services - MLCC
2007-1, and for all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx,
00000, Attn: Client Service Manager - MLCC 2007-1.
Corresponding Classes of Certificates: With respect to each Lower Tier
REMIC Interest, the Class or Classes of Certificates appearing opposite such
Lower Tier REMIC Interest as described in the Preliminary Statement hereto.
Credit Support Depletion Date: The first Distribution Date, if any, on
which the aggregate Certificate Principal Amounts of the Subordinate
Certificates have been reduced to zero.
Current Interest: With respect to each Class of Certificates on each
Distribution Date, the aggregate amount of interest accrued at the applicable
Certificate Interest Rate during the related Accrual Period on the Class
Principal Amount or Class Notional Amount of such Class.
Custodian: Xxxxx Fargo Bank, N.A. or its successors and assigns.
Cut-off Date: January 1, 2007.
Cut-off Date Balance: With respect to the Mortgage Loans in the Issuing
Entity on the Closing Date, the Aggregate Stated Principal Balance as of the
Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction by a
court of competent jurisdiction in a proceeding under the Bankruptcy Code in the
Scheduled Payment for such Mortgage Loan which became final and non-appealable,
except such a reduction resulting from a Deficient Valuation or any reduction
that results in a permanent forgiveness of principal.
Defective Mortgage Loan: As defined in Section 2.05(a).
Deficiency Amount: As defined in Section 5.03(b)(ii).
Deficient Valuation: With respect to any Mortgage Loan, a valuation of the
related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then
12
outstanding indebtedness under the Mortgage Loan, or any reduction in the amount
of principal to be paid in connection with any Scheduled Payment that results in
a permanent forgiveness of principal, which valuation or reduction results from
an order of such court which is final and non-appealable in a proceeding under
the Bankruptcy Code.
Definitive Certificate: A Certificate of any Class issued in definitive,
fully registered, certificated form.
Deleted Mortgage Loan: As defined in Section 2.05(a).
Delinquent: Any Mortgage Loan with respect to which the Scheduled Payment
due on a Due Date is not
received.
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation,
having its principal place of business at 000 Xxxxx Xxxxxx, 4 World Financial
Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or its successors in interest.
Determination Date: With respect to each Distribution Date, the 15th day of
the month in which such Distribution Date occurs, or, if such 15th day is not a
Business Day, the next succeeding Business Day.
Disqualified Organization: A "disqualified organization" as defined in
Section 860E(e)(5) of the Code.
Distribution Account: The trust account or accounts created and maintained
pursuant to Section 4.01 in the name of the Securities Administrator for the
benefit of the Certificateholders and entitled "Xxxxx Fargo Bank, N.A., as
Securities Administrator for HSBC Bank USA, National Association, as Trustee,
f/b/o holders of Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, MLCC Series 2007-1 - Distribution Account." The Distribution
Account shall be an Eligible Account. Funds in the Distribution Account
(exclusive of any earnings on investments made with funds deposited in the
Distribution Account) shall be held in trust for the Securities Administrator
and the Certificateholders for the uses and purposes set forth in this
Agreement.
Distribution Account Deposit Date: The 24th day of each calendar month
after the initial issuance of the Certificates or, if such 24th day is not a
Business Day, the immediately preceding Business Day, commencing in February
2007.
Distribution Date: The 25th day of each month or, if such 25th day is not a
Business Day, the next succeeding Business Day, commencing in February 2007.
Due Date: With respect to any Mortgage Loan, the date on which a Scheduled
Payment is due under the related Mortgage Note as indicated in the Mortgage
Note, which is the first day of the calendar month.
Due Period: As to any Distribution Date, the period beginning on the second
day of the month preceding the month of such Distribution Date, and ending on
the first day of the month of such Distribution Date.
EDP: The electronic data processing system used by the Sponsor and the
Servicer, which are licensees of ALLTEL Information Services, Inc.
13
Effective Loan-to-Value Ratio: A fraction, expressed as a percentage, the
numerator of which is the original Stated Principal Balance of the Mortgage
Loan, less the amount of Additional Collateral required to secure such Mortgage
Loan at the time of origination, if any, and the denominator of which is the
Appraised Value of the related Mortgaged Property at such date.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC or the SAIF (to the
limits established by the FDIC or the SAIF) and the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an Opinion of Counsel
delivered to the Securities Administrator and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account or
accounts maintained with the trust department of a federal or state chartered
depository institution or trust company, acting in its fiduciary capacity or
(iv) 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, any Paying Agent, the
Master Servicer or the Servicer.
ERISA: The Employee Retirement Income Security Act of 1974, as amended, and
as it may be further amended from time to time, any successor statutes thereto,
and applicable U.S. Department of Labor regulations issued pursuant thereto in
temporary or final form.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that would satisfy the requirements of the
Underwriter's Exemption, except, in relevant part, for the requirement that the
certificates have received a rating at the time of acquisition that is in one of
the three (or four, in the case of a "designated transaction") highest generic
rating categories by at least one of the Rating Agencies.
ERISA-Restricted Certificate: The Class B-1, Class B-2 and Class B-3
Certificates and any other Certificate, as long as the acquisition and holding
of such other Certificate is not covered by and exempt under the Underwriter's
Exemption.
Escrow Account: The separate trust account or accounts created and
maintained by the Servicer pursuant to the Xxxxxx Mae Servicing Guide which
shall be entitled "PHH Mortgage Corporation, as Servicer for HSBC Bank USA,
National Association, as Trustee, f/b/o registered holders for Xxxxxxx Xxxxx
Mortgage Investors Trust Series MLCC 2007-1 Mortgage Pass-Through Certificates."
The Escrow Account shall be an Eligible Account.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Mae: The entity formerly known as the Federal National Mortgage
Association, a federally chartered and privately owned corporation organized and
existing under the Federal National Mortgage Association Charter Act, or any
successor thereto.
14
FDIC: The Federal Deposit Insurance Corporation or any successor thereto.
FHA: The Federal Housing Administration or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Certification: As referred to in Section 2.02(c), the form of which
is set forth at Exhibit L.
Form 8-K Disclosure Information: As defined in Section 9.21(a).
Xxxxxxx Mac: 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.
GNMA: The Government National Mortgage Association, or any successor
thereto.
Group 1: All of the Group 1 Certificates.
Group 1 Certificate: Any Class I-A-1, Class I-A-2 or Class A-R Certificate.
Group 2: All of the Group 2 Certificates.
Group 2 Certificate: Any Class II-A-1 or Class II-A-2 Certificate.
Group 3: All of the Group 3 Certificates.
Group 3 Certificate: Any Class III-A Certificate.
Group 4: All of the Group 4 Certificates.
Group 4 Certificate: Any Class IV-A-1, Class IV-A-2, Class IV-A-3, Class
IV-A-4 or Class IV-A-X Certificate.
Holder or Certificateholder: The registered owner of any Certificate as
recorded on the books of the Certificate Registrar except that, solely for the
purposes of taking any action or giving any consent pursuant to this Agreement,
any Certificate registered in the name of the Depositor, the Trustee, the Master
Servicer or the Securities Administrator, or any Affiliate thereof shall be
deemed not to be outstanding in determining whether the requisite percentage
necessary to effect any such consent has been obtained, except that, in
determining whether the Securities Administrator shall be protected in relying
upon any such consent, only Certificates which a Responsible Officer of the
Securities Administrator knows to be so owned shall be disregarded. The
Securities Administrator may request and conclusively rely on certifications by
the Depositor, the Trustee, the Servicer and the Master Servicer in determining
whether any Certificates are registered to an Affiliate of the Depositor, the
Trustee, the Servicer or the Master Servicer.
HUD: The United States Department of Housing and Urban Development, or any
successor thereto.
Indemnified Parties: As defined in Section 9.15(a).
15
Independent: When used with respect to any Accountants, a Person who is
"independent" within the meaning of Rule 2-01(b) of the Commission's Regulation
S-X. When used with respect to any other Person, a Person who (a) is in fact
independent of another specified Person and any Affiliate of such other Person,
(b) does not have any material direct financial interest in such other Person or
any Affiliate of such other Person, and (c) is not connected with such other
Person or any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
Index: As to each Mortgage Loan, the index from time to time in effect for
adjustment of the Mortgage Rate as set forth as such on the related Mortgage
Note.
Initial Certification: As referred to in Section 2.02(a), the form of which
is set forth at Exhibit K.
Insurance Policy: With respect to any Mortgage Loan, any insurance policy,
including all names and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by any Insurance Policy (excluding
proceeds required to be applied to the restoration and repair of the related
Mortgaged Property or released to the Mortgagor), in each case other than any
amount included in such Insurance Proceeds in respect of Insured Expenses and
the proceeds, if any, from any Limited Purpose Surety Bond.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Distribution Amount: For each Class of Certificates, on any
Distribution Date, the Current Interest for such Class, as reduced by such
Class's share of Net Interest Shortfalls. Any such shortfalls shall be allocated
among (i) all Classes of Certificates of the related Certificate Group from such
Mortgage Pool and (ii) the Subordinate Certificates proportionately on the basis
of (1) in the case of the Senior Certificates, Current Interest otherwise
distributable thereon on such Distribution Date and (2) in the case of
Subordinate Certificates, interest accrued at the Net WAC of the applicable
Mortgage Pool on their Apportioned Principal Balance before taking into account
any reductions in such amounts from Net Interest Shortfalls for that
Distribution Date.
Interest Shortfall: As to any Class of Certificates and any Distribution
Date, (i) the amount by which the Interest Distribution Amount for such Class on
such Distribution Date and all prior Distribution Dates exceeds (ii) amounts
distributed in respect thereof to such Class on prior Distribution Dates (as
determined without reduction for amounts not paid to such Class as a result of
the provisos set forth in Sections 5.02(a)(i) and 5.02(b) hereof).
Intervening Assignments: The original intervening assignments of the
Mortgage, notices of transfer or equivalent instrument.
Issuing Entity: Xxxxxxx Xxxxx Mortgage Investors Trust, Series MLCC 2007-1.
Latest Possible Maturity Date: The Distribution Date in January 2037.
LIBOR: With respect to each Accrual Period, a per annum rate determined on
the LIBOR Determination Date in the following manner by the Securities
Administrator on the basis
16
of the "Interest Settlement Rate" set by the BBA for six-month or one-year
United States dollar deposits, as such rates appear on the Telerate Page 3750,
as of 11:00 a.m. (London time) on such LIBOR Determination Date.
(a) If on such a LIBOR Determination Date, the BBA's Interest Settlement
Rate does not appear on the Telerate Page 3750 as of 11:00 a.m. (London time),
or if the Telerate Page 3750 is not available on such date, the Securities
Administrator will obtain such rate from Reuters' "page LIBOR 01" or Bloomberg's
page "BBAM." If such rate is not published for such LIBOR Determination Date,
LIBOR for such date will be the most recently published Interest Settlement
Rate. In the event that the BBA no longer sets an Interest Settlement Rate, the
Securities Administrator will designate an alternative index that has performed,
or that the Securities Administrator expects to perform, in a manner
substantially similar to the BBA's Interest Settlement Rate. The Securities
Administrator will select a particular index as the alternative index only if it
receives an Opinion of Counsel, which opinion shall be an expense reimbursed
from the Distribution Account, that the selection of such index will not cause
any of the REMICs to lose their classification as REMICs for federal income tax
purposes.
(b) The establishment of LIBOR by the Securities Administrator for the
relevant Accrual Period, in the absence of manifest error, will be final and
binding.
LIBOR Business Day: Any day on which banks in London, England and The City
of New York are open and conducting transactions in foreign currency and
exchange.
Limited Purpose Surety Bond: Any Limited Purpose Surety Bond listed in
Exhibit F.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Servicer has certified (in accordance with this Agreement) that it has received
all amounts it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee's sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO Property.
Loan-To-Value Ratio: With respect to any Mortgage Loan and as to any date
of determination, the fraction (expressed as a percentage) the numerator of
which is the principal balance of the related Mortgage Loan at such date of
determination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Loss: With respect to any indemnification arising under Section 9.15 of
this Agreement, any and all losses, claims, damages, penalties, liabilities,
obligations, judgments, settlements, awards, demands, offsets, defenses,
counterclaims, actions or proceedings, reasonable out-of-pocket costs, expenses
and attorneys' fees of an Indemnified Party (including but not limited to, (a)
any reasonable costs, expenses and attorneys' fees incurred by such Indemnified
Party in enforcing such right of indemnification against any Indemnifying Party
or with respect to any appeal, and (b) interest on any amount for which an
Indemnified Party is entitled to be indemnified from the date such Indemnified
Party notifies the Servicer of the expenditure or such amounts until such
amounts are paid by the Servicer; provided, however, that in no event shall a
17
"Loss" include a claim for consequential damages, indirect damages or lost
profits except when the Loss results from the gross negligence, fraud or willful
misconduct of the Master Servicer.
Lower Tier REMIC Interests: Any of the REMIC 1 Interests and REMIC 2
Interests.
Margin: As to each Mortgage Loan, the percentage amount set forth on the
related Mortgage Note added to the Index in calculating the Mortgage Rate
thereon.
Master Servicer: Xxxxx Fargo Bank, N.A., or any successor in interest.
Master Servicer Collection Account: The separate trust account or accounts
created and maintained by the Master Servicer pursuant to the Xxxxxx Mae
Servicing Guide which shall be entitled "Xxxxx Fargo Bank, N.A., as Master
Servicer for HSBC Bank USA, National Association, as Trustee, in trust for the
registered holders for Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2007-1
Mortgage Pass-Through Certificates." The Master Servicer Collection Account
shall be an Eligible Account.
Master Servicer Event of Default: As defined in Section 6.14(b).
Material Defect: As defined in Section 2.02(b).
Maximum Rate: As to any Mortgage Loan, the maximum rate set forth on the
related Mortgage Note at which interest can accrue on such Mortgage Loan.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware or any successor
thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages electronically
maintained by MERS.
MLCC: Xxxxxxx Xxxxx Credit Corporation or any successor thereto.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.02.
Moody's: Xxxxx'x Investors Service, Inc., or any successor in interest.
Mortgage: A mortgage, deed of trust or other instrument encumbering a fee
simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage Documents: With respect to each Mortgage Loan, the mortgage
documents required to be delivered to the Trustee, or its Custodian, pursuant to
this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold, assigned
to or deposited with the Trustee, or its Custodian, pursuant to Section 2.01
(including any Replacement Loan and REO Property), including without limitation,
each Mortgage Loan listed on the Mortgage Loan Schedule, as amended from time to
time.
18
Mortgage Loan Sale and Assignment Agreement: The Mortgage Loan Sale and
Assignment Agreement, dated as of January 1, 2007, between the Sponsor and the
Depositor with respect to the sale and purchase of the Mortgage Loans, a copy of
which is attached hereto as Exhibit E.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A, which
shall identify each Mortgage Loan, as such schedule may be amended by the
Depositor, the Servicer or the Master Servicer from time to time to reflect the
addition of Replacement Mortgage Loans to, or the deletion of Deleted Mortgage
Loans from, the Trust Fund. Such schedule shall, among other things (1) identify
the designated Mortgage Pool in which such Mortgage Loan is included and (2)
separately identify One-Year Treasury Loans, Six-Month LIBOR Loans, One-Year
LIBOR Loans and Additional Collateral Mortgage Loans.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pools: Pool 1, Pool 2, Pool 3 and Pool 4.
Mortgaged Property: The underlying property, including any Additional
Collateral, if any, securing a Mortgage Loan which, with respect to a
Cooperative Loan, is the related Cooperative Shares and Property Lease.
Mortgage Rate: As to any Mortgage Loan, the annual rate of interest borne
by the related Mortgage Notes.
Mortgagor: The obligor on a Mortgage Note.
Net Interest Shortfalls: With respect to any Distribution Date, any Net
Prepayment Interest Shortfalls for that Distribution Date and the amount of
interest that would otherwise have been received with respect to any Mortgage
Loan which was subject to (i) a Relief Act Reduction or (ii) the interest
portion of any Debt Service Reduction or Deficient Valuation, after exhaustion
of the respective amounts of coverage provided by the Subordinate Certificates
for those type of losses.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage Loan or
any other disposition of related Mortgaged Property, the related Liquidation
Proceeds net of Advances, Servicer Advances, related Servicing Fees and any
other accrued and unpaid fees received and retained in connection with the
liquidation of such Mortgage Loan or Mortgaged Property.
Net Mortgage Rate: With respect to any Mortgage Loan and any Distribution
Date, the related Mortgage Rate as of the Due Date in the month preceding the
month of such Distribution Date reduced by the Servicing Fee Rate for such
Mortgage Loan.
Net Prepayment Interest Shortfall: With respect to any Mortgage Loan and
any Distribution Date, the amount by which any Prepayment Interest Shortfall for
such date exceeds the amount payable by the Servicer (under this Agreement) in
respect of such shortfall.
Net WAC: As to any Distribution Date, the weighted average of the Net
Mortgage Rates of the Mortgage Loans as of the first day of the calendar month
immediately preceding the calendar month of such Distribution Date, weighted on
the basis of their outstanding Stated Principal Balances at such time. When the
term "Net WAC" is used herein with reference to only
19
the One-Year Treasury Loans or only the Six-Month LIBOR Loans, such weighted
average shall be computed with reference solely to the Mortgage Loans in the
relevant group.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Nonrecoverable Advance: Any portion of an Advance or Servicer Advance
previously made or proposed to be made by the applicable Servicer (as certified
in an Officer's Certificate of the Servicer), or the Master Servicer as
successor servicer, or the Trustee pursuant to Section 5.04, which in the good
faith judgment of such party, shall not be ultimately recoverable by such party
from the related Mortgagor, related Liquidation Proceeds or otherwise.
Non-U.S. Person: Any person other than a "United States person" within the
meaning of Section 7701(a)(30) of the Code.
Offering Document: The Prospectus.
Officer's Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President, a vice president (however
denominated), an Assistant Vice President, the Treasurer, the Secretary, or one
of the assistant treasurers or assistant secretaries (or any other officer
customarily performing functions similar to those performed by any of the above
designated officers and also to whom, with respect to a particular matter, such
matter is referred because of such officer's knowledge of and familiarity with a
particular subject) of the Depositor, the Trustee, the Master Servicer or the
Securities Administrator, as the case may be, and delivered to the Depositor,
the Trustee, the Master Servicer or the Securities Administrator, as the case
may be, as required by this Agreement.
Officer's Certificate of the Servicer: A certificate (i) signed by the
Chairman of the Board, the Vice Chairman of the Board, the President, a Managing
Director, a Vice President (however denominated), an Assistant Vice President,
the Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Servicer, or (ii) if provided for herein, signed by a
Servicing Officer, as the case may be, and delivered to the Trustee, the Master
Servicer or the Depositor, as the case may be.
One-Year LIBOR Loan: Each Mortgage Loan bearing a Mortgage Rate that
adjusts in accordance with LIBOR for one-year U.S. dollar deposits.
One-Year Treasury Index: The twelve-month moving average monthly yield on
the United States Treasury Securities adjusted to a constant maturity of one
year, as published by the Federal Reserve Board in the Federal Reserve
Statistical Release Selected Interest Rates (H.15) 5 19.
One-Year Treasury Loan: Each Mortgage Loan bearing a Mortgage Rate that
adjusts in accordance with the One-Year Treasury Index.
Opinion of Counsel: A written opinion of counsel, who may be an employee of
the Depositor or the Servicer, that is reasonably acceptable to each addressee
of such opinion; provided that any Opinion of Counsel relating to (a)
qualification of the Mortgage Loans in a REMIC or (b) compliance with the REMIC
Provisions, must be an opinion of counsel reasonably acceptable to each
addressee of such opinion, who (i) is in fact independent of such Servicer and
the Depositor, (ii) does not have any material direct or indirect financial
interest in such Servicer
20
or the Depositor or in an affiliate of either and (iii) is not connected with
such Servicer or the Depositor as an officer, employee, director or person
performing similar functions.
Optional Termination Price: An amount equal to the sum of (i) 100% of the
Stated Principal Balance of the Mortgage Loans (other than any Mortgage Loan
that has become an REO Property) plus accrued interest thereon at the applicable
Mortgage Rate through the Due Date in the month in which the Optional
Termination Price is to be distributed to the Certificateholders and the fair
market value of any REO Property plus accrued interest thereon; (ii) any
unreimbursed costs and damages incurred by the Issuing Entity (or the Trustee on
behalf of the Issuing Entity) in connection with the violation of any
anti-predatory or anti-abusive lending laws; and (iii) the payment of all
amounts (including, without limitation, all previously unreimbursed Advances and
Servicing Advances and accrued and unpaid Servicing Fees) payable or
reimbursable to the Master Servicer, the Securities Administrator or Trustee.
Original Applicable Credit Support Percentage: With respect to each Class
of Subordinate Certificates, the corresponding percentage set forth opposite its
Class designation: Class M-1 - 3.25%; Class M-2 - 2.00%; Class M-3 - 1.35%;
Class B-1 - 0.95%; Class B-2 - 0.50%; and Class B-3 - 0.20%.
Originator: With respect to any Mortgage Loan, the entity that (i) took the
Mortgagor's loan application, (ii) processed the Mortgagor's loan application,
and (iii) closed and/or funded the Mortgagor's Mortgage Loan.
Overcollateralized Senior Certificates: As defined in Section 5.02(b)(iii).
Parent Power(R) Guaranty and Security Agreement: With respect to any
Additional Collateral Mortgage Loan, as defined in the Transfer Agreement.
Paying Agent: Any paying agent appointed by the Securities Administrator
pursuant to Section 3.08.
Percentage Interest: With respect to any Certificate, its percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to any Certificate (other than the Class IV-A-X Certificates and Class
A-R Certificate), the Percentage Interest evidenced thereby shall equal the
initial Certificate Principal Amount thereof divided by the initial Class
Principal Amount of all Certificates of the same Class. With respect to the
Class A-R Certificate, the Percentage Interest evidenced thereby shall be as
specified on the face thereof, or otherwise, be equal to 100%. With respect to
any Class IV-A-X Certificate, the Percentage Interest represented thereby shall
equal the initial Class Notional Amount thereof divided by the initial Class
Notional Amount of all of the Certificates of the same class.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof, provided
that such obligations are backed by the full faith and credit of the United
States;
(ii) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia
21
receiving the highest long-term debt rating of each Rating Agency, or such
lower rating as shall not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by the Rating Agencies, as
evidenced by a signed writing delivered by each Rating Agency;
(iii) commercial or finance company paper which is then receiving the
highest commercial or finance company paper rating of each Rating Agency
rating such paper, or such lower rating as shall not result in the
downgrading or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or long-term unsecured
debt obligations of such depository institution or trust company (or in the
case of the principal depository institution in a holding company system,
the commercial paper or long-term unsecured debt obligations of such
holding company, but only if Xxxxx'x is not the applicable Rating Agency)
are then rated one of the two highest long-term and the highest short-term
ratings of each Rating Agency for such securities, or such lower ratings as
shall not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency;
(v) guaranteed reinvestment agreements issued by any bank, insurance
company or other corporation acceptable to the Rating Agencies at the time
of the issuance of such agreements, as evidenced by a signed writing
delivered by each Rating Agency;
(vi) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (iv)
above;
(vii) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the face amount
thereof) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States or any state thereof
which, at the time of such investment, have one of the two highest ratings
of each Rating Agency (except if the Rating Agency is Moody's, such rating
shall be the highest commercial paper rating of Moody's for any such
series), or such lower rating as shall not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency;
22
(viii) interests in any money market fund which at the date of
acquisition of the interests in such fund and throughout the time such
interests are held in such fund has the highest applicable rating by each
Rating Agency rating such fund or such lower rating as shall not result in
a change in the rating then assigned to the Certificates by each Rating
Agency including funds for which the Trustee or any of its Affiliates is
investment manager or adviser;
(ix) short-term investment funds sponsored by any trust company or
national banking association incorporated under the laws of the United
States or any state thereof which on the date of acquisition has been rated
by each applicable Rating Agency in their respective highest applicable
rating category or such lower rating as shall not result in a change in the
rating then specified stated maturity and bearing interest or sold at a
discount acceptable to each Rating Agency as shall not result in the
downgrading or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies; and
(x) such other investments having a specified stated maturity and
bearing interest or sold at a discount acceptable to the Rating Agencies as
shall not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies;
provided, that no such instrument shall be a Permitted Investment if (i) such
instrument evidences the right to receive interest only payments with respect to
the obligations underlying such instrument, (ii) such instrument would require
the Depositor to register as an investment company under the Investment Company
Act of 1940, as amended, or (iii) such instrument would not be a "permitted
investment" within the meaning of such term as provided for in Section
860G(a)(5) of the Code and the Treasury Regulations thereunder.
Permitted Transferee: As defined in Section 3.03(f).
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PHH: PHH Mortgage Corporation, or its successor in interest.
Pool 1: The aggregate of Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 1.
Pool 1 Mortgage Loans: Any Mortgage Loan in Pool 1.
Pool 1 Net WAC: With respect to any Distribution Date, the weighted average
of the Net Mortgage Rates of the Pool 1 Mortgage Loans as of the first day of
the calendar month immediately preceding the calendar month of such Distribution
Date, weighted on the basis of their Stated Principal Balances at such time.
Pool 1 Subordinate Amount: For any Distribution Date, the excess of (a) the
Aggregate Stated Principal Balance of the Pool 1 Mortgage Loans as of the first
day of the month preceding
23
the month in which such Distribution Date occurs over (b) the sum of the Class
Principal Amounts of the Class I-A-1, Class I-A-2 and Class A-R Certificates
immediately before such Distribution Date.
Pool 2: The aggregate of Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 2.
Pool 2 Mortgage Loans: Any Mortgage Loan in Pool 2.
Pool 2 Net WAC: With respect to any Distribution Date, the weighted average
of the Net Mortgage Rates of the Pool 2 Mortgage Loans as of the first day of
the calendar month immediately preceding the calendar month of such Distribution
Date, weighted on the basis of their Stated Principal Balances at such time.
Pool 2 Subordinate Amount: For any Distribution Date, the excess of (a) the
Aggregate Stated Principal Balance of the Pool 2 Mortgage Loans as of the first
day of the month preceding the month in which such Distribution Date occurs over
(b) the sum of the Class Principal Amounts of the Class II-A-1 and Class II-A-2
Certificates immediately before such Distribution Date.
Pool 3: The aggregate of Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 3.
Pool 3 Mortgage Loans: Any Mortgage Loan in Pool 3.
Pool 3 Net WAC: With respect to any Distribution Date, the weighted average
of the Net Mortgage Rates of the Pool 3 Mortgage Loans as of the first day of
the calendar month immediately preceding the calendar month of such Distribution
Date, weighted on the basis of their Stated Principal Balances at such time.
Pool 3 Subordinate Amount: For any Distribution Date, the excess of (a) the
Aggregate Stated Principal Balance of the Pool 3 Mortgage Loans as of the first
day of the month preceding the month in which such Distribution Date occurs over
(b) the Class Principal Amount of the Class III-A Certificates immediately
before such Distribution Date.
Pool 4: The aggregate of Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 4.
Pool 4 Mortgage Loans: Any Mortgage Loan in Pool 4.
Pool 4 Net WAC: With respect to any Distribution Date, the weighted average
of the Net Mortgage Rates of the Pool 4 Mortgage Loans as of the first day of
the calendar month immediately preceding the calendar month of such Distribution
Date, weighted on the basis of their Stated Principal Balances at such time.
Pool 4 Subordinate Amount: For any Distribution Date, the excess of (a) the
Aggregate Stated Principal Balance of the Pool 4 Mortgage Loans as of the first
day of the month preceding the month in which such Distribution Date occurs over
(b) the sum of the Class Principal Amounts of the Class IV-A-1, Class IV-A-2,
Class IV-A-3 and Class IV-A-4 Certificates immediately before such Distribution
Date.
24
Pool Subordinate Amount: Any of the Pool 1 Subordinate Amount, Pool 2
Subordinate Amount, Pool 3 Subordinate Amount or the Pool 4 Subordinate Amount.
Prepayment Interest Shortfall: With respect to any full or partial
Principal Prepayment of a Mortgage Loan, the excess, if any, of (i) one full
month's interest at the applicable Mortgage Rate on the outstanding principal
balance of such Mortgage Loan immediately prior to such Principal Prepayment
over (ii) the amount of interest actually received with respect to such Mortgage
Loan in connection with such Principal Prepayment.
Prepayment Period: With respect to each Distribution Date, the calendar
month immediately preceding the month in which the Distribution Date occurs.
Primary Mortgage Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan.
Principal Distribution Amount: With respect to any Mortgage Pool and any
Distribution Date, the sum of (a) each Scheduled Payment of principal collected
or advanced on the related Mortgage Loans (before taking into account any
Deficient Valuations or Debt Service Reductions) and due during the related Due
Period, (b) that portion of the Purchase Price representing principal of any
Mortgage Loans in such Mortgage Pool purchased in accordance with Section 2.05
hereof and received during the related Prepayment Period, (c) the principal
portion of any related Substitution Amount received during the related
Prepayment Period, (d) the principal portion of all Insurance Proceeds received
during the related Prepayment Period with respect to Mortgage Loans in such
Mortgage Pool that are not yet Liquidated Mortgage Loans, (e) the principal
portion of all Net Liquidation Proceeds received during the related Prepayment
Period with respect to Liquidated Mortgage Loans in such Mortgage Pool, (f) all
Subsequent Recoveries received during the related Prepayment Period with respect
to Liquidated Mortgage Loans in such Mortgage Pool, (g) the principal portion of
the proceeds of any Additional Collateral with respect to the Mortgage Loans in
such Mortgage Pool, (h) the principal portion of all partial and full Principal
Prepayments of Mortgage Loans in such Mortgage Pool applied by the Servicer
(pursuant to this Agreement) during the related Prepayment Period and (i) on the
Distribution Date on which the Issuing Entity is to be terminated pursuant to
Article VII hereof, that portion of the Optional Termination Price in respect of
principal for such Mortgage Pool.
Principal Prepayment: Any Mortgagor payment of principal or other recovery
of principal on a Mortgage Loan that is recognized as having been received or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
Mortgage Note or this Agreement.
Principal Transfer Amount: For any Distribution Date and for any
Undercollateralized Group, the excess, if any, of the aggregate Class Principal
Amount of such Undercollateralized Group immediately prior to such Distribution
Date over the Aggregate Stated Principal Balance of the related Mortgage Pool
immediately prior to such Distribution Date.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Property, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
25
Pro Rata Senior Percentage: With respect to each Distribution Date and each
Mortgage Pool, the percentage equivalent of a fraction the numerator of which is
the aggregate Class Principal Amount of the Class or Classes of the Related
Certificate Group immediately prior to such Distribution Date and the
denominator of which is the Aggregate Stated Principal Balance of the related
Mortgage Pool for such Distribution Date.
Prospectus: The prospectus supplement, dated January 26, 2007, together
with the accompanying prospectus dated September 8, 2006, relating to the
initial sale of the Class I-A-1, Class I-A-2, Class II-A-1, Class II-A-2, Class
III-A, Class IV-A-1, Class IV-A-2, Class IV-A-3, Class IV-A-4, Class IV-A-X,
Class A-R, Class M-1, Class M-2 and Class M-3 Certificates.
Purchase Date: Any Distribution Date on which Certificates may be
repurchased pursuant to Section 7.01(c).
Purchase Price: With respect to any Mortgage Loan required or permitted to
be purchased by the Depositor pursuant to this Agreement, by the Master Servicer
pursuant to this Agreement, or by the Sponsor pursuant to the Transfer
Agreement, an amount equal to the sum of (i) 100% of the unpaid principal
balance of the Mortgage Loan on the date of such purchase, (ii) accrued interest
thereon at the applicable Net Mortgage Rate from the date through which interest
was last paid by the Mortgagor to the Due Date in the month in which the
Purchase Price is to be distributed to Certificateholders and (iii) any
unreimbursed costs, penalties and/or damages incurred by the Issuing Entity in
connection with any violation relating to such Mortgage Loan of any predatory or
abusive lending law.
QIB: As defined in Section 3.03(c)(i).
Rating Agency: Each of Xxxxx'x and S&P.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Rate from the Due Date as to which interest
was last paid or advanced (and not reimbursed) to Certificateholders up to the
Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Net Liquidation Proceeds and the proceeds of
any Additional Collateral, if any, received during the month in which such
liquidation occurred, to the extent applied as recoveries of interest at the Net
Mortgage Rate and to principal of the Liquidated Mortgage Loan. With respect to
each Mortgage Loan which has become the subject of a Deficient Valuation, if the
principal amount due under the related Mortgage Note has been reduced, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation.
Record Date: As to any Distribution Date, the last Business Day of the
month preceding the month of each Distribution Date.
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection with
the refinancing of an existing mortgage loan.
Regulation AB: Subpart 22.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to time,
and subject to such
26
clarification and interpretation as have been provided by the Commission in the
adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed Reg. 1,506, 1,531 (Jan. 7, 2005) or by the staff of the Commission, or as
may be provided by the Commission or its staff from time to time.
Related Certificate Group: The Certificate Group related to a particular
Mortgage Pool as indicated by the same numerical designation (i.e., Group 1
Certificates are related to Pool 1, Group 2 Certificates are related to Pool 2,
Group 3 Certificates are related to Pool 3 and Group 4 Certificates are related
to Pool 4).
Relevant Servicing Criteria: The Servicing Criteria applicable to the
various parties, as set forth on Exhibit S-2 hereto. For clarification purposes,
multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the
Securities Administrator, the Servicer, the Trustee, the Custodian or the Master
Servicer, the term "Relevant Servicing Criteria" may refer to a portion of the
Relevant Servicing Criteria applicable to such parties.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Civil Relief Act, the amount, if any, by which (i)
interest collectible on such Mortgage Loan for the most recently ended calendar
month is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC as
described in the Preliminary Statement.
REMIC Interests: Any regular or residual interest in any REMIC, as
described in the Preliminary Statement.
REMIC Provisions: The provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations, including proposed regulations and rulings, and administrative
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
REMIC 1: As described in the Preliminary Statement.
REMIC 1 Interest: Each class of interest in REMIC 1 as described in the
Preliminary Statement.
REMIC 1 Regular Interest: Each of the REMIC 1 Interests other than the
Class LT1-R Interest.
REMIC 1 Subordinate Balance Ratio: The ratio among the uncertificated
principal balances of each of the REMIC 1 Interests ending with the designation
"A" that is equal to the ratio among, with respect to each such REMIC 1
Interest, the excess of (x) the aggregate Stated Principal Balance of the
Mortgage Loans in the related Mortgage Pool over (y) the aggregate Class
Principal Amount of the Certificates in the Certificate Group related to such
Mortgage Pool.
REMIC 2: As described in the Preliminary Statement.
27
REMIC 2 Interest: Each class of interest in REMIC 2 as described in the
Preliminary Statement.
REMIC 2 Regular Interest: Each of the REMIC 2 Interests other than the
Class LT2-R Interest.
REO Disposition: The final sale by the Servicer of an REO Property.
REO Property: A Mortgaged Property acquired by the Issuing Entity through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Replacement Mortgage Loan: A mortgage loan substituted by the Sponsor for a
Deleted Mortgage Loan which must, on the date of such substitution, as confirmed
in a Request for Release substantially in the form attached to this Agreement,
(i) have a Stated Principal Balance, after deduction of the principal portion of
the Scheduled Payment due in the month of substitution, not in excess of, and
not more than 10% less than, the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) have a Maximum Rate not less than (and not more than two
percentage points greater than) the Maximum Rate of the Deleted Mortgage Loan;
(iii) have a gross margin not less than that of the Deleted Mortgage Loan and,
if Mortgage Loans equal to 1% or more of the balance of the related Mortgage
Pool as of the Cut-off Date have become Deleted Mortgage Loans, not more than
two percentage points more than that of the Deleted Mortgage Loan; (iv) have an
Effective Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan;
(v) have Adjustment Dates that are no more or less frequent than the Deleted
Mortgage Loan; (vi) have a remaining term to maturity no greater than (and not
more than one year less than that of) the Deleted Mortgage Loan; (vii) not
permit conversion of the related Mortgage Rate to a permanent fixed Mortgage
Rate; (viii) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; (ix) have the same or better FICO credit score; (x) have an
initial interest adjustment date no earlier than five months before (and no
later than five months after) the initial adjustment date of the Deleted
Mortgage Loan, (xi) comply with each representation and warranty set forth in
Sections 2.03 and 2.04 of this Agreement; and (xii) shall be accompanied by an
Opinion of Counsel that such Replacement Mortgage Loan would not adversely
affect the REMIC status of any of the REMICs formed pursuant to this Pooling and
Servicing Agreement or would not otherwise be prohibited by this Pooling and
Servicing Agreement.
Reportable Event: As defined in Section 9.21(a).
Reporting Servicer: As defined in Section 9.21(h).
Request for Release: A request for release, substantially in the form of
Exhibit N attached hereto, properly completed and signed by a Servicing Officer
(or, if delivered on behalf of the Sponsor or Depositor, an Authorized Officer
thereof).
Residual Certificate: The Class A-R Certificate.
Residual Interest: The Residual Certificate, other than the portion thereof
representing the right to payments in respect of the Class LT1-R Interest and
Class LT2-R Interest.
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RESPA: The Real Estate Settlement Procedures Act, 12 U.S.C Section 2601 et
seq., and Regulation X, 24 C.F.R. Section 3500.21, thereunder, as the foregoing
may be amended from time to time.
Responsible Officer: With respect to the Trustee or the Securities
Administrator, any officer in the corporate trust department or similar group of
the Trustee or the Securities Administrator with direct responsibility for the
administration of this Agreement and also, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
Restricted Certificate: Any Class B-1, Class B-2 or Class B-3 Certificate.
Restricted Global Security: As defined in Section 3.01(c).
S&P: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor in interest.
SAIF: The Saving's Association Insurance Fund, or any successor thereto.
Xxxxxxxx-Xxxxx Act: means 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: means 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
Schedule of Exceptions: As defined in Section 2.02(a) of this Agreement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan which,
unless otherwise specified in this Agreement, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount of
the monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo Bank, N.A. and its successors and
assigns.
Senior Certificate: Any one of the Class I-A-1, Class I-A-2, Class II-A-1,
Class II-A-2, Class III-A, Class IV-A-1, Class IV-A-2, Class IV-A-3, Class
IV-A-4, Class IV-A-X or Class A-R Certificates.
29
Senior Percentage: Except as provided in this definition, for each Mortgage
Pool with respect to any Distribution Date before February 2014, 100%.
Notwithstanding the foregoing sentence, for any Distribution Date (i) occurring
prior to the Distribution Date in February 2018 but in or after February 2010 on
which the Two Times Test is satisfied or (ii) in or after February 2018, the
related Senior Percentage for each Mortgage Pool will be the related Pro Rata
Senior Percentage. For any Distribution Date occurring prior to February 2010 on
which the Two Times Test is satisfied, the related Senior Percentage for such
Mortgage Pool will be equal to the related Pro Rata Senior Percentage plus 50%
of an amount equal to 100% minus the related Pro Rata Senior Percentage. With
respect to any Distribution Date after the related Senior Termination Date, the
related Senior Percentage will be 0%. If on any Distribution Date the allocation
to the Senior Certificates of the related Certificate Group then entitled to
distributions of principal of full and partial prepayments and other amounts in
the percentage required above would reduce the sum of the Class Principal
Amounts of those Certificates to below zero, the Senior Percentage for such
Distribution Date shall be limited to the percentage necessary to reduce such
Class Principal Amounts to zero.
