Exhibit 4.1
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
Depositor
XXXXX FARGO BANK, N.A.,
Master Servicer and Securities Administrator
and
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2007
----------
Mortgage Pass-Through Certificates, MANA Series 2007-A2
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 18
Section 1.02 Accounting.............................................. 77
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES.................................................. 77
Section 2.01 Conveyance of Mortgage Loans to Trustee................. 77
Section 2.02 Acceptance of Mortgage Loans by Trustee................. 81
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement............................................... 83
Section 2.04 Substitution of Mortgage Loans.......................... 84
Section 2.05 Issuance of Certificates................................ 86
Section 2.06 Representations and Warranties Concerning the
Depositor............................................... 86
Section 2.07 Representations and Warranties Concerning the Master
Servicer and Securities Administrator................... 87
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS............... 88
Section 3.01 Master Servicer......................................... 88
Section 3.02 REMIC-Related Covenants................................. 89
Section 3.03 Monitoring of Servicers................................. 90
Section 3.04 Fidelity Bond........................................... 91
Section 3.05 Power to Act; Procedures................................ 91
Section 3.06 Due-on-Sale Clauses; Assumption Agreements.............. 92
Section 3.07 Release of Mortgage Files............................... 92
Section 3.08 Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee......................... 93
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.. 94
Section 3.10 Presentment of Claims and Collection of Proceeds........ 94
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.. 95
Section 3.12 Trustee to Retain Possession of Certain Insurance
Policies and Documents.................................. 95
Section 3.13 Realization Upon Defaulted Mortgage Loans............... 95
Section 3.14 Compensation for the Master Servicer.................... 96
Section 3.15 REO Property............................................ 96
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TABLE OF CONTENTS
(continued)
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Section 3.16 Annual Statement as to Compliance....................... 97
Section 3.17 Reports on Assessment of Compliance and Attestation..... 98
Section 3.18 Periodic Filings........................................ 100
Section 3.19 Compliance with Regulation AB........................... 107
Section 3.20 Servicing Rights Owner.................................. 107
ARTICLE IV ACCOUNTS...................................................... 108
Section 4.01 Protected Accounts...................................... 108
Section 4.02 Master Servicer Collection Account...................... 109
Section 4.03 Permitted Withdrawals and Transfers from the Master
Servicer Collection Account............................. 110
Section 4.04 Distribution Account.................................... 111
Section 4.05 Permitted Withdrawals and Transfers from the
Distribution Account.................................... 112
ARTICLE V CERTIFICATES................................................... 114
Section 5.01 The Certificates........................................ 114
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates................................ 114
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates....... 118
Section 5.04 Persons Deemed Owners................................... 119
Section 5.05 Access to List of Certificateholders' Names and
Addresses............................................... 119
Section 5.06 Book-Entry Certificates................................. 119
Section 5.07 Notices to Depository................................... 120
Section 5.08 Definitive Certificates................................. 120
Section 5.09 Maintenance of Office or Agency......................... 121
ARTICLE VI PAYMENTS TO CERTIFICATEHOLDERS................................ 121
Section 6.01 Distributions on the Certificates....................... 121
Section 6.02 Distributions........................................... 134
Section 6.03 Statements to Certificateholders........................ 134
Section 6.04 Monthly Advances........................................ 137
Section 6.05 Compensating Interest Payments.......................... 137
-ii-
TABLE OF CONTENTS
(continued)
PAGE
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ARTICLE VII THE MASTER SERVICER AND THE DEPOSITOR........................ 139
Section 7.01 Liabilities of the Master Servicer...................... 139
Section 7.02 Merger or Consolidation of the Master Servicer.......... 139
Section 7.03 Indemnification from the Master Servicer and the
Depositor............................................... 139
Section 7.04 Limitations on Liability of the Master Servicer and
Others.................................................. 140
Section 7.05 Master Servicer Not to Resign........................... 141
Section 7.06 Successor Master Servicer............................... 141
Section 7.07 Sale and Assignment of Master Servicing................. 141
ARTICLE VIII DEFAULT..................................................... 142
Section 8.01 Events of Default....................................... 142