Senior Prepayment Percentage: For the Senior Certificates for any
Distribution Date and each related Certificate Group occurring in or after
February 2014, will be as follows:
(i) for any Distribution Date occurring in or after February 2014 but
before February 2015, the related Pro Rata Senior Percentage plus 70% of
the related Subordinate Percentage for that date;
(ii) for any Distribution Date occurring in or after February 2015 but
before February 2016, the related Pro Rata Senior Percentage plus 60% of
the related Subordinate Percentage for that date;
(iii) for any Distribution Date occurring in or after February 2016
but before February 2017, the related Pro Rata Senior Percentage plus 40%
of the related Subordinate Percentage for that date;
(iv) for any Distribution Date occurring in or after February 2017 but
before February 2018, the related Pro Rata Senior Percentage plus 20% of
the related Subordinate Percentage for that date; and
(v) for any Distribution Date occurring in February 2018 or
thereafter, the related Pro Rata Senior Percentage for that date;
(i) provided however, that any scheduled reduction to the Senior Prepayment
Percentage for any Mortgage Pool as described above will occur unless either:
(a)(i)(x) the Stated Principal Balance of Mortgage Loans delinquent 60 days or
more (including for this purpose any such Mortgage Loans in foreclosure or
Bankruptcy and any REO Properties), averaged over the last six months, as a
percentage of the aggregate outstanding Class Principal Amount of the
Subordinate Certificates, is less than 50% or (y) the Stated Principal Balance
of Mortgage Loans delinquent 60 days or more averaged over the last six months,
as a percentage of the aggregate Stated Principal Balance of all Mortgage Loans
averaged over the last six months, does not exceed 2%, and
(ii) Realized Losses on the Mortgage Loans to date for such Distribution
Date, if occurring during the eighth, ninth, tenth, eleventh or twelfth year (or
any year thereafter) after the Closing Date, are less than 30%, 35%, 40%, 45% or
50%, respectively, of the sum of the Class
30
Principal Amount of the Subordinate Certificates as of the Closing Date; or
(b)(i) the Stated Principal Balance of Mortgage Loans delinquent 60 days or more
(including for this purpose any such Mortgage Loans in foreclosure or Bankruptcy
and any REO Properties), averaged over the last six months, as a percentage of
the aggregate outstanding principal balance of all Mortgage Loans averaged over
the last six months, does not exceed 4%, and (ii) Realized Losses on the
Mortgage Loans to date for such Distribution Date, if occurring during the
eighth, ninth, tenth, eleventh or twelfth year (or any year thereafter) after
the Closing Date, are less than 10%, 15%, 20%, 25% or 30%, respectively, of the
sum of the Class Principal Amount of the Subordinate Certificates as of the
Closing Date and (ii) that for any Distribution Date on which the Pro Rata
Senior Percentage exceeds the Pro Rata Senior Percentage as of the Closing Date,
the Senior Prepayment Percentage for all of the Mortgage Pools shall be 100%.
Notwithstanding the foregoing, upon the reduction of the Class Principal Amount
of the Senior Certificates to zero, the Senior Prepayment Percentage will equal
0%.
In addition, on any Distribution Date on or after the Distribution Date
occurring in February 2010, if the current weighted average of the Subordinate
Percentage of the Mortgage Pools is equal to or greater than two times the
weighted average of the Subordinate Percentage as of the Closing Date, and (a)
the Stated Principal Balance of the Mortgage Loans delinquent 60 days or more
(including for this purpose any such Mortgage Loans in foreclosure or Bankruptcy
and any REO Properties), averaged over the last six months, as a percentage of
the Subordinate Percentage for that Distribution Date times the aggregate Stated
Principal Balance of the Mortgage Loans, does not exceed 50% and (b) cumulative
Realized Losses on the Mortgage Loans do not exceed 20% of the Subordinate
Percentage as of the Closing Date times the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date, then, in each case, the related
Senior Percentage for such Distribution Date will equal the related Senior
Prepayment Percentage (such test, the "Two Times Test").
Senior Principal Distribution Amount: With respect to any Mortgage Pool and
Distribution Date, the sum of:
1. the product of (a) the related Pro Rata Senior Percentage and (b)
the principal portion of each Scheduled Payment (without giving effect to
any Debt Service Reduction) on each Mortgage Loan in the related Mortgage
Pool due during the related Due Period;
2. the product of (a) the related Senior Prepayment Percentage and (b)
each of the following amounts: (i) the principal portion of each full and
partial principal prepayment made by a borrower on a Mortgage Loan in the
related Mortgage Pool during the related Prepayment Period; (ii) each other
unscheduled collection, including Insurance Proceeds and net Liquidation
Proceeds (other than with respect to any Mortgage Loan in the related
Mortgage Pool that was finally liquidated during the related Prepayment
Period) representing or allocable to recoveries of principal of the related
Mortgage Loans received during the related Prepayment Period; and (iii) the
principal portion of the purchase price of each Mortgage Loan purchased by
the Sponsor or any other person pursuant to the Mortgage Loan Sale and
Assignment Agreement due to a defect in documentation or a material breach
of a representation and warranty with respect to such Mortgage Loan or, in
the case of a permitted substitution of a Defective Mortgage Loan, the
amount representing any principal adjustment in connection with any such
replaced Mortgage Loan in the related Mortgage Pool with respect to the
related Prepayment Period;
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3. with respect to unscheduled recoveries allocable to principal of
any Mortgage Loan in the related Mortgage Pool that was fully liquidated
during the related Prepayment Period, the lesser of (a) the product of (i)
the Senior Percentage for that date and (ii) the remaining Stated Principal
Balance of the related Mortgage Loan at the time of liquidation and (b) the
product of (i) the Senior Prepayment Percentage for that date and (ii) the
net Liquidation Proceeds allocable to principal; and
4. any amounts described in clauses (1) through (3) above that remain
unpaid with respect to such Certificate Group from prior Distribution
Dates.
Senior Termination Date: For each Certificate Group, the Distribution Date
when the aggregate of the Class Certificate Principal Balances of that Group has
been reduced to zero.
Servicer: PHH.
Servicer Advance: The outstanding moneys that have been advanced by the
Servicer from its funds in connection with its servicing of a Mortgage Loan
(including, but not limited to, taxes, ground rents, assessments, insurance
premiums, release fees, foreclosure and bankruptcy fees and expenses, and other
expenses) (i) that have been made by the Servicer in accordance with the terms
and provisions of this Agreement, (ii) that are recoverable through Liquidation
Proceeds and/or Insurance Proceeds, or that are made at the direction of the
Sponsor or to preserve its security interest in the related Mortgaged Property
and (iii) for which such Servicer has a right of reimbursement.
Servicer Event of Default: As defined in Section 6.14(a).
Servicer Information: As defined in Section 9.15(b).
Servicer Remittance Date: The 18th day of each calendar month after the
initial issuance of the Certificates or, if such 18th day is not a Business Day,
the immediately preceding Business Day, commencing in February 2007.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing Fee: As to any Distribution Date and each Mortgage Loan, an
amount equal to the product of (a) one-twelfth of the Servicing Fee Rate and (b)
the outstanding principal balance of such Mortgage Loan as of the first day of
the related Due Period.
Servicing Fee Rate: With respect to each Mortgage Loan and any Distribution
Date, 0.25% per annum.
Servicing Function Participant: Any Sub-Servicer or Subcontractor of the
Servicer, the Custodian, the Master Servicer, the Securities Administrator and
the Trustee.
Servicing Officer: Any officer of the Servicer involved in, or responsible
for, the administration and servicing of the Mortgage Loans whose name and
facsimile signature appear on a list of servicing officers furnished to the
Trustee by the Servicer on the Closing Date and attached hereto as Exhibit M, as
such list may from time to time be amended.
Servicing Transfer Costs: As defined in Section 6.14(a).
32
Six-Month LIBOR Loan: Each Mortgage Loan bearing a Mortgage Rate that
adjusts in accordance with LIBOR for six-month U.S. dollar deposits.
Sponsor: Xxxxxxx Xxxxx Mortgage Lending, Inc., or its successor in
interest.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the unpaid
principal balance of such Mortgage Loan as of such Due Date as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous Principal Prepayments and
Liquidation Proceeds allocable to principal and to the payment of principal due
on such Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect to
Mortgage Loans under the direction or authority of the Servicer (or a
Sub-Servicer of the Servicer), the Master Servicer, the Trustee, the Custodian
or the Securities Administrator.
Subordinate Certificate: Any of the Class M-1, Class M-2, Class M-3, Class
B-1, Class B-2 or Class B-3 Certificates.
Subordinate Certificate Writedown Amount: The amount described in Section
5.03(b)(iii).
Subordinate Class Percentage: As to any Distribution Date and any Class of
Subordinate Certificates, a fraction, expressed as a percentage, the numerator
of which is the Class Principal Amount of such Class on such date, and the
denominator of which is the aggregate Class Principal Amount of all Classes of
Subordinate Certificates on such date.
Subordinate Net WAC: For any Distribution Date, the weighted average of the
Pool 1 Net WAC, the Pool 2 Net WAC, the Pool 3 Net WAC and the Pool 4 Net WAC
weighted on the basis of the Pool Subordinate Amounts for Pool 1, Pool 2, Pool 3
and Pool 4, respectively, for such Distribution Date.
Subordinate Percentage: With respect to each Mortgage Pool and any
Distribution Date, the difference between 100% and the related Senior Percentage
for such Mortgage Pool for such Distribution Date; provided, however, that on
any Distribution Date after a Senior Termination Date has occurred with respect
to a Mortgage Pool, the Subordinate Percentage will represent the entire
interest of the Subordinate Certificates in the Mortgage Loans and will be equal
to the difference between 100% and the Senior Percentage related to the Mortgage
Loans in the aggregate for such Distribution Date.
Subordinate Prepayment Percentage: With respect to any Distribution Date
and for any Mortgage Pool, the difference between 100% and the related Senior
Prepayment Percentage for such Mortgage Pool for that Distribution Date;
provided, however, that on any Distribution Date after a Senior Termination Date
has occurred with respect to a Mortgage Pool, the Subordinate Prepayment
Percentage will represent the entire interest of the Subordinate Certificates in
the Mortgage Loans and will be equal to the difference between 100% and the
Senior Prepayment Percentage related to the Mortgage Loans in the aggregate for
such Distribution Date.
33
Subordinate Principal Distribution Amount: With respect to any Distribution
Date and each Mortgage Pool, an amount equal to the sum of:
1. the related Subordinate Percentage of all amounts described in
clause (a) of the definition of "Principal Distribution Amount" for that
Distribution Date;
2. with respect to each Mortgage Loan in the related Mortgage Pool
that became a Liquidated Mortgage Loan during the related Prepayment Period
the amount of the Net Liquidation Proceeds allocated to principal received
with respect thereto remaining after application thereof pursuant to clause
(2) of the definition of "Senior Principal Distribution Amount" for that
Distribution Date, up to the Subordinate Percentage of the Stated Principal
Balance of such Mortgage Loan;
3. the related Subordinate Prepayment Percentage of all amounts
described in clauses (b), (c), (d), (f), (g), (h) and (i) of the definition
of "Principal Distribution Amount" for that Mortgage Pool and that
Distribution Date; and
4. any amounts described in clauses (1) through (3) for any previous
Distribution Date that remain unpaid
minus the sum of:
5. if the aggregate Class Principal Amount of any Certificate Group
has been reduced to zero, principal paid from the Available Distribution
Amount from the related Mortgage Pool to the remaining Certificate Groups;
and
6. the amounts paid from the Available Distribution Amount for the
Overcollateralized Senior Certificates to the Undercollateralized Senior
Certificates.
Subsequent Recovery: The amount, if any, recovered by the Servicer or the
Master Servicer with respect to a Liquidated Mortgage Loan with respect to which
a Realized Loss has been incurred after liquidation and disposition of such
Mortgage Loan.
Sub-Servicer: Any Person that services Mortgage Loans on behalf of the
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 or any sub-servicing agreement that are identified in Item
1122(d) of Regulation AB.
Substitution Amount: As defined in the second paragraph of Section 2.05(b).
Tax Matters Person: The "tax matters person" as specified in the REMIC
Provisions which shall initially be the Holder of the Class A-R Certificate.
Telerate Page 3750: The display currently so designated as "Page 3750" on
the Bridge Telerate Service (or such other page selected by the Securities
Administrator as may replace Page 3750 on that service for the purpose of
displaying daily comparable rates on prices).
Transfer Agreement: The Master Mortgage Loan Purchase Agreement, dated as
of August 1, 2004, between Xxxxxxx Xxxxx Credit Corporation and Xxxxxxx Xxxxx
Mortgage Lending, Inc., as amended by Amendment Number One thereto, dated as of
September 21, 2005.
34
Trust Fund: The corpus of the Issuing Entity created pursuant to this
Agreement, consisting of (i) the Mortgage Loans, including the right to all
payments of principal and interest received on or with respect to the Mortgage
Loans on and after the Cut-off Date (other than Scheduled Payments due on or
before such date), and all such payments due after such date but received prior
to such date and intended by the related Mortgagors to be applied after such
date; (ii) all of the Depositor's right, title and interest in and to all
amounts from time to time credited to and the proceeds of the Distribution
Account, any Collection Accounts, the Master Servicer Collection Account or any
Escrow Accounts established with respect to the Mortgage Loans; (iii) all of the
Depositor's rights under the Mortgage Loan Sale and Assignment Agreement and the
Transfer Agreement; (iv) all of the Depositor's right, title or interest in REO
Property and the proceeds thereof; (v) all of the Depositor's rights under any
Insurance Policies relating to the Mortgage Loans; (vi) all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing into cash or other
liquid assets, including without limitation, all Insurance Proceeds, Liquidation
Proceeds and condemnation awards; and (vii) the Depositor's security interest in
any collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties and any Additional Collateral relating to the Additional Collateral
Mortgage Loans, including, but not limited to, any pledge, control and guaranty
agreements and the Limited Purpose Surety Bond and any proceeds of the
foregoing.
Trustee: HSBC Bank USA, National Association, and any Person succeeding the
Trustee hereunder, or if any separate trustee or any co-trustee shall be
appointed as herein provided, then such separate trustee and such co-trustee, as
the case may be.
Trustee Mortgage Files: With respect to each Mortgage Loan, the Mortgage
Documents to be retained in the custody and possession of the Trustee or its
custodian.
Two Times Test: As defined in the definition of "Senior Prepayment
Percentage".
UCC: The Uniform Commercial Code as enacted in the relevant jurisdiction.
Undercollateralized Amount: As defined in Section 5.02(b)(iii).
Undercollateralized Senior Certificates: As defined in Section
5.02(b)(iii).
Underwriter: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
Underwriter's Exemption: Prohibited Transaction Exemption ("PTE") 90-29
(Exemption Application No. D-8019, 55 Fed. Reg. 21459 (1990)) as amended, or any
substantially similar administrative exemption granted by the U.S. Department of
Labor to the Underwriter.
Uniform Commercial Code: The Uniform Commercial Code as in effect in any
applicable jurisdiction from time to time.
Upper Tier REMIC: As described in the Preliminary Statement.
Upper Tier REMIC Regular Interest: Each Class of Senior Certificates (other
than the Class A-R Certificates) and Subordinate Certificates.
Voting Interests: The portion of the voting rights of all the Certificates
that is allocated to any Certificate for purposes of the voting provisions of
this Agreement. At all times during the term of this Agreement, 100% of all
Voting Interests not otherwise allocated to the Class IV-A-X
35
Certificates shall be allocated to the Class I-A-1, Class I-A-2, Class II-A-1,
Class II-A-2, Class III-A, Class IV-A-1, Class IV-A-2, Class IV-A-3, Class
IV-A-4, Class M-1, Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3
Certificates. Voting Interests shall be allocated among such Certificates based
on the product of (i) 98.00% or 100%, as applicable, and (ii) the fraction,
expressed as a percentage, the numerator of which is the aggregate Class
Principal Amounts for each Class then outstanding and the denominator of which
is the Aggregate Stated Principal Balance outstanding. At all times during the
term of this Agreement, 2.00% of all Voting Interests shall be allocated to the
Class IV-A-X Certificates, while they remain outstanding. The Class A-R
Certificates shall not have any Voting Interests. Voting Interests shall be
allocated among the Certificates within each such Class in proportion to their
Certificate Principal Amounts or Percentage Interests.
WFB: Xxxxx Fargo Bank, N.A. or any successor thereto.
Section 1.02. Calculations Respecting Mortgage Loans.
Calculations required to be made pursuant to this Agreement with respect to
any Mortgage Loan in the Trust Fund shall be made based upon current information
as to the terms of the Mortgage Loans and reports of payments received from the
Mortgagor on such Mortgage Loans and payments to be made to the Securities
Administrator as provided by the Master Servicer (which in turn was provided
such information by the Servicer pursuant to this Agreement). The Master
Servicer and the Securities Administrator shall not be required to recompute,
verify or recalculate the information supplied to it by the Servicer or the
Master Servicer, respectively.
ARTICLE II.
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans.
(a) Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby establish the Trust Fund and transfer, assign, set over,
deposit with and otherwise convey to the Trustee, without recourse, subject to
Sections 2.02 and 2.05, in trust, all the right, title and interest of the
Depositor in and to the Trust Fund. Such conveyance includes, without
limitation, (i) the Mortgage Loans, including the right to all payments of
principal and interest received on or with respect to the Mortgage Loans on and
after the Cut-off Date (other than Scheduled Payments due on or before such
date), and all such payments due after such date but received prior to such date
and intended by the related Mortgagors to be applied after such date; (ii) all
of the Depositor's right, title and interest in and to all amounts from time to
time credited to and the proceeds of the Distribution Account, any Collection
Accounts, the Master Servicer Collection Account or any Escrow Account
established with respect to the Mortgage Loans; (iii) all of the Depositor's
rights under the Mortgage Loan Sale and Assignment Agreement and the Transfer
Agreement; (iv) all of the Depositor's right, title or interest in REO Property
and the proceeds thereof; (v) all of the Depositor's rights under any Insurance
Policies relating to the Mortgage Loans; (vi) all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or other liquid
assets, including, without limitation, all Insurance Proceeds, Liquidation
Proceeds and condemnation awards; and (vii) the Depositor's security interest in
any collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties and any Additional Collateral relating to the Additional Collateral
Mortgage Loans, including, but not
36
limited to, any pledge, control and guaranty agreements and the Limited Purpose
Surety Bond and any proceeds of the foregoing, to have and to hold, in trust;
and the Trustee declares that, subject to the review provided for in Section
2.02, it has received and shall hold the Trust Fund, as trustee, in trust, for
the benefit and use of the Holders of the Certificates and for the purposes and
subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, has caused to be executed, authenticated and
delivered to or upon the order of the Depositor, in exchange for the Trust Fund,
Certificates in the authorized denominations evidencing the entire ownership of
the Trust Fund. Notwithstanding anything to the contrary in this Agreement, the
Trust Fund shall not obtain title to or beneficial ownership of any Additional
Collateral as a result of or in lieu of the disposition thereof or otherwise.
The foregoing sale, transfer, assignment, set-over, deposit and conveyance
does not and is not intended to result in the creation or assumption by the
Trustee of any obligation of the Depositor, the Sponsor or any other Person in
connection with the Mortgage Loans or any other agreement or instrument relating
thereto except as specifically set forth therein.
It is agreed and understood by the parties hereto that it is not intended
that any Mortgage Loan be included in the Trust Fund that is a "High-Cost Home
Loan" as defined in the New Jersey Home Ownership Act, effective November 27,
2003, the New Mexico Home Loan Protection Act, effective January 1, 2004, the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004, and
the Indiana High Cost Home Loan Law, effective January 1, 2005.
In connection with such transfer and assignment of the Mortgage Loans, the
Depositor shall deliver to, and deposit with, or cause to be delivered to and
deposited with, the Trustee or its Custodian, the following documents or
instruments; provided that in Section 2.01(a)(i) below, a lost note affidavit
(including a copy of the original Mortgage Note) may be delivered in lieu of the
original Mortgage Note (each a "Trustee Mortgage File") so transferred and
assigned:
(i) The original Mortgage Note endorsed, "Pay to the order of ___________,
without recourse" and signed in the name of the name of last endorsee, by
an authorized officer of the last endorsee. If the Mortgage Loan was
acquired by the last endorsee in a merger or other type of acquisition, the
endorsement must be by "[name of last endorsee], successor [by merger to or
in interest to, as applicable] [name of predecessor]"; and if the Mortgage
Loan was acquired or originated by the last endorsee while doing business
under another name, the endorsement must be by "[name of last endorsee],
successor in interest to [previous name]." The Mortgage Note shall include
all intervening endorsements showing a complete chain of title from the
originator to the last endorsee.
(ii) The original recorded Mortgage, with evidence of recording thereon,
or, if the original Mortgage has not yet been returned from the recording
office, a copy of the original Mortgage certified by the previous owner to
be a true copy of the original of the Mortgage which has been delivered for
recording in the appropriate recording office of the jurisdiction in which
the Mortgaged Property is located.
(iii) The original Assignment of Mortgage, executed in blank. If the
Mortgage Loan was acquired by the last endorsee in a merger or other type
of acquisition, the assignment must be by "[name of last assignee],
successor [by merger to or in interest to, as applicable] [name of
predecessor]"; and if the Mortgage Loan was acquired or originated by the
last endorsee while doing business under another name, the assignment must
be by "[name of last assignee], successor in interest to [previous name]."
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(iv) The original policy of title insurance (or a preliminary title report
if the original title insurance policy has not been received from the title
insurance company).
(v) Originals of any intervening assignments of the Mortgage, with evidence
of recording thereon or, if the original intervening assignment has not yet
been returned from the recording office, a copy of such assignment
certified by the Depositor to be a true copy of the original of the
assignment which has been delivered for recording in the appropriate
recording office of the jurisdiction in which the Mortgaged Property is
located.
(vi) With respect to a Mortgage Loan that, according to the Mortgage Loan
Schedule is covered by a primary mortgage insurance policy, the original or
a copy of primary mortgage insurance certificate, if any.
(vii) If indicated on the Mortgage Loan Schedule, originals of all
assumption and modification agreements, if any, with originals or copies of
the underlying instruments being modified.
(viii) With respect to each Additional Collateral Mortgage Loan,
A. Copy of the related Mortgage 100 Pledge Agreement for Securities
Account or the Parent Power Guaranty and Security Agreement for
Securities Account or the Parent Power Guaranty Agreement for Real
Estate, as the case may be;
B. copy of the UCC-1 (applicable for South Carolina and Rhode Island
only);
C. an original form UCC-3, if applicable;
D. For loans originated by a correspondent lender, an original
assignment of security interest of the related Mortgage 100 Pledge
Agreement or Parent Power Agreement, as the case may be.
(ix) With respect to each Cooperative Loan:
A. the original proprietary lease;
B. the original recognition agreement;
C. the original security agreement;
D. the original or copy of the assignment of proprietary lease;
E. the original cooperative stock certificate and stock power executed
by borrower in blank;
F. the original UCC-1 financing statements; and
G. the original UCC-3 financing statements.
(x) Power of attorney, if applicable.
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(b) The Depositor shall cause the Mortgage Notes with respect to each
Mortgage Loan to be completed either (A) in blank, without recourse, or (B)
endorsed to "HSBC Bank USA, National Association, as Trustee of the Xxxxxxx
Xxxxx Mortgage Investors Trust Series MLCC 2007-1, Mortgage Pass-Through
Certificates, without recourse" and the Depositor shall cause Assignments of
Mortgage with respect to each Mortgage Loan other than a Cooperative Mortgage
Loan to be completed either (A) in blank or (B) to "HSBC Bank USA, National
Association, as Trustee of the Xxxxxxx Xxxxx Mortgage Investors Trust Series
MLCC 2007-1, Mortgage Pass-Through Certificates," within 30 days of the Closing
Date for purpose of their recording; provided, however, that such Assignments of
Mortgage need not be recorded unless required in writing by the Rating Agencies;
provided, further, that with respect to each MERS Mortgage Loan where MERS is
not the Mortgagee of record, the original Assignment of Mortgage showing MERS as
the assignee of the Mortgage, with the evidence of recording thereon or copies
thereof certified by an officer of the Depositor to have been submitted for
recordation, shall be delivered to the Trustee, or its Custodian.
If any Mortgage has been recorded in the name of MERS or its designee, no
Assignment of Mortgage in favor of the Trustee will be required to be prepared
or delivered and instead, the Servicer shall take all actions as are necessary
to cause the Trustee to be shown as the owner of the related Mortgage Loan on
the records of MERS for the purpose of the system of recording transfer of
beneficial ownership of mortgages maintained by MERS.
(c) In instances where a title insurance policy is required to be delivered
to the Trustee and is not so delivered, the Depositor will provide a copy of
such title insurance policy to the Trustee, as promptly as practicable after the
execution and delivery hereof, but in any case within 270 days of the Closing
Date.
(d) For Mortgage Loans (if any) that have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Depositor, in lieu of delivering
the above Trustee Mortgage File, shall deliver to the Trustee and the Securities
Administrator an Officer's Certificate which shall include a statement to the
effect that all amounts received in connection with such prepayment that are
required to be deposited in the Distribution Account pursuant to Section 4.01
have been so deposited. All original documents that are not delivered to the
Trustee, or its Custodian, or the Securities Administrator shall be held by the
Servicer in trust for the benefit of the Trustee, the Securities Administrator
and the Certificateholders.
(e) Notwithstanding anything to the contrary contained herein, the parties
hereto acknowledge that the functions of the Trustee with respect to the
custody, acceptance, inspection and release of the Trustee Mortgage Files,
including but not limited to certain insurance policies and documents
contemplated by this Agreement, and preparation and delivery of the
certifications shall be performed by the Custodian pursuant to the terms and
conditions of the Custodial Agreement.
Section 2.02. Acceptance of Trust Fund by Trustee; Review of Documentation
for Trust Fund.
(a) The Trustee, by execution and delivery hereof, acknowledges receipt by
it of the Trustee Mortgage Files pertaining to the Mortgage Loans listed on the
Mortgage Loan Schedule, subject to review thereof as provided herein. Upon
receipt by the Trustee, or its Custodian, of each Trustee Mortgage File, the
Trustee, or its Custodian, shall review each Trustee Mortgage File in accordance
with the following review procedures:
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The Trustee, or its Custodian, shall review the documents delivered to it
and shall deliver to the Depositor, prior to the Closing Date, a Mortgage
Loan Schedule and Schedule of Exceptions (as defined below) with respect to
the Mortgage Loans, and the delivery of each Mortgage Loan Schedule and
Schedule of Exceptions by the Trustee, or its Custodian, hereunder shall be
the Trustee's certification that such Mortgage Loans are held for the Trust
Fund and that, as to each Mortgage Loan listed in the related Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in such certification as not covered by the
Schedule of Exceptions):
(A) all documents described in Sections 2.01(a)(i) through 2.01(a)(v)
and to the extent provided in the Trustee's Mortgage Files Sections
2.01(a)(vi) through 2.01(a)(x), if applicable, of this Agreement are in its
possession;
(B) such documents have reviewed by it and appear regular on their
face and relate to such Mortgage Loan;
(C) based on its examination and only as to the foregoing documents,
the information set forth in the Mortgage Loan Schedule corresponding to
the loan number for the Mortgage Loan, the Mortgagor's name, including the
street address but excluding the zip code, the Mortgage Interest Rate and
the original principal balance of the Mortgage Loan respecting such
Mortgage Loan is correct; and
(D) each Mortgage Note has been endorsed and each Assignment has been
executed as provided in Section 2.01 hereof.
In making such verifications, the Trustee, or its Custodian, may rely
conclusively on the Mortgage Loan Schedule and the documents constituting the
Trustee Mortgage File, and the Trustee, and its Custodian, shall have no
obligation to independently verify the validity, enforceability, recordability,
sufficiency, due authorization or genuineness of any document in any Trustee
Mortgage File or any Mortgage Loan hereunder, nor the collectibility,
insurability, effectiveness or suitability of any Mortgage Loan hereunder. The
Trustee, or its Custodian, shall prepare an initial certification to be
delivered to the Depositor, the Sponsor and the Master Servicer on the Closing
Date in the form annexed hereto as Exhibit K (the "Initial Certification") with
respect to the Mortgage Loans (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified on the Schedule of Exceptions attached to
the Initial Certification (the "Schedule of Exceptions") as not covered by such
Initial Certification) listed on the Mortgage Loan Schedule. If the Trustee, or
its Custodian, determines from such verification that any discrepancy or
deficiency exists with respect to a Trustee Mortgage File, the Trustee, or its
Custodian, shall note such omission, discrepancy or deficiency on the Schedule
of Exceptions attached to the Initial Certification, and shall deliver a copy
(which shall be electronic, if requested) of the Schedule of Exceptions to the
Depositor on the Closing Date. During the life of the Mortgage Loans (while
subject to this Agreement), in the event the Trustee, or its Custodian,
discovers any defect with respect to any Trustee Mortgage File, the Trustee, or
its Custodian, shall give written specification of such defect to the Depositor.
Except as specifically provided above, the Trustee, and its Custodian, shall be
under no duty to review, inspect or examine such documents to determine that any
of them are enforceable or appropriate for their prescribed purpose.
(b) If in the course of the review described in paragraph (a) of this
Section 2.02 the Trustee, or its Custodian, discovers any document or documents
constituting a part of a Trustee Mortgage File that is missing, does not appear
regular on its face (i.e., is mutilated, damaged,
40
defaced, torn or otherwise physically altered) or appears to be unrelated to the
Mortgage Loans identified in the Mortgage Loan Schedule (each, a "Material
Defect"), the Trustee, or its Custodian, upon discovering such Material Defect
shall promptly identify the Mortgage Loan to which such Material Defect relates
to the Depositor, the Sponsor and the Master Servicer. Within 90 days of its
receipt of such notice (but in no case prior to the 270th day following the
Closing Date), the Depositor shall be required to cure such Material Defect
(and, in such event, the Depositor shall provide the Trustee with an Officer's
Certificate confirming that such cure has been effected). If the Servicer or
Master Servicer notifies the Depositor and the Trustee in writing that (i) a
loss has occurred and (ii) such loss relates to a Mortgage Loan for which the
Trustee, or its Custodian, previously identified a Material Defect or for which
the Servicer or Master Servicer has identified a Material Defect and the
Depositor has not cured such Material Defect, then the Depositor shall
repurchase such Mortgage Loan at the Purchase Price therefor in the event that
such loss would, if such Mortgage Loan is not repurchased by the Depositor,
constitute a Realized Loss and such loss is attributable to the failure of the
Depositor to have cured such Material Defect. A loss shall be deemed to be
attributable to the failure of the Depositor to cure a Material Defect if, as
determined by the Depositor, acting in good faith, absent such Material Defect,
such loss would not have been incurred. Within the two-year period following the
Closing Date, the Depositor may, in lieu of repurchasing a Mortgage Loan
pursuant to this Section 2.02(b), substitute for such Mortgage Loan a
Replacement Mortgage Loan subject to the provisions of Section 2.05.
(c) Within 270 days following the Closing Date, the Trustee or its
Custodian shall deliver to the Depositor, the Sponsor and the Master Servicer, a
final certification substantially in the form attached as Exhibit L (the "Final
Certification") evidencing the completeness of the Trustee Mortgage Files in its
possession or control, with any exceptions noted on the Schedule of Exceptions
attached to the Final Certification.
(d) Nothing in this Agreement shall be construed to constitute an
assumption by the Issuing Entity, the Trustee or the Certificateholders of any
unsatisfied duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(e) Upon execution of this Agreement, the Depositor hereby delivers to the
Trustee and the Trustee acknowledges receipt of the Mortgage Loan Sale and
Assignment Agreement.
Section 2.03. Representations and Warranties of the Depositor
(a) The Depositor hereby represents and warrants to the Master Servicer,
the Servicer, the Securities Administrator and to the Trustee, for the benefit
of the Certificateholders as of the Closing Date or such other date as is
specified, that:
(i) the Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence
and has full corporate power and authority to own its property, to carry on
its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of
the Depositor; neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of any law,
41
governmental rule, regulation, judgment, decree or order binding on the
Depositor or its properties or the certificate of incorporation or bylaws
of the Depositor;
(iii) the execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due execution and delivery by the Trustee,
constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms except as such enforceability may
be subject to (A) applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors generally
and (B) general principles of equity regardless of whether such enforcement
is considered in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter
which in the judgment of the Depositor will be determined adversely to the
Depositor and will if determined adversely to the Depositor materially and
adversely affect it or its business, assets, operations or condition,
financial or otherwise, or adversely affect its ability to perform its
obligations under this Agreement;
(vi) immediately prior to the transfer and assignment of the Mortgage
Loans to the Trustee, the Depositor was the sole owner of record and holder
of each Mortgage Loan, and the Depositor had good and marketable title
thereto, and had full right to transfer and sell each Mortgage Loan to the
Trustee free and clear, subject only to (1) liens of current real property
taxes and assessments not yet due and payable and, if the related Mortgaged
Property is a condominium unit, any lien for common charges permitted by
statute, (2) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date or recording of
such Mortgage acceptable to mortgage lending institutions in the area in
which the related Mortgaged Property is located and specifically referred
to in the lender's title insurance policy or attorney's opinion of title
and abstract of title delivered to the Originator of such Mortgage Loan,
and (3) such other matters to which like properties are commonly subject
which do not, individually or in the aggregate, materially interfere with
the benefits of the security intended to be provided by the Mortgage, of
any encumbrance, equity, participation interest, lien, pledge, charge,
claim or security interest, and had full right and authority, subject to no
interest or participation of, or agreement with, any other party, to sell
and assign each Mortgage Loan pursuant to this Agreement;
(vii) None of the Mortgage Loans have any marks or notations
indicating that such Mortgage Loans have been pledged, assigned or
otherwise conveyed to any Person other than the Trustee;
(viii) The Depositor has received all consents and approvals required
by the terms of the Mortgage Loans to convey the Mortgage Loans hereunder
to the Trustee;
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(ix) As of the Closing Date, no Mortgage Loan provides for interest
other than at either (x) a single fixed rate in effect throughout the term
of the Mortgage Loan or (y) a single "variable rate" (within the meaning of
Treasury Regulations Section 1.860G-1(a)(3)) in effect throughout the term
of the Mortgage Loan;
(x) As of the Closing Date, each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G of the Code (without regard to
Treasury Regulations Section 1.860G-2(a)(3) or 1.860G-2(f) or any similar
rule that provides that a defective obligation is a qualified mortgage for
a temporary period);
(xi) As of the Closing Date, no Mortgage Loan is the subject of
pending or final foreclosure proceedings; and
(xii) As of the Closing Date, the Depositor would not initiate
foreclosure proceedings with respect to any Mortgage Loan based on such
Mortgage Loan's delinquency status prior to the next scheduled payment date
for such Mortgage Loan.
The foregoing representations made in this Section 2.03 and Section 9.21 by
the Depositor shall survive the termination of this Agreement and shall not be
waived by any party hereto.
(b) The representations and warranties of the Sponsor with respect to the
Mortgage Loans contained in the Mortgage Loan Sale and Assignment Agreement were
made as of the Closing Date. To the extent that any fact, condition or event
with respect to a Mortgage Loan constitutes a breach of a representation or
warranty of the Sponsor under the Mortgage Loan Sale and Assignment Agreement,
the obligations of the Sponsor under the Mortgage Loan Sale and Assignment
Agreement shall be enforced by the Depositor against the Sponsor, as set forth
in the Mortgage Loan Sale and Assignment Agreement. The Trustee further
acknowledges that the Depositor shall have no obligation or liability with
respect to any breach of any representation or warranty with respect to the
Mortgage Loans (except as set forth in Sections 2.03(a)(vii)-(xii)) under any
circumstances.
Section 2.04. Representations and Warranties Concerning the Master
Servicer, the Securities Administrator and the Servicer.
(a) Xxxxx Fargo Bank, N.A., in its capacity as Master Servicer and
Securities Administrator hereby represents and warrants to the Seller, the
Depositor, the Servicer and the Trustee as follows, as of the Closing Date:
(i) It is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Master Servicer and the Securities
Administrator, to the extent necessary to ensure its ability to master service
the Mortgage Loans in accordance with the terms of this Agreement and to perform
any of its other obligations under this Agreement in accordance with the terms
hereof;
(ii) It has the full corporate power and authority to execute, deliver
and perform, and to enter into and consummate the transactions contemplated by
this Agreement and has duly authorized by all necessary corporate action on its
part the execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery hereof by the
other parties hereto, constitutes its legal, valid and binding obligation,
43
enforceable against it in accordance with its terms, except that (a) the
enforceability hereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(iii) The execution and delivery of this Agreement by it, the
consummation of any other of the transactions contemplated by this Agreement,
and the fulfillment of or compliance with the terms hereof are in its ordinary
course of business and will not (A) result in a material breach of any term or
provision of its charter or by-laws or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it; and it
is not in breach or violation of any material indenture or other material
agreement or instrument, or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair its ability
to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending or, to the best of its knowledge,
threatened, against it that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or its ability to perform any of
its other obligations under this Agreement in accordance with the terms hereof.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for its execution, delivery and
performance of, or compliance with, this Agreement or the consummation of the
transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, it has obtained the same.
(b) The Servicer hereby represents, warrants, and covenants to the
Depositor, the Master Servicer, the Securities Administrator and the Trustee,
for the benefit of the Certificateholders as of the Closing Date the following:
(i) PHH is a corporation duly organized, validly existing and in good
standing under the laws of the State of New Jersey. The Servicer has in full
force and effect (without notice of possible suspension, revocation or
impairment) all required qualifications, permits, approvals, licenses, and
registrations, or exemption therefrom, to conduct all activities in all
jurisdictions in which its activities with respect to the Mortgage Loans require
it to be qualified or licensed;
(ii) The Servicer has all requisite corporate power, authority and
capacity to carry on its business as it is now being conducted, to execute and
deliver this Agreement, and to perform all of its obligations hereunder. The
Servicer does not believe, nor does it have any cause or reason to believe, that
it cannot perform each and every covenant contained in this Agreement;
(iii) The execution, delivery and performance of this Agreement by the
Servicer and consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate, shareholder or other action
by the Servicer; this Agreement has been duly and validly executed and delivered
by the Servicer; and this Agreement is a valid and legally binding agreement of
the Servicer, enforceable against the Servicer in accordance
44
with its respective terms, subject to bankruptcy, insolvency and similar laws
affecting generally the enforcement of creditors' rights and the discretion of a
court to grant specific performance of contracts;
(iv) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor compliance with their
respective terms and conditions shall (a) violate, conflict with, result in the
breach of, constitute a default under, be prohibited by or require any
additional approval under any terms, conditions or provisions of the Servicer's
articles of incorporation or by-laws or any other similar corporate or
organizational document of the Servicer; any mortgage, indenture, deed of trust,
loan or credit agreement or other agreement or instrument to which the Servicer
is now a party or by which it is bound; or any law, ordinance, rule, regulation,
order, judgment or decree of any governmental authority applicable to the
Servicer; or (b) result in the creation or imposition of any lien, charge or
encumbrance of any material nature upon any of the properties or assets of the
Servicer;
(v) The Servicer holds all licenses, approvals, permits and other
authorizations, or exemptions therefrom, required under applicable law to assume
responsibility for servicing the Mortgage Loans;
(vi) There is no litigation, claim, demand, proceeding or governmental
investigation existing or pending, or to the knowledge of the Servicer,
threatened, nor is there any order, injunction or decree outstanding against or
relating to the Servicer that could (i) have a material adverse effect upon the
performance by the Servicer of its obligations under this Agreement or (ii) to
the Servicer's knowledge, result in any material loss or liability to Depositor,
the Trustee, the Trust Fund or the Sponsor. Further, to the Servicer's
knowledge, there is no meritorious basis for any such litigation, claim, demand,
proceeding, or governmental investigation;
(vii) The Servicer has been approved by GNMA, Xxxxxx Xxx and FHLMC and
will remain approved as an "eligible seller/servicer" of residential mortgage
loans as provided in GNMA, Xxxxxx Mae, or FHLMC guidelines and in good standing.