Section 8.02 Trustee to Act; Appointment of Successor................ 143
Section 8.03 Notification to Certificateholders...................... 145
Section 8.04 Waiver of Defaults...................................... 145
Section 8.05 List of Certificateholders.............................. 145
ARTICLE IX CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR....... 145
Section 9.01 Duties of Trustee....................................... 145
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator........................................... 148
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans.......................... 150
Section 9.04 Trustee and Securities Administrator May Own
Certificates............................................ 150
Section 9.05 Trustee's and Securities Administrator's Fees and
Expenses................................................ 150
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator........................................... 151
Section 9.07 Insurance............................................... 151
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator........................................... 152
Section 9.09 Successor Trustee and Successor Securities
Administrator........................................... 153
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator........................................... 153
Section 9.11 Appointment of Co-Trustee or Separate Trustee........... 153
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TABLE OF CONTENTS
(continued)
PAGE
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Section 9.12 Federal Information Returns and Reports to
Certificateholders; REMIC Administration................ 155
ARTICLE X TERMINATION.................................................... 164
Section 10.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans.......................................... 164
Section 10.02 Final Distribution on the Certificates.................. 165
Section 10.03 Additional Termination Requirements..................... 166
ARTICLE XI MISCELLANEOUS PROVISIONS...................................... 167
Section 11.01 Intent of Parties....................................... 167
Section 11.02 Amendment............................................... 167
Section 11.03 Recordation of Agreement................................ 169
Section 11.04 Limitation on Rights of Certificateholders.............. 169
Section 11.05 Acts of Certificateholders.............................. 170
Section 11.06 Governing Law........................................... 171
Section 11.07 Notices................................................. 171
Section 11.08 Severability of Provisions.............................. 172
Section 11.09 Successors and Assigns.................................. 172
Section 11.10 Article and Section Headings............................ 172
Section 11.11 Counterparts............................................ 172
Section 11.12 Notice to Rating Agencies............................... 172
Section 11.13 Third Party Rights...................................... 173
ARTICLE XII PROHIBITED TRANSACTIONS...................................... 173
Section 12.01 [Reserved].............................................. 173
Section 12.02 Prohibited Transactions and Activities.................. 173
Section 12.03 Indemnification with Respect to Prohibited Transactions
or Loss of REMIC Status................................. 174
Section 12.04 REO Property............................................ 174
-iv-
TABLE OF CONTENTS
(continued)
PAGE
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EXHIBITS
Exhibit A-1 - Form of Class A Certificates and Class M Certificates
Exhibit A-2 - Form of Class B Certificates
Exhibit A-3 - Form of Class R Certificate
Exhibit A-4 - Form of Class P Certificate
Exhibit A-5 - Form of Class C Certificate
Exhibit B - Mortgage Loan Schedule
Exhibit C - [Reserved]
Exhibit D - Request for Release of Documents
Exhibit E-1 - Form of Transferee's Letter
Exhibit E-2 - Form of Transferor Certificate
Exhibit F-1 - Form of Transferor Representation Letter
Exhibit F-2 - Form of Investor Representation Letter
Exhibit F-3 - Form of Rule 144A Letter
Exhibit G - Form of Custodial Agreement
Exhibit H-1 - Class A-1 One-Month LIBOR Corridor Table
Exhibit H-2 - Class A-2 One-Month LIBOR Corridor Table
Exhibit H-3 - Class A-3 One-Month LIBOR Corridor Table
Exhibit H-4 - Subordinate Certificate One-Month LIBOR Corridor Table
Exhibit I-1 to I-8 - Assignment Agreements
Exhibit J - Mortgage Loan Purchase Agreement
Exhibit K - Servicing Criteria To Be Addressed in Assessment of
Compliance
Exhibit L - Form of Xxxxxxxx-Xxxxx Certification
Exhibit M - Form of Back-up Xxxxxxxx-Xxxxx Certification
Exhibit N-1 - Form of Class A-1 Corridor Contract
Exhibit N-2 - Form of Class A-2 Corridor Contract
Exhibit N-3 - Form of Class A-3 Corridor Contract
Exhibit N-4 - Form of Subordinate Certificate Corridor Contract
Exhibit O - Additional Disclosure Notification
Exhibit P - Form of Item 1123 Certification of Servicer
Exhibit Q-1 - Additional Form 10-D Disclosure
Exhibit Q-2 - Additional Form 10-K Disclosure
Exhibit Q-3 - Form 8-K Disclosure Information
Exhibit R - Form of Swap Agreement
Exhibit S - Form of Cap Contract
-v-
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated as of March 1, 2007 (this
"Agreement" or this "Pooling and Servicing Agreement") 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 as
securities administrator (in such capacity, the "Securities Administrator"), and
HSBC BANK USA, NATIONAL ASSOCIATION, as trustee (the "Trustee").