The Servicer has not received any notification from GNMA, Xxxxxx Xxx or FHLMC
that the Servicer is not in compliance with the requirements of the approved
"seller/servicer" status. The Servicer is a mortgagee approved by the Secretary
of HUD pursuant to Section 203 and 211 of the National Housing Act. The Servicer
has not received any notification from HUD that the Servicer is not in
compliance with the requirements of the approved mortgagee status;
(viii) The servicing practices to be used by the Servicer under this
Agreement are, and shall remain, in all material respects in compliance with
Accepted Servicing Practices, including without limitation, all federal, state
and local laws, rules, all regulations and requirements in connection therewith,
and Xxxxxx Mae guidelines, as applicable;
(ix) The Servicer has not received written notice from or on behalf of
FHA, HUD, FDIC, Xxxxxx Xxx, FHLMC or GNMA, advising the Servicer of its failure
to comply with applicable servicing or claims procedures, or resulted in a
request for repurchase of mortgage loans or indemnification in connection with
any mortgage loans;
(x) The Servicer has in place a contingency plan that will enable it
to perform its obligations under this Agreement in all material respects, at
another location within five (5) Business Days in the event its primary location
is rendered inoperative as a result of a natural or other disaster or emergency;
45
(xi) The Servicer maintains and shall maintain, in good standing, all
licenses and approvals necessary to service the Mortgage Loans and maintains and
shall at all times maintain the capital requirements imposed by the licensing or
approving entities having jurisdiction over the Servicer;
(xii) The Servicer maintains and shall at all times maintain error and
omissions and fidelity insurance coverage of the type and in the amounts
required by Xxxxxx Mae;
(xiii) The Servicer has, and shall at all times maintain during the
term of this Agreement, sufficient systems, including but not limited to the
Servicer's EDP, and trained and experienced personnel in place to perform its
obligations under this Agreement;
(xiv) For so long as, and to the extent that, the Servicer services
the Mortgage Loans, the Servicer will continue to comply with each applicable
federal, state, or local, law, statute, and ordinance, and any rule, regulation,
or order issued thereunder, pertaining to the subject matter of this Agreement,
including, but not limited to, usury, RESPA, Consumer Credit Reporting Act,
Equal Credit Opportunity Act, Federal Deposit Insurance Corporation Improvement
Act, Regulation B, Fair Credit Reporting Act, Fair Debt Collection Practices
Act, Fair Housing Act, Truth in Lending Act and Regulation Z, Flood Disaster
Protection Act of 1973, and any applicable regulations related thereto, and such
other fair housing, anti-redlining, equal credit opportunity, truth-in-lending,
real estate settlement procedures, fair credit reporting, and every other
prohibition against unlawful discrimination in residential mortgage lending or
governing consumer credit, and all state consumer credit statutes and
regulations, as amended. In the event the Depositor or the Master Servicer has a
reasonable good faith belief in the Servicer's non-compliance with this
representation and warranty and upon the Depositor's or the Master Servicer's
written request, the Servicer shall deliver to the Depositor or the Master
Servicer reasonable evidence of compliance with any of the requirements of this
representation and warranty; and
(xv) Neither the Servicer, its parent, nor any of its subsidiaries is
in bankruptcy, receivership or conservatorship. The Servicer has the requisite
financial resources and ability to meet its obligations under this Agreement,
including, but not limited to, any and all indemnification obligations.
Within sixty (60) days of the earlier of either discovery by or notice to
the Servicer of any breach of a representation or warranty set forth in this
Section 2.04(b), which materially and adversely affects the ability of the
Servicer to perform its duties and obligations under this Agreement or otherwise
materially and adversely affects the value of the Mortgage Loans, the Mortgaged
Property or the priority of the security interest on such Mortgaged Property,
the Servicer shall use its best efforts promptly to cure such breach in all
material respects and, if such breach cannot be cured, the Servicer shall, at
the Master Servicer's option, assign the Servicer's rights and obligations under
this Agreement (or respecting the affected Mortgage Loans) to a successor
servicer selected by the Depositor with the prior consent and approval of the
Master Servicer. Such assignment shall be made in accordance with this Agreement
Section 2.05. Discovery of Breach; Repurchase or Substitution of Mortgage
Loans.
(a) Upon discovery (i) by the Depositor, the Sponsor, the Master Servicer,
the Servicer, the Securities Administrator or the Trustee of a breach of any
representation or warranty made by the Depositor under Section 2.03 which
materially adversely affects the value of a Mortgage Loan or the interest
therein of the Certificateholder (a "Defective Mortgage Loan"), or
46
(ii) by the Depositor, the Sponsor, the Master Servicer, the Servicer, the
Securities Administrator or the Trustee of the breach by the Sponsor of any
representation or warranty herein or under the Mortgage Loan Sale and Assignment
Agreement in respect of any Mortgage Loan, which breach results in the Mortgage
Loan being a "Defective Mortgage Loan" (each of such parties hereby agreeing to
give written notice of such breach to the Trustee and the other of such
parties), the Securities Administrator, the Trustee, or its Custodian, shall
promptly notify the Depositor and Sponsor in writing of such breach and request
that the Depositor cure or cause the Sponsor to cure such breach within ninety
(90) days from the date that the Depositor discovered or was notified of such
breach, and if the Depositor does not cure or cause the Sponsor to cure such
breach in all material respects during such period, the Trustee shall (i) in the
case of an uncured breach of a representation or warranty of the Depositor under
Section 2.03, cause the Depositor to repurchase such Defective Mortgage Loan at
the Purchase Price and (ii) in the case of an uncured breach by the Sponsor
under the Mortgage Loan Sale and Assignment Agreement, cause the Depositor to
enforce the Sponsor's obligation under the Mortgage Loan Sale and Assignment
Agreement to repurchase that Defective Mortgage Loan from the Trust Fund at the
Purchase Price, in each case on or prior to the Determination Date following the
expiration of such 90-day period (subject to Section 2.05(b) below); provided,
however, that, in connection with any such breach under clause (ii) above that
could not reasonably have been cured within such 90-day period, if the Sponsor
shall have commenced to cure such breach within such 90-day period and, if the
defective Mortgage Loan qualifies as a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code following such 90-day period, the Sponsor
shall be permitted to proceed thereafter diligently and expeditiously to cure
the same within an additional 90-day period.
The Purchase Price for the repurchased Defective Mortgage Loan shall be
deposited in the Distribution Account, and the Trustee, or its Custodian, upon
written notice of the receipt of such deposit by the Securities Administrator
and two copies of a Request for Release with respect to such Defective Mortgage
Loan by the Trustee or its Custodian, shall release to the Sponsor or the
Depositor, as applicable, the related Trustee Mortgage File and shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranties, as either party shall furnish to it and
as shall be necessary to vest in such party any Defective Mortgage Loan released
pursuant hereto and the Trustee, or its Custodian, shall have no further
responsibility with regard to such Trustee Mortgage File (it being understood
that the Trustee shall have no responsibility for determining the sufficiency of
such assignment for its intended purpose).
In lieu of repurchasing any such Defective Mortgage Loan as provided above,
the Sponsor may cause such Defective Mortgage Loan to be removed from the Trust
Fund (in which case it shall become a "Deleted Mortgage Loan") and substitute
one or more Replacement Mortgage Loans in the manner and subject to the
limitations set forth in Section 2.05(b) below. It is understood and agreed that
the obligation of the Sponsor (or the Depositor, if applicable) to cure or to
repurchase (or to substitute for) any Mortgage Loan as to which a breach has
occurred and is continuing shall constitute the sole remedy against the Sponsor
(or the Depositor, if applicable) respecting such breach available to the
Trustee on behalf of the Certificateholders. With respect to the representations
and warranties that are made to the best of the Sponsor's knowledge, if it is
discovered by any of the Depositor, the Sponsor or the Trustee that the
substance of such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage Loan, then
notwithstanding the Sponsor's lack of knowledge with respect to the substance of
such representation and warranty, such inaccuracy shall be deemed a breach of
the applicable representation or warranty.
47
(b) Any substitution of Replacement Mortgage Loans for Deleted Mortgage
Loans made pursuant to Section 2.05(a) above must be effected prior to the last
Business Day that is within two years after the Closing Date. As to any Deleted
Mortgage Loan for which the Sponsor substitutes a Replacement Mortgage Loan or
Loans, such substitution shall be effected by delivering to the Trustee or its
Custodian for such Replacement Mortgage Loan or Loans, the Mortgage Note, the
Mortgage, the Assignment to the Trustee, and such other documents and
agreements, with all necessary endorsements thereon, together with an Officers'
Certificate stating that each such Replacement Mortgage Loan satisfies the
definition thereof and specifying the Substitution Amount (as described below),
if any, in connection with such substitution. The Trustee, or its Custodian,
shall acknowledge receipt for such Replacement Mortgage Loan and, within 45 days
thereafter, shall review such Mortgage Documents as specified in this Agreement
under Section 2.02(a) and deliver to the Depositor, with respect to such
Replacement Mortgage Loans, a certification substantially in the form of a
revised Initial Certification, with any exceptions noted thereon. Within one
year of the date of substitution, the Trustee, or its Custodian, shall deliver
to the Depositor a certification substantially in the form of a revised Final
Certification, with respect to such Replacement Mortgage Loans, with any
exceptions noted thereon. Monthly Payments due with respect to Replacement
Mortgage Loans in the month of substitution shall not be included as part of the
Trust Fund and shall be retained by the Sponsor. For the month of substitution,
distributions to Certificateholders shall reflect the collections and recoveries
in respect of such Deleted Mortgage Loan in the Due Period preceding the month
of substitution and the Sponsor shall thereafter be entitled to retain all
amounts subsequently received in respect of such Deleted Mortgage Loan. Upon
such substitution, such Replacement Mortgage Loan shall constitute part of the
Trust Fund and shall be subject in all respects to the terms of this Agreement
and the Mortgage Loan Sale and Assignment Agreement, including all
representations and warranties thereof included in the Mortgage Loan Sale and
Assignment Agreement, in each case as of the date of substitution.
For any month in which the Sponsor substitutes one or more Replacement
Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor, based upon
information provided by the Servicer or Master Servicer, shall determine the
excess (each, a "Substitution Amount"), if any, by which the aggregate Purchase
Price of all such Deleted Mortgage Loans exceeds the aggregate Stated Principal
Balance of the Replacement Mortgage Loans replacing such Deleted Mortgage Loans,
together with one month's interest on such excess amount at the applicable Net
Mortgage Rate. On the date of such substitution, the Sponsor shall deliver or
cause to be delivered to the Servicer for deposit in the Collection Account an
amount equal to the related Substitution Amount, if any, and the Trustee, or its
Custodian, upon written notice of the receipt of the Substitution Amount deposit
and the related Replacement Mortgage Loan or Loans and two copies of a Request
for Release with respect to the Deleted Mortgage Loan or Loans, shall release to
the Sponsor the related Trustee Mortgage File or Files and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as the Sponsor shall deliver to it and as shall be necessary to vest
therein any Deleted Mortgage Loan released pursuant hereto.
In addition, the Sponsor shall obtain at its own expense and deliver to the
Trustee an Opinion of Counsel to the effect that such substitution (either
specifically or as a class of transactions) shall not cause (a) any federal tax
to be imposed on the Trust Fund, including without limitation, any federal tax
imposed on "prohibited transactions" under Section 860F(a)(l) of the Code or on
"contributions after the startup date" under Section 860G(d)(l) of the Code, or
(b) any REMIC created hereunder to fail to qualify as a REMIC at any time that
any Certificate is outstanding. If such Opinion of Counsel can not be delivered,
then such substitution may only be effected at such time as the required Opinion
of Counsel can be given.
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(c) Upon discovery by the Sponsor, the Depositor, the Master Servicer, the
Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, the party
discovering such fact shall within two (2) Business Days give written notice
thereof to the other parties. In connection therewith, the Sponsor or Depositor,
as applicable, shall repurchase, or the Sponsor, subject to the limitations set
forth in Section 2.05(b), shall substitute one or more Replacement Mortgage
Loans for the affected Mortgage Loan within ninety (90) days of the earlier of
discovery or receipt of such notice with respect to such affected Mortgage Loan.
Any such repurchase or substitution shall be made in the same manner as set
forth in Sections 2.05(a) and 2.05(b) above. The Trustee, or its Custodian,
shall re-convey to the Sponsor the Mortgage Loan to be released pursuant hereto
in the same manner, and on the same terms and conditions, as it would a Mortgage
Loan repurchased for breach of a representation or warranty.
The Sponsor indemnifies and holds the Issuing Entity, the Trustee, the
Depositor, the Master Servicer, the Securities Administrator, the Servicer and
each Certificateholder harmless against any and all taxes, claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, fees and expenses that the Issuing Entity, the
Trustee, the Depositor, the Master Servicer, the Securities Administrator, the
Servicer and any Certificateholder may sustain in connection with any actions of
such party relating to a repurchase of a Mortgage Loan other than in compliance
with the terms of this Section 2.05 and the Mortgage Loan Sale and Assignment
Agreement, to the extent that any such action causes (i) any federal or state
tax to be imposed on the Issuing Entity, including without limitation, any
federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the
Code or on "contributions after the startup date" under Section 860G(d)(1) of
the Code, or (ii) any REMIC formed hereby to fail to qualify as a REMIC at any
time that any Certificate is outstanding.
(d) Notwithstanding anything to the contrary in this Agreement, the Sponsor
shall administer the Additional Collateral, it being understood and agreed that
only the Sponsor shall service and administer the related securities accounts,
lines of credit and guarantees with respect to Additional Collateral.
Section 2.06. Grant Clause.
(a) It is intended that the conveyance of the Depositor's right, title and
interest in and to property constituting the Trust Fund pursuant to this
Agreement shall constitute, and shall be construed as, a sale of such property
and not a grant of a security interest to secure a loan. However, if such
conveyance is deemed to be in respect of a loan, it is intended that: (1) the
rights and obligations of the parties shall be established pursuant to the terms
of this Agreement; (2) the Depositor hereby grants to the Trustee for the
benefit of the Holders of the Certificates a first priority security interest in
all of the Depositor's right, title and interest in, to and under, whether now
owned or hereafter acquired, the Trust Fund and all proceeds of any and all
property constituting the Trust Fund to secure payment of the Certificates; and
(3) this Agreement shall constitute a security agreement under applicable law.
If such conveyance is deemed to be in respect of a loan and the trust created by
this Agreement terminates prior to the satisfaction of the claims of any Person
holding any Certificate, the security interest created hereby shall continue in
full force and effect and the Trustee shall be deemed to be the collateral agent
for the benefit of such Person, and all proceeds shall be distributed as herein
provided.
(b) The Depositor shall, to the extent consistent with this Agreement, take
such reasonable actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the Mortgage Loans and the other
property described above, such security
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interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement. The Depositor will, at its own expense, make all initial filings on
or about the Closing Date and shall forward a copy of such filing or filings to
the Trustee. Without limiting the generality of the foregoing, the Depositor
shall prepare and forward for filing, or shall cause to be forwarded for filing,
at the 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 and the
other property described above, including without limitation (x) continuation
statements, and (y) such other statements as may be occasioned by (1) any change
of name of Sponsor, the Depositor or the Trustee, (2) any change of location of
the place of business or the chief executive office of the Sponsor or the
Depositor, (3) any transfer of any interest of the Depositor in any Mortgage
Loan or (4) any change under the relevant UCC or other applicable laws. The
Depositor shall not 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 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 mediate transferees, including the Trustee, in the Mortgage Loans
and the other property described above. In connection with the transactions
contemplated by this Agreement, the Depositor authorizes its immediate or
mediate 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).
ARTICLE III.
THE CERTIFICATES
Section 3.01. The Certificates.
(a) The Certificates shall be issuable in registered form only and shall be
securities governed by Article 8 of the New York Uniform Commercial Code. The
Book-Entry Certificates will be evidenced by one or more certificates,
beneficial ownership of which will be held in the dollar denominations in
Certificate Principal Amount or Class Notional Amount, as applicable, or in the
Percentage Interests specified herein. Each Class of Book-Entry Certificates
will be issued in the minimum denominations in Certificate Principal Amount (or
Class Notional Amount) specified in the Preliminary Statement hereto and in
integral multiples of $1 in excess thereof. The Residual Certificates shall be
issued as single Certificates and maintained in definitive, fully registered
form in a denomination equal to 100% of the Percentage Interest of each such
Class.
(b) The Certificates shall be executed by manual or facsimile signature on
behalf of the Securities Administrator by an authorized officer. Each
Certificate shall, on original issue, be authenticated by the Securities
Administrator or an Authenticating Agent upon the order of the Depositor upon
receipt by the Trustee or its Custodian of the Trustee Mortgage Files described
in Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein,
executed by an authorized officer of the Securities Administrator or of an
Authenticating Agent, by manual signature, and such certification upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their
50
authentication. At any time and from time to time after the execution and
delivery of this Agreement, the Depositor may deliver Certificates executed by
the Securities Administrator to the Securities Administrator or the
Authenticating Agent for authentication and the Securities Administrator or the
Authenticating Agent shall authenticate and deliver such Certificates as in this
Agreement provided and not otherwise.
(c) The Class B-1, Class B-2 and Class B-3 certificates offered and sold in
reliance on the exemption from registration under Rule 144A under the Securities
Act shall be issued initially in the form of one or more permanent global
Certificates in definitive, fully registered form without interest coupons with
the applicable legends set forth in Exhibit A added to the forms of such
Certificates (each, a "Restricted Global Security").
Section 3.02. Registration.
The Securities Administrator is hereby appointed, and the Securities
Administrator hereby accepts its appointment as, initial Certificate Registrar
in respect of the Certificates and shall maintain books for the registration and
for the transfer of Certificates (the "Certificate Register"). The Securities
Administrator may appoint a bank or trust company to act as successor
Certificate Registrar. A registration book shall be maintained for the
Certificates collectively. The Certificate Registrar may resign or be discharged
or removed and a new successor may be appointed in accordance with the
procedures and requirements set forth in Sections 6.06 and 6.07 hereof with
respect to the resignation, discharge or removal of the Securities Administrator
and the appointment of a successor Securities Administrator. The Certificate
Registrar may appoint, by a written instrument delivered to the Holders, any
bank or trust company to act as co-registrar under such conditions as the
Certificate Registrar may prescribe; provided, however, that the Certificate
Registrar shall not be relieved of any of its duties or responsibilities
hereunder by reason of such appointment.
Section 3.03. Transfer and Exchange of Certificates.
(a) A Certificate (other than Book-Entry Certificates which shall be
subject to Section 3.09 hereof) may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall be
satisfactory to the Certificate Registrar. Upon the transfer of any Certificate
in accordance with the preceding sentence, the Securities Administrator shall
execute, and the Authenticating Agent shall authenticate and deliver to the
transferee, one or more new Certificates of the same Class and evidencing, in
the aggregate, the same aggregate Certificate Principal Amount (or Class
Notional Amount) as the Certificate being transferred. No service charge shall
be made to a Certificateholder for any registration of transfer of Certificates,
but the Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
registration of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any number of
new Certificates of the same Class, in authorized denominations, representing in
the aggregate the same Certificate Principal Amount (or Class Notional Amount)
as the Certificate surrendered, upon surrender of the Certificate to be
exchanged at the office of the Certificate Registrar duly endorsed or
accompanied by a written instrument of transfer duly executed by such Holder or
his duly authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a
51
Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute, and the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate acknowledges
the restrictions on the transfer of such Certificate set forth thereon and
agrees that it will transfer such a Certificate only as provided herein.
The following restrictions shall apply with respect to the transfer and
registration of transfer of a Restricted Certificate to a transferee that takes
delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is (x) to the Depositor or
an affiliate (as defined in Rule 405 under the 0000 Xxx) of the Depositor
or (y) being made to a "qualified institutional buyer" (a "QIB") as defined
in Rule 144A under the Securities Act by a transferor that has provided the
Certificate Registrar with a certificate in the form of Exhibit G hereto;
and
(ii) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is being made to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, or to any Person all of the equity owners in which are such
accredited investors, by a transferor who furnishes to the Certificate
Registrar a letter of the transferee substantially in the form of Exhibit H
hereto.
(d) (i) No transfer of an ERISA-Restricted Certificate or a Class A-R
Certificate shall be made unless the prospective transferee provides the
Securities Administrator and the Depositor with (I) a representation as set
forth in Exhibit B or Exhibit I, as applicable, to the effect that such
transferee is not an employee benefit plan subject to Title I of ERISA, a plan
subject to Section 4975 of the Code or a plan or arrangement subject to any
provisions under any federal, state, local, non-U.S. or other laws or
regulations that are substantively similar to the foregoing provisions of ERISA
or the Code ("Similar Law") (collectively, a "Plan"), and is not directly or
indirectly acquiring such Certificate for, on behalf of or with any assets of
any such Plan, or (II) solely in the case of ERISA-Restricted Certificates, (A)
if the ERISA-Restricted Certificate has been the subject of an ERISA-Qualifying
Underwriting, a representation as set forth in Exhibit I that such transferee is
an insurance company that is acquiring the ERISA-Restricted Certificate with
assets contained in an "insurance company general account," as defined in
Section V(E) of Prohibited Transaction Class Exemption ("PTCE") 95-60, and the
acquisition and holding of the ERISA-Restricted Certificate are covered and
exempt under Sections I and III of PTCE 95-60, or (B) solely in the case of a
Definitive Certificate, an Opinion of Counsel satisfactory to the Securities
Administrator and the Depositor to the effect that the acquisition and holding
of such ERISA-Restricted Certificate will not constitute or result in a
nonexempt prohibited transaction under ERISA or the Code, or a violation of
Similar Law, and will not subject the Certificate Registrar, the Depositor, the
Master Servicer, the Securities Administrator or the Trustee to any obligation
in addition to those expressly undertaken in this
52
Agreement, which Opinion of Counsel shall not be an expense of the Certificate
Registrar, the Depositor, the Master Servicer, the Securities Administrator or
the Trustee.
(ii) Except in the case of a Definitive Certificate, the
representations set forth in paragraph (i) of this Subsection 3.03(d),
other than subparagraph (II)(B), and in Exhibit B or Exhibit I, as
applicable, shall be deemed to have been made to the Securities
Administrator or the Depositor by the transferee's acceptance of an
ERISA-Restricted Certificate or a Class A-R Certificate (or the acceptance
by a Certificate Owner of the beneficial interest in any Class of
ERISA-Restricted Certificates or a Class A-R Certificate). Notwithstanding
any other provision herein to the contrary, any purported transfer of an
ERISA-Restricted Certificate or a Class A-R Certificate to or on behalf of
a Plan without the delivery to the Securities Administrator or the
Depositor of a representation or an Opinion of Counsel satisfactory to the
Securities Administrator or the Depositor as described above shall be void
and of no effect. None of the Certificate Registrar, the Depositor, the
Master Servicer, the Servicer, the Trustee or the Securities Administrator
shall be under any liability to any Person for any registration or transfer
of any ERISA-Restricted Certificate or Class A-R Certificate that is in
fact not permitted by this Section 3.03(d) nor shall the Paying Agent be
under any liability for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
the provisions of this Agreement so long as the transfer was registered by
the Certificate Registrar in accordance with the foregoing requirements.
The Certificate Registrar, Depositor, Master Servicer, the Servicer,
Securities Administrator, Paying Agent and/or Trustee shall be entitled,
but not obligated, to recover from any Holder of any ERISA-Restricted
Certificate or Class A-R Certificate that was in fact a Plan and that held
such Certificate in violation of this Section 3.03(d) all payments made on
such ERISA-Restricted Certificate or Class A-R Certificate at and after the
time it commenced such holding. Any such payments so recovered shall be
paid and delivered to the last preceding Holder of such Certificate that is
not a Plan.
(iii) Notwithstanding the foregoing, no representation or Opinion of
Counsel shall be required for the initial issuance of the ERISA-Restricted
Certificates.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of a Certificate.
(f) Notwithstanding anything to the contrary contained herein, no Residual
Certificate or beneficial interest therein may be owned, pledged or transferred,
directly or indirectly, by or to (i) a Disqualified Organization or (ii) an
individual, corporation or partnership or other person unless, in the case of
clause (ii), such person is (A) not a Non-U.S. Person or (B) is a Non-U.S.
Person that holds a Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor and
the Certificate Registrar with an effective Internal Revenue Service Form W-8ECI
or successor form at the time and in the manner required by the Code (any such
person who is not covered by clause (A) or (B) above is referred to herein as a
"Non-permitted Foreign Holder").
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Prior to and as a condition of the registration of any transfer, sale or
other disposition of a Residual Certificate or a beneficial interest therein,
the proposed transferee shall deliver to the Securities Administrator and the
Certificate Registrar an affidavit in substantially the form attached hereto as
Exhibit B representing and warranting, among other things, that such transferee
is neither a Disqualified Organization, an agent or nominee acting on behalf of
a Disqualified Organization, nor a Non-permitted Foreign Holder (any such
transferee, a "Permitted Transferee"), and the proposed transferor shall deliver
to the Securities Administrator and the Certificate Registrar an affidavit in
substantially the form attached hereto as Exhibit C. In addition, the Securities
Administrator or the Certificate Registrar may (but shall have no obligation to)
require, prior to and as a condition of any such transfer, the delivery by the
proposed transferee of an Opinion of Counsel, addressed to the Securities
Administrator and the Certificate Registrar, that such proposed transferee or,
if the proposed transferee is an agent or nominee, the proposed beneficial
owner, is not a Disqualified Organization, agent or nominee thereof, or a
Non-permitted Foreign Holder. Notwithstanding the registration in the
Certificate Register of any transfer, sale, or other disposition of a Residual
Certificate to a Disqualified Organization, an agent or nominee thereof, or
Non-permitted Foreign Holder, such registration shall be deemed to be of no
legal force or effect whatsoever and such Disqualified Organization, agent or
nominee thereof, or Non-permitted Foreign Holder shall not be deemed to be a
Certificateholder for any purpose hereunder, including, but not limited to, the
receipt of distributions on such Residual Certificate. The Depositor, the
Certificate Registrar, the Securities Administrator and the Trustee shall be
under no liability to any Person for any registration or transfer of a Residual
Certificate to a Disqualified Organization, agent or nominee thereof or
Non-permitted Foreign Holder or for the Paying Agent making any payments due on
such Residual Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of the Agreement, so long as
the transfer was effected in accordance with this Section 3.03(f), unless the
Certificate Registrar shall have actual knowledge at the time of such transfer
or the time of such payment or other action that the transferee is a
Disqualified Organization, or an agent or nominee thereof, or Non-permitted
Foreign Holder. The Certificate Registrar shall be entitled to recover from any
Holder of a Residual Certificate that was a Disqualified Organization, agent or
nominee thereof, or Non-permitted Foreign Holder at the time it became a Holder
or at any subsequent time became a Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder, all payments made on such Residual
Certificate at and after either of such times (and all costs and expenses,
including but not limited to attorneys' fees, incurred in connection therewith).
Any payment (not including any such costs and expenses) so recovered by the
Certificate Registrar shall be paid and delivered to the last preceding Holder
of such Residual Certificate.
If any purported transferee shall become a registered Holder of a Residual
Certificate in violation of the provisions of this Section 3.03(f), then upon
receipt of written notice to the Securities Administrator that the registration
of transfer of such Residual Certificate was not in fact permitted by this
Section 3.03(f), such transfer shall be absolutely null and void and shall vest
no rights in the purported transferee and the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof retroactive to the
date of such registration of transfer of such Residual Certificate. The
Depositor, the Certificate Registrar, the Securities Administrator and the
Trustee shall be under no liability to any Person for any registration of
transfer of a Residual Certificate that is in fact not permitted by this Section
3.03(f), or for the Paying Agent making any payment due on such Certificate to
the registered Holder thereof or for taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered upon receipt of the affidavit described in the preceding paragraph of
this Section 3.03(f).
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(g) Each Holder or Certificate Owner of a Restricted Certificate,
ERISA-Restricted Certificate or Residual Certificate, or an interest therein, by
such Holder's or Owner's acceptance thereof, shall be deemed for all purposes to
have consented to the provisions of this section.
Section 3.04. Cancellation of Certificates.
Any Certificate surrendered for registration of transfer or exchange shall
be cancelled and retained in accordance with normal retention policies with
respect to cancelled certificates maintained by the Securities Administrator or
the Certificate Registrar.
Section 3.05. Replacement of Certificates.
If (i) any Certificate is mutilated and is surrendered to the Securities
Administrator or the Certificate Registrar or (ii) the Securities Administrator
or the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and there is delivered to the
Securities Administrator and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Depositor, the Securities Administrator or the
Certificate Registrar that such destroyed, lost or stolen Certificate has been
acquired by a protected purchaser, the Securities Administrator shall execute
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and Certificate Principal Amount. Upon the issuance of
any new Certificate under this Section 3.05, the Securities Administrator, the
Depositor or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Securities Administrator, the Depositor or the Certificate Registrar) connected
therewith. Any replacement Certificate issued pursuant to this Section 3.05
shall constitute complete and indefeasible evidence of ownership in the
applicable Trust Fund, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
If after the delivery of such new Certificate, a protected purchaser of the
original Certificate in lieu of which such new Certificate was issued presents
for payment such original Certificate, the Depositor, the Certificate Registrar
and the Securities Administrator or any agent shall be entitled to recover such
new Certificate from the Person to whom it was delivered or any Person taking
therefrom, except a protected purchaser, and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expenses incurred by the Depositor, the Certificate Registrar, the
Securities Administrator or any agent in connection therewith.
Section 3.06. Persons Deemed Owners.
Subject to the provisions of Section 3.09 with respect to Book-Entry
Certificates, the Depositor, the Securities Administrator, the Certificate
Registrar, the Paying Agent and any agent of any of them shall treat the Person
in whose name any Certificate is registered upon the books of the Certificate
Registrar as the owner of such Certificate for the purpose of receiving
distributions pursuant to Sections 5.01 and 5.02 and for all other purposes
whatsoever, and neither the Depositor, the Securities Administrator, the
Certificate Registrar, the Paying Agent nor any agent of any of them shall be
affected by notice to the contrary.
Section 3.07. Temporary Certificates.
55
(a) Pending the preparation of definitive Certificates, upon the order of
the Depositor, the Securities Administrator shall execute and the Authenticating
Agent shall authenticate and deliver temporary Certificates that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Certificates in lieu
of which they are issued and with such variations as the authorized officers
executing such Certificates may determine, as evidenced by their execution of
such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Certificate Registrar without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Securities Administrator shall execute and the Authenticating
Agent shall authenticate and deliver in exchange therefor a like aggregate
Certificate Principal Amount (or Class Notional Amount) of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same Class.
Section 3.08. Appointment of Paying Agent.
The Securities Administrator may appoint a Paying Agent (which may be the
Securities Administrator) for the purpose of making distributions to
Certificateholders hereunder. The Securities Administrator shall cause any
Paying Agent to execute and deliver to the Securities Administrator an
instrument in which such Paying Agent shall agree with the Securities
Administrator that such Paying Agent will hold all sums held by it for the
payment to Certificateholders in an Eligible Account (which shall be the
Distribution Account) in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to the Certificateholders. All
funds remitted by the Securities Administrator to any such Paying Agent for the
purpose of making distributions shall be paid to Certificateholders on each
Distribution Date and any amounts not so paid shall be returned on such
Distribution Date to the Securities Administrator. If the Paying Agent is not
the Securities Administrator, the Securities Administrator shall cause to be
remitted to the Paying Agent on or before the Business Day prior to each
Distribution Date, by wire transfer in immediately available funds, the funds to
be distributed on such Distribution Date. Any Paying Agent shall be either a
bank or trust company or otherwise authorized under law to exercise corporate
trust powers.
Section 3.09. Book-Entry Certificates.
(a) Each Class of Book-Entry Certificates, upon original issuance, shall be
issued in the form of one or more typewritten Certificates representing the
Book-Entry Certificates. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive certificate
representing such Certificate Owner's interest in the Book-Entry Certificates,
except as provided in Section 3.09(c). Unless Definitive Certificates have been
issued to Certificate Owners of Book-Entry Certificates pursuant to Section
3.09(c):
(i) the provisions of this Section 3.09 shall be in full force and
effect;
(ii) the Certificate Registrar, the Paying Agent and the Securities
Administrator shall deal with the Clearing Agency for all purposes
(including the making of distributions on the Book-Entry Certificates) as
the authorized representatives of the
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Certificate Owners and the Clearing Agency and shall be responsible for
crediting the amount of such distributions to the accounts of such Persons
entitled thereto, in accordance with the Clearing Agency's normal
procedures;
(iii) to the extent that the provisions of this Section 3.09 conflict
with any other provisions of this Agreement, the provisions of this Section
3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only through
the Clearing Agency and the Clearing Agency Participants and shall be
limited to those established by law and agreements between such Certificate
Owners and the Clearing Agency and/or the Clearing Agency Participants.
Unless and until Definitive Certificates are issued pursuant to Section
3.09(c), the initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit distributions of
principal of and interest on the Book-Entry Certificates to such Clearing
Agency Participants.
(b) Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to Certificate Owners pursuant to Section 3.09(c), the
Securities Administrator shall give all such notices and communications
specified herein to be given to Holders of the Book-Entry Certificates to the
Clearing Agency.
(c) If (i) (A) the Clearing Agency or the Depositor advises the Paying
Agent in writing that the Clearing Agency is no longer willing or able to
discharge properly its responsibilities with respect to the Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor
satisfactory to the Depositor and the Paying Agent, (ii) the Depositor, at its
option, advises the Paying Agent in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of a
Servicer Event of Default or a Master Servicer Event of Default, Certificate
Owners representing beneficial interests aggregating not less than 50% of the
Class Principal Amount (or Class Notional Amount) of a Class of Book-Entry
Certificates advise the Paying Agent and the Clearing Agency through the
Clearing Agency Participants in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interests of the
Certificate Owners of a Class of Book-Entry Certificates, the Certificate
Registrar shall notify the Clearing Agency to effect notification to all
Certificate Owners, through the Clearing Agency, of the occurrence of any such
event and of the availability of Definitive Certificates to Certificate Owners
requesting the same. Upon surrender to the Certificate Registrar of the
Book-Entry Certificates by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration, the Certificate
Registrar shall issue the Definitive Certificates. None of the Depositor, the
Certificate Registrar or the Securities Administrator shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable, with respect
to such Definitive Certificates and the Certificate Registrar shall recognize
the holders of the Definitive Certificates as Certificateholders hereunder.
Notwithstanding the foregoing, the Certificate Registrar, upon the instruction
of the Depositor, shall have the right to issue Definitive Certificates on the
Closing Date in connection with credit enhancement programs.
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ARTICLE IV.
ADMINISTRATION OF THE ISSUING ENTITY
Section 4.01. Collection Accounts; Master Servicer Collection Account;
Distribution Account.
(a) On or prior to the Closing Date, the Servicer shall establish and
maintain one or more Collection Accounts, as provided herein, into which the
Servicer shall deposit daily, within two (2) Business Days of receipt thereof,
in immediately available funds, any Scheduled Payments and unscheduled payments
with respect to the Mortgage Loans, net of any deductions or reimbursements
permitted under this Agreement. Prior to 1:00 p.m. New York City time on the
Servicer Remittance Date, the Servicer shall remit to the Master Servicer for
deposit into the Master Servicer Collection Account, all amounts so required to
be deposited into such account in accordance with the terms of this Agreement.
(b) Funds in the Collection Accounts may be invested in Permitted
Investments selected by the Servicer, which shall mature not later than one (1)
Business Day prior to the Servicer Remittance Date (except that if such
Permitted Investment is an obligation of the Servicer or is managed or advised
by the Servicer or their affiliates, then such Permitted Investment shall mature
not later than such applicable Servicer Remittance Date) and any such Permitted
Investment shall not be sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of the Servicer (in its capacity
as such) or its nominee. All income and gain realized from any Permitted
Investment shall be for the benefit of the Servicer as servicing compensation
and shall be subject to its withdrawal or order from time to time, and shall not
be part of the Trust Fund. The amount of any losses incurred in respect of any
such investments shall be deposited in the Collection Accounts by the Servicer
out of its own funds, without any right of reimbursement therefor, immediately
as realized. Any such funds that are not invested in Permitted Investments may
be held uninvested.
(c) On or prior to the Closing Date, the Master Servicer shall establish
and maintain the Master Servicer Collection Account, as provided herein, into
which the Master Servicer shall deposit in immediately available funds, (i) the
aggregate of collections with respect to the Mortgage Loans, including the
amount of any Advances or Compensating Interest Payments with respect to the
Mortgage Loans required to be paid by the Servicer under this Agreement and (ii)
any other amounts so required to be deposited in the related Due Period pursuant
to this Agreement, remitted to the Master Servicer from the Servicer, net of any
deductions or reimbursements permitted under this Agreement. Prior to 1:00 p.m.
New York City time on each Distribution Account Deposit Date, the Master
Servicer shall remit to the Securities Administrator for deposit into the
Distribution Account, all amounts so required to be deposited into such account
in accordance with the terms of this Agreement.
(d) Funds in the Master Servicer Collection Accounts may be invested in
Permitted Investments selected by the Master Servicer, which shall mature not
later than one Business Day prior to the Distribution Account Deposit Date
(except that if such Permitted Investment is an obligation of the Master
Servicer or is managed or advised by the Master Servicer or its affiliates, then
such Permitted Investment shall mature not later than such applicable
Distribution Account Deposit Date) and any such Permitted Investment shall not
be sold or disposed of prior to its maturity. All such Permitted Investments
shall be made in the name of the Master Servicer (in its capacity as such) or
its nominee. All income and gain realized from any Permitted Investment shall be
for the benefit of the Master Servicer, as master servicing compensation, and
shall be
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subject to its withdrawal or order from time to time, and shall not be part of
the Trust Fund. The amount of any losses incurred in respect of any such
investments shall be deposited in the Master Servicer Collection Account by the
Master Servicer out of its own funds, without any right of reimbursement
therefor, immediately as realized. Any such funds that are not invested in
Permitted Investments may be held uninvested. The Master Servicer Collection
Account shall be a sub-account of the Distribution Account.
(e) The Securities Administrator, shall establish and maintain an Eligible
Account entitled "Xxxxx Fargo Bank, N.A., as Securities Administrator for HSBC
Bank USA, National Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx
Mortgage Investors, Inc., Mortgage Pass-Through Certificates, MLCC Series 2007-1
- Distribution Account." The Securities Administrator shall, promptly upon
receipt from the Master Servicer on each Distribution Account Deposit Date,
deposit into the Distribution Account and retain on deposit until the related
Distribution Date the following amounts:
(i) the aggregate of collections with respect to the Mortgage Loans
remitted by the Servicer from the related Collection Accounts to the Master
Servicer Collection Account (pursuant to this Agreement) and by the Master
Servicer from the Master Servicer Collection Account in accordance with
this Agreement, including the amount of any Advances or Compensating
Interest Payments with respect to the Mortgage Loans required to be paid by
the Servicer or the Master Servicer; and
(ii) any other amounts so required to be deposited in the Distribution
Account in the related Due Period pursuant to this Agreement.
(f) In the event that the Servicer has remitted in error to the Master
Servicer Collection Account any amount not required to be remitted in accordance
with the definition of Available Distribution Amount, it may at any time direct
the Master Servicer to withdraw such amount from the Master Servicer Collection
Account for repayment to the Servicer, as applicable, by delivery of an
Officer's Certificate of the Servicer to the Master Servicer which describes the
amount deposited in error. In the event the Master Servicer has remitted in
error to the Distribution Account any amount not required to be remitted in
accordance with the definition of Available Distribution Amount, it may at any
time direct the Securities Administrator to withdraw such amount from the
Distribution Account for repayment to the Master Servicer, as applicable, by
delivery of an Officer's Certificate of the Master Servicer to the Securities
Administrator which describes the amount deposited in error.
(g) On each Distribution Date and Purchase Date, the Securities
Administrator shall distribute the Available Distribution Amount to the
Certificateholders and any other parties entitled thereto in the amounts and
priorities set forth in Section 5.02. The Securities Administrator may from time
to time withdraw from the Distribution Account and pay itself, the Master
Servicer or the Servicer any amounts permitted to be paid or reimbursed to such
Person from funds in the Distribution Account pursuant to the clauses (A)
through (D) of the definition of Available Distribution Amount.
(h) Funds in the Distribution Account may be invested in Permitted
Investments selected by the Securities Administrator, which shall mature not
later than one Business Day prior to the Distribution Date (except that if such
Permitted Investment is an obligation of the Securities Administrator or is
managed or advised by the Securities Administrator or its affiliates, then such
Permitted Investment shall mature not later than such applicable Distribution
Date) and any such Permitted Investment shall not be sold or disposed of prior
to its maturity. All such
59
Permitted Investments shall be made in the name of the Securities Administrator
(in its capacity as such) or its nominee. All income and gain realized from any
Permitted Investment shall be for the benefit of the Securities Administrator
and shall be subject to its withdrawal or order from time to time, and shall not
be part of the Trust Fund. The amount of any losses incurred in respect of any
such investments shall be deposited in such Distribution Account by the
Securities Administrator out of its own funds, without any right of
reimbursement therefor, immediately as realized. Any such funds that are not
invested in Permitted Investments may be held uninvested.
Section 4.02. Permitted Withdrawals from the Master Servicer Collection
Account and the Distribution Account.