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 related property
being conveyed by the Depositor to the Trustee hereunder on behalf of the
Issuing Entity for inclusion in the Trust Fund. On the Closing Date, the
Depositor will acquire the Certificates from the Securities Administrator as
consideration for the Depositor's transfer to the Issuing Entity of the Mortgage
Loans and the other related property constituting that portion of the Trust Fund
relating to the Certificates. The Depositor has duly authorized the execution
and delivery of this Agreement to provide for the conveyance to the Issuing
Entity of the Mortgage Loans and the other related property constituting the
portion of the Trust Fund relating to the Certificates. All covenants and
agreements made by the Sponsor in the Mortgage Loan Purchase Agreement and in
this Agreement and all covenants and agreements made by the Depositor, the
Trustee, the Securities Administrator and the Master Servicer herein with
respect to the Mortgage Loans and the other related property constituting that
portion of the Trust Fund relating to the Certificates are for the benefit of
the Holders from time to time of the Certificates. The Depositor, the Trustee,
the Securities Administrator and the Master Servicer are entering into this
Agreement, and the Trustee on behalf of the Issuing Entity 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 consisting of (i) three real
estate mortgage investment conduits, (ii) the right to receive payments
distributable to the Class P Certificates, (iii) each Corridor Contract and the
Corridor Contract Account, (iv) the grantor trusts described in Section 9.12
hereof and (v) the Supplemental Interest Trust, which in turn will hold the Swap
Agreement and the Cap Contract. The SWAP REMIC will consist of all of the assets
constituting the Trust Fund (other than the assets described in clauses (ii),
(iii), (iv) and (v) above, other than the SWAP REMIC Regular Interests and other
than the Lower Tier REMIC Regular Interests) and will be evidenced by the SWAP
REMIC Regular Interests (which will be uncertificated and will represent the
"regular interests" in the SWAP REMIC) and the Class SWR Interest as the single
"residual interest" in the SWAP REMIC. The Lower Tier REMIC will consist of SWAP
REMIC Regular Interests and will be evidenced by the Lower Tier REMIC Regular
Interests (which will be uncertificated and will represent the "regular
interests" in the Lower Tier REMIC) and the Class LTR Interest as the single
"residual interest" in the Lower Tier REMIC. The Trustee will hold the Lower
Tier REMIC Regular Interests. The Upper Tier REMIC will consist of the Lower
Tier REMIC Regular Interests and will be evidenced by the REMIC Regular
Interests (which will represent the "regular interests" in the Upper Tier REMIC)
and the Residual Interest as the single "residual interest" in the Upper Tier
REMIC. The Class R Certificate will represent beneficial ownership of the Class
SWR Interest, the Class LTR Interest and the
Residual Interest. The "latest possible maturity date" for federal income tax
purposes of all interests created hereby will be the Latest Possible Maturity
Date.
THE SWAP REMIC
The following table sets forth the designations, initial principal balances
and interest rates for each interest in the SWAP REMIC:
Initial
Principal Interest
Class Balance Rate
------- --------------- --------
1-SW1 $35,836,726.672 (1)
1-SW1A $ 3,432,039.989 (2)
1-SW1B $ 3,432,039.989 (3)
1-SW2A $ 3,555,858.018 (2)
1-SW2B $ 3,555,858.018 (3)
1-SW3A $ 3,544,785.601 (2)
1-SW3B $ 3,544,785.601 (3)
1-SW4A $ 3,406,291.649 (2)
1-SW4B $ 3,406,291.649 (3)
1-SW5A $ 3,239,201.740 (2)
1-SW5B $ 3,239,201.740 (3)
1-SW6A $ 3,073,754.507 (2)
1-SW6B $ 3,073,754.507 (3)
1-SW7A $ 2,916,923.349 (2)
1-SW7B $ 2,916,923.349 (3)
1-SW8A $ 2,768,018.097 (2)
1-SW8B $ 2,768,018.097 (3)
1-SW9A $ 2,626,438.784 (2)
1-SW9B $ 2,626,438.784 (3)
1-SW10A $ 2,477,788.361 (2)
1-SW10B $ 2,477,788.361 (3)
1-SW11A $ 2,347,602.557 (2)
1-SW11B $ 2,347,602.557 (3)
1-SW12A $ 2,214,546.397 (2)
1-SW12B $ 2,214,546.397 (3)
1-SW13A $ 2,279,563.024 (2)
1-SW13B $ 2,279,563.024 (3)
1-SW14A $ 2,381,118.488 (2)
1-SW14B $ 2,381,118.488 (3)
1-SW15A $ 2,134,586.723 (2)
1-SW15B $ 2,134,586.723 (3)
1-SW16A $ 1,963,499.206 (2)
1-SW16B $ 1,963,499.206 (3)
1-SW17A $ 1,813,989.743 (2)
1-SW17B $ 1,813,989.743 (3)
-2-
1-SW18A $ 1,704,004.374 (2)
1-SW18B $ 1,704,004.374 (3)
1-SW19A $ 1,612,427.590 (2)
1-SW19B $ 1,612,427.590 (3)
1-SW20A $ 1,523,592.659 (2)
1-SW20B $ 1,523,592.659 (3)
1-SW21A $ 1,442,638.044 (2)
1-SW21B $ 1,442,638.044 (3)
1-SW22A $ 1,395,325.577 (2)
1-SW22B $ 1,395,325.577 (3)
1-SW23A $ 1,289,526.708 (2)
1-SW23B $ 1,289,526.708 (3)
1-SW24A $ 1,332,176.423 (2)
1-SW24B $ 1,332,176.423 (3)
1-SW25A $ 1,520,219.936 (2)
1-SW25B $ 1,520,219.936 (3)
1-SW26A $ 1,980,864.864 (2)
1-SW26B $ 1,980,864.864 (3)
1-SW27A $ 2,232,116.941 (2)
1-SW27B $ 2,232,116.941 (3)
1-SW28A $ 1,250,098.473 (2)
1-SW28B $ 1,250,098.473 (3)
1-SW29A $ 1,338,683.363 (2)
1-SW29B $ 1,338,683.363 (3)
1-SW30A $ 814,758.601 (2)
1-SW30B $ 814,758.601 (3)
1-SW31A $ 721,686.576 (2)
1-SW31B $ 721,686.576 (3)
1-SW32A $ 682,207.854 (2)
1-SW32B $ 682,207.854 (3)
1-SW33A $ 643,959.861 (2)
1-SW33B $ 643,959.861 (3)
1-SW34A $ 608,004.453 (2)
1-SW34B $ 608,004.453 (3)
1-SW35A $ 577,587.811 (2)
1-SW35B $ 577,587.811 (3)
1-SW36A $ 541,679.518 (2)
1-SW36B $ 541,679.518 (3)
1-SW37A $ 510,911.317 (2)
1-SW37B $ 510,911.317 (3)
1-SW38A $ 497,116.522 (2)
1-SW38B $ 497,116.522 (3)
1-SW39A $ 449,306.584 (2)
1-SW39B $ 449,306.584 (3)
1-SW40A $ 425,330.183 (2)
-3-
1-SW40B $ 425,330.183 (3)
1-SW41A $ 402,043.843 (2)
1-SW41B $ 402,043.843 (3)
1-SW42A $ 377,114.065 (2)
1-SW42B $ 377,114.065 (3)
1-SW43A $ 366,195.393 (2)
1-SW43B $ 366,195.393 (3)