(a) (i) The Master Servicer will, from time to time on demand of the Master
Servicer, the Trustee or the Securities Administrator, make or cause to be made
such withdrawals or transfers from the Master Servicer Collection Account as the
Master Servicer has designated for such transfer or withdrawal pursuant to this
Agreement. The Master Servicer may clear and terminate the Master Servicer
Collection Account pursuant to Section 9A.04 and remove amounts from time to
time deposited in error.
(ii) On an ongoing basis, the Master Servicer shall withdraw from the
Master Servicer Collection Account (x) any expenses recoverable by the Trustee,
the Master Servicer or the Securities Administrator pursuant to this Agreement,
including but not limited to Sections 2.01(a), 9A.02, 9A.07 and 6.12 and (y) any
amounts payable to the Master Servicer.
(iii) In addition, on or before each Distribution Account Deposit
Date, the Master Servicer shall deposit in the Distribution Account (or remit to
the Securities Administrator for deposit therein) any Monthly Advances required
to be made by the Master Servicer with respect to the Mortgage Loans.
(iv) No later than 3:00 p.m. New York time on each Distribution
Account Deposit Date, the Master Servicer will transfer all Available Funds on
deposit in the Master Servicer Collection Account with respect to the related
Distribution Date to the Securities Administrator for deposit in the
Distribution Account.
(b) The Securities Administrator will, from time to time on demand of the
Master Servicer, make or cause to be made such withdrawals or transfers from the
Distribution Account as the Master Servicer has designated for such transfer or
withdrawal pursuant to this Agreement for the following purposes (limited in the
case of amounts due the Master Servicer to those not withdrawn from the Master
Servicer Collection Account in accordance with the terms of this Agreement):
(i) to reimburse the Master Servicer or the Servicer for any Monthly
Advance of its own funds or any advance of such Servicer's own funds, the right
of the Master Servicer or the Servicer to reimbursement pursuant to this
subclause (i) being limited to amounts received on a particular Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance Proceeds
and Liquidation Proceeds) which represent late payments or recoveries of the
principal of or interest on such Mortgage Loan respecting which such Monthly
Advance or advance was made;
(ii) to reimburse the Master Servicer or the Servicer from Insurance
Proceeds or Liquidation Proceeds relating to a particular Mortgage Loan for
amounts expended by the Master Servicer or such Servicer in good faith as a
Servicing Advance in connection with the
60
restoration of the related Mortgaged Property which was damaged by an Uninsured
Cause or in connection with the liquidation of such Mortgage Loan;
(iii) to reimburse the Master Servicer or the Servicer from Insurance
Proceeds relating to a particular Mortgage Loan for insured expenses incurred
with respect to such Mortgage Loan and to reimburse the Master Servicer or such
Servicer from Liquidation Proceeds from a particular Mortgage Loan for
Liquidation Expenses incurred with respect to such Mortgage Loan; provided that
the Master Servicer shall not be entitled to reimbursement for Liquidation
Expenses with respect to a Mortgage Loan to the extent that (i) any amounts with
respect to such Mortgage Loan were paid as Excess Liquidation Proceeds pursuant
to clause (xi) of this Subsection 4.02(b) to the Master Servicer; and (ii) such
Liquidation Expenses were not included in the computation of such Excess
Liquidation Proceeds;
(iv) to pay the Master Servicer or the Servicer, as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with the
liquidation of any Mortgage Loan, the amount which it or such Servicer would
have been entitled to receive under subclause (ix) of this Subsection 4.02(b) as
servicing compensation on account of each defaulted scheduled payment on such
Mortgage Loan if paid in a timely manner by the related Mortgagor;
(v) to pay the Master Servicer or the Servicer from the Purchase Price
for any Mortgage Loan, the amount which it or such Servicer would have been
entitled to receive under subclause (ix) of this Subsection 4.02(b) as servicing
compensation;
(vi) to reimburse the Master Servicer or the Servicer for advances of
funds pursuant to Section 5.04, and the right to reimbursement pursuant to this
subclause being limited to amounts received on the related Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance Proceeds
and Liquidation Proceeds) which represent late recoveries of the payments for
which such advances were made;
(vii) to reimburse the Master Servicer or the Servicer for any Monthly
Advance or advance, after a Realized Loss has been allocated with respect to the
related Mortgage Loan if the Monthly Advance or advance has not been reimbursed
pursuant to clauses (i) and (vi);
(viii) to pay the Master Servicer as set forth in Section 9A.11;
(ix) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to this Agreement,
including but not limited to Sections 9A.02, 9A.07(c) and (d);
(x) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not retained by the
Servicer;
(xi) to reimburse or pay the Servicer any such amounts as are due
thereto under this Agreement and have not been retained by or paid to the
Servicer, to the extent provided in this Agreement;
(xii) to reimburse the Trustee or the Securities Administrator for
expenses, costs and liabilities incurred by or reimbursable to it pursuant to
this Agreement;
(xiii) to remove amounts deposited in error; and
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(xiv) to clear and terminate the Distribution Account pursuant to
Section 6.01.
(c) The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to subclauses (i) through
(vi), inclusive, and (viii) or with respect to any such amounts which would have
been covered by such subclauses had the amounts not been retained by the Master
Servicer without being deposited in the Distribution Account under Section
4.01(c).
(d) On each Distribution Date, the Securities Administrator shall
distribute the Available Funds for each Mortgage Pool to the Holders of the
Certificates in accordance with Section 6.01.
Section 4.03. Reports to Certificateholders.
On each Distribution Date, the Securities Administrator shall have prepared
and shall make available to each Certificateholder and other interested parties
a written report setting forth the following information (based solely on the
report provided to the Securities Administrator by the Master Servicer (which in
turn shall be based on information provided to the Master Servicer by the
Servicer) pursuant to Section 9.18).
(i) the amount of the distributions, separately identified, with
respect to each Class of Certificates;
(ii) the amount of the distributions set forth in the clause (i)
allocable to principal, separately identifying the aggregate amount of any
Principal Prepayments or other unscheduled recoveries of principal included
in that amount;
(iii) the amount of the distributions set forth in the clause (i)
allocable to interest and how it was calculated;
(iv) the amount of any unpaid Interest Shortfall and the related
accrued interest thereon, with respect to each Class of Certificates;
(v) the Class Principal Amount and Class Notional Amount of each Class
of Certificates after giving effect to the distribution of principal on
that Distribution Date;
(vi) the Aggregate Stated Principal Balance of the Mortgage Loans in
each Mortgage Pool and the applicable Net WAC of the Mortgage Loans at the
end of the related Prepayment Period;
(vii) the Stated Principal Balance of the Mortgage Loans in each
Mortgage Pool whose Mortgage Rates adjust on the basis of the One-Year
Treasury Index, One-Year LIBOR index and the Six-Month LIBOR index at the
end of the related Prepayment Period;
(viii) the Pro Rata Senior Percentage, Senior Percentage and the
Subordinate Percentage for each Mortgage Pool for the following
Distribution Date;
(ix) the Senior Prepayment Percentage and Subordinate Prepayment
Percentage for each Mortgage Pool the following Distribution Date;
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(x) in the aggregate and with respect to each Mortgage Pool, the
amount of any Servicing Fee paid to or retained by the Servicer for the
related Due Period;
(xi) in the aggregate and with respect to each Mortgage Pool, the
amount of Advances for the related Due Period;
(xii) in the aggregate and with respect to each Mortgage Pool, the
number and Stated Principal Balance of the Mortgage Loans that were (A)
Delinquent (exclusive of Mortgage Loans in foreclosure) (1) 30 to 59 days,
(2) 60 to 89 days and (3) 90 or more days, (B) in foreclosure and
Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days and
(C) in bankruptcy as of the close of business on the last day of the
calendar month preceding that Distribution Date as determined in accordance
with the MBA methodology for determining delinquencies;
(xiii) in the aggregate and with respect to each Mortgage Pool, for
any Mortgage Loan as to which the related Mortgaged Property was an REO
property during the preceding calendar month, the principal balance of that
Mortgage Loan as of the close of business on the last day of the related
Due Period;
(xiv) in the aggregate and with respect to each Mortgage Pool, the
total number and principal balance of any REO properties as of the close of
business on the last day of the preceding Due Period;
(xv) in the aggregate and with respect to each Mortgage Pool, the
amount of Realized Losses incurred during the preceding calendar month;
(xvi) in the aggregate and with respect to each Mortgage Pool, the
cumulative amount of Realized Losses incurred since the Closing Date;
(xvii) the Realized Losses, if any, allocated to each Class of
Certificates on that Distribution Date;
(xviii) the Certificate Interest Rate for each Class of Certificates
for that Distribution Date; and
(xix) the amount of any Compensating Interest Payments, if any,
allocated to each Class of Certificates on that Distribution Date.
The Securities Administrator shall make such reports available each month
via its website at xxxx://xxx.xxxxxxx.xxx. Assistance in using the website may
be obtained by calling the Securities Administrator's customer service desk at
(000) 000-0000. Certificateholders and other parties that are unable to use the
website are entitled to have a paper copy mailed to them via first class mail by
contacting the Securities Administrator and indicating such. In preparing or
furnishing the foregoing information, the Securities Administrator shall be
entitled to rely conclusively on the accuracy of the information or data
regarding the Mortgage Loans and the related REO Properties that has been
provided to the Securities Administrator by the Master Servicer (which in turn
was based on information or data provided to the Master Servicer by the
Servicer), and the Securities Administrator shall not be obligated to verify,
recompute, reconcile or recalculate any such information or data.
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Upon receipt by the Securities Administrator of the reasonable advance
written request of any Certificateholder that is a savings and loan, bank or
insurance company, the Securities Administrator shall provide, or cause to be
provided (or, to the extent that such information or documentation is not
required to be provided by the Servicer or by the Master Servicer under this
Agreement, shall use reasonable efforts to obtain such information and
documentation from the Master Servicer (who shall use reasonable efforts to
obtain such information and documentation from the Servicer), and provide) to
such Certificateholders such reports and access to information and documentation
regarding the Mortgage Loans as such Certificateholders may reasonably deem
necessary to comply with applicable regulations of the Office of Thrift
Supervision or its successor or other regulatory authorities with respect to an
investment in the Certificates; provided, however, that the Securities
Administrator shall be entitled to be reimbursed by such Certificateholders for
the Securities Administrator's actual expenses incurred in providing such
reports and access.
The Securities Administrator shall prepare and file with the Internal
Revenue Service ("IRS"), on behalf of each REMIC, an application for an employer
identification number on IRS Form SS-4 or by any other acceptable method. The
Securities Administrator shall also file a Form 8811 as required. The Securities
Administrator, upon receipt from the IRS of the Notice of Taxpayer
Identification Number Assigned, shall upon request promptly forward a copy of
such notice to the Depositor. The Securities Administrator shall furnish any
other information that is required by the Code and regulations thereunder to be
made available to Certificateholders. The Depositor shall cause the Master
Servicer to provide the Securities Administrator with such information as is
necessary for the Securities Administrator to prepare such reports.
ARTICLE V.
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally.
(a) Subject to Section 7.01 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator or the
Paying Agent shall make distributions in accordance with this Article V. Such
distributions shall be made by check mailed to each Certificateholder's address
as it appears on the Certificate Register of the Certificate Registrar or, upon
written request made to the Securities Administrator at least five (5) Business
Days prior to the related Record Date by any Certificateholder owning an
aggregate initial Certificate Principal Amount or Class Notional Amount of at
least $1,000,000, or in the case of a Residual Certificate, a Percentage
Interest of not less than 100%, by wire transfer in immediately available funds
to an account specified in the request and at the expense of such
Certificateholder; provided, however, that the final distribution in respect of
any Certificate shall be made only upon presentation and surrender of such
Certificate at the Certificate Registrar's Corporate Trust Office; provided,
further, that the foregoing provisions shall not apply to any Class of
Certificates as long as such Certificate remains a Book-Entry Certificate in
which case all payments made shall be made through the Clearing Agency and its
Clearing Agency Participants. Wire transfers will be made at the expense of the
Holder requesting such wire transfer by deducting a wire transfer fee from the
related distribution. Notwithstanding such final payment of principal of any of
the Certificates, each Residual Certificate will remain outstanding until the
termination of each REMIC and the payment in full of all other amounts due with
respect to the Residual Certificates and at such time such final payment in
retirement of any Residual Certificate will be made only upon presentation and
surrender of such Certificate at the Certificate Registrar's Corporate Trust
64
Office. If any payment required to be made on the Certificates is to be made on
a day that is not a Business Day, then such payment will be made on the next
succeeding Business Day.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in proportion
to their respective initial Class Principal Amounts (or initial Class Notional
Amount or Percentage Interests).
Section 5.02. Distributions from the Distribution Account.
(a) On each Distribution Date, the Available Distribution Amount for the
related Mortgage Pool (in the case of the Senior Certificates and the Mortgage
Pools in the aggregate (in the case of the Subordinate Certificates) shall be
withdrawn by the Securities Administrator from the Distribution Account and
allocated among the classes of Senior Certificates and Subordinate Certificates
in the following order of priority:
(i) Concurrently, to the payment of the Interest Distribution Amount
and any accrued but unpaid Interest Shortfalls on each Class of Senior
Certificates;
(ii) Concurrently, to the Senior Certificates (other than the Class
IV-A-X Certificates) from the Available Distribution Amount remaining in
the related Mortgage Pool after application of priority (i) above, as
follows:
(A) first, to the Class A-R Certificate until the Class Principal
Amount thereof has been reduced to zero, and second to the Class I-A-1
Certificates and Class I-A-2 Certificates pro rata, an amount up to
the Senior Principal Distribution Amount for Pool 1, until the
respective Class Principal Amounts thereof have been reduced to zero;
(B) to the Class II-A-1 and Class II-A-2 Certificates, pro rata,
an amount up to the Senior Principal Distribution Amount for Pool 2,
until the respective Class Principal Amounts thereof have been reduced
to zero;
(C) to the Class III-A Certificates an amount up to the Senior
Principal Distribution Amount for Pool 3, until the Class Principal
Amount thereof has been reduced to zero; and
(D) to the Class IV-A-1, Class IV-A-2, Class IV-A-3 and Class
IV-A-4 Certificates, concurrently, on a pro rata basis based on the
Class Principal Amounts of the related Certificates, an amount up to
the Senior Principal Distribution Amount for Pool 4, as follows:
(i) sequentially, to the Class IV-A-1, Class IV-A-2 and
Class IV-A-3 Certificates, until the respective Class Principal Amount
of each such Class has been reduced to zero; and
(ii) to the Class IV-A-4 Certificates, until the Class
Principal Amount thereof has been reduced to zero.
(iii) From the Available Distribution Amount from all four Mortgage
Pools in the aggregate remaining after application amounts pursuant to
clauses (i) and (ii) above:
65
(A) to the Class M-1 Certificates, the payment of its applicable
Interest Distribution Amount and any outstanding Interest Shortfalls;
(B) to the Class M-2 Certificates, the payment of its applicable
Interest Distribution Amount and any outstanding Interest Shortfalls;
(C) to the Class M-3 Certificates, the payment of its applicable
Interest Distribution Amount and any outstanding Interest Shortfalls;
(D) to the Class B-1 Certificates, the payment of its applicable
Interest Distribution Amount and any outstanding Interest Shortfalls;
(E) to the Class B-2 Certificates, the payment of its applicable
Interest Distribution Amount and any outstanding Interest Shortfalls;
(F) to the Class B-3 Certificates, the payment of its applicable
Interest Distribution Amount and any outstanding Interest Shortfalls;
(G) to the Class M-1 Certificates, such class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for each
Mortgage Pool, until its Class Principal Amount has been reduced to
zero;
(H) to the Class M-2 Certificates, such class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for each
Mortgage Pool, until its Class Principal Amount has been reduced to
zero;
(I) to the Class M-3 Certificates, such class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for each
Mortgage Pool, until its Class Principal Amount has been reduced to
zero;
(J) to the Class B-1 Certificates, such class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for each
Mortgage Pool, until its Class Principal Amount has been reduced to
zero;
(K) to the Class B-2 Certificates, such class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for each
Mortgage Pool, until its Class Principal Amount has been reduced to
zero; and
(L) to the Class B-3 Certificates, such class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for each
Mortgage Pool, until its Class Principal Amount has been reduced to
zero.
(iv) To the Class A-R Certificate, any remaining amount of the
Available Distribution Amount from the Mortgage Pools in the aggregate.
(b) (i) On each Distribution Date on and after the Credit Support Depletion
Date, the Available Distribution Amount for each Mortgage Pool remaining after
the distributions in clause (a) above and any distributions required to be made
pursuant to clause (b)(ii) and (b)(iii) below, will be distributed to the
remaining classes of the related Certificate Group or Groups on a pro rata
basis, first, to pay the Interest Distribution Amount and any accrued but unpaid
Interest
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Shortfalls; second, to pay the Senior Principal Distribution Amount; and third,
to the Class A-R Certificate, any remaining Available Distribution Amount for
such Mortgage Pool.
(ii) On each Distribution Date prior to the Credit Support Depletion
Date but after the reduction of the aggregate Class Principal Amount of the
Senior Certificates of a Certificate Group to zero, the remaining class or
classes of Senior Certificates in the remaining Certificate Group or
Groups, will be entitled to receive in reduction of their Class Principal
Amount, pro rata, based upon their Class Principal Amount immediately prior
to such Distribution Date, in addition to any Principal Prepayments related
to such remaining Senior Certificates' respective Mortgage Pool allocated
to such Senior Certificates, 100% of the Principal Payments on any Mortgage
Loan in the Mortgage Pool relating to the fully repaid class or classes of
Senior Certificates of the fully repaid Certificate Group; provided,
however, that if both (a) the weighted average of the Aggregate Subordinate
Percentage equals or exceeds 200% of the original weighted average of the
Aggregate Subordinate Percentage as of the Closing Date on or after the
Distribution Date in February 2010 and (b) the aggregate Stated Principal
Balance of the Mortgage Loans delinquent sixty (60) days or more, averaged
over the last six (6) months, as a percentage of the aggregate Class
Principal Amount of the Class M Certificates and Class B Certificates, does
not exceed 50%, then the additional allocation of Principal Prepayments to
the Senior Certificates in accordance with this clause (b) will not be made
and 100% of the Principal Prepayments on any Mortgage Loan in the Mortgage
Pool relating to the fully repaid class or classes of Senior Certificates
will be applied as a principal distribution to the Subordinate
Certificates.
(iii) If on any Distribution Date on which the aggregate Class
Principal Amount of any class or classes of Senior Certificates would be
greater than the aggregate Stated Principal Balance of the Mortgage Loans
in its related Mortgage Pool (the amount of such excess, the
"Undercollateralized Amount," and any such class or classes of Senior
Certificates, the "Undercollateralized Senior Certificates") and the other
class or classes of Senior Certificates, the "Overcollateralized Senior
Certificates") and any Subordinate Certificates are still outstanding in
each case after giving effect to distributions to be made on such
Distribution Date, (i) 100% of amounts otherwise allocable to the
Subordinate Certificates in respect of principal will be distributed to the
Undercollateralized Senior Certificates in reduction of the Class Principal
Amounts thereof, until the aggregate Class Principal Amount of such class
or classes of Undercollateralized Senior Certificates is equal to the
aggregate Stated Principal Balance of the Mortgage Loans in its related
Senior Certificates, and (ii) the Interest Distribution Amount otherwise
allocable to the Subordinate Certificates on such Distribution Date will be
reduced, if necessary, and distributed to such class or classes of
Undercollateralized Senior Certificates pursuant to 5.02(a) above, in an
amount equal to the Net WAC of the related Mortgage Pool for such class or
classes of Undercollateralized Senior Certificates for such Distribution
Date on a balance equal to the related Undercollateralized Amount. Any such
reduction in the Interest Distribution Amount on the Subordinate
Certificates will be allocated to the Class B-3, Class B-2, Class B-1,
Class M-3, Class M-2 and Class M-1 Certificates, in that order.
(c) Notwithstanding the priority and allocation set forth in Section
5.02(a)(iii) above, if with respect to any Class of Subordinate Certificates on
any Distribution Date the sum of the related Class Subordination Percentages of
such Class and of all other Classes of Subordinate Certificates which have a
higher numerical Class designation than such Class is less than the Original
Applicable Credit Support Percentage for such Class, no distribution of
Principal
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Prepayments shall be made to any such Classes and the amount of such Principal
Prepayment otherwise distributable to such Classes shall be distributed to any
Classes of Subordinate Certificates having lower numerical Class designations
than such Class, pro rata, based on the Class Principal Amounts of the
respective Classes immediately prior to such Distribution Date and shall be
distributed in the sequential order provided in Section 5.02(a)(iii) above.
(d) Amounts distributed to the Residual Certificates pursuant to
subparagraph (a)(iv) of this Section 5.02 on any Distribution Date shall be
allocated among the REMIC residual interests represented thereby such that each
such interest is allocated the excess of funds available to the related REMIC
over required distributions to the regular interests in such REMIC on such
Distribution Date.
(e) For purposes of distributions provided in this Section 5.02, each
Mortgage Pool shall "relate" to the Senior Class or Classes of the applicable
Related Certificate Group.
(f) For purposes of distributions of interest in paragraph (a) of this
Section 5.02 such distributions to a Class of Certificates on any Distribution
Date shall be made first, in respect of Interest Distribution Amount; and
second, in respect of Interest Shortfall.
Section 5.03. Allocation of Losses.
(a) On or prior to each Distribution Date, the Securities Administrator
shall aggregate the information provided by the Master Servicer (which in turn
shall be based on information provided to the Master Servicer by the Servicer)
with respect to the total amount of Realized Losses, with respect to the
Mortgage Loans for the related Distribution Date.
(b) On each Distribution Date, the principal portion of Realized Losses on
the Mortgage Loans with respect to such Distribution Date shall be allocated in
the following order:
(i) to the Class B-3 Certificates; second, to the Class B-2
Certificates; third, to the Class B-1 Certificates; fourth, to the Class
M-3 Certificates; fifth, to the Class M-2 Certificates; and sixth, to the
Class M-1 Certificates, in each case until the Class Principal Amount of
such class of Certificates has been reduced to zero; and
(ii) commencing on the Credit Support Depletion Date, Realized Losses
will be allocated among the Senior Certificates as follows:
first, if the Realized Loss occurs on a Mortgage Loan in a
Mortgage Pool where the aggregate Stated Principal Balance of the
Mortgage Loans in such Mortgage Pool is greater than the aggregate
Class Principal Amount of the related Senior Certificates, the
Realized Loss will be allocated to any Senior Certificates related to
a Mortgage Pool where the aggregate Stated Principal Balance of the
Mortgage Loans in such Mortgage Pool is less than the aggregate Class
Principal Amount of the related Senior Certificates (any such amount,
the "Deficiency Amount"), pro rata, based on the respective Deficiency
Amount, in each case until the amount by which the aggregate Stated
Principal Balance of the Mortgage Loans in the Mortgage Pool in which
the Realized Loss occurs exceeds the aggregate Class Principal Amount
of the related Senior Certificates until the Class Principal Amounts
of such Senior Certificates have been reduced to zero; and
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second, to the Senior Certificates related to the Mortgage Pool
in which the Realized Loss occurred, until the Class Principal Amounts
thereof have been reduced to zero.
Notwithstanding the foregoing, (A) any portion of any Realized
Loss that would otherwise be allocated to the Class I-A-1 Certificates will
instead be allocated first to the Class I-A-2 Certificates until the Class
Principal Amount thereof has been reduced to zero; (B) any portion of any
Realized Loss that would otherwise be allocated to the Class II-A-1
Certificates will instead be allocated first to the Class II-A-2
Certificates until the Class Principal Amount thereof has been reduced to
zero; and (C) any portion of any Realized Loss that would otherwise be
allocated to the Class IV-A-1, Class IV-A-2 or Class IV-A-3 Certificates
will instead be allocated first to the Class IV-A-4 Certificates until the
Class Principal Amount thereof has been reduced to zero and shall
thereafter be allocated, pro rata, to the Class IV-A-1, Class IV-A-2 and
Class IV-A-3 Certificates.
(iii) [Reserved]
(iv) Any allocation of a loss pursuant to this section to a Class of
Certificates shall be achieved by reducing the Class Principal Amount
thereof by the amount of such loss.
(c) Notwithstanding the other provisions of Section 5.03, the first $0.39
of Realized Losses shall not be allocated to any Class of Certificates.
Section 5.04. Advances.
If the Servicer fails to remit any Advance required to be made under this
Agreement, the Master Servicer solely in its capacity as successor servicer
shall itself make, or shall cause the successor servicer to make, such Advance.
If the Master Servicer solely in its capacity as successor servicer determines
that an Advance is required, it shall on the Business Day preceding the related
Distribution Date immediately following such Determination Date remit from its
own funds (or funds advanced by the successor servicer) for deposit in the
Master Servicer Collection Account immediately available funds in an amount
equal to such Advance.
If the Master Servicer fails to remit any Advance required to be made under
this Agreement, the Trustee solely in its capacity as successor master servicer
shall itself make, subject to applicable law, or shall cause the successor
servicer to make, such Advance. If the Trustee solely in its capacity as
successor master servicer determines that an Advance is required, it shall on
the Business Day preceding the related Distribution Date immediately following
such Determination Date remit from its own funds (or funds advanced by the
successor servicer) for deposit in the Distribution Account immediately
available funds in an amount equal to such Advance.
The Servicer, the Master Servicer and the Trustee shall be entitled to be
reimbursed for all Advances made by it under this Agreement. Notwithstanding
anything to the contrary herein, in the event the Master Servicer or Trustee (or
successor servicer) determines in its reasonable judgment that an Advance is
Nonrecoverable, the Master Servicer or Trustee (or successor servicer) shall be
under no obligation to make such Advance.
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ARTICLE VI.
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee and Securities Administrator.
(a) The Trustee, except during the continuance of a Master Servicer Event
of Default, and the Securities Administrator, each undertakes to perform such
duties and only such duties as are specifically set forth in this Agreement. Any
permissive right of the Trustee or the Securities Administrator provided for in
this Agreement shall not be construed as a duty of the Trustee or the Securities
Administrator. If a Master Servicer Event of Default has occurred and has not
otherwise been cured or waived, the Trustee shall exercise such of the rights
and powers vested in it by this Agreement and use the same degree of care and
skill in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) The Trustee and the Securities Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee and the Securities Administrator,
respectively, which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are in
the form required this Agreement; provided, however, that neither the Trustee
nor the Securities Administrator shall be responsible for the accuracy or
content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Servicer or the Master
Servicer to the Trustee or the Securities Administrator pursuant to this
Agreement, and shall not be required to recalculate or verify any numerical
information furnished to the Trustee or the Securities Administrator pursuant to
this Agreement. Subject to the immediately preceding sentence, if any such
resolution, certificate, statement, opinion, report, document, order or other
instrument is found not to conform to the form required by this Agreement in a
material manner the Trustee shall take such action as it deems appropriate to
cause the instrument to be corrected, and if the instrument is not corrected to
the Trustee's satisfaction, the Trustee will provide notice thereof to the
Certificateholders and will, at the expense of the Issuing Entity, which expense
shall be reasonable given the scope and nature of the required action, take such
further action as directed by the Certificateholders.
(c) The Trustee and the Securities Administrator shall not have any
liability arising out of or in connection with this Agreement, except for its
negligence or willful misconduct. Notwithstanding anything in this Agreement to
the contrary, the Trustee and the Securities Administrator shall not be liable
for special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits). No provision of this Agreement
shall be construed to relieve the Trustee or 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 Trustee and the Securities Administrator 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 Holders of Certificates as
provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Master Servicer Event of Default unless a
Responsible Officer of
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the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Holders of the Certificates and this Agreement;
(iii) No provision of this Agreement shall require the Trustee or the
Securities Administrator to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
and none of the provisions contained in this Agreement shall in any event
require the Trustee or the Securities Administrator to perform, or be
responsible for the manner of performance of, any of the obligations of the
Servicer or the Master Servicer under this Agreement;
(iv) The Trustee and the Securities Administrator shall not be
responsible for any act or omission of the Master Servicer, the Servicer,
the Depositor or the Sponsor.
(d) The Trustee and the Securities Administrator shall have no duty
hereunder with respect to any complaint, claim, demand, notice or other document
it may receive or which may be alleged to have been delivered to or served upon
it by the parties as a consequence of the assignment of any Mortgage Loan
hereunder; provided, however, that the Trustee or the Securities Administrator,
as applicable, shall promptly deliver to the Master Servicer upon receipt any
such complaint, claim, demand, notice or other document (i) which is delivered
to the Corporate Trust Office of the Trustee or to the Securities Administrator,
(ii) of which a Responsible Officer has actual knowledge, and (iii) which
contains information sufficient to permit the Trustee or the Securities
Administrator to make a determination that the real property to which such
document relates is a Mortgaged Property.
(e) The Trustee and the Securities Administrator shall not be personally
liable with respect to any action taken, suffered or omitted to be taken by it
in good faith in accordance with the direction of the Certificateholders of any
Class holding Certificates which evidence, as to such Class, Percentage
Interests aggregating not less than 25% as to the time, method and place of
conducting any proceeding for any remedy available to the Trustee or Securities
Administrator or exercising any trust or power conferred upon the Trustee or the
Securities Administrator under this Agreement.
(f) The Trustee and the Securities Administrator shall not be required to
perform services under this Agreement, or to expend or risk its own funds or
otherwise incur financial liability for the performance of any of its duties
hereunder or the exercise of any of its rights or powers if there is reasonable
ground for believing that the timely payment of its fees and expenses or the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it, and none of the provisions contained in this
Agreement shall in any event require the Trustee or the Securities Administrator
to perform, or be responsible for the manner of performance of, any of the
obligations of the Servicer under this Agreement except during such time, if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
this Agreement.
(g) Neither the Trustee nor the Securities Administrator shall be held
liable by reason of any insufficiency in the Distribution Account resulting from
any investment loss on any Permitted Investment included therein (except to the
extent that the Securities Administrator is the obligor and has defaulted
thereon).
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(h) Except as otherwise provided herein, the Trustee and the Securities
Administrator shall not have any duty (A) to see to any recording, filing, or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest, or
to see to the maintenance of any such recording or filing or depositing or to
any re-recording, refiling or redepositing of any thereof, (B) to see to the
provision of any insurance, (C) to see to the payment or discharge of any tax,
assessment, or other governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against, any part of the Trust Fund
other than from funds available in the Distribution Account, or (D) to confirm
or verify the contents of any reports or certificates of the Master Servicer
delivered to the Trustee or the Securities Administrator pursuant to this
Agreement believed by the Trustee or the Securities Administrator, respectively,
to be genuine and to have been signed or presented by the proper party or
parties.
(i) The Trustee and the Securities Administrator shall not be liable, in
its individual capacity, for an error of judgment made in good faith by a
Responsible Officer or other officers of the Trustee or the Securities
Administrator, respectively, unless it shall be proved that the Trustee or the
Securities Administrator, respectively, was negligent in ascertaining the
pertinent facts.
(j) Notwithstanding anything in this Agreement to the contrary, the Trustee
and the Securities Administrator shall not be liable for special, indirect or
consequential losses or damages of any kind whatsoever (including, but not
limited to, lost profits), even if the Trustee or the Securities Administrator,
respectively, has been advised of the likelihood of such loss or damage and
regardless of the form of action.
Section 6.02. Certain Matters Affecting the Trustee and the Securities
Administrator.
Except as otherwise provided in Section 6.01:
(i) Before taking any action hereunder, the Trustee and the Securities
Administrator may request, and may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) The Trustee and the Securities Administrator may consult with
counsel and any advice of its counsel or Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(iii) The Trustee and the Securities Administrator shall not be
personally liable for any action taken, suffered or omitted by it in good
faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(iv) The Securities Administrator shall not be bound, and unless a
Master Servicer Event of Default shall have occurred and be continuing, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document (provided the same appears regular on its face), unless
requested in writing to do so by the Holders of at least a majority in
Class
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Principal Amount (or Percentage Interest) of each Class of Certificates;
provided, however, that, if the payment within a reasonable time to the
Trustee or the Securities Administrator of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee or the Securities Administrator,
respectively, not reasonably assured to the Trustee or the Securities
Administrator by the security afforded to it by the terms of this
Agreement, the Trustee or the Securities Administrator may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses from the Certificateholders as a condition to
proceeding. The reasonable expense thereof shall be paid by the party
requesting such investigation and if not reimbursed by the requesting party
shall be reimbursed to the Trustee or the Securities Administrator by the
Issuing Entity;
(v) The Trustee and the Securities Administrator may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians or attorneys, which agents,
custodians or attorneys shall have any and all of the rights, powers,
duties and obligations of the Trustee or the Securities Administrator
conferred on it by such appointment, provided that the Trustee or the
Securities Administrator, respectively, shall continue to be responsible
for its duties and obligations hereunder to the extent provided herein, and
provided further that the Trustee or the Securities Administrator shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by the Trustee or the Securities
Administrator, respectively;
(vi) The Trustee and the Securities Administrator shall not be under
any obligation to exercise any of the trusts or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder or in
relation hereto, in each case at the request, order or direction of any of
the Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee or the Securities
Administrator, respectively, reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
(vii) The right of the Trustee or the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee and the Securities Administrator,
respectively, shall not be answerable for other than its own negligence or
willful misconduct in the performance of such act; and
(viii) The Trustee and the Securities Administrator shall not be
required to give any bond or surety in respect of the execution of the
Trust Fund created hereby or the powers granted hereunder.
(ix) Should the Trustee or the Securities Administrator deem the
nature of any action required on its part to be unclear, the Trustee or the
Securities Administrator may require prior to such action that it be
provided by the Depositor with reasonable further instructions.
Section 6.03. Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans.
The Trustee and the Securities Administrator make no representations as to
the validity or sufficiency of this Agreement or of the Certificates (other than
the Securities Administrator's certificate of authentication on the
Certificates) or of any Mortgage Loan, or related document
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save that the Trustee and the Securities Administrator each represent that,
assuming due execution and delivery by the other parties hereto, this Agreement
has been duly authorized, executed and delivered by it and constitutes its valid
and binding obligation, enforceable against it in accordance with its terms
except as such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law. The
Trustee and the Securities Administrator shall not be accountable for the use or
application by the Depositor of funds paid to the Depositor in consideration of
the assignment of the Mortgage Loans to the Issuing Entity by the Depositor or
for the use or application of any funds deposited into the Distribution Account
or any other fund or account maintained with respect to the Certificates. The
Trustee and the Securities Administrator shall not be responsible for the
legality or validity of this Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates issued or intended to be issued
hereunder. Except as otherwise provided herein, the Trustee and the Securities
Administrator shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement.
Section 6.04. Trustee and Securities Administrator May Own Certificates.
The Trustee and the Securities Administrator and any Affiliate or agent of
the Trustee or the Securities Administrator in its individual or any other
capacity may become the owner or pledgee of Certificates and may transact
banking and trust business with the other parties hereto and their Affiliates
with the same rights it would have if it were not Trustee or Securities
Administrator or such agent.
Section 6.05. Eligibility Requirements for Trustee and Securities
Administrator.
The Trustee and the Securities Administrator hereunder shall at all times
(i) be an institution insured by the FDIC, (ii) a corporation or national
banking association, organized and doing business under the laws of the United
States of America or any state thereof, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority and (iii) with respect to the Trustee, not be an Affiliate of the
Master Servicer, the Securities Administrator or the Servicer. If such
corporation or national banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section, the
combined capital and surplus of such corporation or national banking association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee or the
Securities Administrator shall cease to be eligible in accordance with
provisions of this Section, the Trustee or the Securities Administrator,
respectively, shall resign immediately in the manner and with the effect
specified in Section 6.06.
Section 6.06. Resignation and Removal of Trustee and Securities
Administrator.
(a) The Trustee and the Securities Administrator may at any time resign and
be discharged from the trust hereby created by giving written notice thereof to
the Depositor, the Master Servicer, the Servicer and the Trustee or Securities
Administrator, as applicable. Upon receiving such notice of resignation, the
Depositor will promptly appoint a successor trustee or successor securities
administrator, as applicable, by written instrument, one copy of which
instrument shall be delivered to the resigning Trustee or Securities
Administrator, as applicable,
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one copy to the successor trustee or the successor securities administrator, as
applicable,and one copy to each of the Master Servicer and the Servicer. If no
successor trustee or successor securities administrator, as applicable, shall
have been so appointed and shall have accepted appointment within thirty (30)
days after the giving of such notice of resignation, the resigning Trustee or
Securities Administrator, as applicable, may petition any court of competent
jurisdiction for the appointment of a successor trustee or successor securities
administrator, respectively.
(b) If at any time (i) the Trustee or the Securities Administrator shall
cease to be eligible in accordance with the provisions of Section 6.05 and shall
fail to resign after written request therefor by the Depositor, (ii) the Trustee
or the Securities Administrator, as applicable, shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or Securities Administrator, as applicable, of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
the Securities Administrator, as applicable, or of either of their property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a
tax is imposed or threatened with respect to the Issuing Entity by any state in
which the Trustee or the Securities Administrator or the Issuing Entity held by
the Trustee is located, or (iv) the continued use of the Trustee or the
Securities Administrator would result in a downgrading of the rating by any
Rating Agency of any Class of Certificates with a rating, then the Depositor
shall remove the Trustee or the Securities Administrator, as applicable, and the
Depositor shall appoint a successor trustee or securities administrator,
respectively, by written instrument, one copy of which instrument shall be
delivered to the Trustee or the Securities Administrator so removed, one copy
each to the successor trustee or successor securities administrator, as
applicable, and one copy each to the Master Servicer and the Servicer.
(c) The Holders of more than 50% of the Class Principal Amount (or Class
Notional Amount or Percentage Interest) of each Class of Certificates may at any
time upon thirty (30) days' written notice to the Trustee or the Securities
Administrator, as applicable, and to the Depositor remove the Trustee or the
Securities Administrator, respectively, by such written instrument, signed by
such Holders or their attorney-in-fact duly authorized, one copy of which
instrument shall be delivered to the Depositor and one copy to the Trustee or
the Securities Administrator, as applicable; the Depositor shall thereupon
appoint a successor trustee or successor securities administrator, as
applicable, in accordance with this Section.
(d) Any resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor trustee or successor securities
administrator, respectively, pursuant to any of the provisions of this Section
shall become effective upon acceptance by the successor trustee or the successor
securities administrator, as applicable, of appointment, as provided in Section
6.07.
Section 6.07. Successor Trustee or Successor Securities Administrator.
(a) Any successor trustee or successor securities administrator appointed
as provided in Section 6.06 shall execute, acknowledge and deliver to the
Depositor and to its predecessor trustee or predecessor securities
administrator, respectively, an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor trustee or the
predecessor securities administrator shall become effective and such successor
trustee or 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 like effect as if originally
named as trustee or securities administrator, respectively. The predecessor
trustee shall deliver to the successor trustee all Trustee Mortgage Files and
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documents and statements related to each Trustee Mortgage File held by it
hereunder, and shall duly assign, transfer, deliver and pay over to the
successor trustee, the entire Issuing Entity, together with all necessary
instruments of transfer and assignment or other documents properly executed
necessary to effect such transfer and such of the records or copies thereof
maintained by the predecessor trustee in the administration hereof as may be
requested by the successor trustee and shall thereupon be discharged from all
duties and responsibilities under this Agreement. In addition, the Depositor and
the predecessor trustee or predecessor securities administrator, as applicable,
shall execute and deliver such other instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee or successor securities administrator, respectively, all such
rights, powers, duties and obligations.
(b) No successor trustee or successor securities administrator shall accept
appointment as provided in this Section unless at the time of such appointment
such successor trustee or successor securities administrator shall be eligible
under the provisions of Section 6.05.
(c) Upon acceptance by a successor trustee or successor securities
administrator of appointment as provided in this Section, the predecessor
trustee or predecessor securities administrator, respectively, shall mail notice
of the succession of such successor trustee or successor securities
administrator hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to any Rating Agency. The expenses of such
mailing shall be borne by the Depositor.
Section 6.08. Merger or Consolidation of Trustee or Securities
Administrator.
Any Person into which the Trustee or the Securities Administrator may be
merged or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee or Securities
Administrator shall be a party, or any Persons succeeding to the business of the
Trustee or the Securities Administrator shall be the successor to the Trustee or
the Securities Administrator, respectively, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding, provided that, in the case of
the Trustee or the Securities Administrator, such Person shall be eligible under
the provisions of Section 6.05.