1-SW44A $ 332,406.028 (2)
1-SW44B $ 332,406.028 (3)
1-SW45A $ 314,289.376 (2)
1-SW45B $ 314,289.376 (3)
1-SW46A $ 304,362.490 (2)
1-SW46B $ 304,362.490 (3)
1-SW47A $ 356,867.060 (2)
1-SW47B $ 356,867.060 (3)
1-SW48A $ 629,620.155 (2)
1-SW48B $ 629,620.155 (3)
1-SW49A $ 1,781,230.355 (2)
1-SW49B $ 1,781,230.355 (3)
1-SW50A $ 1,292,052.034 (2)
1-SW50B $ 1,292,052.034 (3)
1-SW51A $ 449,246.849 (2)
1-SW51B $ 449,246.849 (3)
1-SW52A $ 39,069.603 (2)
1-SW52B $ 39,069.603 (3)
1-SW53A $ 62,193.493 (2)
1-SW53B $ 62,193.493 (3)
2-SW2 $36,454,412.387 (4)
2-SW1A $ 3,491,195.003 (5)
2-SW1B $ 3,491,195.003 (6)
2-SW2A $ 3,617,147.174 (5)
2-SW2B $ 3,617,147.174 (6)
2-SW3A $ 3,605,883.911 (5)
2-SW3B $ 3,605,883.911 (6)
2-SW4A $ 3,465,002.862 (5)
2-SW4B $ 3,465,002.862 (6)
2-SW5A $ 3,295,032.973 (5)
2-SW5B $ 3,295,032.973 (6)
2-SW6A $ 3,126,734.074 (5)
2-SW6B $ 3,126,734.074 (6)
2-SW7A $ 2,967,199.757 (5)
2-SW7B $ 2,967,199.757 (6)
2-SW8A $ 2,815,727.958 (5)
2-SW8B $ 2,815,727.958 (6)
2-SW9A $ 2,671,708.368 (5)
-4-
2-SW9B $ 2,671,708.368 (6)
2-SW10A $ 2,520,495.790 (5)
2-SW10B $ 2,520,495.790 (6)
2-SW11A $ 2,388,066.090 (5)
2-SW11B $ 2,388,066.090 (6)
2-SW12A $ 2,252,716.559 (5)
2-SW12B $ 2,252,716.559 (6)
2-SW13A $ 2,318,853.820 (5)
2-SW13B $ 2,318,853.820 (6)
2-SW14A $ 2,422,159.705 (5)
2-SW14B $ 2,422,159.705 (6)
2-SW15A $ 2,171,378.691 (5)
2-SW15B $ 2,171,378.691 (6)
2-SW16A $ 1,997,342.292 (5)
2-SW16B $ 1,997,342.292 (6)
2-SW17A $ 1,845,255.867 (5)
2-SW17B $ 1,845,255.867 (6)
2-SW18A $ 1,733,374.779 (5)
2-SW18B $ 1,733,374.779 (6)
2-SW19A $ 1,640,219.567 (5)
2-SW19B $ 1,640,219.567 (6)
2-SW20A $ 1,549,853.468 (5)
2-SW20B $ 1,549,853.468 (6)
2-SW21A $ 1,467,503.510 (5)
2-SW21B $ 1,467,503.510 (6)
2-SW22A $ 1,419,375.560 (5)
2-SW22B $ 1,419,375.560 (6)
2-SW23A $ 1,311,753.130 (5)
2-SW23B $ 1,311,753.130 (6)
2-SW24A $ 1,355,137.960 (5)
2-SW24B $ 1,355,137.960 (6)
2-SW25A $ 1,546,422.612 (5)
2-SW25B $ 1,546,422.612 (6)
2-SW26A $ 2,015,007.266 (5)
2-SW26B $ 2,015,007.266 (6)
2-SW27A $ 2,270,589.951 (5)
2-SW27B $ 2,270,589.951 (6)
2-SW28A $ 1,271,645.306 (5)
2-SW28B $ 1,271,645.306 (6)
2-SW29A $ 1,361,757.055 (5)
2-SW29B $ 1,361,757.055 (6)
2-SW30A $ 828,801.869 (5)
2-SW30B $ 828,801.869 (6)
2-SW31A $ 734,125.644 (5)
2-SW31B $ 734,125.644 (6)
-5-
2-SW32A $ 693,966.463 (5)
2-SW32B $ 693,966.463 (6)
2-SW33A $ 655,059.223 (5)
2-SW33B $ 655,059.223 (6)
2-SW34A $ 618,484.084 (5)
2-SW34B $ 618,484.084 (6)
2-SW35A $ 587,543.178 (5)
2-SW35B $ 587,543.178 (6)
2-SW36A $ 551,015.965 (5)
2-SW36B $ 551,015.965 (6)
2-SW37A $ 519,717.440 (5)
2-SW37B $ 519,717.440 (6)