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the Trustee,
the Depositor or the Certificateholders evidencing more than 50% of the Class
Principal Amount (or Percentage Interest) of every Class of Certificates shall
have the power from time to time to appoint one or more Persons, approved by the
Trustee, to act either as co-trustees jointly with the Trustee, or as separate
trustees, or as custodians, for the purpose of holding title to, foreclosing or
otherwise taking action with respect to any Mortgage Loan outside the state
where the Trustee has its principal place of business where such separate
trustee or co-trustee is necessary or advisable (or the Trustee has been advised
by the Master Servicer that such separate trustee or co-trustee is necessary or
advisable) under the laws of any state in which a property securing a Mortgage
Loan is located or for the purpose of otherwise conforming to any legal
requirement, restriction or condition in any state in which a property securing
a Mortgage Loan is located or in any state in which any portion of the Issuing
Entity is located. The separate trustees, co-trustees, or custodians so
appointed shall be trustees or custodians for the benefit of all the
Certificateholders and shall have such powers, rights and remedies as shall be
specified in the instrument of appointment; provided, however, that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee. The obligation of the Trustee to
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make Advances pursuant to Section 5.04 hereof shall not be affected or assigned
by the appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations, including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian at the sole discretion of the Trustee;
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder;
and
(iv) the Trustee may at any time, by an instrument in writing executed
by it, with the concurrence of the Depositor, accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of
this Agreement.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VI. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy given
to the Master Servicer.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to Certificateholders of the appointment shall be
required under Section 6.07 hereof.
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(f) The Trustee agrees to instruct the co-trustees, if any, to the extent
necessary to fulfill the Trustee's obligations hereunder.
(g) The Issuing Entity shall pay the reasonable compensation of the
co-trustees (which compensation shall not reduce any compensation payable to the
Trustee under such Section).
Section 6.10. Authenticating Agents.
(a) The Securities Administrator may appoint one or more Authenticating
Agents which shall be authorized to act on behalf of the Securities
Administrator in authenticating Certificates. If such an agent is so appointed
by the Securities Administrator, wherever reference is made in this Agreement to
the authentication of Certificates by the Securities Administrator or the
Securities Administrator's certificate of authentication, such reference shall
be deemed to include authentication on behalf of the Securities Administrator by
an Authenticating Agent and a certificate of authentication executed on behalf
of the Securities Administrator by an Authenticating Agent. Each Authenticating
Agent must be a corporation organized and doing business under the laws of the
United States of America or of any state, having a combined capital and surplus
of at least $15,000,000, authorized under such laws to do a trust business and
subject to supervision or examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which any Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the
Securities Administrator or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at least
thirty (30) days' advance written notice of resignation to the Securities
Administrator and the Depositor. The Securities Administrator may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and the Depositor. Upon receiving a
notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.10, the Securities Administrator may appoint a
successor authenticating agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor authenticating agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor authenticating agent
shall be appointed unless eligible under the provisions of this Section 6.10. No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Securities Administrator.
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Section 6.11. Indemnification of Trustee and Securities Administrator.
The Trustee, the Securities Administrator and their respective directors,
officers, employees and agents shall be entitled to indemnification from the
Depositor and the Issuing Entity; provided that the Issuing Entity's
indemnification under this Section 6.11 is limited by Section 4.01(f) for any
loss, liability or expense (including, without limitation, reasonable attorneys'
fees and disbursements (and, in connection with any custody agreement the
Trustee may enter pursuant to this Agreement, including the reasonable
compensation and the expenses and disbursements of its agents or counsel)),
incurred without negligence or willful misconduct on its part, arising out of,
or in connection with, the acceptance or administration of the trusts created
hereunder or in connection with the performance of their duties hereunder
including the costs and expenses of defending themselves against any claim in
connection with the exercise or performance of any of their powers or duties
hereunder, provided that:
(i) with respect to any such claim, the Trustee or the Securities
Administrator shall have given the Depositor written notice thereof
promptly after the Trustee or Securities Administrator, respectively, shall
have knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee and
the Securities Administrator shall cooperate and consult fully with the
Depositor in preparing such defense;
(iii) notwithstanding anything to the contrary in this Section 6.11,
the Issuing Entity shall not be liable for settlement of any such claim by
the Trustee or the Securities Administrator entered into without the prior
consent of the Depositor, which consent shall not be unreasonably withheld;
and
(iv) the Issuing Entity's indemnification obligations hereunder shall
be limited to losses, liability, costs or expenses, payments in respect of
which by the Issuing Entity would constitute "unanticipated expenses"
within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii)).
The provisions of this Section 6.11 shall survive any termination of this
Agreement and the resignation or removal of the Trustee or the Securities
Administrator, respectively, and shall be construed to include, but not be
limited to, any loss, liability or expense under any environmental law.
Section 6.12. Fees and Expenses of the Trustee and the Securities
Administrator.
The fees and expenses of the Trustee shall be paid by the Master Servicer
in accordance with a side letter agreement. The Securities Administrator shall
also be entitled to retain any and all investment earnings on amounts on deposit
in the Distribution Account pending the distribution of such funds to
Certificateholders on each Distribution Date (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust). Any expenses incurred by the Trustee and the Securities
Administrator shall be reimbursed to the extent provided in Section 6.11.
Section 6.13. Collection of Monies.
Except as otherwise expressly provided in this Agreement, the Securities
Administrator may demand payment or delivery of, and shall receive and collect,
all money and other property
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payable to or receivable by the Securities Administrator pursuant to this
Agreement. The Securities Administrator shall hold all such money and property
received by it as part of the Issuing Entity and shall distribute it as provided
in this Agreement.
Section 6.14. Servicer Events of Default and Master Servicer Events of
Default; Master Servicer or Trustee To Act; Appointment of Successor Servicer;
Appointment of Successor Master Servicer.
(a) "Servicer Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Servicer to make any Advance, to deposit in the
Master Servicer Collection Account or to remit to the Securities
Administrator any payment required to be made under the terms of this
Agreement on the day it is due;
(ii) any material breach on the part of the Servicer of any other
term, agreement, covenant, representation or warranty in this Agreement
that has not been cured after written notice and a thirty (30) day curative
period, except, with respect to Sections 9.11, 9.13(a), 9.13(b), 9.21(i)
and 9.21(k), any material breach on the part of the Servicer of any term,
agreement, covenant, representation or warranty that has not been cured
after written notice and a twelve (12) day curative period;
(iii) following entry against the Servicer of a decree or order of a
court or agency or supervisory authority having jurisdiction for the
appointment of a trustee, conservator, receiver, liquidator, assignee,
custodian or sequestrator (or other similar official) for the Servicer in
any federal or state bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of the Servicer's affairs, if such decree or
order has remained in force undischarged or unstayed for a period of sixty
(60) days;
(iv) upon consent by the Servicer to the appointment of a trustee,
conservator, receiver, liquidator, assignee, custodian or sequestrator (or
other similar official) in, or commencement of a voluntary case under, any
federal or state bankruptcy insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the
Servicer or of or relating to all or substantially all of the Servicer's
property;
(v) upon the Servicer's (A) admitting in writing its inability to pay
its debts generally as they become due, (B) filing a petition to take
advantage of any applicable insolvency or reorganization statute, (C)
making an assignment for the benefit of its creditors or (D) voluntarily
suspending payment of its obligations; or
(vi) the Servicer ceases to be eligible to sell mortgage loans to or
service mortgage loans for FNMA, FHLMC or GNMA or ceases to be a
HUD-approved mortgagee.
If a Servicer Event of Default shall occur and be continuing, then, in each
and every case, subject to applicable law, so long as any such Servicer Event of
Default shall not have been remedied within any period of time prescribed by
this Agreement, by notice in writing to the Servicer, any of the Depositor, the
Master Servicer or the Trustee may (or the Trustee shall if so directed by
Certificateholders evidencing more than 50% of the Class Principal Amount of
each
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Class of Certificates) terminate all of the rights and obligations of the
Servicer under this Agreement in accordance with the terms of this Agreement. On
or after the receipt by the Servicer and the Master Servicer of such written
notice, all authority and power of the Servicer, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Master Servicer;
and the Master Servicer is hereby authorized and empowered to execute and
deliver, on behalf of the defaulting Servicer as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents or otherwise.
If any Servicer Event of Default shall occur, the Servicer, upon becoming
aware of the occurrence thereof, shall promptly notify the Master Servicer of
the nature and extent of such Servicer Event of Default. The Master Servicer or
the Trustee, upon becoming aware of the occurrence thereof, shall promptly
notify the Trustee or the Master Servicer, as applicable, the Depositor and each
Rating Agency of the nature and extent of such Servicer Event of Default.
Within ninety (90) days of the time the Servicer receives a notice of
termination from the Master Servicer pursuant to Section 6.14, the Master
Servicer, unless another servicer shall have been appointed, shall be the
successor in all respects to the Servicer in its capacity as Servicer under this
Agreement and the transactions set forth or provided for therein and shall have
all the rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Servicer
thereunder, including the obligation to make Advances; provided, however, that
any failure to perform such duties or responsibilities caused by the Servicer's
failure to provide information required by this Agreement shall not be
considered a default by the Master Servicer hereunder. In addition, the Master
Servicer shall have no responsibility for any act or omission of the Servicer
prior to the issuance of any notice of termination. The Master Servicer shall
have no liability relating to any representations and warranties of the Servicer
set forth in this Agreement. In the Master Servicer's capacity as such
successor, the Master Servicer shall have the same limitations on liability
provided to the Servicer in this Agreement. As compensation therefor, the Master
Servicer shall be entitled to receive all compensation payable to the Servicer
under this Agreement.
The Master Servicer shall be entitled to be reimbursed by the Depositor and
the Trust Fund (pursuant to Section 6.11 but without regard to any annual
limitation thereunder), in the event that the Servicer does not reimburse the
Master Servicer under this Agreement, for all costs associated with the transfer
of servicing from the predecessor Servicer, including, without limitation, any
costs or expenses associated with the termination of the predecessor Servicer,
the appointment of a successor servicer, 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 any successor servicer to correct any
errors or insufficiencies in the servicing data or otherwise to enable the
Master Servicer or successor servicer to service the Mortgage Loans property and
effectively (such costs, "Servicing Transfer Costs").
Notwithstanding the above, the Master Servicer may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act, petition a
court of competent jurisdiction to appoint, or, with the consent of the
Depositor, appoint on its own behalf any established housing and home finance
institution servicer, or servicing or mortgage servicing institution having a
net worth of not less than $15,000,000 and meeting such other standards for a
successor servicer as are set forth in this Agreement and reasonably
satisfactory to the Depositor, as the successor to the Servicer in the
assumption of all of the responsibilities, duties or liabilities of a servicer,
like the Servicer. Any entity designated by the Master Servicer as a successor
servicer may be an
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Affiliate of the Master Servicer; provided, however, that, unless such Affiliate
meets the net worth requirements and other standards set forth herein for a
successor servicer, the Master Servicer, in its individual capacity shall agree,
at the time of such designation, to be and remain liable to the Trust Fund for
such Affiliate's actions and omissions in performing its duties under this
Agreement. In connection with such appointment and assumption, the Master
Servicer may make such arrangements for the compensation of such successor out
of payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted to the
Servicer under this Agreement. The Master Servicer and such successor shall take
such actions, consistent with this Agreement, as shall be necessary to
effectuate any such succession and may make other arrangements with respect to
the servicing to be conducted hereunder which are not inconsistent herewith and
therewith. Neither the Master Servicer nor any other successor servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any delay
in making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Servicer to deliver, or any delay in delivering, cash, documents
or records to it, (ii) the failure of the Servicer to cooperate as required by
this Agreement, (iii) the failure of the Servicer to deliver the Mortgage Loan
data to the Master Servicer as required by this Agreement or (iv) restrictions
imposed by any regulatory authority having jurisdiction over the Servicer.
(b) "Master Servicer Event of Default," wherever used herein, means any one
of the following events:
(i) any failure by the Master Servicer to make any Advance, as
applicable, to deposit in the Distribution Account or to remit to the
Securities Administrator any payment required to be made under the terms of
this Agreement on the day it is due;
(ii) any material breach on the part of the Master Servicer of any
other term, agreement, covenant, representation or warranty in this
Agreement that has not been cured after written notice and a thirty (30)
day curative period, except, with respect to Sections 9.11, 9.13(a),
9.13(b), 9.21(i) and 9.21(k), any material breach on the part of the Master
Servicer of any term, agreement, covenant, representation or warranty that
has not been cured after written notice and a twelve (12) day curative
period;
(iii) following entry against the Master Servicer of a decree or order
of a court or agency or supervisory authority having jurisdiction for the
appointment of a trustee, conservator, receiver, liquidator, assignee,
custodian or sequestrator (or other similar official) for the Master
Servicer in any federal or state bankruptcy, insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of the Master Servicer's affairs, if such
decree or order has remained in force undischarged or unstayed for a period
of sixty (60) days;
(iv) upon consent by the Master Servicer to the appointment of a
trustee, conservator, receiver, liquidator, assignee, custodian or
sequestrator (or other similar official) in, or commencement of a voluntary
case under, any federal or state bankruptcy insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or of or relating to all or substantially
all of the Master Servicer's property; or
(v) upon the Master Servicer's (A) admitting in writing its inability
to pay its debts generally as they become due, (B) filing a petition to
take advantage of any
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applicable insolvency or reorganization statute, (C) making an assignment
for the benefit of its creditors or (D) voluntarily suspending payment of
its obligations.
If a Master Servicer Event of Default shall occur and be continuing, then,
in each and every case, subject to applicable law, so long as any such Master
Servicer Event of Default shall not have been remedied within any period of time
prescribed by this Agreement, by notice in writing to the Master Servicer either
(x) the Depositor or (y) the Trustee may (or the Trustee shall if so directed by
Certificateholders evidencing more than 50% of the Class Principal Amount of
each Class of Certificates) terminate all of the rights and obligations of the
Master Servicer under this Agreement in accordance with the terms of this
Agreement. On or after the receipt by the Master Servicer of such written
notice, all authority and power of the Master Servicer, whether with respect to
the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee; and
the Trustee is hereby authorized and empowered to execute and deliver, on behalf
of the defaulting Master Servicer as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents or otherwise.
If any Master Servicer Event of Default shall occur, the Trustee, upon
becoming aware of the occurrence thereof, shall promptly notify the Depositor
and each Rating Agency of the nature and extent of such Master Servicer Event of
Default.
Within ninety (90) days of the time the Master Servicer receives a notice
of termination from the Trustee pursuant to this Section 6.14, the Trustee,
unless another Master Servicer shall have been appointed, shall be the successor
in all respects to the Master Servicer in its capacity as such under this
Agreement and the transactions set forth or provided for therein and shall have
all the rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Master
Servicer thereunder, including the obligation to make Advances (subject to
Section 5.04), as applicable; provided, however, that any failure to perform
such duties or responsibilities caused by the Master Servicer's failure to
provide information required by this Agreement or this Agreement shall not be
considered a default by the Trustee hereunder. In addition, the Trustee shall
have no responsibility for any act or omission of the Master Servicer prior to
the issuance of any notice of termination. The Trustee shall have no liability
relating to any representations and warranties of the Master Servicer set forth
in this Agreement. In the Trustee's capacity as such successor master servicer,
the Trustee shall have the same limitations on liability provided to the Master
Servicer in this Agreement. As compensation therefor, the Trustee shall be
entitled to receive all compensation payable to the Master Servicer under this
Agreement.
The Trustee shall be entitled to be reimbursed by the Depositor and the
Trust Fund (pursuant to Section 6.11 but without regard to any annual limitation
thereunder), in the event that the Master Servicer does not reimburse the
Trustee under this Agreement, for all costs associated with the transfer of
servicing from the predecessor Master Servicer, including, without limitation,
any costs or expenses associated with the termination of the predecessor Master
Servicer, the appointment of a successor, and the complete transfer of all
documents of the Master Servicer reasonably requested by the Trustee to enable
it to assume the Master Servicer's duties hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to
continue to so act, or shall, if it is unable to so act, petition a court of
competent jurisdiction to appoint, or, with the consent of the Depositor,
appoint on its own behalf any established housing and home finance institution
servicer, or servicing or mortgage servicing institution having a net worth of
not less
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than $15,000,000 and meeting such other standards for a successor servicer as
are set forth in this Agreement and reasonably satisfactory to the Depositor, as
the successor to the Master Servicer in the assumption of all of the
responsibilities, duties or liabilities of a servicer, like the Master Servicer.
Any entity designated by the Trustee as a successor servicer may be an Affiliate
of the Trustee; provided, however, that, unless such Affiliate meets the net
worth requirements and other standards set forth herein for a successor
servicer, the Trustee, in its individual capacity shall agree, at the time of
such designation, to be and remain liable to the Trust Fund for such Affiliate's
actions and omissions in performing its duties under this Agreement. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted to the Master Servicer under
this Agreement. The Trustee and such successor shall take such actions,
consistent with this Agreement, as shall be necessary to effectuate any such
succession and may make other arrangements with respect to the servicing to be
conducted hereunder which are not inconsistent herewith and therewith. Neither
the Trustee nor any other successor servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
Master Servicer to deliver, or any delay in delivering, cash, documents or
records to it, (ii) the failure of the Master Servicer to cooperate as required
by this Agreement, (iii) the failure of the Master Servicer to deliver the
Mortgage Loan data to the Trustee as required by this Agreement or (iv)
restrictions imposed by any regulatory authority having jurisdiction over the
Master Servicer.
Notwithstanding anything herein to the contrary, in no event shall the
Trustee be liable for any Servicing Fee or master servicing fee or for any
differential in the amount of the Servicing Fee or master servicing fee paid
hereunder and the amount necessary to induce any successor servicer or successor
master servicer to act as successor servicer or successor master servicer, as
applicable, under this Agreement and the transactions set forth or provided for
herein.
Section 6.15. Additional Remedies of the Master Servicer and the Trustee
Upon Event of Default.
During the continuance of any Servicer Event of Default or Master Servicer
Event of Default, so long as such Servicer Event of Default or Master Servicer
Event of Default, as applicable, shall not have been remedied, the Master
Servicer (with respect to a Servicer Event of Default) and the Trustee (with
respect to a Master Servicer Event of Default), in addition to the rights
specified in Section 6.14, shall have the right to take all actions now or
hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filings of proofs of
claim and debt in connection therewith). Except as otherwise expressly provided
in this Agreement, no remedy provided for by this Agreement shall be exclusive
of any other remedy, and each and every remedy shall be cumulative and in
addition to any other remedy, and no delay or omission to exercise any right or
remedy shall impair any such right or remedy or shall be deemed to be a waiver
of any Servicer Event of Default or Master Servicer Event of Default, as
applicable.
Section 6.16. Waiver of Servicer Events of Default and Master Servicer
Events of Default.
More than 50% of the Aggregate Voting Interests of Certificateholders may
waive any default, Servicer Event of Default or Master Servicer Event of Default
by the Servicer or the Master Servicer, as applicable, in the performance of its
obligations hereunder, except that a
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default in the making of any required deposit to the Master Servicer Collection
Account or the Distribution Account, respectively, that would result in a
failure of the Securities Administrator to make any required payment of
principal of or interest on the Certificates may only be waived with the consent
of 100% of the affected Certificateholders. Upon any such waiver of a past
default, such default shall cease to exist, and any Servicer Event of Default or
Master Servicer Event of Default, as applicable, arising therefrom shall be
deemed to have been remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon except to the extent expressly so waived.
Section 6.17. Notification to Holders.
Upon termination of the Servicer or the Master Servicer or appointment of a
successor to the Servicer or the Master Servicer, in each case as provided
herein, the Master Servicer or the Trustee, as applicable, shall promptly mail
notice thereof by first class mail to the Certificateholders at their respective
addresses appearing on the Certificate Register. The Securities Administrator
shall also, within forty-five (45) days after the occurrence of any Servicer
Event of Default or Master Servicer Event of Default, of which it is notified,
give written notice thereof to the Certificateholders, unless such Servicer
Event of Default or Master Servicer Event of Default shall have been cured or
waived prior to the issuance of such notice and within such 45-day period.
Section 6.18. Directions by Certificateholders and Duties of Trustee During
Servicer and Master Servicer Event of Default.
Subject to the provisions of Section 8.01 hereof, during the continuance of
any Servicer Event of Default or Master Servicer Event of Default, Holders of
Certificates evidencing not less than 25% of the Class Principal Amount (or
Percentage Interest) of each Class of Certificates affected thereby may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or the Master Servicer, as applicable, or exercising any trust or
power conferred upon the Trustee or the Master Servicer, as applicable, under
this Agreement; provided, however, that the Trustee or the Master Servicer, as
applicable, shall be under no obligation to pursue any such remedy, or to
exercise any of the trusts or powers vested in it by this Agreement (including,
without limitation, (i) the conducting or defending of any administrative action
or litigation hereunder or in relation hereto and (ii) the terminating of the
Servicer, Master Servicer, any successor servicer or any successor master
servicer from its rights and duties as servicer or master servicer) at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders shall have offered to the Trustee or the Master Servicer, as
applicable, reasonable security or indemnity against the cost, expenses and
liabilities which may be incurred therein or thereby; and, provided further,
that, subject to the provisions of Section 8.01, the Trustee or the Master
Servicer, as applicable, shall have the right to decline to follow any such
direction if the Trustee, or the Master Servicer, as applicable, in accordance
with an Opinion of Counsel, determines that the action or proceeding so directed
may not lawfully be taken or if the Trustee or the Master Servicer, as
applicable, in good faith determines that the action or proceeding so directed
would involve it in personal liability for which it is not indemnified to its
satisfaction or be unjustly prejudicial to the non-assenting Certificateholders.
Section 6.19. Preparation of Tax Returns and Other Reports.
(a) The Securities Administrator shall prepare or cause to be prepared on
behalf of the Issuing Entity, based upon information calculated in accordance
with this Agreement pursuant to instructions given by the Depositor, and the
Securities Administrator shall file federal tax returns,
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all in accordance with Article X hereof. The Securities Administrator shall
prepare and file such state income tax returns and such other returns as may be
required by applicable law relating to the Issuing Entity, and, if required by
state law, and shall file any other documents to the extent required by
applicable state tax law (to the extent such documents are in the Securities
Administrator's possession). The Securities Administrator shall forward copies
to the Depositor of all such returns and Form 1099 supplemental tax information
and such other information within the control of the Securities Administrator as
the Depositor may reasonably request in writing, and shall distribute to each
Certificateholder such forms and furnish such information within the control of
the Securities Administrator as are required by the Code and the REMIC
Provisions to be furnished to them, and will prepare and distribute to
Certificateholders Form 1099 (supplemental tax information) (or otherwise
furnish information within the control of the Securities Administrator) to the
extent required by applicable law.
(b) The Securities Administrator shall prepare and file with the Internal
Revenue Service ("IRS"), on behalf of each REMIC, an application on IRS Form
SS-4 or shall obtain a Taxpayer Identification Number for each REMIC using
another reasonable method. If the application is filed on Form SS-4, the
Securities Administrator, upon receipt from the IRS of the Notice of Taxpayer
Identification Number Assigned for each REMIC, shall promptly forward copies of
such notices to the Depositor, upon request. The Securities Administrator will
file an IRS Form 8811.
ARTICLE VII.
PURCHASE OF MORTGAGE LOANS AND
TERMINATION OF THE ISSUING ENTITY
Section 7.01. Purchase of Mortgage Loans; Termination of Issuing Entity
Upon Purchase or Liquidation of All Mortgage Loans.
(a) The respective obligations and responsibilities of the Trustee, the
Master Servicer, the Servicer, the Securities Administrator and the Depositor
created hereby (other than the obligation of the Securities Administrator to
make payments to Certificateholders as set forth in Section 7.02), shall
terminate on the earliest of (i) the final payment or other liquidation of the
last Mortgage Loan remaining in the Issuing Entity and the disposition of all
REO Property, (ii) the sale of the property held by the Issuing Entity at
auction in accordance with Section 7.01(c) and (iii) the Latest Possible
Maturity Date; provided, however, that in no event shall the Issuing Entity
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the United States to the Court of St. James's, living on the date hereof. Any
termination of the Issuing Entity shall be carried out in such a manner so that
the termination of each REMIC included therein shall qualify as a "qualified
liquidation" under the REMIC Provisions.
(b) [Reserved]
(c) Any termination of the Issuing Entity pursuant to clause (a)(ii) above
shall be effected by the auction by the Securities Administrator of all of the
Mortgage Loans and REO Properties via a solicitation of bids in accordance with
procedures to be agreed upon by the Securities Administrator and the Depositor.
The Securities Administrator shall accept the highest such bid, provided that
such bid equals or exceeds the amount described in the definition of "Optional
Termination Price." Notwithstanding anything to the contrary herein, the
Optional Termination Price received by the Securities Administrator shall be
deposited by the Securities
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Administrator directly into the Distribution Account no later than the Business
Day prior to the date of termination.
The right of the Securities Administrator to conduct an auction pursuant to
the preceding paragraph shall be conditioned upon the aggregate outstanding
Stated Principal Balance of the Mortgage Loans, at the time of such auction,
aggregating five (5) percent or less of the Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
If the Issuing Entity is not terminated because a sufficient purchase price
is not achieved at such auction, first the Master Servicer or, if the Master
Servicer does not so purchase the Mortgage Loans, the Servicer, may purchase all
of the Mortgage Loans at the Optional Termination Price, which similarly would
result in the termination of the Issuing Entity.
(d) The Servicer, the Master Servicer and the Securities Administrator
shall be reimbursed from the Optional Termination Price for any Advances,
Servicer Advances, accrued and unpaid Servicing Fees, the cost of any auction
conducted pursuant to (c) above or other amounts with respect to the Mortgage
Loans that are reimbursable to such parties under this Agreement.
Section 7.02. Procedure Upon Termination of Issuing Entity.
(a) Notice of any optional termination pursuant to the provisions of
Section 7.01(c) specifying the Distribution Date upon which the final
distribution shall be made or the Purchase Date, shall be given promptly by the
Securities Administrator by first class mail to Certificateholders mailed no
later than the first day of the month in which the Distribution Date selected
for purchase of the Mortgage Loans occurs or upon (x) the sale of all of the
property of the Issuing Entity by the Securities Administrator or in the case of
a sale of assets of the Issuing Entity, or (y) upon the final payment or other
liquidation of the last Mortgage Loan or REO Property in the Issuing Entity.
Such notice shall specify (A) the Purchase Date and the Distribution Date upon
which final distribution on the Certificates of all amounts required to be
distributed to Certificateholders pursuant to Section 5.02 will be made upon
presentation and surrender of the Certificates at the Certificate Registrar's
Corporate Trust Office, and (B) that the Record Date otherwise applicable to
such Distribution Date is not applicable, distribution being made only upon
presentation and surrender of the Certificates at the office or agency of the
Securities Administrator therein specified. The Securities Administrator shall
give such notice to the Certificate Registrar at the time such notice is given
to Holders of the Certificates. Upon any such termination, the duties of the
Securities Administrator and the Certificate Registrar with respect to the
Certificates shall terminate and the Securities Administrator shall terminate
the Distribution Account and any other account or fund maintained with respect
to the Certificates, subject to the Securities Administrator's obligation
hereunder to hold all amounts payable to Certificateholders in trust without
interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three (3) months after the time specified
in the above-mentioned written notice, the Securities Administrator shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one (1) year after the second notice any Certificates shall
not have been surrendered for cancellation, the Securities Administrator may
take appropriate steps to contact the remaining Certificateholders concerning
surrender of such Certificates, and the cost thereof shall be paid out of the
amounts distributable to such Holders. If within two (2) years after the second
notice any Certificates shall not have been surrendered for cancellation, the
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Securities Administrator shall, subject to applicable state law relating to
escheatment, hold all amounts distributable to such Holders for the benefit of
such Holders. No interest shall accrue on any amount held by the Securities
Administrator and not distributed to a Certificateholder due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section.
(c) Any reasonable expenses incurred by the Securities Administrator, to
the extent that such expenses, if paid or reimbursed by the Issuing Entity,
would constitute "unanticipated expenses" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(ii), in connection with any redemption or
termination or liquidation of the Issuing Entity shall be reimbursed from
proceeds received from the liquidation of the Issuing Entity.
Section 7.03. Additional Issuing Entity Termination Requirements.
(a) Any termination of the Issuing Entity shall be effected in accordance
with the following additional requirements, unless the Securities Administrator
seeks and receives an Opinion of Counsel (at the expense of such requesting
party), addressed to the Securities Administrator, to the effect that the
failure of the Issuing Entity to comply with the requirements of this Section
7.03 will not (I) result in the imposition of taxes on any REMIC under the REMIC
Provisions or (II) cause any REMIC established hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(i) Within eighty-nine (89) days prior to the time of the making of
the final payment on the Certificates upon notification by the Depositor
that it intends to exercise its option to cause the termination of the
Issuing Entity, the Securities Administrator shall adopt a plan of complete
liquidation prepared by the Depositor of the Issuing Entity on behalf of
each REMIC, meeting the requirements of a qualified liquidation under the
REMIC Provisions;
(ii) Any sale of the assets of the Issuing Entity pursuant to Section
7.01 or 7.02 shall be a sale for cash and shall occur at or after the time
of adoption of such a plan of complete liquidation and prior to the time of
making of the final payment on the Certificates;
(iii) On the date specified for final payment of the Certificates, the
Securities Administrator shall make final distributions of principal and
interest on the Certificates in accordance with Section 5.02 and, after
payment of, or provision for any outstanding expenses, distribute or
credit, or cause to be distributed or credited, to the Holders of the
Residual Certificates all cash on hand after such final payment (other than
cash retained to meet claims), and the Issuing Entity (and each REMIC)
shall terminate at that time; and
(iv) In no event may the final payment on the Certificates or the
final distribution or credit to the Holders of the Residual Certificates be
made after the 89th day from the date on which the plan of complete
liquidation is adopted.
(b) By its acceptance of a Residual Certificate, each Holder thereof hereby
agrees to accept the plan of complete liquidation adopted by the Securities
Administrator under this Section and to take such other action in connection
therewith as may be reasonably requested by the Securities Administrator.
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ARTICLE VIII.
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or this Issuing Entity, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of this
Issuing Entity, nor otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them. Except as otherwise expressly provided
herein, no Certificateholder, solely by virtue of its status as a
Certificateholder, shall have any right to vote or in any manner otherwise
control the Trustee or the operation and management of the Issuing Entity, or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association,
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing itself of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon, under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of a Servicer
Event of Default or Master Servicer Event of Default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Class Notional
Amount or Percentage Interest) of Certificates of each Class affected thereby
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the cost, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for sixty
(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
and no direction inconsistent with such written request has been given such
Trustee during such sixty-day period by such Certificateholders; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder 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 of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner herein provided and for the benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 8.02. Access to List of Holders.
(a) If the Securities Administrator is not acting as Certificate Registrar,
the Certificate Registrar will furnish or cause to be furnished to the
Securities Administrator, within fifteen (15) days after receipt by the
Certificate Registrar of a request by the Securities Administrator in writing, a
list, in such form as the Securities Administrator may reasonably require, of
the names and addresses of the Certificateholders of each Class as of the most
recent Record Date.
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(b) If three or more Holders or Certificate Owners (hereinafter referred to
as "Applicants") apply in writing to the Securities Administrator, and such
application states that the Applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Applicants propose to
transmit, then the Securities Administrator shall, within five (5) Business Days
after the receipt of such application, afford such Applicants reasonable access
during the normal business hours of the Securities Administrator to the most
recent list of Certificateholders held by the Securities Administrator or shall,
as an alternative, send, at the Applicants' expense, the written communication
proffered by the Applicants to all Certificateholders at their addresses as they
appear in the Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing Agency,
by receiving and holding a Certificate, agrees with the Depositor, the
Certificate Registrar and the Securities Administrator that neither the
Depositor, the Certificate Registrar nor the Securities Administrator shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
Section 8.03. Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by Holders or
Certificate Owners, if the Holder is a Clearing Agency, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee. Such instrument or
instruments (as the action embodies therein and evidenced thereby) are herein
sometimes referred to as an "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agents shall be sufficient for any purpose of this Agreement
and conclusive in favor of the Trustee, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments or deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Whenever such execution is
by an officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the individual executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates shall
be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Securities Administrator) shall be proved
by the Certificate Register, and neither the Trustee, the Securities
Administrator, the Master Servicer, the Servicer nor the Depositor shall be
affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Certificate shall bind every future Holder
of the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the
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Trustee, the Securities Administrator, the Depositor, the Master Servicer, the
Servicer or any successor to any such parties in reliance thereon, whether or
not notation of such action is made upon such Certificate.
ARTICLE IX.
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 9.01. Servicer to Act as Servicer.
(a) Commencing on the Closing Date, the Servicer shall service each
Mortgage Loan in accordance with Accepted Servicing Practices.
(b) The Servicer shall maintain an EDP containing all information and
programming necessary to service the Mortgage Loans in accordance with Section
2.01(a) hereof. The Mortgage Loans shall be grouped on the Servicer's EDP to
reflect the Trust Fund as the owner of the Mortgage Loans.
(c) The Servicer may not waive, modify or vary any term of a Mortgage Note
without the Depositor's prior written consent. The Servicer shall comply with
all applicable federal, state and local legal and regulatory requirements
(including laws, statutes, rules, regulations and ordinances) in connection with
the modification of the Mortgage Note.
(d) Notwithstanding anything herein to the contrary, the Servicer shall
follow any reasonable directions given by the Trustee, the Master Servicer
and/or the Depositor with respect to the servicing of the Mortgage Loans.
(e) With the exception of Ancillary Fees and any other charges expressly
permitted by the Mortgage Note and applicable law, the Servicer covenants and
agrees that it will not, without the prior written consent of the Sponsor,
charge or collect from any Mortgagor, or trustee under a deed of trust, any fees
of any kind including, but not limited to charges for amounts expended by the
Servicer, regardless of the characterization of the fee or charge.
(f) The Trustee agrees to execute such limited powers of attorney provided
to it by the Servicer, in a form acceptable to it, as are necessary and
appropriate to assist the Servicer to carry out its servicing and administrative
responsibilities under this Agreement.
(g) In connection with its duties hereunder, in the event the Servicer
requires an original of any document contained in a Mortgagor's file to service
a Mortgage Loan, it shall submit a written request to the Trustee and the
Trustee, or its Custodian, shall provide the original document to the Servicer
within two (2) Business Days after receipt of the written request, provided that
(a) as to any recorded document, the applicable recorder's office has returned
the recorded document to the Servicer or (b) as to the original title insurance
policy, the Servicer has received such policy. When requesting a release of
documents from the Trustee, the Servicer shall use the form attached hereto as
Exhibit N. Notwithstanding the foregoing, the Servicer acknowledges and agrees
that the Sponsor maintains agreements with document custodians selected by it
from time to time, pursuant to which such custodians maintain Mortgage Loan
files on behalf of the Sponsor. The Servicer agrees to cooperate with such
custodians and request from such custodians the documents and Mortgage Files
required by the Servicer which are maintained by such custodians (with a copy of
such request sent to the Sponsor).
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(h) The Servicer shall not, unless default by the related Mortgagor has
occurred or is imminent, knowingly permit any modification, waiver or amendment
of any material term of any Mortgage Loan (including but not limited to the
interest rate, the principal balance, the amortization schedule, or any other
term affecting the amount or timing of payments on the Mortgage Loan or the
collateral therefor) unless the Servicer shall have provided to the Depositor,
the Securities Administrator and the Trustee an Opinion of Counsel in writing to
the effect that such modification, waiver or amendment would not cause an
Adverse REMIC Event.
Section 9.02. Title, Management and Disposition of REO Property.
(a) If title to a Mortgaged Property is acquired in foreclosure or by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Trustee or its designee. Notwithstanding the foregoing, the Servicer
shall not acquire title to any Mortgaged Property, or proceed with the
management of any REO Property, for which the Servicer has knowledge that such
Mortgaged Property or REO Property is affected by hazardous waste. The Servicer
shall either itself, or through an agent, manage, conserve, protect and operate
each REO Property (and may temporarily rent the same) on behalf of the Trust
Fund.
In the event that the Trust Fund acquires any REO Property in connection
with a default or imminent default on a Mortgage Loan, the Servicer shall
dispose of such REO Property not later than the end of the third taxable year
after the year of its acquisition by the Trust Fund unless the Servicer has
applied for and received a grant of extension from the Internal Revenue Service
to the effect that, under the REMIC Provisions and any relevant proposed
legislation and under applicable state law, the Trust Fund may hold REO Property
for a longer period without adversely affecting the REMIC status of such REMIC
or causing the imposition of a federal or state tax upon such REMIC. If the
Servicer has received such an extension, then the Servicer shall continue to
attempt to sell the REO Property for its fair market value for such period
longer than three years as such extension permits (the "Extended Period"). If
the Servicer has not received such an extension and the Servicer is unable to
sell the REO Property within the period ending 3 months before the end of such
third taxable year after its acquisition by the Trust Fund or if the Servicer
has received such an extension, and the Servicer is unable to sell the REO
Property within the period ending three months before the close of the Extended
Period, the Servicer shall, before the end of the three year period or the
Extended Period, as applicable, (i) purchase such REO Property at a price equal
to the REO Property's fair market value or (ii) auction the REO Property to the
highest bidder (which may be the Servicer) in an auction reasonably designed to
produce a fair price prior to the expiration of the three-year period or the
Extended Period, as the case may be. The Trustee shall sign any document (in a
form acceptable to it) prepared by the Servicer or take any other action
reasonably requested by the Servicer which would enable the Servicer, on behalf
of the Trust Fund, to request such grant of extension.
Notwithstanding any other provisions of this Agreement, no REO Property
acquired by the Trust Fund shall be held, rented (or allowed to continue to be
rented) or otherwise used by or on behalf of the Trust Fund in such a manner or
pursuant to any terms that would: (i) cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code;
or (ii) subject the Trust Fund to the imposition of any federal income taxes on
the income earned from such REO Property, including any taxes imposed by reason
of Sections 860F or 860G(c) of the Code, unless the Servicer has agreed to
indemnify and hold harmless the Trust Fund with respect to the imposition of any
such taxes.
(b) The Servicer shall deposit or cause to be deposited in the applicable
Collection Account, on a daily basis, upon two Business Days from receipt, all
revenues received with
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respect to each REO Property and shall be permitted to withdraw therefrom, to
the extent of the amount of such revenues on deposit therein, funds necessary
for the proper operation, management and maintenance of such REO Property,
including but not limited to the cost of maintaining any hazard insurance and
the fees of any managing agent acting on behalf of the Servicer.
(c) If the Servicer elects to dispose of an REO Property without utilizing
the services of an agent, the Servicer shall notify the Master Servicer of its
receipt of any and all bona fide offers to purchase that REO Property. Each such
REO Disposition shall be carried out by the Servicer at such price, and upon
such terms and conditions.
If the Servicer utilizes the services of an approved agent to dispose of an
REO Property, the Servicer shall provide the Master Servicer with a copy of such
agent's marketing plan, which shall include, but not be limited to, (i) the
marketing time period, (ii) an estimate of the costs of any repairs or
improvements, (iii) the lowest acceptable sale price for the REO Property and
(iv) other proposed terms and conditions of sale. The REO Disposition shall be
carried out by the Servicer in accordance with the terms thereof. If the
Servicer receives a bona fide offer to purchase an REO Property and would like
to accept the offer, but the offer is outside the parameters of the approved
marketing plan, the Servicer shall provide the Master Servicer with written
notification of the terms and conditions of the offer.
The Servicer, upon an REO Disposition, shall be entitled to reimbursement
for any related unreimbursed Servicing Advances from proceeds received in
connection with such REO Disposition. If the proceeds from an REO Disposition
are insufficient to reimburse the Servicer for any related unreimbursed
Servicing Advances, to the extent such reimbursement will constitute an
"unanticipated expense" (within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii)) of a REMIC provided for herein, the Servicer shall be
entitled to withdraw any such deficiency from amounts on deposit in the
applicable Collection Account. All proceeds from an REO Disposition, net of any
reimbursement to the Servicer as provided above, shall be remitted to the Master
Servicer within three (3) Business Days following receipt thereof.
Section 9.03. Master Servicer's and Depositor's Right to Examine Servicer
Records.
(a) The Servicer shall cooperate with the Depositor and the Master
Servicer, its counsel, accountants (including outside accountants), supervisory
agents, examiners and other representatives in providing reasonable access
during normal business hours to examine and audit any and all of the books,
records, documentation or other information of the Servicer related to the
Mortgage Loans, which may be relevant to the performance or observance by the
Servicer of the terms, covenants or conditions of this Agreement.
(b) The examination and audit rights and other rights to access described
in clause (a) above shall be afforded by the Servicer at its offices without
charge, upon reasonable request, and during normal business hours or at such
other times as may be reasonable under applicable circumstances. The Servicer,
at its expense, shall make available all customary, reasonable office space,
facilities, and equipment for the visiting party and shall provide the visiting
party with access to reasonable cooperation with its officers and employees. The
salaries, travel, subsistence and other related expenses for the Depositor's
and/or the Master Servicer's representatives shall be borne by the Depositor
and/or the Master Servicer.
Section 9.04. Legal Proceedings Involving the Servicer and/or the Mortgage
Loans.
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(a) The Servicer shall commence, defend, appear, or otherwise participate
in any foreclosure, condemnation, bankruptcy, or other legal proceedings
relating to a Mortgage Loan in the name of the Trustee and/or the Issuing
Entity. The Servicer shall provide the Master Servicer, on a monthly basis, with
such written reports as it receives regarding any legal proceedings.
(b) The Servicer shall commence all foreclosures, bankruptcies and other
legal proceedings in the name of the Trustee and/or the Issuing Entity unless
otherwise directed in writing by the Trustee.
Section 9.05. Material Changes.
The Servicer shall promptly report to the Master Servicer and the Depositor
any change in its business operations, financial condition, properties or assets
that could have a material adverse effect on the Servicer's ability to perform
its obligations hereunder. Events for which the Master Servicer and the
Depositor must receive notice include, but are not limited to, the following:
(a) any merger or consolidation, any changes in the Servicer's ownership
whether directly or indirectly (including any change in ownership of the
Servicer's parent), or any significant reorganization;
(b) any material changes in management ordered or required by a regulatory
authority supervising or licensing the Servicer;
(c) the entry against the Servicer of a decree or order of a court or
agency or supervisory authority having jurisdiction for the appointment of a
trustee, conservator, receiver, liquidator, assignee, custodian or sequestrator
(or other similar official) in any federal or state bankruptcy, insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, if such decree
or order has remained in force undischarged or unstayed for a period of sixty
(60) days;
(d) the consent by the Servicer to the appointment of a trustee,
conservator, receiver, liquidator, assignee, custodian or sequestrator (or other
similar official) in, or commencement of a voluntary case under, any federal or
state bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings;
(e) upon the Servicer's (A) admitting in writing its inability to pay its
debts generally as they become due, (B) filing a petition to take advantage of
any applicable insolvency or reorganization statute, (C) making an assignment
for the benefit of its creditors or (D) voluntarily suspending payment of its
obligations;
(f) entry of any court judgment or regulatory order in which the Servicer
is or may be required to pay a claim or claims that may have a material adverse
effect on the Servicer's financial condition;
(g) any admission by the Servicer to the commission of, or any finding that
the Servicer has committed, any violation of any law, regulation or order in any
proceeding or audit commenced by any governmental, or regulatory authority, or
any proceeding commenced in any court of law;
(h) the commencement of any class action law suits against the Servicer;
and
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(i) the Servicer's entry into any agreement with a third party that would
result in any material change in the financial status or ownership of the
Servicer or any merger of the Servicer.
Section 9.06. Servicer Shall Provide Information as Reasonably Required.
During the term of this Agreement, the Servicer shall furnish any reports
or documentation that the Master Servicer and/or the Depositor may reasonably
request. Reports requested may include reports not specified or otherwise
required by this Agreement or reports required to comply with any regulations
regarding any supervisory agents or examiners of the Master Servicer and/or the
Depositor, as applicable. All reports will be delivered in accordance with the
Master Servicer's and/or the Depositor's reasonable instructions and directions.
The Servicer agrees to execute and deliver all such instruments and take all
such action as the Master Servicer and/or the Depositor, as applicable, from
time to time, may reasonably request in order to effectuate the purpose and to
carry out the terms of this Agreement.
Section 9.07. Servicer Not to Resign.
The Servicer shall neither assign this Agreement or the servicing hereunder
or delegate its rights or duties hereunder or any portion hereof (to other than
a third party in the case of outsourcing routine tasks such as taxes, insurance
and property inspection, in which case the Servicer shall be fully liable for
such tasks as if the Servicer performed them itself) nor sell or otherwise
dispose of all or substantially all of its property or assets without the prior
written consent of the Master Servicer and the Depositor, which consent shall be
granted or withheld in the reasonable discretion of such parties, provided,
however, that (i) the Servicer may assign its rights and obligations hereunder
without prior written consent of the Master Servicer and the Depositor to any
entity that is directly owned or controlled by the Servicer, and the Servicer
guarantees the performance of such entity hereunder, (ii) the Servicer is no
longer permitted to act as Servicer under applicable law as evidenced by an
Opinion of Counsel or (iii) upon a sale of its servicing rights with respect to
the Mortgage Loans with the prior written consent of the Sponsor. In the case of
item (i) above, the Servicer shall provide the Master Servicer and the Depositor
with a written statement guaranteeing the successor entity's performance of the
Servicer's obligations under the Agreement.
Section 9.08. Collection Accounts and Escrow Accounts.
The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets. The Servicer shall create and maintain Collection Accounts and
Escrow Accounts for the deposit of all funds, except as otherwise provided
herein, received by the Servicer on the Mortgage Loans. The Servicer shall be
responsible for reviewing and reconciling all collection accounts in accordance
with industry standards. The Servicer shall act promptly to resolve any
discrepancies. The Servicer shall be responsible for all expenses and
consequences for failure to reconcile the accounts.
Section 9.09. Assumption Processing.
Within three (3) Business Days of receipt by the Servicer of a request by a
Mortgagor to be released from liability for payment of a Mortgage Loan in
connection with an assumption of the related Mortgage Note, the Servicer shall
notify the Master Servicer of such request. Upon the completion of the
assumption processing, the Sponsor shall provide the Servicer with all necessary
information to enable the Servicer to update its EDP.
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Section 9.10. Books and Records.
The Servicer shall be responsible for maintaining, and shall maintain, a
complete set of records for the Mortgage Loans. The Servicer's books and records
shall clearly reflect the ownership of the Mortgage Loans by the Issuing Entity.
All documents, records and correspondence, regardless of the media in which they
are stored or maintained, are property of the Issuing Entity, and the Servicer
shall hold the same in a fiduciary capacity for the Issuing Entity. The Servicer
may retain copies of all such documents, records and correspondence as may be
necessary to service the Mortgage Loans under this Agreement.
Section 9.11. Annual Statement as to Compliance.
Not later than March 1st for each calendar year (other than the calendar
year during which the Closing Date occurs), the Servicer shall deliver (or
otherwise make available) and the Servicer shall cause any Servicing Function
Participant engaged by it to deliver to the Master Servicer, the Securities
Administrator and the Depositor, an Officer's Certificate in the form attached
hereto as Exhibit V stating, as to each signatory thereof, that (i) a review of
the activities of such signatory during the preceding calendar year, or portion
thereof, and of the performance of such signatory 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 (ii) to the best of such
officer's knowledge, based on such review, such signatory has fulfilled all its
obligations under this Agreement or such other applicable agreement in all
material respects throughout such year or a 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.
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 on or before March 1 (with a
twelve-calendar day cure period) of each year, commencing in March 2008, an
Officer's Certificate stating, as to the signer thereof, that (A) a review of
such party's activities during the preceding calendar year or portion thereof
and of such party's performance under this Agreement, or such other applicable
agreement in the case of 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.
The Master Servicer shall include all annual statements of compliance
received by it from the Servicer with its own annual statement of compliance to
be submitted to the Securities Administrator pursuant to this Section.
In the event the Servicer, the Master Servicer, the Securities
Administrator 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 such other applicable agreement in the case of a
Servicing Function Participant, as the case may be, such party shall provide, an
annual statement of compliance pursuant to this Section 9.11 or to such
applicable agreement, as the case may be, notwithstanding any such termination,
assignment or resignation.
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Section 9.12. [Reserved]
Section 9.13. Reports on Assessment of Compliance and Attestation.
(a) Not later than March 1st for each calendar year (other than the
calendar year during which the Closing Date occurs) the Servicer at its own
expense, shall furnish, and shall cause any Servicing Function Participant
engaged by it to furnish (unless in the case of a Subcontractor, the Servicer
has notified the Depositor and the Master Servicer in writing that such
compliance statement is not required for the Subcontractor) to the Master
Servicer, the Securities Administrator and the Depositor an officer's assessment
of its compliance with the Relevant Servicing Criteria during the preceding
calendar year as required by Rules 13a-18 and 15d-18 of the Exchange Act and
Item 1122 of Regulation AB (the "Assessment of Compliance"), which assessment (a
form of which is attached hereto as Exhibit S-1) shall contain (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 9.21, 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, which assessment shall be based on
the activities it performs with respect to asset-backed securities transactions
taken as a whole involving such party that are backed by the same asset type as
the Mortgage Loans, 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.
By March 1 (with a ten-calendar day cure period) of each 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 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 Sections 9.21(h), (i), (j) and (k),
including, if there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure and the nature
and status thereof, and (D) a statement that a registered public accounting firm
has issued an attestation report on such party's assessment of compliance with
the Relevant Servicing Criteria as of and for such period.
No later than the end of each fiscal year for the Trust for which a 10-K is
required to be filed, the Servicer, the Master Servicer and the Custodian shall
each forward to the Securities Administrator and the Depositor the name of each
Servicing Function Participant engaged by it and what Relevant Servicing
Criteria will be addressed in the report on assessment of compliance prepared by
such Servicing Function Participant (provided, however, that the Master Servicer
need not provide such information to the Securities Administrator so long as the
Master Servicer and the Securities Administrator are the same Person). When the
Servicer, the Master Servicer, and the Securities Administrator (or any
Servicing Function Participant engaged by them) submit their assessments to the
Securities Administrator or the Master Servicer, as the case may be, such
parties will also at such time include the assessment and attestation pursuant
to this Section 9.13 of each Servicing Function Participant engaged by it.
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Promptly after receipt of each report on assessment of compliance, (i) the
Depositor shall review each such report and, if applicable, consult with such
Servicer, the Master Servicer, the Securities Administrator 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 such party,
and (ii) the Securities Administrator shall confirm that the assessments
individually address the Relevant Servicing Criteria for each party as set forth
on Exhibit S-2, in respect of the Servicer and notify the Depositor of any
exceptions.
The Master Servicer shall include all annual reports on assessment of
compliance received by it from the Servicer with its own assessment of
compliance to be submitted to the Securities Administrator pursuant to this
Section.
In the event the Servicer, the Master Servicer, the Securities
Administrator 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, an assessment of compliance pursuant to this Section
9.13, coupled with an attestation as required in this Section 9.13, or such
applicable agreement notwithstanding any such termination, assignment or
resignation.
(b) Not later than March 1st for each calendar year (other than the
calendar year during which the Closing Date occurs) the Servicer at its own
expense, shall cause, and shall cause any Servicing Function Participant engaged
by it to cause (unless in the case of a Subcontractor, the Servicer has notified
the Depositor and the Master Servicer in writing that such report is not
required for the Subcontractor) a nationally or regionally recognized firm of
independent registered public accountants (who may also render other services to
the Servicer, the Master Servicer or any affiliate thereof) which is a member of
the American Institute of Certified Public Accountants to furnish a report (the
"Accountant's Attestation") to the Master Servicer, 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 Servicer
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. Such Accountant's Attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and
the Exchange Act.
By March 1 (with a ten-calendar day cure period) of each 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 Trustee, the Securities Administrator, or
such other Servicing Function Participants, as the case may be) and that is a
member of the American Institute of Certified Public Accountants to furnish 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
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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.
(c) Promptly after receipt of each assessment of compliance and attestation
report, the Securities Administrator shall confirm that each assessment
submitted pursuant to Section 9.13(a) is coupled with an attestation meeting the
requirements of Section 9.13(b) and notify the Depositor of any exceptions.
The Master Servicer shall include each such attestation furnished to it by
the Servicer with its own attestation to be submitted to the Securities
Administrator pursuant to this Section.
In the event the Master Servicer, the Securities Administrator, the
Custodian, the Servicer 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 applicable Custodial Agreement,
as the case may be, such party shall cause a registered public accounting firm
to provide an attestation pursuant to this Section 9.13, or such other
applicable agreement, notwithstanding any such termination, assignment or
resignation.
Section 9.14. Servicing Compensation.
(a) Subject to the following paragraph, as compensation for its services
hereunder, the Servicer shall be entitled to a Servicing Fee payable with
respect to each Mortgage Loan that it services. As to each Mortgage Loan, the
Servicing Fee shall be payable monthly from payments of interest on such
Mortgage Loan prior to the deposit of such payments into the applicable
Collection Account, shall accrue at the applicable Servicing Fee Rate, and shall
be computed on the basis of the same principal amount and for the same period
respecting which such interest payment was computed.
(b) The Servicing Fee for each Mortgage Loan shall be payable solely from
(i) the interest portion of the related Monthly Payment (to the extent paid by
the Mortgagor, but only if a full interest payment is received), or (ii) from
any payment of interest made with respect to the Mortgage Loan from the proceeds
of foreclosure or any judgment, writ of attachment or levy against the Mortgagor
or the Mortgagor's assets, or (iii) from funds paid in connection with any
prepayment in full, or (iv) from Insurance Proceeds or Liquidation Proceeds.
(c) As additional compensation hereunder, the Servicer may retain (i) all
net interest earnings on balances maintained in the Collection Account and
Escrow Accounts and (ii) the Ancillary Fees.
(d) The Servicer's right to the Servicing Fee shall not be transferred in
whole or in part except in connection with any permitted transfer of all the
Servicer's obligations under this Agreement. The Servicer shall be required to
pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
specifically provided for herein.
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Section 9.15. Indemnification.
(a) The Servicer shall indemnify and hold the Master Servicer, the Trustee,
the Securities Administrator, the Issuing Entity, the Certifying Person, the
Depositor and their respective officers, directors, employees and agents
(collectively, the "Indemnified Parties") harmless from, and will reimburse the
Indemnified Parties for, any and all Losses incurred by any of the Indemnified
Parties to the extent that such Losses result from, are caused by or arise out
of any one or more of the following:
(i) Any material misrepresentations made by the Servicer in this
Agreement, or in any schedule, exhibit, or certificate furnished pursuant
hereto;
(ii) Any material breach of any of the representations and warranties
of the Servicer or the nonfulfillment of any term, covenant, condition or
obligation of the Servicer set forth in this Agreement or in any schedule,
statement, exhibit, or certificate furnished pursuant hereto, or any
default or failure to perform by the Servicer hereunder;
(iii) Any failure of the Servicer to comply with Accepted Servicing
Practices in connection with servicing the Mortgage Loans;
(iv) Any liabilities or obligations, contingent or otherwise, of the
Servicer of any nature whatsoever relating to the Servicer's obligations
under this Agreement, to the extent that any related Loss to the Master
Servicer, the Trustee, the Securities Administrator, the Issuing Entity or
the Depositor is not increased by negligence, bad faith or willful
misconduct on the part of the Master Servicer, the Trustee, the Securities
Administrator, the Issuing Entity or the Depositor; or
(v) Any non-compliance with the terms of the powers of attorney or the
use thereof that results in a Loss to the Master Servicer, the Trustee, the
Securities Administrator, the Issuing Entity or the Depositor.
(b) The Servicer shall indemnify and hold harmless the Depositor, the
Trustee, the Securities Administrator and the Master Servicer and each of its
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach of the obligations of the Servicer under Sections 9.11, 9.13 and 9.21
(including particularly any failure by the Servicer, any Sub-servicer or any
Subcontractor to deliver any information, report, certification, accountants'
letter or other material when and as required therein) or the Servicer's
negligence, bad faith or willful misconduct in connection therewith. In
addition, the Servicer shall indemnify and hold harmless the Depositor and each
of its officers, directors and affiliates and the Master Servicer from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Back-Up Certification, the
Annual Statement of Compliance, the Assessment of Compliance, the Accountant's
Attestation, any Additional Disclosure or other information provided by or on
behalf of the Servicer or on behalf of any subservicer or subcontractor of the
Servicer pursuant to Section 9.11, 9.13 and 9.21 (the "Servicer Information"),
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading; provided, by
way of clarification, that clause (ii) of this paragraph shall be construed
solely by reference to the Servicer Information and not to any other
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information communicated in connection with the Certificates, without regard to
whether the Servicer Information or any portion thereof is presented together
with or separately from such other information.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless the Depositor, the Trustee, the Securities Administrator or the
Master Servicer, as applicable, then the defaulting party, in connection with
any conduct for which it is providing indemnification for under this Section
9.15(b), agrees that it shall contribute to the amount paid or payable by the
other parties as a result of the losses, claims, damages or liabilities of the
other party in such proportion as is appropriate to reflect the relative fault
and the relative benefit of the respective parties.
The indemnification provisions set forth in this Section 9.15(b) shall
survive the termination of this Agreement or the termination of any party to
this Agreement.
The indemnity provided in this Section 9.15 shall remain in full force and
effect regardless of any investigation made by the Master Servicer, the Trustee,
the Securities Administrator, the Issuing Entity or the Depositor or its
representatives. The provisions of this Section 9.15 shall survive the
termination of this Agreement and the payment of the outstanding Certificates.
Section 9.16. Non Solicitation.
For as long as the Servicer services the Mortgage Loans, the Servicer
covenants that it will not, and that it will ensure that its affiliates and
agents, will not, directly solicit or provide information for any other party to
solicit for prepayment or refinancing of any of the Mortgage Loans by the
related Mortgagors. It is understood that the promotions undertaken by the
Servicer which are directed to the general public at large, or certain segments
thereof, shall not constitute solicitation as that term is used in this Section
9.16.
Section 9.17. Successor to the Servicer.
Simultaneously with the termination of the Servicer's responsibilities and
duties under this Agreement (a) the Master Servicer shall, in accordance with
the provisions of this Agreement (i) succeed to and assume all of the Servicer's
responsibilities, rights, duties and obligations under this Agreement, or (ii)
appoint a successor meeting the eligibility requirements set forth herein and
which shall succeed to all rights and assume all of the responsibilities, duties
and liabilities of the Servicer under this Agreement with the termination of the
Servicer's responsibilities, duties and liabilities under this Agreement. If the
Master Servicer shall succeed to and assume the Servicer's responsibilities,
rights, duties and obligations under this Agreement, such succession shall not
be effective prior to ninety (90) days after the Master Servicer's knowledge
that the Servicer shall be terminated hereunder. The Servicer shall not be
removed hereunder prior to the effectiveness of the assumption of its
responsibilities, rights, duties and obligations by the successor thereto. Any
successor to the Servicer shall be subject to the approval of the Depositor, the
Master Servicer and each Rating Agency. Each Rating Agency must deliver to the
Master Servicer a letter to the effect that such transfer of servicing will not
result in a qualification, withdrawal or downgrade of the then-current rating of
any of the Certificates. In connection with such appointment and assumption, the
Master Servicer or the Depositor, as applicable, may make such arrangements for
the compensation of such successor out of payments on the Mortgage Loans as it
and such successor shall agree; provided, however, that no such compensation
shall be in excess of that permitted the Servicer under this Agreement. In the
event that the Servicer's
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duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Servicer shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof 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 or financial condition of its successor. The resignation or removal
of the Servicer pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section 9.17 and
shall in no event relieve the Servicer of the representations and warranties
made herein and the remedies available to the Master Servicer herein, it being
understood and agreed that the provisions of this Agreement regarding
indemnification and nonsolicitation shall be applicable to the Servicer
notwithstanding any such resignation or termination of the Servicer, or the
termination of this Agreement.
Section 9.18. Statements to the Master Servicer.
(a) Not later than the fifth (5th) Business Day of each month, the Servicer
shall furnish to the Master Servicer a delinquency report in the form set forth
in Exhibit D-1, a monthly remittance advice in the form set forth in Exhibit
D-2, and a realized loss report in the form set forth in Exhibit D-3, each in a
mutually agreeable electronic format, or in such other format mutually agreed to
by the Servicer and the Master Servicer, as to the remittance on such Servicer
Remittance Date and as to the period ending on the last day of the month
preceding such Servicer Remittance Date.
(b) The Servicer shall provide the Securities Administrator with such
information concerning the Mortgage Loans as is necessary for the Securities
Administrator to prepare its federal income tax return as the Securities
Administrator may reasonably request from time to time.
(c) The Servicer shall provide to the Master Servicer and the Depositor,
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of fidelity bond insurance and errors and
omission insurance policy, financial information and reports, and such other
information (including, but not limited to, annual financial statements,
insurance policies and authorized officers lists) related to the Servicer or any
Sub-Servicer of the Servicer or such Sub-Servicer's performance hereunder.
Section 9.19. Merger or Consolidation of the Servicer.
Any entity into which the Servicer may be merged or consolidated, or any
entity resulting from any merger, conversion or consolidation to which the
Servicer shall be a party, or any corporation succeeding to the business of the
Servicer, shall be the successor of the 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 servicer shall satisfy all the requirements of
Section 9.17 with respect to the qualifications of a successor servicer.
Section 9.20. Limitation on Liability of the Servicer.
Neither the Servicer nor any of its 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 Servicer or any such Person against any breach
of
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representations or warranties made by it herein or protect the Servicer or any
such Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or negligence in the performance of its duties or
by reason of reckless disregard of its obligations and duties hereunder. The
Servicer and any director, officer, employee or agent of the Servicer shall be
indemnified by the Issuing Entity 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 or any other unanticipated or
extraordinary expense, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Servicer 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 Servicer 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 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 Issuing Entity, and the Servicer shall be
entitled to be reimbursed therefor out of the Collection Account.
Section 9.21. Periodic Filings.
(a) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and if
requested by the Depositor, the Securities Administrator shall prepare and file
on behalf of the Issuing Entity a Form 8-K, as required by the Exchange Act,
provided that the Depositor shall file the initial Form 8-K in connection with
the issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K (other
than the initial Form 8-K) ("Form 8-K Disclosure Information") 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, and the Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Form 8-K Disclosure Information or any Form 8-K except
as set forth in the next paragraph.
(b) For so long as the Issuing Entity is subject to the reporting
requirements of the Exchange Act, following the occurrence of a Reportable Event
(A) each party listed on Exhibit W 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 the form set forth on Exhibit U (the
"Additional Disclosure Notification") by the close of business New York City
time on the 2nd Business Day following the occurrence of such Reportable Event
and (B) the Depositor, shall approve, as to form and substance, or disapprove,
as the case may be, the inclusion of the Form 8-K Disclosure Information on Form
8-K. The 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 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.
(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 for
review. Promptly, but no later
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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 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 Section
9.21(n).
(d) 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 8-K prepared and filed by the
Securities Administrator. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of its
duties under this Section 9.21 related to the timely preparation, execution and
filing of Form 8-K is contingent upon the other parties hereto strictly
observing all applicable deadlines in the performance of their duties under this
Section 9.21. The Depositor acknowledges that the performance by the Master
Servicer and the Securities Administrator of its duties under this Section 9.21
related to the timely preparation, execution and filing of Form 8-K is also
contingent upon the Servicer, the Custodian and 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 Custodial Agreement or any other applicable agreement. Neither
the Master Servicer nor the Securities Administrator shall have any liability
for any loss, expense, damage or claim arising out of or with respect to any
failure to properly prepare, execute and/or timely file such Form 8-K, where
such failure results from the Securities Administrator's inability or failure to
receive, on a timely basis, any information from any other party hereto or the
Servicer, Custodian or Servicing Function Participant needed to prepare, arrange
for execution or file such Form 8-K.
(e) Within fifteen days after each Distribution Date (subject to permitted
extensions under the Exchange Act), the Securities Administrator shall, on
behalf of the Issuing Entity and in accordance with industry standards, prepare
and file with the Commission via the Electronic Data Gathering and Retrieval
System (XXXXX), a Form 10-D with (1) a copy of the Monthly Statement for such
Distribution Date as an exhibit 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 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 Additional Form 10-D Disclosure except as set forth in the next paragraph.
(f) As set forth in Exhibit X hereto, for so long as the Issuing Entity is
subject to the reporting requirements of the Exchange Act, within five (5)
calendar days after the related Distribution Date (i) each party listed on
Exhibit X hereto shall be required to provide to the Depositor and the
Securities Administrator, 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 the 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
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performance by the parties listed on Exhibit X of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-D Disclosure Information. The Depositor will be responsible for any
reasonable fees and expenses incurred by the Securities Administrator in
connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
(g) After preparing the Form 10-D, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-D to the Depositor for
review (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 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 Section
9.21(n). Promptly (but not 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-D prepared and filed by the
Securities Administrator. Form 10-D requires the registrant to indicate (by
checking "yes" or "no") that it "(1) has filed all reports required to be filed
by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days." The
Depositor hereby represents to the Securities Administrator that the Depositor
has filed all such required reports during the preceding 12 months and that it
has been subject to such filing requirement for the past 90 days. The Depositor
shall notify the 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, if the answer to the questions should be "no." The parties
to this Agreement acknowledge that the performance by the Master Servicer and
the Securities Administrator of its respective duties under this Section 9.21
related to the timely preparation, execution and filing of Form 10-D is
contingent upon the other parties hereto strictly observing all applicable
deadlines in the performance of their duties under this Section 9.21. The
Depositor acknowledges that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 9.21 related to the
timely preparation, execution and filing of Form 10-D is also contingent upon
the Servicer, the Custodian and 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 the
Custodial Agreement or any other applicable agreement. Neither the Master
Servicer nor the Securities Administrator will have any liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare, execute and/or timely file such Form 10-D resulting from the
Securities Administrator's inability or failure to receive any information
needed to prepare, arrange for execution or file such Form 10-D on a timely
basis.
(h) On or prior to the 90th calendar day after the end of the fiscal year
for the Issuing Entity 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 Issuing Entity ends on December 31st of each year) commencing in March 2008,
the Securities Administrator shall, on behalf of the Issuing Entity and in
accordance with industry standards, prepare and file with the Commission via
XXXXX a Form 10-K with respect to the Issuing Entity. Such Form 10-K shall
include the
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following items, in each case, as applicable, to the extent they have been
delivered to the Securities Administrator within the applicable time frames set
forth in this Agreement and the Custodial Agreement (i) an annual compliance
statement for the Master Servicer, the Servicer, the Securities Administrator
and any Servicing Function Participant engaged by such parties (together with
the Custodian, each a "Reporting Servicer"), as described in Section 9.11 of
this Agreement and the Custodial Agreement; provided, however, that the
Securities Administrator, at its discretion, may omit from the Form 10-K any
annual compliance statement that is not required to be filed with such Form 10-K
pursuant to Regulation AB; (ii)(A) the annual reports on assessment of
compliance with Servicing Criteria for each Reporting Servicer (unless the
Depositor has determined that such compliance statement is not required by
Regulation AB), as described in Section 9.13 of this Agreement and the Custodial
Agreement, and (B) if any Reporting Servicer's report on assessment of
compliance with Servicing Criteria described in Section 9.13 identifies any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any Reporting Servicer's report on assessment of compliance
with Servicing Criteria described in Section 9.13 of this Agreement 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 in Section 9.13 of this Agreement and
the Custodial Agreement, and (B) if any registered public accounting firm
attestation report described under Section 9.13 of this Agreement 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 in the form attached hereto as Exhibit T,
executed by the senior officer in charge of securitizations of the Master
Servicer. 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 as set forth in Exhibit Y 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 or set forth in the next paragraph.
(i) As set forth in Exhibit Y hereto, no later than March 1 (with a ten
calendar day cure period) of each year that the Issuing Entity is subject to the
Exchange Act reporting requirements, commencing in March 2008, (i) the parties
listed on Exhibit Y hereto shall be required to provide to the Depositor and the
Securities Administrator, 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 the 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 and shall forward such
Additional Form 10-K Disclosure. The Securities Administrator has no duty under
this Agreement to monitor or enforce the performance by the parties listed on
Exhibit Y 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 incurred by the
Securities Administrator in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
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(j) After preparing the Form 10-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-K to the Depositor for
review. Within three Business Days after receipt of such copy, but no later than
March 25th, 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 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 Section 9.21(n). 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. Form 10-K requires the registrant to indicate (by checking "yes"
or "no") that it "(1) has filed all reports required to be filed by Section 13
or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Securities Administrator that the Depositor has filed all such
required reports during the preceding 12 months and that it has been subject to
such filing requirement for the past 90 days. The Depositor shall notify the
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, if the answer to the questions should be "no." The parties to
this Agreement acknowledge that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 9.21 related to the
timely preparation, execution and filing of Form 10-K is contingent upon such
parties (and any Servicing Function Participant) strictly observing all
applicable deadlines in the performance of their duties under this Section 9.21,
Section 9.11 and Section 9.13. The Depositor acknowledges that the performance
by the Master Servicer and the Securities Administrator of its duties under this
Section 9.21 related to the timely preparation, execution and filing of Form
10-K is also contingent upon the Servicer, the Custodian and 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 the Custodial Agreement or any other applicable
agreement. Neither the Master Servicer nor the Securities Administrator shall
have any liability for any loss, expense, damage or claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such Form
10-K resulting from the Securities Administrator's inability or failure to
receive any information from any other party hereto or the Servicer, Custodian
or Servicing Function Participant needed to prepare, execute or file such Form
10-K.
(k) Each Form 10-K shall include a Xxxxxxxx-Xxxxx Certification, which
shall be in the form attached hereto as Exhibit T. The Servicer shall sign and
provide, and the Servicer, the Master Servicer and the Securities Administrator
shall cause any Servicing Function Participant engaged by it to sign and
provide, to the person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") by March 1 (with a ten day cure period) of each year in
which the Issuing Entity is subject to the reporting requirements of the
Exchange Act and otherwise within a reasonable period of time upon request, a
certification (a "Back-Up Certification") (in the form attached hereto as
Exhibit Q) 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, the "Certification Parties") can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall serve as the
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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 Servicing Function
Participant engaged by any such party is terminated or resigns pursuant to the
terms of this Agreement, or any other applicable agreement, as the case may be,
such party shall provide a Back-Up Certification to the Master Servicer pursuant
to this Section 9.21 with respect to the period of time it was subject to this
Agreement or any other applicable 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 Custodial Agreement.
(l) The Securities Administrator shall have no responsibility to file any
items with the Commission other than those specified in this section and the
Master Servicer shall execute any and all Form 10-Ds, 8-Ks and 10-Ks required
hereunder.
(m) On or prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall prepare and file a Form 15 Suspension Notification relating
to the automatic suspension of reporting in respect of the Issuing Entity under
the Exchange Act.
(n) 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 of such
inability to make a timely filing with the Commission. 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-D/A and 10K/A, 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 succeeding Form 10-D to be filed for the Issuing Entity. 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 electronically notify the Depositor and such other parties to the
transaction as are affected by such amendment, and such parties will cooperate
to prepare any necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25 or
any amendment to Form 8-K, 10-D or 10-K shall be signed by duly authorized
representative or a senior officer in charge of master servicing, as applicable,
of the Master Servicer. The parties to this Agreement acknowledge that the
performance by the Master Servicer of its duties under this Section 9.21 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
or 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 receive, on a timely basis, any
information from any other party hereto or the Servicer, any Custodian 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.
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(o) If the Commission issues additional interpretative guidance or
promulgates additional rules or regulations with respect to Regulation AB or
otherwise, or if other changes in applicable law occur, that would require the
reporting arrangements, or the allocation of responsibilities with respect
thereto, described in this Section 9.21, to be conducted differently than as
described, the Depositor, and the Securities Administrator will reasonably
cooperate to amend the provisions of this Section 9.21 in order to comply with
such amended reporting requirements and such amendment of this Section 9.21. Any
such amendment shall be made in accordance with Section 11.03 without the
consent of the Certificateholders, and may result in a change in the reports
filed by the Securities Administrator on behalf of the Issuing Entity under the
Exchange Act. Notwithstanding the foregoing, the Depositor, and the Securities
Administrator shall not be obligated to enter into any amendment pursuant to
this Section 9.21 that adversely affects its obligations and immunities under
this Agreement.
(p) The Depositor and the Securities Administrator agree to use their good
faith efforts to cooperate in complying with the requirements of this Section
9.21.
(q) Each of the parties agrees to provide to the Securities Administrator
such additional information related to such party as the Securities
Administrator may reasonably request, including evidence of the authorization of
the person signing any certificate or statement, financial information and
reports, and such other information related to such party or its performance
hereunder.
(r) Any notice or notification required to be delivered by the Securities
Administrator or Master Servicer to the Depositor pursuant to this Section 9.21,
may be delivered via facsimile to (000) 000-0000, via email to xxxx_xxxx@xx.xxx
or telephonically by calling Xxxx Park at (000) 000-0000.
Section 9.22. Compliance with Regulation AB.
Each of the parties hereto acknowledges and agrees that the purpose of
Sections 9.11, 9.13 and 9.21 is to facilitate compliance by the Depositor with
the provisions of Regulation AB, as such may be amended or clarified from time
to time. Therefore, each of the parties agrees that the parties' obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance, convention or consensus
among active participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB and the
parties shall comply with requests made by the Depositor for delivery of
additional or different information as the Depositor may determine in good faith
is necessary to comply with the provisions of Regulation AB. Any such
supplementation or modification shall be made in accordance with Section 11.03
without the consent of the Certificateholders, and may result in a change in the
reports filed by the Securities Administrator on behalf of the Issuing Entity
under the Exchange Act.
Section 9.23. Maintenance of Hazard Insurance and Errors and Omissions and
Fidelity Coverage.
(a) The Servicer shall cause to be maintained for each Mortgage Loan fire
insurance with extended coverage on the related Mortgaged Property in an amount
which is at least equal to the least of (i) the current principal balance of
such Mortgage Loan, (ii) the amount necessary to fully compensate for any damage
or loss to the improvements that are a part of such property on a replacement
cost basis and (iii) the maximum insurable value of the improvements which are a
part of such Mortgaged Property, in each case in an amount not less than such
amount as is
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necessary to avoid the application of any coinsurance clause contained in the
related hazard insurance policy. The Servicer shall also cause to be maintained
fire insurance with extended coverage on each REO Property in an amount which is
at least equal to the lesser of (w) the maximum insurable value of the
improvements which are a part of such property and (x) the outstanding principal
balance of the related Mortgage Loan at the time it became an REO Property, plus
accrued interest at the Loan Rate and related Servicing Advances. The Servicer
will comply in the performance of this Agreement with all reasonable rules and
requirements of each insurer under any such hazard policies. Any amounts to be
collected by the Servicer under any such policies (other than amounts to be
applied to the restoration or repair of the property subject to the related
Mortgage or amounts to be released to the Mortgagor in accordance with the
procedures that the Servicer would follow in servicing loans held for its own
account, subject to the terms and conditions of the related Mortgage and
Mortgage Note) shall be deposited in the Collection Account, within two (2)
Business Days after receipt thereof, subject to withdrawal pursuant to Section
4.01. Any cost incurred by the Servicer in maintaining any such insurance shall
not, for the purpose of calculating distributions to Certificateholders, be
added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit. It is understood
and agreed that no earthquake, windstorm or other additional insurance is to be
required of any Mortgagor other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. If the Mortgaged Property or REO Property is at any time
in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, the Servicer will cause to be
maintained a flood insurance policy in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (y) the unpaid principal balance of
the related Mortgage Loan and (z) the maximum amount of such insurance available
for the related Mortgaged Property under the national flood insurance program
(assuming that the area in which such Mortgaged Property is located is
participating in such program).
(b) If the Servicer shall obtain and maintain a blanket fire insurance
policy with extended coverage insuring against hazard losses on all of the
Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first two sentences of this Section 9.23, it
being understood and agreed that such policy may contain a deductible clause, in
which case the Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy complying
with the first two sentences of this Section 9.23, and there shall have been one
or more losses which would have been covered by such policy, deposit to the
Distribution Account from its own funds the amount not otherwise payable under
the blanket policy because of such deductible clause. In connection with its
activities as administrator and servicer of the Mortgage Loans, the Servicer
agrees to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy.
ARTICLE IXA
THE MASTER SERVICER
Section 9A.01 Master Servicer. The Master Servicer shall supervise, monitor
and oversee the obligation of the Servicer to service and administer their
respective Mortgage Loans in accordance with the terms of this Agreement and
shall have full power and authority to do any and all things which it may deem
necessary or desirable in connection with such master servicing and
administration. In performing its obligations hereunder, the Master Servicer
shall act in a manner consistent with Accepted Master Servicing Practices.
Furthermore, the Master Servicer shall oversee and consult with the Servicer as
necessary from time-to-time to carry out the Master
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Servicer's obligations hereunder, shall receive, review and evaluate all
reports, information and other data provided to the Master Servicer by the
Servicer and shall cause the Servicer to perform and observe the covenants,
obligations and conditions to be performed or observed by such Servicer under
this Agreement. The Master Servicer shall independently and separately monitor
the Servicer's servicing activities with respect to each related Mortgage Loan,
reconcile the results of such monitoring with such information provided in the
previous sentence on a monthly basis and coordinate corrective adjustments to
the Servicer's and Master Servicer's records, and based on such reconciled and
corrected information, the Master Servicer shall provide such information to the
Securities Administrator as shall be necessary in order for it to prepare the
statements specified in Section 4.02, and prepare any other information and
statements required to be forwarded by the Master Servicer hereunder. The Master
Servicer shall reconcile the results of its monitoring with the actual
remittances of the Servicer to the Master Servicer Collection Account pursuant
to this Agreement.
If the Master Servicer and the Securities Administrator are the same
entity, then at any time the Master Servicer is terminated as Master Servicer,
the Securities Administrator shall likewise be removed as securities
administrator.
Section 9A.02 Monitoring of the Servicer. (a) The Master Servicer shall be
responsible for reporting to the Trustee and the Depositor the compliance by the
Servicer with its duties under this Agreement. In the review of the Servicer's
activities, the Master Servicer may rely upon an officer's certificate of the
Servicer with regard to such Servicer's compliance with the terms this
Agreement. In the event that the Master Servicer, in its judgment, determines
that the Servicer should be terminated in accordance with this Agreement, or
that a notice should be sent pursuant to this Agreement with respect to the
occurrence of an event that, unless cured, would constitute grounds for such
termination, the Master Servicer shall notify the Depositor and the Trustee
thereof and the Master Servicer shall issue such notice or take such other
action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of the Servicer under this
Agreement, and shall, in the event that the Servicer fails to perform its
obligations in accordance with this Agreement, subject to the preceding
paragraph, terminate the rights and obligations of the Servicer thereunder and
act as servicer of the related Mortgage Loans or, if the Master Servicer is
unwilling or unable to act as a servicer, the Master Servicer shall cause the
Trustee to enter in to a new servicing agreement with a successor servicer
selected by the Master Servicer that is eligible in accordance with the criteria
specified in this Agreement; provided, however, it is understood and
acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor servicer. In either event, such enforcement,
including, without limitation, the legal prosecution of claims, termination of
this Agreement and the pursuit of other appropriate remedies, shall be in such
form and carried out to such an extent and at such time as the Master Servicer,
in its good faith business judgment, would require were it the owner of the
related Mortgage Loans. The Master Servicer shall pay the costs of such
enforcement at its own expense subject to Section 9A.02(c), provided that the
Master Servicer shall not be required to prosecute or defend any legal action
except to the extent that the Master Servicer shall have received reasonable
indemnity for its costs and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer
related to a termination of the Servicer, appointment of a successor servicer or
the transfer and assumption of servicing by the Master Servicer with respect to
this Agreement (including, without limitation, (i)
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all legal costs and expenses and all due diligence costs and expenses associated
with an evaluation of the potential termination of the Servicer as a result of
an event of default by the Servicer and (ii) all costs and expenses associated
with the complete transfer of servicing, including all servicing files and all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the successor servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the successor
service to service the Mortgage Loans in accordance with this Agreement) are not
fully and timely reimbursed by the terminated Servicer, the Master Servicer
shall be entitled to reimbursement of such costs and expenses from the Master
Servicer Collection Account pursuant to Section 4.02(a).