2-SW38A $ 505,684.876 (5)
2-SW38B $ 505,684.876 (6)
2-SW39A $ 457,050.881 (5)
2-SW39B $ 457,050.881 (6)
2-SW40A $ 432,661.220 (5)
2-SW40B $ 432,661.220 (6)
2-SW41A $ 408,973.514 (5)
2-SW41B $ 408,973.514 (6)
2-SW42A $ 383,614.044 (5)
2-SW42B $ 383,614.044 (6)
2-SW43A $ 372,507.177 (5)
2-SW43B $ 372,507.177 (6)
2-SW44A $ 338,135.414 (5)
2-SW44B $ 338,135.414 (6)
2-SW45A $ 319,706.502 (5)
2-SW45B $ 319,706.502 (6)
2-SW46A $ 309,608.515 (5)
2-SW46B $ 309,608.515 (6)
2-SW47A $ 363,018.060 (5)
2-SW47B $ 363,018.060 (6)
2-SW48A $ 640,472.356 (5)
2-SW48B $ 640,472.356 (6)
2-SW49A $ 1,811,931.835 (5)
2-SW49B $ 1,811,931.835 (6)
2-SW50A $ 1,314,321.983 (5)
2-SW50B $ 1,314,321.983 (6)
2-SW51A $ 456,990.116 (5)
2-SW51B $ 456,990.116 (6)
2-SW52A $ 39,743.011 (5)
2-SW52B $ 39,743.011 (6)
2-SW53A $ 63,265.467 (5)
2-SW53B $ 63,265.467 (6)
3-SW3 $92,387,492.922 (7)
-6-
3-SW1A $ 8,847,838.507 (8)
3-SW1B $ 8,847,838.507 (9)
3-SW2A $ 9,167,042.808 (8)
3-SW2B $ 9,167,042.808 (9)
3-SW3A $ 9,138,497.989 (8)
3-SW3B $ 9,138,497.989 (9)
3-SW4A $ 8,781,458.990 (8)
3-SW4B $ 8,781,458.990 (9)
3-SW5A $ 8,350,699.286 (8)
3-SW5B $ 8,350,699.286 (9)
3-SW6A $ 7,924,174.419 (8)
3-SW6B $ 7,924,174.419 (9)
3-SW7A $ 7,519,861.894 (8)
3-SW7B $ 7,519,861.894 (9)
3-SW8A $ 7,135,982.444 (8)
3-SW8B $ 7,135,982.444 (9)
3-SW9A $ 6,770,989.348 (8)
3-SW9B $ 6,770,989.348 (9)
3-SW10A $ 6,387,766.849 (8)
3-SW10B $ 6,387,766.849 (9)
3-SW11A $ 6,052,146.353 (8)
3-SW11B $ 6,052,146.353 (9)
3-SW12A $ 5,709,126.044 (8)
3-SW12B $ 5,709,126.044 (9)
3-SW13A $ 5,876,739.656 (8)
3-SW13B $ 5,876,739.656 (9)
3-SW14A $ 6,138,550.807 (8)
3-SW14B $ 6,138,550.807 (9)
3-SW15A $ 5,502,989.086 (8)
3-SW15B $ 5,502,989.086 (9)
3-SW16A $ 5,061,923.502 (8)
3-SW16B $ 5,061,923.502 (9)
3-SW17A $ 4,676,486.390 (8)
3-SW17B $ 4,676,486.390 (9)
3-SW18A $ 4,392,942.847 (8)
3-SW18B $ 4,392,942.847 (9)
3-SW19A $ 4,156,856.844 (8)
3-SW19B $ 4,156,856.844 (9)
3-SW20A $ 3,927,839.373 (8)
3-SW20B $ 3,927,839.373 (9)
3-SW21A $ 3,719,137.446 (8)
3-SW21B $ 3,719,137.446 (9)
3-SW22A $ 3,597,165.362 (8)
3-SW22B $ 3,597,165.362 (9)
3-SW23A $ 3,324,414.662 (8)
-7-
3-SW23B $ 3,324,414.662 (9)
3-SW24A $ 3,434,366.117 (8)
3-SW24B $ 3,434,366.117 (9)
3-SW25A $ 3,919,144.453 (8)
3-SW25B $ 3,919,144.453 (9)
3-SW26A $ 5,106,692.369 (8)
3-SW26B $ 5,106,692.369 (9)
3-SW27A $ 5,754,423.108 (8)
3-SW27B $ 5,754,423.108 (9)
3-SW28A $ 3,222,768.220 (8)
3-SW28B $ 3,222,768.220 (9)
3-SW29A $ 3,451,141.083 (8)
3-SW29B $ 3,451,141.083 (9)
3-SW30A $ 2,100,457.030 (8)
3-SW30B $ 2,100,457.030 (9)
3-SW31A $ 1,860,516.280 (8)
3-SW31B $ 1,860,516.280 (9)