(d) The Master Servicer shall require the Servicer to comply with the
remittance requirements and other obligations set forth in this Agreement.
(f) If the Master Servicer acts as servicer, it will not assume liability
for the representations and warranties of the Servicer that it replaces.
Section 9A.03 Power to Act; Procedures. The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority, subject to
the REMIC Provisions and the provisions of Article X hereof, to do any and all
things that it may deem necessary or desirable in connection with the master
servicing and administration of the Mortgage Loans, including but not limited to
the power and authority (i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages, (iii) to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions of
this Agreement; provided, however, that the Master Servicer shall not (and,
consistent with its responsibilities under Section 9A.02, shall not permit the
Servicer to) knowingly or intentionally 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, would cause any REMIC
created hereunder to fail to qualify as a REMIC or result in the imposition of a
tax upon the Issuing Entity (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) unless the
Master Servicer has received an Opinion of Counsel (but not at the expense of
the Master Servicer) to the effect that the contemplated action will not would
cause any REMIC created hereunder to fail to qualify as a REMIC or result in the
imposition of a tax upon any REMIC created hereunder. The Trustee shall furnish
the Master Servicer, upon written request from a Servicing Officer, with any
limited powers of attorney (in form acceptable to the Trustee) empowering the
Master Servicer or the Servicer to execute and deliver instruments of
satisfaction or cancellation, or of partial or full release or discharge, and to
foreclose upon or otherwise liquidate Mortgaged Property, and to appeal,
prosecute or defend in any court action relating to the Mortgage Loans or the
Mortgaged Property, in accordance with this Agreement, and the Trustee shall
execute and deliver such other documents, as the Master Servicer may request, to
enable the Master Servicer to master service and administer the Mortgage Loans
and carry out its duties hereunder, in each case in accordance with Accepted
Master Servicing Practices (and the Trustee shall have no liability for misuse
of any such powers of attorney by the Master Servicer or the Servicer). If the
Master Servicer or the Trustee has been advised that it is likely that the laws
of the state in which action is to be taken prohibit such action if taken in the
name of the Trustee or that the Trustee would be adversely affected under the
"doing business" or tax laws of such state if such action is taken in its name,
the Master Servicer shall join with the Trustee in the appointment of a
co-trustee pursuant to Section 6.09 hereof. In the performance of its duties
hereunder, the
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Master Servicer shall be an independent contractor and shall not, except in
those instances where it is taking action in the name of the Trustee, be deemed
to be the agent of the Trustee.
Section 9A.04 Liabilities of the Master Servicer. The Master Servicer shall
be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Master Servicer, as the case may
be, herein.
Section 9A.05 Merger or Consolidation of the Master Servicer.
(a) The Master Servicer will keep in full force and effect its existence,
rights and franchises as a corporation under the laws of the state of its
incorporation, and will obtain and preserve its qualification to do business as
a foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its duties under
this Agreement.
(b) Any Person into which the Master Servicer may be merged or
consolidated, or any corporation resulting from any merger 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 of the Master Servicer
hereunder, 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 9A.06 Indemnification from the Master Servicer. The Master Servicer
agrees to indemnify the Indemnified Persons for, and to hold them harmless
against, any loss, liability or expense (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or relating to, any claim or legal action
(including any pending or threatened claim or legal action) relating to this
Agreement or the Certificates (i) related to the Master Servicer's failure to
perform its duties in compliance with this Agreement (except as any such loss,
liability or expense shall be otherwise reimbursable pursuant to this Agreement)
or (ii) incurred by reason of the Master Servicer's willful misfeasance, bad
faith or gross negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder, provided, in each case,
that with respect to any such claim or legal action (or pending or threatened
claim or legal action), the Trustee or the Securities Administrator shall have
given the Master Servicer and the Depositor written notice of such claim or
legal action promptly after the Trustee or the Securities Administrator shall
have received knowledge thereof. This indemnity shall survive the resignation or
removal of the Trustee, Master Servicer or the Securities Administrator and the
termination of this Agreement.
9A.07 Limitations on Liability of the Master Servicer and Others. Subject
to the obligation of the Master Servicer to indemnify the Indemnified Persons
pursuant to Section 9A.06:
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Indemnified Persons, the Depositor, the Issuing Entity or the Certificateholders
for taking any action or for refraining from taking 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 breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of such Person's willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
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(b) The Master Servicer and any director, officer, employee or agent of the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder.
(c) The Master Servicer, the Custodian and any director, officer, employee
or agent of the Master Servicer or the Custodian shall be indemnified by the
Issuing Entity and held harmless thereby against any loss, liability or expense
(including reasonable legal fees and disbursements of counsel) incurred on their
part that may be sustained in connection with, arising out of, or related to,
any claim or legal action (including any pending or threatened claim or legal
action) relating to this Agreement or the Certificates, other than (i) any such
loss, liability or expense related to the Master Servicer's failure to perform
its duties in compliance with this Agreement (except as any such loss, liability
or expense shall be otherwise reimbursable pursuant to this Agreement), or to
the Custodian's failure to perform its duties under the Custodial Agreement,
respectively, or (ii) any such loss, liability or expense incurred by reason of
the Master Servicer's or the Custodian's willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or under the Custodial
Agreement, as applicable, or by reason of reckless disregard of obligations and
duties hereunder or under the Custodial Agreement, as applicable.
(d) The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties under
this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, the Master Servicer may in its discretion,
undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Issuing Entity, and the Master Servicer
shall be entitled to be reimbursed therefor out of the Master Servicer
Collection Account as provided by Section 4.02(a). Nothing in this Subsection
9A.07(d) shall affect the Master Servicer's obligation to supervise, or to take
such actions as are necessary to ensure, the servicing and administration of the
Mortgage Loans pursuant to Section 9A.01.
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement, the
Master Servicer shall not be required to investigate or make recommendations
concerning potential liabilities which the Issuing Entity might incur as a
result of such course of action by reason of the condition of the Mortgaged
Properties but shall give notice to the Trustee if it has notice of such
potential liabilities.
(f) The Master Servicer shall not be liable for any acts or omissions of
the Servicer.
Section 9A.08 Master Servicer Not to Resign. Except as provided in Section
9A.10, the Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon a determination that any such duties hereunder
are no longer permissible under applicable law and such impermissibility cannot
be cured. Any such determination permitting the resignation of the Master
Servicer shall be evidenced by an Opinion of Independent Counsel to such effect
delivered to the Trustee. No such resignation by the Master Servicer shall
become effective until Sponsor or the Trustee or a successor to the Master
Servicer reasonably satisfactory to the Trustee shall have assumed the
responsibilities and obligations of the Master Servicer in accordance with
Section 6.14 hereof. The Trustee shall notify the Rating Agencies of the
resignation of the Master Servicer. If the Master Servicer and the Securities
Administrator are the same entity, then at any time the
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Master Servicer is terminated as master servicer, the Securities Administrator
shall likewise be removed as securities administrator.
Section 9A.09 Successor Master Servicer. In connection with the appointment
of any successor master servicer or the assumption of the duties of the Master
Servicer, the Sponsor or the Trustee may make such arrangements for the
compensation of such successor master servicer out of payments on the Mortgage
Loans as Sponsor or the Trustee and such successor master servicer shall agree.
If the successor master servicer does not agree that such market value is a fair
price, such successor master servicer shall obtain two quotations of market
value from third parties actively engaged in the servicing of single-family
mortgage loans.
Section 9A.10 Sale and Assignment of Master Servicing. The Master Servicer
may sell and assign its rights and delegate its duties and obligations in its
entirety as Master Servicer under this Agreement; provided, however, that: (i)
the purchaser or transferee accepting such assignment and delegation (a) shall
be a Person which shall be qualified to service mortgage loans for Xxxxxx Xxx or
Xxxxxxx Mac; (b) shall have a net worth of not less than $10,000,000 (unless
otherwise approved by each Rating Agency pursuant to clause (ii) below); (c)
shall be reasonably satisfactory to the Trustee (as evidenced in a writing
signed by the Trustee); and (d) shall execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by it as
master servicer under this Agreement, any custodial agreement from and after the
effective date of such agreement; (ii) each Rating Agency shall be given prior
written notice of the identity of the proposed successor to the Master Servicer
and each Rating Agency's rating of the Certificates in effect immediately prior
to such assignment, sale and delegation will not be downgraded, qualified or
withdrawn as a result of such assignment, sale and delegation, as evidenced by a
letter to such effect delivered to the Master Servicer and the Trustee; and
(iii) the Master Servicer assigning and selling the master servicing shall
deliver to the Trustee an Officer's Certificate and an Opinion of Independent
Counsel, each stating that all conditions precedent to such action under this
Agreement have been completed and such action is permitted by and complies with
the terms of this Agreement. No such assignment or delegation shall affect any
liability of the Master Servicer arising prior to the effective date thereof.
Section 9A.11 Compensation for the Master Servicer. The Master Servicer
will be entitled to all income and gain realized from any investment of funds in
the Master Servicer Collection Account, pursuant to Article IV, for the
performance of its activities hereunder. Servicing compensation in the form of
assumption fees, if any, late payment charges, as collected, if any, or
otherwise (but not including any prepayment premium or penalty) shall be
retained by the applicable Servicer and shall not be deposited in the Collection
Account. The Master Servicer shall be required to pay all expenses incurred by
it in connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement.
ARTICLE X.
REMIC ADMINISTRATION
Section 10.01. REMIC Administration.
(a) REMIC elections as set forth in the Preliminary Statement shall be made
on Forms 1066 or other appropriate federal tax or information return for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement.
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(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code. The latest possible
maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will be the
Latest Possible Maturity Date.
(c) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority with respect thereto. The Securities Administrator
shall pay any and all tax-related expenses (not including taxes) of each REMIC,
including but not limited to any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to such REMIC that
involve the Internal Revenue Service or state tax authorities, but only to the
extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties as tax
return preparer). The Securities Administrator shall be entitled to
reimbursement of expenses to the extent provided in clause (i) above from the
Distribution Account, provided, however, the Securities Administrator shall not
be entitled to reimbursement for expenses incurred in connection with the
preparation of tax returns and other reports as required by Section 6.19 and
this Section.
(d) The Securities Administrator shall prepare, sign and file all of each
REMIC's federal and appropriate state tax and information returns as such
REMIC's direct representative. The expenses of preparing and filing such returns
shall be borne by the Securities Administrator.
(e) The Securities Administrator or its designee shall perform on behalf of
each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority. Among its other duties, if required by the Code, the REMIC
Provisions, or other such guidance, the Securities Administrator shall provide,
upon receipt of additional reasonable compensation, to the Treasury or other
governmental authority such information as is necessary for the application of
any tax relating to the transfer of a Residual Certificate to any disqualified
person or organization pursuant to Treasury Regulation 1.860E-2(a)(5) and any
person designated in Section 860E(e)(3) of the Code.
(f) The Securities Administrator and the Holders of Certificates shall take
any action or cause any REMIC to take any action necessary to create or maintain
the status of any REMIC as a REMIC under the REMIC Provisions and shall assist
each other as necessary to create or maintain such status. Neither the
Securities Administrator, the Trustee nor the Holder of any Residual Certificate
shall knowingly take any action, cause any REMIC to take any action or fail to
take (or fail to cause to be taken) any action that, under the REMIC Provisions,
if taken or not taken, as the case may be, could (i) endanger the status of any
REMIC as a REMIC or (ii) result in the imposition of a tax upon any REMIC
(including but not limited to the tax on prohibited transactions as defined in
Code Section 860F(a)(2) and the tax on prohibited contributions set forth on
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Securities Administrator and the Trustee have received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not endanger such status or result in the
imposition of such a tax. In addition, prior to taking any action with respect
to any REMIC or the assets therein, or causing any REMIC to take any action,
which is not expressly permitted under the terms of this Agreement, any Holder
of a Residual Certificate will consult with the Trustee and the Securities
Administrator, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any REMIC, and no such Person shall
take any such action or cause any REMIC to take any such action as to which
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the Trustee and the Securities Administrator has advised it in writing that an
Adverse REMIC Event could occur; provided, however, that if no Adverse REMIC
Event would occur but such action could result in the imposition of additional
taxes on the Residual Certificateholders, no such Person shall take any such
action, or cause any REMIC to take any such action without the written consent
of the Residual Certificateholders. The Trustee and the Securities Administrator
may consult with counsel (and conclusively rely upon the advice of such counsel)
before giving such written advice, and the cost of the same shall be borne by
the party seeking to take the action not permitted by this Agreement, but in no
event shall such cost be an expense of the Trustee or the Securities
Administrator.
(g) Each Holder of a Residual Certificate shall pay when due any and all
taxes imposed on the related REMIC by federal or state governmental authorities.
To the extent that such taxes are not paid by a Residual Certificateholder, the
Securities Administrator or the Paying Agent shall pay any remaining REMIC taxes
out of current or future amounts otherwise distributable to the Holder of the
Residual Certificate in any such REMIC or, if no such amounts are available, out
of other amounts held in the Distribution Account, and shall reduce amounts
otherwise payable to holders of regular interests in any such REMIC, as the case
may be.
(h) The Securities Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and on
an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(j) The Securities Administrator shall not enter into any arrangement by
which any REMIC will receive a fee or other compensation for services.
(k) [Reserved]
(l) The Class A-R Holder shall act as "tax matters person" with respect to
each REMIC and irrevocably appoints the Securities Administrator to act as its
agent in such roles.
(m) None of the Securities Administrator, the Trustee, the Master Servicer
or the Depositor, as assignees under this Agreement, shall provide any consent
pursuant to this Agreement or knowingly take any action under this Agreement
that would conflict with or violate the provisions of this Article X.
Section 10.02. Prohibited Transactions and Activities.
None of the Depositor, the Servicer, the Master Servicer, the Securities
Administrator or the Trustee shall sell, dispose of, or substitute for any of
the Mortgage Loans, except in a disposition pursuant to (i) the foreclosure of a
Mortgage Loan, (ii) the bankruptcy of the Issuing Entity, (iii) the termination
of each REMIC pursuant to Article VII of this Agreement, (iv) a substitution
pursuant to Article II of this Agreement or (v) a repurchase of Mortgage Loans
pursuant to Article II of this Agreement, nor acquire any assets for any REMIC,
nor sell or dispose of any investments in the Distribution Account for gain, nor
accept any contributions to any REMIC after the Closing Date, unless it has
received an Opinion of Counsel (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition, substitution,
or acceptance will not (a) affect adversely the status of any such REMIC as a
REMIC or of the interests therein other than the Residual Certificate as the
regular interests therein, (b) affect the distribution of interest or principal
on the Certificates, (c) result in the
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encumbrance of the assets transferred or assigned to the Issuing Entity (except
pursuant to the provisions of this Agreement) or (d) cause any such REMIC to be
subject to any tax including a tax on prohibited transactions or prohibited
contributions pursuant to the REMIC Provisions.
Section 10.03. Indemnification with Respect to Prohibited Transactions or
Loss of REMIC Status.
In the event that a REMIC fails to qualify as a REMIC, loses its status as
a REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to the
negligent performance by the Trustee or the Securities Administrator of its
duties and obligations set forth herein, the Trustee or the Securities
Administrator, as applicable, shall indemnify the Certificateholders of the
related Residual Certificate against any and all losses, claims, damages,
liabilities or expenses ("Losses") resulting from such negligence; provided,
however, that the liability of the Trustee and the Securities Administrator
shall not be joint and several and in no case shall the Trustee or the
Securities Administrator be liable for the other's actions. Furthermore, the
Trustee or the Securities Administrator, as applicable, shall not be liable for
any such Losses attributable to the action or inaction of the Depositor or the
Holder of the Residual Certificate, nor for any such Losses resulting from
misinformation provided by any of the foregoing parties on which the Trustee or
the Securities Administrator, as applicable, has relied. Notwithstanding the
foregoing, however, in no event shall the Trustee or the Securities
Administrator, as applicable, have any liability (1) for any action or omission
that is taken in accordance with and in compliance with the express terms of, or
which is expressly permitted by the terms of, this Agreement or the Mortgage
Loan Sale and Assignment Agreement, (2) for any Losses other than arising out of
malfeasance, willful misconduct or negligent performance by the Trustee or the
Securities Administrator, as applicable, with respect to its duties and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders of the related Residual Certificate (in addition to
payment of principal and interest on the Certificates).
Section 10.04. REO Property.
(a) Notwithstanding any other provision of this Agreement, the Master
Servicer shall not, except to the extent provided in this Agreement, knowingly
permit the Servicer to rent, lease, otherwise earn income or take any other
action on behalf of any REMIC with respect to any REO Property which might cause
such REO Property to fail to qualify as "foreclosure property" within the
meaning of section 860G(a)(8) of the Code or result in the receipt by any REMIC
of any "income from non-permitted assets" within the meaning of section
860F(a)(2) of the Code or any "net income from foreclosure property" which is
subject to tax under the REMIC Provisions unless the Servicer has provided to
the Master Servicer, the Trustee and the Securities Administrator an Opinion of
Counsel concluding that, under the REMIC Provisions, such action would not
adversely affect the status of any REMIC as a REMIC and any income generated for
any REMIC by the REO Property would not result in the imposition of a tax upon
such REMIC.
(b) The Master Servicer shall cause the Servicer (to the extent provided in
this Agreement) to make reasonable efforts to sell any REO Property for its fair
market value. In any event, however, the Master Servicer shall, or shall cause
the Servicer (to the extent provided in this Agreement) to, dispose of any REO
Property within three (3) years of its acquisition by the Issuing Entity unless
the Master Servicer or the Servicer (on behalf of the Issuing Entity) has
received a grant of extension from the Internal Revenue Service to the effect
that, under the REMIC Provisions and any relevant proposed legislation and under
applicable state law, the REMIC may hold REO Property for a longer period
without adversely affecting the REMIC
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status of such REMIC or causing the imposition of a Federal or state tax upon
such REMIC. If such an extension has been received, then the Master Servicer,
acting on behalf of the Trustee hereunder, shall, or shall cause the Servicer
to, continue to attempt to sell the REO Property for its fair market value for
such period longer than three years as such extension permits (the "Extended
Period"). If such an extension has not been received and the Master Servicer or
the Servicer, acting on behalf of the Issuing Entity hereunder, is unable to
sell the REO Property within thirty-three (33) months after its acquisition by
the Issuing Entity or if such an extension, has been received and the Master
Servicer or the Servicer is unable to sell the REO Property within the period
ending three (3) months before the close of the Extended Period, the Master
Servicer shall cause the Servicer, before the end of the three-year period or
the Extended Period, as applicable, to (i) purchase such REO Property at a price
equal to the REO Property's fair market value or (ii) auction the REO Property
to the highest bidder (which may be the Servicer) in an auction reasonably
designed to produce a fair price prior to the expiration of the three-year
period or the Extended Period, as the case may be.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 11.02. Entire Agreement.
This Agreement contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof.
Section 11.03. Amendment.
(a) This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Servicer, the Securities Administrator and the Trustee,
without notice to or the consent of any of the Holders, (i) to cure any
ambiguity or mistake, (ii) to cause the provisions herein to conform to or be
consistent with or in furtherance of the statements made with respect to the
Certificates, the Trust Fund or this Agreement in any Offering Document, or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein or with the provisions of this Agreement, (iii) to add
any other provisions with respect to matters or questions arising under this
Agreement, (iv) to modify alter, amend, add to or rescind any of the terms or
provisions contained in this Agreement or (v) to add, delete, or amend any
provisions to the extent necessary or desirable to comply with any requirements
imposed by the Code and the REMIC Provisions. No such amendment effected
pursuant to the preceding sentence shall, as evidenced by an Opinion of Counsel,
adversely affect the status of any REMIC created pursuant to this Agreement, nor
shall such amendment effected pursuant to clauses (iii) or (iv) of such sentence
adversely affect in any material respect the interests of any Holder unless such
Holder has consented thereto. Prior to entering into any amendment without the
consent of Holders pursuant to this paragraph, the Trustee and the Securities
Administrator shall be provided with an
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Opinion of Counsel (at the expense of the party requesting such amendment) to
the effect that such amendment is permitted under this Section. Any such
amendment shall be deemed not to adversely affect in any material respect any
Holder, if the Securities Administrator receives written confirmation from each
Rating Agency that such amendment will not cause such Rating Agency to reduce
the then current rating assigned to the Certificates. In addition, this
Agreement may be amended from time to time by the Sponsor, the Depositor, the
Master Servicer, the Servicer, the Securities Administrator and the Trustee
without the consent of any of the Certificateholders to comply with the
provisions of Regulation AB.
(b) This Agreement may also be amended from time to time by the Depositor,
the Master Servicer, the Servicer, the Securities Administrator and the Trustee,
with the consent of the Holders of not less than 66-2/3% of the Class Principal
Amount (or Percentage Interest) of each Class of Certificates affected thereby
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders; provided, however, that no such amendment
shall be made unless the Securities Administrator and the Trustee receive an
Opinion of Counsel, at the expense of the party requesting the change, that such
change will not adversely affect the status of any REMIC as a REMIC or cause a
tax to be imposed on such REMIC; and provided further, that no such amendment
may (i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount (or Class Notional
Amount or Percentage Interest) of Certificates of each Class, the Holders of
which are required to consent to any such amendment without the consent of the
Holders of 100% of the Class Principal Amount (or Class Notional Amount or
Percentage Interest) of each Class of Certificates affected thereby. For
purposes of this paragraph, references to "Holder" or "Holders" shall be deemed
to include, in the case of any Class of Book-Entry Certificates, the related
Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee shall
furnish written notification of the substance of such amendment to each Holder,
the Depositor, the Master Servicer, the Servicer, the Securities Administrator
and the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this Section
11.03 to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Holders shall be subject to such reasonable regulations as the
Trustee may prescribe.
(e) Notwithstanding anything to the contrary in this Agreement, neither the
Securities Administrator nor the Trustee shall consent to any amendment of this
Agreement except pursuant to the standards provided in this Section with respect
to amendment of this Agreement.
(f) None of the Sponsor, the Securities Administrator or the Trustee shall
consent to the assignment by the Master Servicer of the Master Servicer's rights
and obligations under this Agreement without the prior written consent of the
Depositor, which consent shall not be unreasonably withheld.
(g) Notwithstanding anything to the contrary in this Section 11.03, the
Trustee, the Sponsor, the Securities Administrator, the Master Servicer and the
Servicer shall reasonably cooperate with the Depositor and its counsel to enter
into such amendments or modifications to
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the Agreement as may be necessary to comply with Regulation AB and any
interpretation thereof by the Commission.
(h) Prior to the execution of any amendment to this Agreement, the Trustee
and the Securities Administrator shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized
and permitted by this Agreement. The Trustee and the Securities Administrator
may, but shall not be obligated to, enter into any such amendment which affects
the Trustee's or the Securities Administrator's own respective rights, duties or
immunities under this Agreement.
Section 11.04. Voting Rights.
Except to the extent that the consent of all affected Certificateholders is
required pursuant to this Agreement, with respect to any provision of this
Agreement requiring the consent of Certificateholders representing specified
percentages of aggregate outstanding Certificate Principal Amount or Class
Notional Amount (or Percentage Interest), Certificates owned by the Depositor,
the Trustee, the Securities Administrator, the Master Servicer, the Servicer or
any Affiliates thereof are not to be counted so long as such Certificates are
owned by the Depositor, the Trustee, the Securities Administrator, the Master
Servicer, the Servicer or any Affiliate thereof.
Section 11.05. Provision of Information.
(a) For so long as any of the Certificates of any Series or Class are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, each of the Depositor, the Master Servicer, the Servicer, the
Securities Administrator and the Trustee agree to cooperate with each other to
provide to any Certificateholders and to any prospective purchaser of
Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Securities Act. Any reasonable, out-of-pocket expenses incurred by the
Trustee, the Securities Administrator, the Servicer or the Master Servicer in
providing such information shall be reimbursed by the Depositor.
(b) The Securities Administrator shall make available, upon its website at
xxx.xxxxxxx.xxx, a copy of any report on Form 8-K, Form 10-D or Form 10-K
prepared and filed by it with the Commission. Any reasonable out-of-pocket
expenses incurred by the Securities Administrator in providing copies of such
documents shall be reimbursed by the Depositor.
(c) On each Distribution Date, the Securities Administrator shall deliver
or cause to be delivered by first class mail or make available on its website to
the Depositor, a copy of the report delivered to Certificateholders pursuant to
Section 4.03.
Section 11.06. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES APPLIED IN NEW YORK.
121
Section 11.07. Notices.
All requests, demands, notices, authorizations, directions, consents,
waivers and communications hereunder shall be in writing and shall be deemed to
have been duly given when received by (a) in the case of the Depositor, Xxxxxxx
Xxxxx Mortgage Investors, Inc., 000 Xxxxx Xxxxxx, 4 World Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, telecopy number (000) 000-0000, Attention:
Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2007-1, (b) in the case of
the Master Servicer or Securities Administrator, Xxxxx Fargo Bank, N.A., X.X.
Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention MLCC Series 2007-1, or, in the case
of overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000,
Attention: MLCC Series 2007-1, facsimile no.: (000) 000-0000, with a copy to,
Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx,
00000, Attention: Corporate Trust Services - MLCC 2007-1, (c) in the case of the
Sponsor, Xxxxxxx Xxxxx Mortgage Lending, Inc., 000 Xxxxx Xxxxxx, 4 World
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, telecopy number (000) 000-0000,
Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2007-1, (d) in the
case of the Trustee, at its Corporate Trust Office and (e) in the case of PHH,
0000 Xxxxxxxxxx Xxxx, Xx. Xxxxxx, Xxx Xxxxxx 00000, telecopy number (856)
917-6910, Attention: Xxxxxx X. Xxxxxx, Chief Operating Officer, or as to each
party such other address as may hereafter be furnished by such party to the
other parties in writing. All demands, notices and communications to a party
hereunder shall be in writing and shall be deemed to have been duly given when
delivered to such party at the relevant address, facsimile number or electronic
mail address set forth above or at such other address, facsimile number or
electronic mail address as such party may designate from time to time by written
notice in accordance with this Section 11.07.
Section 11.08. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.09. Indulgences; No Waivers.
Neither the failure nor any delay on the part of a party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver of
such right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
Section 11.10. Headings Not To Affect Interpretation.
The headings contained in this Agreement are for convenience of reference
only, and they shall not be used in the interpretation hereof.
Section 11.11. Benefits of Agreement.
Nothing in this Agreement or in the Certificates, express or implied, shall
give to any Person, other than the parties to this Agreement and their
successors hereunder and the Holders of
122
the Certificates, any benefit or any legal or equitable right, power, remedy or
claim under this Agreement, except to the extent specified in Section 11.15.
Section 11.12. Special Notices to the Rating Agencies.
(a) The Depositor shall give prompt notice to the Rating Agencies of the
occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) the occurrence of any Servicer Event of Default or Master
Servicer Event of Default;
(iii) any notice of termination given to the Master Servicer pursuant
to Section 6.14 or any resignation of the Master Servicer pursuant to this
Agreement;
(iv) the appointment of any successor to the Master Servicer pursuant
to Section 6.14; and
(v) the making of a final payment pursuant to Section 7.02.
(b) All notices to the Rating Agencies provided for this Section shall be
in writing and sent by first class mail, telecopy or overnight courier, as
follows:
If to Moody's, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Monitoring
If to S&P, to:
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgages
(c) The Securities Administrator shall provide or make available to the
Rating Agencies reports prepared pursuant to Section 4.02. In addition, the
Securities Administrator shall, at the expense of the Issuing Entity, make
available to each Rating Agency such information as such Rating Agency may
reasonably request regarding the Certificates or the Trust Fund, to the extent
that such information is reasonably available to the Securities Administrator.
Section 11.13. [Reserved]
Section 11.14. Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, and all of which together shall constitute
one and the same instrument.
123
Section 11.15. No Petitions.
Each of the Trustee, the Master Servicer, the Servicer and the Securities
Administrator, by entering into this Agreement, hereby covenants and agrees that
it shall not at any time institute against the Depositor, or join in any
institution against the Depositor of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to this Agreement or any of the documents entered into
by the Depositor in connection with the transactions contemplated by this
Agreement.
124
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective officers hereunto duly authorized as of the day and
year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
By:
------------------------------------
Name: Xxxx Park
Title: Authorized Signatory
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXX FARGO BANK, N.A., as Master
Servicer and Securities Administrator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PHH MORTGAGE CORPORATION,
as Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Solely for purposes of Section 2.05,
accepted and agreed to by:
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
125
EXHIBIT A
FORMS OF CERTIFICATES
[INTENTIONALLY OMITTED]
A-1
EXHIBIT B
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF _____________________ )
) ss.:
COUNTY OF ____________________ )
[NAME OF OFFICER], _________________ being first duly sworn, deposes and
says:
1. That he [she] is [title of officer] ________________________ of [name
of Purchaser] _________________________________________ (the
"Purchaser"), a _______________________ [description of type of
entity] duly organized and existing under the laws of the [State of
__________] [United States], on behalf of which he [she] makes this
affidavit.
2. That the Purchaser's Taxpayer Identification Number is [__________].
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as
amended (the "Code") and will not be a "disqualified organization" as
of [date of transfer], and that the Purchaser is not acquiring a
Residual Certificate (as defined in the Agreement) for the account of,
or as agent (including a broker, nominee, or other middleman) for, any
person or entity from which it has not received an affidavit
substantially in the form of this affidavit. For these purposes, a
"disqualified organization" means the United States, any state or
political subdivision thereof, any foreign government, any
international organization, any agency or instrumentality of any of
the foregoing (other than an instrumentality if all of its activities
are subject to tax and a majority of its board of directors is not
selected by such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to persons
in rural areas as described in Code Section 1381(a)(2)(C), any
"electing large partnership" within the meaning of Section 775 of the
Code, or any organization (other than a farmers' cooperative described
in Code Section 521) that is exempt from federal income tax unless
such organization is subject to the tax on unrelated business income
imposed by Code Section 511.
4. That the Purchaser is not, and on __________________ [date of
transfer] will not be, an employee benefit plan subject to Title I of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), a plan subject to Section 4975 of the Code, or a plan
subject to any provisions under any federal, state, local, non-U.S. or
other laws or regulations that are substantively similar to foregoing
provisions of ERISA or the Code (collectively, a "Plan"), and is not
directly or indirectly acquiring a Residual Certificate for, on behalf
of or with any assets of any such Plan.
5. That the Purchaser hereby acknowledges that under the terms of the
Pooling and Servicing Agreement dated as of January 1, 2007 (the
"Agreement"), among
B-1
Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, HSBC Bank USA,
National Association, as Trustee, Xxxxx Fargo Bank, N.A., as Master
Servicer and Securities Administrator, and PHH Mortgage Corporation,
as Servicer, with respect to Xxxxxxx Xxxxx Mortgage Investors Trust
Series MLCC 2007-1 Mortgage Pass-Through Certificates, no transfer of
the Residual Certificates shall be permitted to be made to any person
unless the Certificate Registrar and Securities Administrator have
received a certificate from such transferee containing the
representations in paragraphs 3 and 4 hereof.
6. That the Purchaser does not hold REMIC residual securities as nominee
to facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating
organizations (such entity, a "Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local taxes legally
required to be paid with respect to such Residual Certificate.
8. That the Purchaser will not transfer a Residual Certificate to any
person or entity (i) as to which the Purchaser has actual knowledge
that the requirements set forth in paragraph 3, paragraph 6 or
paragraph 10 hereof are not satisfied or that the Purchaser has reason
to believe does not satisfy the requirements set forth in paragraph 7
hereof, and (ii) without obtaining from the prospective Purchaser an
affidavit substantially in this form and providing to the Securities
Administrator and the Certificate Registrar a written statement
substantially in the form of Exhibit C to the Agreement.
9. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any
cash flows generated by the interest and that it intends to pay taxes
associated with holding such Residual Certificate as they become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person that holds a Residual Certificate in connection with the
conduct of a trade or business within the United States and has
furnished the transferor, the Securities Administrator and the
Certificate Registrar with an effective Internal Revenue Service Form
W-8ECI (Certificate of Foreign Person's Claim for Exemption From
Withholding on Income Effectively Connected With the Conduct of a
Trade or Business in the United States) or successor form at the time
and in the manner required by the Code. "Non-U.S. Person" means an
individual, corporation, partnership or other person other than (i) a
citizen or resident of the United States; (ii) a corporation,
partnership or other entity created or organized in or under the laws
of the United States or any state thereof, including for this purpose,
the District of Columbia; (iii) an estate that is subject to U.S.
federal income tax regardless of the source of its income; (iv) a
trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more
United States trustees have authority to control all substantial
decisions of the trust; and, (v) to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996 that are
treated as United States persons prior to such date and elect to
continue to be treated as United States persons.
B-2
11. The Purchaser 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
Purchaser or another U.S. taxpayer.
12. That the Purchaser agrees to such amendments of the Agreement as may
be required to further effectuate the restrictions on transfer of any
Residual Certificate to such a "disqualified organization," an agent
thereof, a Book-Entry Nominee, or a person that does not satisfy the
requirements of paragraph 7 and paragraph 10 hereof.
13. That the Purchaser consents to the designation of the Securities
Administrator to act as agent for the "tax matters person" of each
REMIC created by the Issuing Entity pursuant to the Agreement.
14. That the Purchaser agrees to be bound by Section 3.03(f) of the
Agreement.
B-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________, 20__.
----------------------------------------
[Name of Purchaser]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________ 20__.
NOTARY PUBLIC
-------------------------------------
COUNTY OF
---------------------------
STATE OF
----------------------------
My commission expires the _____ day of __________ 20__.
B-4
EXHIBIT C
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
__________
Date
Re: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2007-1
Mortgage Pass-Through Certificates
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid with
respect to a Residual Certificate. In addition, the Transferor has conducted a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very truly yours,
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-1
EXHIBIT D-1
STANDARD LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
EXHIBIT: STANDARD FILE LAYOUT - DELINQUENCY REPORTING
* The column/header names in BOLD are the minimum fields Xxxxx Fargo must
receive from every Servicer
COLUMN/HEADER NAME DESCRIPTION DECIMAL FORMAT COMMENT
------------------------------ ------------------------------------------------------------- ------- --------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This
may be different than the LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan by the originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an external servicer
to identify a group of loans in their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due to the MM/DD/YYYY
servicer at the end of processing cycle, as reported by
Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to the bankruptcy
filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been approved MM/DD/YYYY
by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either by MM/DD/YYYY
Dismissal, Discharged and/or a Motion For Relief Was
Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The Servicer MM/DD/YYYY
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan Such As;
D-1-1
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To End/Close MM/DD/YYYY
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer with MM/DD/YYYY
instructions to begin foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue Foreclosure MM/DD/YYYY
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a Foreclosure MM/DD/YYYY
Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected to occur. MM/DD/YYYY
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure sale. 2 No commas(,)
or dollar
signs ($)
EVICTION_START_DATE The date the servicer initiates eviction of the borrower. MM/DD/YYYY
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the property MM/DD/YYYY
from the borrower.
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,)
or dollar
signs ($)
LIST_DATE The date an REO property is listed at a particular price. MM/DD/YYYY
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,)
or dollar
signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or by the Servicer. MM/DD/YYYY
REO_CLOSING_DATE The date the REO sale of the property is scheduled to close. MM/DD/YYYY
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is occupied.
PROP_CONDITION_CODE A code that indicates the condition of the property.
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property based on brokers 2
price opinion or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if repairs are 2
completed pursuant to a broker's price opinion or appraisal.
IF APPLICABLE:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
D-1-2
DELINQ_REASON_CODE The circumstances which caused a borrower to stop paying on
a loan. Code indicates the reason why the loan is in
default for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With Mortgage MM/DD/YYYY
Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,)
or dollar
signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim Payment MM/DD/YYYY
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,)
or dollar
signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,)
or dollar
signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By The Pool MM/DD/YYYY
Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,)
or dollar
signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,)
or dollar
signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,)
or dollar
signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,)
or dollar
signs ($)
MOTION_FOR_RELIEF_DATE The date the Motion for Relief was filed 10 MM/DD/YYYY
FRCLSR_BID_AMT The foreclosure sale bid amount 11 No commas(,)
or dollar
signs ($)
D-1-3
FRCLSR_SALE_TYPE The foreclosure sales results: REO, Third Party, Conveyance
to HUD/VA
REO_PROCEEDS The net proceeds from the sale of the REO property. No commas(,)
or dollar
signs ($)
BPO_DATE The date the BPO was done.
CURRENT_FICO The current FICO score
HAZARD_CLAIM_FILED_DATE The date the Hazard Claim was filed with the Hazard 10 MM/DD/YYYY
Insurance Company.
HAZARD_CLAIM_AMT The amount of the Hazard Insurance Claim filed. 11 No commas(,)
or dollar
signs ($)
HAZARD_CLAIM_PAID_DATE The date the Hazard Insurance Company disbursed the claim 10 MM/DD/YYYY
payment.
HAZARD_CLAIM_PAID_AMT The amount the Hazard Insurance Company paid on the claim. 11 No commas(,)
or dollar
signs ($)
ACTION_CODE Indicates loan status Number
NOD_DATE MM/DD/YYYY
NOI_DATE MM/DD/YYYY
ACTUAL_PAYMENT_PLAN_START_DATE MM/DD/YYYY
ACTUAL_PAYMENT_ PLAN_END_DATE
ACTUAL_REO_START_DATE MM/DD/YYYY
REO_SALES_PRICE Number
REALIZED_LOSS/GAIN As defined in the Servicing Agreement Number
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
- ASUM- Approved Assumption
- BAP- Borrower Assistance Program
D-1-4
- CO- Charge Off
- DIL- Deed-in-Lieu
- FFA- Formal Forbearance Agreement
- MOD- Loan Modification
- PRE- Pre-Sale
- SS- Short Sale
- MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
- Mortgagor
- Tenant
- Unknown
- Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
- Damaged
- Excellent
- Fair
- Gone
- Good
- Poor
- Special Hazard
- Unknown
D-1-5
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------- -----------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
D-1-6
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT STATUS CODE field should show the Status of Default as
follows:
STATUS CODE STATUS DESCRIPTION
----------- ------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
D-1-7
EXHIBIT D-2
STANDARD LAYOUT FOR MONTHLY REMITTANCE ADVICE
STANDARD FILE LAYOUT - MASTER SERVICING
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT MAX SIZE
----------- ----------- ------- -------------- --------
SER_INVESTOR_NBR A value assigned by the Servicer to define a Text up to 10 digits 20
group of loans.
LOAN_NBR A unique identifier assigned to each loan by Text up to 10 digits 10
the investor.
SERVICER_LOAN_NBR A unique number assigned to a loan by the Text up to 10 digits 10
Servicer. This may be different than the
LOAN_NBR.
BORROWER_NAME The borrower name as received in the file. It Maximum length of 30 (Last, First) 30
is not separated by first and last name.
SCHED_PAY_AMT Scheduled monthly principal and scheduled 2 No commas(,) or dollar signs ($) 11
interest payment that a borrower is expected
to pay, P&I constant.
NOTE_INT_RATE The loan interest rate as reported by the 4 Max length of 6 6
Servicer.
NET_INT_RATE The loan gross interest rate less the service 4 Max length of 6 6
fee rate as reported by the Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan as 4 Max length of 6 6
reported by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
NEW_PAY_AMT The new loan payment amount as reported by 2 No commas(,) or dollar signs ($) 11
the Servicer.
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
ARM_INDEX_RATE The index the Servicer is using to calculate 4 Max length of 6 6
a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at 2 No commas(,) or dollar signs ($) 11
the beginning of the processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal balance at 2 No commas(,) or dollar signs ($) 11
the end of the processing cycle.
D-2-1
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that MM/DD/YYYY 10
the borrower's next payment is due to the
Servicer, as reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_1 The curtailment date associated with the MM/DD/YYYY 10
first curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the first 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
SERV_CURT_AMT_2 The second curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_2 The curtailment date associated with the MM/DD/YYYY 10
second curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the second 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_3 The curtailment date associated with the MM/DD/YYYY 10
third curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the third 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
PIF_AMT The loan "paid in full" amount as reported by 2 No commas(,) or dollar signs ($) 11
the Servicer.
PIF_DATE The paid in full date as reported by the MM/DD/YYYY 10
Servicer.
ACTION_CODE The standard FNMA numeric code used to Action Code Key: 15=Bankruptcy, 2
indicate the default/delinquent status of a 30=Foreclosure, , 60=PIF, 63=Substitution,
particular loan. 65=Repurchase,70=REO
INT_ADJ_AMT The amount of the interest adjustment as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if 2 No commas(,) or dollar signs ($) 11
applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if 2 No commas(,) or dollar signs ($) 11
applicable.
LOAN_LOSS_AMT The amount the Servicer is passing as a loss, 2 No commas(,) or dollar signs ($) 11
if applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount 2 No commas(,) or dollar signs ($) 11
due at the beginning of the cycle date to be
passed through to investors.
D-2-2
SCHED_END_PRIN_BAL The scheduled principal balance due to 2 No commas(,) or dollar signs ($) 11
investors at the end of a processing cycle.
SCHED_PRIN_AMT The scheduled principal amount as reported by 2 No commas(,) or dollar signs ($) 11
the Servicer for the current cycle -- only
applicable for Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount less the 2 No commas(,) or dollar signs ($) 11
service fee amount for the current cycle as
reported by the Servicer -- only applicable
for Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount collected by the 2 No commas(,) or dollar signs ($) 11
Servicer for the current reporting cycle --
only applicable for Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount less the 2 No commas(,) or dollar signs ($) 11
service fee amount for the current reporting
cycle as reported by the Servicer -- only
applicable for Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a borrower 2 No commas(,) or dollar signs ($) 11
prepays on his loan as reported by the
Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the loan 2 No commas(,) or dollar signs ($) 11
waived by the servicer.
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha or numeric 30
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and 2 No commas(,) or dollar signs ($) 11
interest advances made by Servicer.
X-0-0
XXXXXXX X-0
XXXXXXXX XXXXXX FOR MONTHLY REALIZED LOSS REPORT
CALCULATION OF REALIZED LOSS/GAIN FORM 332- INSTRUCTION SHEET
NOTE: DO NOT NET OR COMBINE ITEMS. SHOW ALL EXPENSES INDIVIDUALLY AND ALL
CREDITS AS SEPARATE LINE ITEMS. CLAIM PACKAGES ARE DUE ON THE REMITTANCE
REPORT DATE. LATE SUBMISSIONS MAY RESULT IN CLAIMS NOT BEING PASSED UNTIL
THE FOLLOWING MONTH. THE SERVICER IS RESPONSIBLE TO REMIT ALL FUNDS PENDING
LOSS APPROVAL AND /OR RESOLUTION OF ANY DISPUTED ITEMS.
1.
2. The numbers on the 332 form correspond with the numbers listed below.
LIQUIDATION AND ACQUISITION EXPENSES:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is required.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as
agreed. For documentation, an Amortization Schedule from date of
default through liquidation breaking out the net interest and
servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis. For documentation,
an Amortization Schedule from date of default through liquidation
breaking out the net interest and servicing fees advanced is required.
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form -
breakdown required showing period of coverage, base tax,
interest, penalty. Advances prior to default require evidence of
servicer efforts to recover advances.
* For escrow advances - complete payment history (to calculate
advances from last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing all
payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision and
WFB's approved Officer Certificate
D-3-1
* Unusual or extraordinary items may require further documentation.
13. The total of lines 1 through 12.
3. CREDITS:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent / Attorney Letter of Proceeds
Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial proceeds
and line (18b) for Part B/Supplemental proceeds.
TOTAL REALIZED LOSS (OR AMOUNT OF ANY GAIN)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
D-3-2
CALCULATION OF REALIZED LOSS/GAIN FORM 332
Prepared by: ________________________ Date: __________________________________
Phone: ______________________________ Email Address:__________________________
Servicer Loan No. Servicer Name Servicer Address
________________________ ___________________________ _______________________
XXXXX FARGO BANK, N.A. LOAN NO._________________________________________________
Borrower's Name: _______________________________________________________________
Property Address: ______________________________________________________________
LIQUIDATION TYPE: REO SALE 3RD PARTY SALE SHORT SALE CHARGE OFF
WAS THIS LOAN GRANTED A BANKRUPTCY DEFICIENCY OR CRAMDOWN YES NO
If "Yes", provide deficiency or cramdown amount _______________________________
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ______________(1)
(2) Interest accrued at Net Rate ________________(2)
(3) Accrued Servicing Fees ________________(3)
(4) Attorney's Fees ________________(4)
(5) Taxes (see page 2) ________________(5)
(6) Property Maintenance _______________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) ________________(7)
(8) Utility Expenses ________________(8)
(9) Appraisal/BPO ________________(9)
(10) Property Inspections _______________(10)
(11) FC Costs/Other Legal Expenses _______________(11)
(12) Other (itemize) _______________(12)
D-3-3
Cash for Keys________________________ _______________(12)
HOA/Condo Fees_______________________ _______________(12)
_____________________________________ _______________(12)
TOTAL EXPENSES $ _____________(13)
CREDITS:
(14) Escrow Balance $ _____________(14)
(15) HIP Refund _______________(15)
(16) Rental Receipts _______________(16)
(17) Hazard Loss Proceeds _______________(17)
(18) Primary Mortgage Insurance / Gov't Insurance _______________(18a)
HUD Part A
_______________(18b)
HUD Part B
(19) Pool Insurance Proceeds _______________(19)
(20) Proceeds from Sale of Acquired Property _______________(20)
(21) Other (itemize) _______________(21)
_________________________________________ _______________(21)
TOTAL CREDITS $______________(22)
TOTAL REALIZED LOSS (OR AMOUNT OF GAIN) $______________(23)
D-3-4
ESCROW DISBURSEMENT DETAIL
TYPE PERIOD OF
(TAX /INS.) DATE PAID COVERAGE TOTAL PAID BASE AMOUNT PENALTIES INTEREST
----------- --------- --------- ---------- ----------- --------- --------
D-3-5
EXHIBIT E
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
See Exhibit 99.1
E-1
EXHIBIT F
LIST OF LIMITED PURPOSE SURETY BONDS
Ambac Assurance Corporation Surety Bond No. AB0039BE, issued February 26,
1996, for Xxxxxxx Xxxxx Credit Corporation.
F-1
EXHIBIT G
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2007-1
Mortgage Pass-Through Certificates
Reference is hereby made to the Pooling and Servicing Agreement, dated as
of January 1, 2007 (the "Agreement"), among Xxxxxxx Xxxxx Mortgage Investors,
Inc., as Depositor, HSBC Bank USA, National Association, as Trustee, Xxxxx Fargo
Bank, N.A., as Master Servicer and Securities Administrator, and PHH Mortgage
Corporation, as Servicer. Capitalized terms used but not defined herein shall
have the meanings given to them in the Agreement.
This letter relates to $__________ initial Certificate Balance of Class [ ]
Certificates which are held in the form of Definitive Certificates registered in
the name of [ ] (the "Transferor"). The Transferor has requested a transfer of
such Definitive Certificates for Definitive Certificates of such Class
registered in the name of [insert name of transferee].
In connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Agreement and the
Certificates and (ii) Rule 144A under the Securities Act to a purchaser that the
Transferor reasonably believes is a "qualified institutional buyer" within the
meaning of Rule 144A purchasing for its own account or for the account of a
"qualified institutional buyer," which purchaser is aware that the sale to it is
being made in reliance upon Rule 144A, in a transaction meeting the requirements
of Rule 144A and in accordance with any applicable securities laws of any state
of the United States or any other applicable jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Underwriters and the Depositor.
----------------------------------------
[Name of Transferor]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
------------------------------
G-1
EXHIBIT H
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
Date__________
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2007-1 Mortgage
Pass-Through Certificates (the "Privately Offered Certificates") of Xxxxxxx
Xxxxx Mortgage Investors, Inc. (the "Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been,
and will not be, registered under the Securities Act of 1933, as amended (the
"Securities Act"), and may not be sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell any Privately Offered
Certificates within two years of the later of the date of original issuance of
the Privately Offered Certificates or the last day on which such Privately
Offered Certificates are owned by the Depositor or any affiliate of the
Depositor we will do so only (A) to the Depositor, (B) to "qualified
institutional buyers" (within the meaning of Rule 144A under the Securities Act)
in accordance with Rule 144A under the Securities Act ("QIBs"), (C) pursuant to
the exemption from registration provided by Rule 144 under the Securities Act,
or (D) to an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that is not
a QIB (an "Institutional Accredited Investor") which, prior to such transfer,
delivers to the Certificate Registrar under the Pooling and Servicing Agreement,
dated as of January 1, 2007 (the "Agreement"), among Xxxxxxx Xxxxx Mortgage
Investors, Inc., as Depositor, HSBC Bank USA, National Association, as Trustee,
Xxxxx Fargo Bank, N.A., as Master Servicer and Securities Administrator, and PHH
Mortgage Corporation, as Servicer, a signed letter in the form of this letter;
and we further agree, in the capacities stated above, to provide to any person
purchasing any of the Privately Offered Certificates from us a notice advising
such purchaser that resales of the Privately Offered Certificates are restricted
as stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited Investor, we will
be required to furnish to the Certificate Registrar a certification from such
transferee in the form hereof to confirm that the proposed sale is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act. We further understand that the
Privately Offered Certificates purchased by us will bear a legend to the
foregoing effect.
(3) We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act. We have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Privately Offered Certificates,
H-1
and we and any account for which we are acting are each able to bear the
economic risk of such investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or for one or
more accounts (each of which is an Institutional Accredited Investor) as to each
of which we exercise sole investment discretion.
(5) We have received such information as we deem necessary in order to make
our investment decision.
(6) If we are acquiring ERISA-Restricted Certificates, we are not a Plan
and we are not acquiring the ERISA-Restricted Certificates for, on behalf of or
with any assets of any such Plan except in accordance with Section 3.03(d) of
the Pooling and Servicing Agreement.
Terms used in this letter which are not otherwise defined herein have the
respective meanings assigned thereto in the Agreement.
You are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
----------------------------------------
[Purchaser]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
H-2
EXHIBIT I
FORM OF ERISA TRANSFER AFFIDAVIT
STATE OF NEW YORK ____________)
) ss.:
COUNTY OF NEW YORK ___________)
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of ______________ (the
"Investor"), a [corporation duly organized] and existing under the laws of
__________, on behalf of which he makes this affidavit.
2. With respect to the transfer of an ERISA-Restricted Certificate, the
Investor (A) is not an employee benefit plan subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), a plan subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or a
plan or arrangement subject to any provisions under any federal, state, local,
non-U.S. or other laws or regulations that are substantively similar to
foregoing provisions of ERISA or the Code ("Similar Law") (collectively, a
"Plan"), and is not directly or indirectly acquiring the ERISA-Restricted
Certificate for, on behalf of or with any assets of any such Plan, (B) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, is an
insurance company that is acquiring the ERISA-Restricted Certificate with assets
contained in an "insurance company general account," as defined in Section V(E)
of Prohibited Transaction Class Exemption ("PTCE") 95-60, and the acquisition
and holding of the Certificate are covered and exempt under Sections I and III
of PTCE 95-60, or (C) solely in the case of a Definitive Certificate, shall
deliver herewith an Opinion of Counsel satisfactory to the Securities
Administrator and the Depositor, and upon which the Securities Administrator and
the Depositor shall be entitled to rely, to the effect that the acquisition and
holding of such ERISA-Restricted Certificate will not constitute or result in a
nonexempt prohibited transaction under ERISA or the Code, or a violation of
Similar Law, and will not subject the Securities Administrator, the Trustee, the
Certificate Registrar, the Master Servicer or the Depositor to any obligation in
addition to those expressly undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Securities Administrator, Trustee, the
Certificate Registrar, the Master Servicer or the Depositor.
3. The Investor hereby acknowledges that under the terms of the Pooling and
Servicing Agreement dated as of January 1, 2007 (the "Agreement"), among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as Depositor, HSBC Bank USA, National
Association, as Trustee, Xxxxx Fargo Bank, N.A., as Master Servicer and
Securities Administrator, and PHH Mortgage Corporation, as Servicer, no transfer
of the ERISA-Restricted Certificates shall be permitted to be made to any person
unless the Certificate Registrar has received a certificate from such transferee
in the form hereof.
I-1
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed
on its behalf, pursuant to proper authority, by its duly authorized officer,
duly attested, this ____ day of _______________ 20___.
----------------------------------------
[Investor]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ATTEST:
-------------------------------------
STATE OF ____________________________)
) ss.:
COUNTY OF ___________________________)
Personally appeared before me the above-named ________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ____________________ of the Investor, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this _____ day of _________ 20___.
----------------------------------------
NOTARY PUBLIC
My commission expires the
_____ day of __________, 20___.
I-2
EXHIBIT J
FORM OF LETTER OF REPRESENTATIONS
WITH THE DEPOSITORY TRUST COMPANY
[INTENTIONALLY OMITTED]
J-1
EXHIBIT K
FORM OF INITIAL CERTIFICATION
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST SERIES MLCC 2007-1
___________, 2007
To: Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxxx Xxxxx Mortgage Lending, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Reference is made to the Pooling and Servicing Agreement, among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor"), HSBC Bank USA,
National Association, as trustee (the "Trustee"), Xxxxx Fargo Bank, N.A., as
master servicer and securities administrator, and PHH Mortgage Corporation, as
servicer, dated as of January 1, 2007 (the "Agreement"), pursuant to which the
Depositor has delivered to the Trustee, or its Custodian, with respect to each
Mortgage Loan set forth on Schedule A hereto (the "Mortgage Loan Schedule"), the
documents set forth in Section 2.01 of the Agreement.
With respect to each Mortgage Loan listed on the Mortgage Loan Schedule and
except as otherwise noted on the Schedule of Exceptions set forth on Schedule B
hereto, the Trustee confirms that (1) the Trustee, or its Custodian, has
received all of the documents required to be delivered to the Trustee, or its
Custodian, pursuant to Section 2.01 of the Agreement, (2) the Trustee, or its
Custodian, has reviewed each Trustee's Mortgage File in accordance with Section
2.02(a) of the Agreement, and the documents contained in each Trustee's Mortgage
File conform to the requirements set forth in such Section 2.02(a), and (3) the
Trustee, or its Custodian, has physical possession of the documents in each
Trustee's Mortgage File. The Trustee, or its Custodian, has not independently
verified the validity, enforceability, sufficiency, recordability, due
authorization or genuineness or any document in any Trustee's Mortgage File or
any related Mortgage Loan, nor the collectibility, insurability, effectiveness
or suitability of any related Mortgage Loan.
All terms used herein and not otherwise defined herein shall have the
respective meaning ascribed to such term in the Agreement.
K-1
[HSBC BANK USA, NATIONAL ASSOCIATION.,
as Trustee]
[XXXXX FARGO BANK, N.A.,
as Custodian]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
K-2
EXHIBIT L
FORM OF FINAL CERTIFICATION
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST SERIES MLCC 2007-1
_____________, 2007
To: Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxxx Xxxxx Mortgage Lending, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Reference is made to the Pooling and Servicing Agreement, among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor"), HSBC Bank USA,
National Association, as trustee (the "Trustee"), Xxxxx Fargo Bank, N.A., as
master servicer (in such capacity, the "Master Servicer") and securities
administrator, and PHH Mortgage Corporation, as servicer, dated as of January 1,
2007 (the "Agreement"), pursuant to which the Depositor has delivered to the
Trustee, or its Custodian, with respect to each Mortgage Loan set forth on
Schedule A hereto (the "Mortgage Loan Schedule"), the documents set forth in
Section 2.01 of the Agreement.
With respect to each Mortgage Loan listed on the Mortgage Loan Schedule and
except as otherwise noted on the Schedule of Exceptions set forth on Schedule B
hereto, the Trustee confirms that (1) the Trustee, or its Custodian, has
received all of the documents required to be delivered to it pursuant to Section
2.01 of the Agreement, (2) the Trustee, or its Custodian, has reviewed each
Trustee's Mortgage File in accordance with Section 2.01 of the Agreement, and
the documents contained in each Trustee's Mortgage File conform to the
requirements set forth in such Section 2.01; provided, however, that
notwithstanding anything to the contrary contained herein the Trustee, or its
Custodian, shall not be required to confirm the information contained in item
(viii) of the Mortgage Loan Schedule with respect to any Mortgage Loan, and (3)
the Trustee, or its Custodian, has physical possession of the documents in each
Trustee's Mortgage File. The Trustee, or its Custodian, has not independently
verified the validity, enforceability, sufficiency, recordability, due
authorization or genuineness or any document in any Trustee's Mortgage File or
any related Mortgage Loan, nor the collectibility, insurability, effectiveness
or suitability of any related Mortgage Loan.
All terms used herein and not otherwise defined herein shall have the
respective meaning ascribed to such term in the Agreement.
L-1
[HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee]
[XXXXX FARGO BANK, N.A.,
as Custodian]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
L-2
EXHIBIT M
LIST OF SERVICING OFFICERS
[INTENTIONALLY OMITTED]
M-1
EXHIBIT N
REQUEST FOR RELEASE
To: Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
(Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2007-1)
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(Attention: Issuer Services: Xxxxxxx Xxxxx Mortgage Investors Trust Series
MLCC 2007-1)
Re: Pooling and Servicing Agreement, dated as of January 1, 2007, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, HSBC Bank USA,
National Association, as Trustee, Xxxxx Fargo Bank, N.A., as Master
Servicer and Securities Administrator, and PHH Mortgage Corporation,
as Servicer
In connection with the administration of the pool of Mortgage Loans held by
you as Trustee for the benefit of Certificateholders, we request the release of
the (Trustee's Mortgage File/[specify documents]) for the Mortgage Loan
described below, for the reason indicated.
File/document to be sent to:
[Company]
[Address]
[Attn:]
[Telephone Number ____]
Mortgagor's Name, Address & Zip Code: __________________________________________
Mortgage Loan Number: __________________________________________________________
Reason for Requesting Documents (check one)
[ ] 1. Mortgage Loan Paid in Full ([Sponsor/Depositor] [Servicer] [Master
Servicer], hereby certifies that all amounts received in connection
therewith have been credited to the Collection Account, Master
Servicer Collection Account or the Distribution Account, as
applicable.)
[ ] 2. Mortgage Loan in Foreclosure
[ ] 3. Mortgage Loan Repurchased or Substituted For ([Sponsor/Depositor]
[Servicer] [Master Servicer], hereby certifies that any applicable
repurchase price or substitution shortfall amount has been credited to
the Collection Account, the Master Servicer Collection Account or the
N-1
Distribution Account, as applicable.)
[ ] 4. Mortgage Loan Liquidated
(([Sponsor/Depositor] [Servicer] [Master Servicer], hereby certifies
that all proceeds of foreclosure, insurance or other liquidation have
been finally received and credited to the Collection Account, the
Master Servicer Collection Account or the Distribution Account, as
applicable.)
[ ] 5. Other (explain) _____________________________________
If box 1, 2 or 3 above is checked, and if all or part of the Trustee's
Mortgage File was previously released to us, please release to us our
previous receipt on file with you, as well as any additional documents
in your possession relating to the above specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as Trustee, please acknowledge your receipt by
signing in the space indicated below, and returning this form.
[SPONSOR/DEPOSITOR]
[MASTER SERVICER] [SERVICER]
By:
------------------------------------
Date:
----------------------------------
Documents returned to Trustee:
,
------------------------------------
as Trustee
By:
---------------------------------
Date:
-------------------------------
N-2
EXHIBIT O
[RESERVED]
O-1
EXHIBIT P
[RESERVED]
P-1
EXHIBIT Q
FORM OF BACK-UP XXXXXXXX-XXXXX CERTIFICATION
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Mortgage Investors Trust, Series MLCC 2007-1
I, [_______], the [_______] of [_______] (the "Servicer") hereby
certify to the Depositor, the Master Servicer and the Securities Administrator,
and each of their officers, directors and affiliates, with the knowledge and
intent that they will rely upon this certification, that:
(1) I have reviewed [the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"),] the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122
of Regulation AB (the "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer to any of the Depositor, the
Master Servicer, the Securities Administrator and the Trustee pursuant to the
Agreement (collectively, the "Servicer Servicing Information");
(2) Based on my knowledge, the Servicer Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Servicer Servicing Information;
(3) Based on my knowledge, all of the Servicer Servicing Information
required to be provided by the Servicer under the Agreement has been provided to
the Depositor, the Master Servicer and the Securities Administrator;
(4) I am responsible for reviewing the activities performed by
[_______] as [_______] under the [_______] (the "Agreement"), and based on my
knowledge [and the compliance review conducted in preparing the Compliance
Statement] and except as disclosed in [the Compliance Statement,] the Servicing
Assessment or the Attestation Report, the Servicer has fulfilled its obligations
under the Agreement in all material respects; and
Q-1
(5) [The Compliance Statement required to be delivered by the Servicer
pursuant to the Agreement, and] [The] [the] Servicing Assessment and Attestation
Report required to be provided by the Servicer and [by any Sub-servicer or
Subcontractor] pursuant to the Agreement, have been provided to the Depositor,
the Master Servicer and the Securities Administrator. Any material instances of
noncompliance described in such reports have been disclosed to the Depositor,
the Master Servicer and the Securities Administrator. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such reports.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement, dated as of January 1,
2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, N.A., as master servicer (in such capacity, the
"Master Servicer") and securities administrator (in such capacity, the
"Securities Administrator"), HSBC Bank USA, National Association, as trustee
(the "Trustee") and PHH Mortgage Corporation, as Servicer (the "Servicer").
[ ]
--------------------------------------
as [ ]
-----------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
Q-2
EXHIBIT R
[RESERVED]
X-0
Xxxxxxx X-0
FORM OF ASSESSMENT OF COMPLIANCE
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2007-1
HSBC Bank USA, National
Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Loan Agency - Xxxxxxx Xxxxx Mortgage Investors
Trust Series MLCC 2007-1
Re: Pooling and Servicing Agreement (the "Agreement"), dated as of January
1, 2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor,
HSBC Bank USA, National Association, as trustee, Xxxxx Fargo Bank,
N.A., as master servicer and securities administrator, and PHH
Mortgage Corporation, as servicer, relating to Xxxxxxx Xxxxx Mortgage
Investors Trust, Series MLCC 0000-0 (xxx "Xxxxxxx Xxxxxx")
For the calendar year ending December 31, [2007] or portion thereof, [PHH
Mortgage Corporation, as Servicer] [Xxxxx Fargo Bank, N.A., as [Master Servicer]
[Securities Administrator]] for the Issuing Entity has complied in all material
respects with the Relevant Servicing Criteria in Exhibit S-2 of the Agreement.
All capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Agreement.
Date:
-------------------------------
[PHH MORTGAGE CORPORATION]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ACKNOWLEDGED AND AGREED:
[XXXXX FARGO BANK, N.A., as Master Servicer]
[HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
S-1-1
XXXXXXX XXXXX MORTGAGE INVESTORS, INC., as Depositor
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
X-0-0
XXXXXXX X-0
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
(RMBS UNLESS OTHERWISE NOTED)
KEY:
X -- obligation
WHERE THERE ARE MULTIPLE CHECKS FOR CRITERIA THE ATTESTING PARTY WILL IDENTIFY
IN ITS MANAGEMENT ASSERTION THAT IT IS ATTESTING ONLY TO THE PORTION OF THE
DISTRIBUTION CHAIN THAT SUCH PARTY IS RESPONSIBLE FOR IN THE RELATED TRANSACTION
AGREEMENTS. CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE
MEANINGS ASSIGNED TO THEM IN THE POOLING AND SERVICING AGREEMENT, DATED AS OF
JANUARY 1, 2007, AMONG XXXXXXX XXXXX MORTGAGE INVESTORS, INC., AS DEPOSITOR,
XXXXX FARGO BANK, N.A., AS MASTER SERVICER AND SECURITIES ADMINISTRATOR, HSBC
BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE, AND PHH MORTGAGE CORPORATION, AS
SERVICER.
XXXXX PHH XXXXX FARGO
FARGO BANK MORTGAGE BANK XXXXX FARGO
(MASTER CORPORATION (SECURITIES BANK ADDITIONAL
REG AB REFERENCE SERVICING CRITERIA SERVICER) (SERVICER) ADMINISTRATOR) (CUSTODIAN) INFORMATION
---------------- ------------------------------- ---------- ----------- -------------- ----------- -------------------
GENERAL SERVICING
CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are X X X
instituted to monitor any
performance or other triggers
and events of default in
accordance with the transaction
agreements.
1122(d)(1)(ii) If any material servicing X X X
activities are outsourced to
third parties, policies and
procedures are instituted to
monitor the third party's
performance and compliance with
such servicing activities.
1122(d)(1)(iii) Any requirements in the N/A N/A N/A
transaction agreements to
maintain a back-up servicer for
the Pool Assets are maintained.
1122(d)(1)(iv) A fidelity bond and errors and X X
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.
CASH COLLECTION AND
ADMINISTRATION
1122(d)(2)(i) Payments on pool assets are X X X
deposited into the appropriate
custodial bank accounts and
related bank clearing accounts
no more than two business days
following receipt, or such
other number of days specified
in the transaction agreements.
S-2-1
XXXXX PHH XXXXX FARGO
FARGO BANK MORTGAGE BANK XXXXX FARGO
(MASTER CORPORATION (SECURITIES BANK ADDITIONAL
REG AB REFERENCE SERVICING CRITERIA SERVICER) (SERVICER) ADMINISTRATOR) (CUSTODIAN) INFORMATION
---------------- ------------------------------- ---------- ----------- -------------- ----------- -------------------
1122(d)(2)(ii) Disbursements made via wire X X X Servicer disburses
transfer on behalf of an funds to the Master
obligor or to an investor are Servicer. Master
made only by authorized Servicer disburses
personnel. funds to Securities
Administrator.
Securities
Administrator
disburses funds to
certificateholders.
1122(d)(2)(iii) Advances of funds or guarantees X X
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.
1122(d)(2)(iv) The related accounts for the X X X
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.
1122(d)(2)(v) Each Collection Account is X X X
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.
1122(d)(2)(vi) Unissued checks are safeguarded X
so as to prevent unauthorized
access.
1122(d)(2)(vii) Reconciliations are prepared on X X X
a monthly basis for all
asset-backed securities related
bank accounts, including
Collection 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.
INVESTOR REMITTANCES AND
REPORTING
S-2-2
XXXXX PHH XXXXX FARGO
FARGO BANK MORTGAGE BANK XXXXX FARGO
(MASTER CORPORATION (SECURITIES BANK ADDITIONAL
REG AB REFERENCE SERVICING CRITERIA SERVICER) (SERVICER) ADMINISTRATOR) (CUSTODIAN) INFORMATION
---------------- ------------------------------- ---------- ----------- -------------- ----------- -------------------
1122(d)(3)(i) Reports to investors, including X X X
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.
1122(d)(3)(ii) Amounts due to investors are X X X Servicer remits
allocated and remitted in cash and loan level
accordance with timeframes, data to Master
distribution priority and other Servicer based on
terms set forth in the timelines
transaction agreements. established in the
PSA (or any other
applicable
agreement). Master
Servicer remits
cash and loan level
data to Securities
Administrator based
on timelines
established in the
PSA.. The
Securities
Administrator is
responsible for the
allocation of funds
to
certificateholders
using the
appropriate
distribution
priority as
established by the
PSA.
1122(d)(3)(iii) Disbursements made to an X X X Securities
investor are posted within two Administrator
business days to the Servicer's disburses funds to
investor records, or such other certificateholders.
number of days specified in the
transaction agreements.
S-2-3
XXXXX PHH XXXXX FARGO
FARGO BANK MORTGAGE BANK XXXXX FARGO
(MASTER CORPORATION (SECURITIES BANK ADDITIONAL
REG AB REFERENCE SERVICING CRITERIA SERVICER) (SERVICER) ADMINISTRATOR) (CUSTODIAN) INFORMATION
---------------- ------------------------------- ---------- ----------- -------------- ----------- -------------------
1122(d)(3)(iv) Amounts remitted to investors X X X Servicer remits
per the investor reports agree funds and provides
with cancelled checks, or other certain investor
form of payment, or custodial reports to the
bank statements. Master Servicer
within guidelines
and timeframes
established in
PSA.. Master
Servicer remits
funds and provides
certain investor
reports to
Securities
Administrator
within guidelines
and timeframes
established in
PSA. Securities
Administrator
disburses funds to
certificateholders.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on pool X X
assets is maintained as
required by the transaction
agreements or related pool
asset documents.
1122(d)(4)(ii) Pool assets and related X X
documents are safeguarded as
required by the transaction
agreements
1122(d)(4)(iii) Any additions, removals or X
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, X
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 X
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 X
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.
S-2-4
XXXXX PHH XXXXX FARGO
FARGO BANK MORTGAGE BANK XXXXX FARGO
(MASTER CORPORATION (SECURITIES BANK ADDITIONAL
REG AB REFERENCE SERVICING CRITERIA SERVICER) (SERVICER) ADMINISTRATOR) (CUSTODIAN) INFORMATION
---------------- ------------------------------- ---------- ----------- -------------- ----------- -------------------
1122(d)(4)(vii) Loss mitigation or recovery X
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.
1122(d)(4)(viii) Records documenting collection X
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 X
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 X
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 X
obligor (such as tax or
insurance payments) are made on
or before the related penalty
or expiration dates, as
indicated on the appropriate
bills or notices for such
payments, provided that such
support has been received by
the servicer at least 30
calendar days prior to these
dates, or such other number of
days specified in the
transaction agreements.
S-2-5
XXXXX PHH XXXXX FARGO
FARGO BANK MORTGAGE BANK XXXXX FARGO
(MASTER CORPORATION (SECURITIES BANK ADDITIONAL
REG AB REFERENCE SERVICING CRITERIA SERVICER) (SERVICER) ADMINISTRATOR) (CUSTODIAN) INFORMATION
---------------- ------------------------------- ---------- ----------- -------------- ----------- -------------------
1122(d)(4)(xii) Any late payment penalties in X
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 X
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 X X
uncollectible accounts are
recognized and recorded in
accordance with the transaction
agreements.
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.
S-2-6
EXHIBIT T
FORM OF XXXXXXXX-XXXXX CERTIFICATION
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2007-1
I, [identify the certifying individual], certify that:
I, [identify the certifying individual], certify that:
1. I have reviewed the 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 Xxxxxxx Xxxxx Mortgage Investors Trust, MLCC Series 0000-0 (xxx
"Xxxxxxxx Xxx 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 the
servicer(s) and based on my knowledge and the compliance review(s) conducted in
preparing the servicer compliance statement(s) required in this report under
Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic
reports, the servicer(s) [has/have] fulfilled [its/their] obligations under the
servicing agreement(s) in all material respects; and]
5. All of the reports on assessment of compliance with servicing
criteria for ABS 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.
T-1
[In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties [name of
servicer, sub-servicer, co-servicer, depositor or trustee].]
Date:
---------------
----------------------------------------
[Signature]
----------------------------------------
[Title]
T-2
EXHIBIT U
ADDITIONAL DISCLOSURE NOTIFICATION
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
RE: Xxxxxxx Xxxxx Mortgage Investors Trust, Series MLCC 2007-1
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [__] of the Pooling and Servicing
Agreement, dated as of January 1, 2007, among Xxxxxxx Xxxxx Mortgage Investors,
Inc., as depositor, Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator, HSBC Bank USA, National Association, as trustee, and PHH Mortgage
Corporation, as servicer, the undersigned, as [___], hereby notifies you that
certain events have come to our attention that [will] [may] need to be disclosed
on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to
[________], phone number: [________]; email address: [________].
[NAME OF PARTY],
as [role]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
U-1
EXHIBIT V
FORM OF ITEM 1123 CERTIFICATION OF SERVICER
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: Xxxxxxx Xxxxx Mortgage Investors Trust, Series MLCC 2007-1 Mortgage
Pass-Through Certificates
I, [identify name of certifying individual], [title of certifying individual] of
[[name of servicing company] (the "Servicer")], hereby certify that:
(1) A review of the activities of the Servicer during the preceding
calendar year and of the performance of the Servicer under the pooling and
servicing agreement (the "Agreement"), dated as of January 1, 2007, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, HSBC Bank USA, National
Association, as trustee, Xxxxx Fargo Bank, N.A., as master servicer and
securities administrator, and PHH Mortgage Corporation, as servicer, has been
made under my supervision; and
(2) To the best of my knowledge, based on such review, the Servicer
has fulfilled all its obligations under the Agreement in all material respects
throughout such year or a portion thereof[, or, if there has been a failure to
fulfill any such obligation in any material respect, I have specified below each
such failure known to me and the nature and status thereof].
Date:
------------------
[Servicer]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
V-1
EXHIBIT W
FORM 8-K DISCLOSURE INFORMATION
FORM 8-K DISCLOSURE INFORMATION
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------- -----------------
ITEM 1.01- ENTRY INTO A MATERIAL All parties
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
ITEM 1.02- TERMINATION OF A MATERIAL All parties
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.
ITEM 1.03- BANKRUPTCY OR RECEIVERSHIP Depositor
Disclosure is required regarding the
bankruptcy or receivership, with respect
to any of the following:
- Sponsor (Seller) Depositor/Sponsor (Seller)
- Depositor Depositor
- Master Servicer Master Servicer
- Affiliated Servicer Servicer
- Other Servicer servicing 20% or Servicer
more of the pool assets at the time
of the report
- Other material servicers Servicer
- Trustee Trustee
- Securities Administrator Securities Administrator
- Significant Obligor Depositor
- Credit Enhancer (10% or more) Depositor
W-1
FORM 8-K DISCLOSURE INFORMATION
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------- -----------------
- Derivative Counterparty Depositor
- Custodian Custodian
ITEM 2.04- TRIGGERING EVENTS THAT Depositor
ACCELERATE OR INCREASE A DIRECT Master Servicer
FINANCIAL OBLIGATION OR AN OBLIGATION Securities Administrator
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.
ITEM 3.03- MATERIAL MODIFICATION TO Securities Administrator
RIGHTS OF SECURITY HOLDERS Trustee
Depositor
Disclosure is required of any material
modification to documents defining the
rights of Certificateholders, including
the Pooling and Servicing Agreement.
ITEM 5.03- AMENDMENTS OF ARTICLES OF Depositor
INCORPORATION OR BYLAWS; CHANGE OF
FISCAL YEAR
Disclosure is required of any amendment
"to the governing documents of the
issuing entity".
ITEM 6.01- ABS INFORMATIONAL AND Depositor
COMPUTATIONAL MATERIAL
ITEM 6.02- CHANGE OF SERVICER OR Master Servicer/Securities
SECURITIES ADMINISTRATOR Administrator/Depositor/
Servicer/Trustee
Requires disclosure of any removal,
replacement, substitution or addition of
any master servicer, affiliated
servicer, other servicer servicing 10%
or more of pool assets at time of
report, other material servicers or
trustee.
Reg AB disclosure about any new servicer Servicer/Master Servicer/Depositor
or master servicer is also required.
Reg AB disclosure about any new Trustee Trustee
is also required.
ITEM 6.03- CHANGE IN CREDIT ENHANCEMENT Depositor/Securities Administrator
OR EXTERNAL SUPPORT
Covers termination of any enhancement in
W-2
FORM 8-K DISCLOSURE INFORMATION
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------- -----------------
manner other than by its terms, the
addition of an enhancement, or a
material change in the enhancement
provided. Applies to external credit
enhancements as well as derivatives.
Reg AB disclosure about any new Depositor
enhancement provider is also required.
ITEM 6.04- FAILURE TO MAKE A REQUIRED Securities Administrator
DISTRIBUTION Trustee
ITEM 6.05- SECURITIES ACT UPDATING Depositor
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.
If there are any new servicers or Depositor
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.
ITEM 7.01- REG FD DISCLOSURE All parties
ITEM 8.01- OTHER EVENTS Depositor
Any event, with respect to which
information is not otherwise called for
in Form 8-K, that the registrant deems
of importance to certificateholders.
ITEM 9.01- FINANCIAL STATEMENTS AND Responsible party for
EXHIBITS reporting/disclosing the financial
statement or exhibit
W-3
EXHIBIT X
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 Master Servicer
Statement] Servicer
Securities Administrator
Any information required by 1121 which Depositor
is NOT included on the [Monthly
Statement]
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) Trustee, Master Servicer, Securities
Administrator and Depositor
- Sponsor (Seller) Seller (if a party to the Pooling and
Servicing Agreement) or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other than Servicer
the Master Servicer or Securities
Administrator)
- Any other party contemplated by Depositor
1100(d)(1)
ITEM 3: SALE OF SECURITIES AND USE OF Depositor
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.
X-1
ADDITIONAL FORM 10-D DISCLOSURE
ITEM ON FORM 10-D PARTY RESPONSIBLE
----------------- -----------------
Pricing information can be omitted if
securities were not registered.
ITEM 4: DEFAULTS UPON SENIOR SECURITIES Securities Administrator
Trustee
Information from Item 3 of Part II of
Form 10-Q:
Report the occurrence of any Servicer
Event of Default or Master Servicer
Event of Default (after expiration of
any grace period and provision of any
required notice)
ITEM 5: SUBMISSION OF MATTERS TO A VOTE Securities Administrator
OF SECURITY HOLDERS Trustee
Information from Item 4 of Part II of
Form 10-Q
ITEM 6: SIGNIFICANT OBLIGORS OF POOL Depositor
ASSETS
Item 1112(b) - Significant Obligor
Financial Information*
* 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 Depositor
threshold
- Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
Item 1115(b) - Derivative Counterparty
Financial Information*
- Determining current maximum Depositor
probable exposure
- Determining current significance Depositor
percentage
- Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
* This information need only be
reported on the Form 10-D for the
distribution period in which
updated information is required
pursuant to the
X-2
ADDITIONAL FORM 10-D DISCLOSURE
ITEM ON FORM 10-D PARTY RESPONSIBLE
----------------- -----------------
Items.
ITEM 8: OTHER INFORMATION Any party responsible for the
applicable Form 8-K Disclosure item
Disclose any information required to be
reported on Form 8-K during the period
covered by the Form 10-D but not
reported
ITEM 9: EXHIBITS
Monthly Statement to Certificateholders Securities Administrator
Exhibits required by Item 601 of Depositor
Regulation S-K, such as material
agreements
X-3
EXHIBIT Y
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 Any party responsible for disclosure
items on Form 8-K
Disclose any information required to be
reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not
reported
ITEM 15: EXHIBITS, FINANCIAL STATEMENT Securities Administrator
SCHEDULES Depositor
REG AB ITEM 1112(B): SIGNIFICANT
OBLIGORS OF POOL ASSETS
Significant Obligor Financial Depositor
Information*
* 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 Depositor
threshold
- Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
* 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 Depositor
probable exposure
- Determining current significance Depositor
percentage
- Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
* 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,
Y-1
ADDITIONAL FORM 10-K DISCLOSURE
ITEM ON FORM 10-K PARTY RESPONSIBLE
----------------- -----------------
that is material to Certificateholders,
including any proceeding known to be
contemplated by governmental
authorities:
- Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities
Administrator and Depositor
- Sponsor (Seller) Seller (if a party to the Pooling and
Servicing Agreement) or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other than Servicer
the Master Servicer or Securities
Administrator)
- Any other party contemplated by Depositor
1100(d)(1)
REG AB ITEM 1119: AFFILIATIONS AND
RELATIONSHIPS
Whether (a) the Sponsor (Seller), Depositor as to (a)
Depositor or Issuing Entity is an Sponsor/Seller as to (a)
affiliate of the following parties, and
(b) to the extent known and material,
any of the following parties are
affiliated with one another:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Trustee
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Depositor/Sponsor
Provider
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material party Depositor/Sponsor
Whether there are any "outside the Depositor as to (a)
ordinary course business arrangements" Sponsor/Seller as to (a)
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:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Depositor
Y-2
ADDITIONAL FORM 10-K DISCLOSURE
ITEM ON FORM 10-K PARTY RESPONSIBLE
----------------- -----------------
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Depositor/Sponsor
Provider
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material party Depositor/Sponsor
Whether there are any specific Depositor as to (a)
relationships involving the transaction Sponsor/Seller as to (a)
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:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Depositor
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Depositor/Sponsor
Provider
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material party Depositor/Sponsor
Y-3
SCHEDULE A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
Schedule A-1