3-SW32A $ 1,758,739.683 (8)
3-SW32B $ 1,758,739.683 (9)
3-SW33A $ 1,660,135.916 (8)
3-SW33B $ 1,660,135.916 (9)
3-SW34A $ 1,567,442.463 (8)
3-SW34B $ 1,567,442.463 (9)
3-SW35A $ 1,489,028.011 (8)
3-SW35B $ 1,489,028.011 (9)
3-SW36A $ 1,396,456.018 (8)
3-SW36B $ 1,396,456.018 (9)
3-SW37A $ 1,317,135.243 (8)
3-SW37B $ 1,317,135.243 (9)
3-SW38A $ 1,281,572.102 (8)
3-SW38B $ 1,281,572.102 (9)
3-SW39A $ 1,158,317.534 (8)
3-SW39B $ 1,158,317.534 (9)
3-SW40A $ 1,096,506.097 (8)
3-SW40B $ 1,096,506.097 (9)
3-SW41A $ 1,036,473.643 (8)
3-SW41B $ 1,036,473.643 (9)
3-SW42A $ 972,204.391 (8)
3-SW42B $ 972,204.391 (9)
3-SW43A $ 944,055.930 (8)
3-SW43B $ 944,055.930 (9)
3-SW44A $ 856,946.558 (8)
3-SW44B $ 856,946.558 (9)
3-SW45A $ 810,241.622 (8)
3-SW45B $ 810,241.622 (9)
-8-
3-SW46A $ 784,649.995 (8)
3-SW46B $ 784,649.995 (9)
3-SW47A $ 920,007.380 (8)
3-SW47B $ 920,007.380 (9)
3-SW48A $ 1,623,167.989 (8)
3-SW48B $ 1,623,167.989 (9)
3-SW49A $ 4,592,032.311 (8)
3-SW49B $ 4,592,032.311 (9)
3-SW50A $ 3,330,924.982 (8)
3-SW50B $ 3,330,924.982 (9)
3-SW51A $ 1,158,163.535 (8)
3-SW51B $ 1,158,163.535 (9)
3-SW52A $ 100,721.886 (8)
3-SW52B $ 100,721.886 (9)
3-SW53A $ 160,335.540 (8)
3-SW53B $ 160,335.540 (9)
SWR (10) (10)
(1) The interest rate on the Class 1-SW1 Interest shall be a per annum rate
equal to the Group 1 Net WAC.
(2) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "1" and ending with the designation
"A" shall be a per annum rate equal to 2 times the Group 1 Net WAC, subject
to a maximum rate of 2 times the REMIC Swap Rate for such Distribution
Date.
(3) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "1" and ending with the designation
"B" shall be a per annum rate equal to the greater of (x) the excess, if
any, of (i) 2 times the Group 1 Net WAC over (ii) 2 times the REMIC Swap
Rate for such Distribution Date and (y) 0.00%.
(4) The interest rate on the Class 2-SW2 Interest shall be a per annum rate
equal to the Group 2 Net WAC.
(5) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "2" and ending with the designation
"A" shall be a per annum rate equal to 2 times the Group 2 Net WAC, subject
to a maximum rate of 2 times the REMIC Swap Rate for such Distribution
Date.
(6) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "2" and ending with the designation
"B" shall be a per annum rate equal to the greater of (x) the excess, if
any, of (i) 2 times the Group 2 Net WAC over (ii) 2 times the REMIC Swap
Rate for such Distribution Date and (y) 0.00%.
(7) The interest rate on the Class 3-SW3 Interest shall be a per annum rate
equal to the Group 3 Net WAC.
(8) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "3" and ending with the designation
"A" shall be a per annum rate equal to 2 times the Group 3 Net WAC, subject
to a maximum rate of 2 times the REMIC Swap Rate for such Distribution
Date.
(9) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "3" and ending with the designation
"B" shall be a per annum rate equal to the greater of (x) the excess, if
any, of (i) 2 times the Group 3 Net WAC over (ii) 2 times the REMIC Swap
Rate for such Distribution Date and (y) 0.00%.
-9-
(10) The Class SWR Interest shall have no principal amount and shall bear no
interest.
THE LOWER TIER REMIC
The following table sets forth the designations, initial principal
balances, interest rates, Classes of Corresponding Certificates and related Loan
Group for each interest in the Lower Tier REMIC:
Class(es) of
Corresponding
Initial Certificates
Principal Interest or Related
Class Balance Rate Loan Group
------ --------- -------- -------------
LTA-1 (1) (10) A-1, R
LTA-2A (1) (10) A-2A
LTA-2B (1) (10) A-2B
LTA-3A (1) (10) A-3A
LTA-3B (1) (10) A-3B
LTA-3C (1) (10) A-3C
LTA-3D (1) (10) A-3D
LTM-1 (1) (10) M-1
LTM-2 (1) (10) M-2
LTM-3 (1) (10) M-3
LTM-4 (1) (10) M-4
LTM-5 (1) (10) M-5
LTM-6 (1) (10) M-6
LTB-1 (1) (10) B-1
LTB-2 (1) (10) B-2
LTB-3 (1) (10) B-3
LTIX (2) (10) N/A
LTII1A (3) (10) Loan Group 1
LTII1B (4) (11) Loan Group 1
LTII2A (5) (10) Loan Group 2
LTII2B (6) (12) Loan Group 2
LTII3A (7) (10) Loan Group 3
LTII3B (8) (13) Loan Group 3
LTIIX (9) (10) N/A
LT-IO (14) (14) N/A
LTR (15) (15) N/A
(1) The initial principal balance of each of these Lower Tier REMIC Regular
Interests shall equal 1/4 of the initial Class Certificate Balance of its
Corresponding Certificates.
(2) The initial principal balance of the Class LTIX Interest shall equal the
excess of (i) 50% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans over (ii) the initial principal balance of the Lower Tier
REMIC I Marker Interests.
-10-
(3) The initial principal balance of the Class LTII1A Interest shall equal
0.05% of the excess of (i) the aggregate Cut-off Date Principal Balance of
the Group 1 Mortgage Loans over (ii) the aggregate of the initial Class
Certificate Balances of the Group 1 Certificates.
(4) The initial principal balance of the Class LTII1B Interest shall equal
0.05% of the aggregate Cut-off Date Principal Balance of the Group 1
Mortgage Loans.
(5) The initial principal balance of the Class LTII2A Interest shall equal
0.05% of the excess of (i) the aggregate Cut-off Date Principal Balance of
the Group 2 Mortgage Loans over (ii) the aggregate of the initial Class
Certificate Balances of the Group 2 Certificates.
(6) The initial principal balance of the Class LTII2B Interest shall equal
0.05% of the aggregate Cut-off Date Principal Balance of the Group 2
Mortgage Loans.
(7) The initial principal balance of the Class LTII3A Interest shall equal
0.05% of the excess of (i) the aggregate Cut-off Date Principal Balance of
the Group 3 Mortgage Loans over (ii) the aggregate of the initial Class
Certificate Balances of the Group 3 Certificates.
(8) The initial principal balance of the Class LTII3B Interest shall equal
0.05% of the aggregate Cut-off Date Principal Balance of the Group 3
Mortgage Loans.
(9) The initial principal balance of the Class LTIIX Interest shall equal the
excess of (i) 50% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans over (ii) the initial principal balance of the Lower Tier
REMIC II Marker Interests.
(10) For each Distribution Date, the interest rate for each of the Lower Tier
REMIC Regular Interests (other than the Class LTII1B, the Class LTII2B, the
Class LTII3B and the Class LT-IO Interests) shall be a per annum rate (but
not less than zero) equal to the product of (i) the weighted average of the
interest rates on the SWAP REMIC Regular Interests for such Distribution
Date and (ii) a fraction the numerator of which is 30 and the denominator
of which is the actual number of days in the Accrual Period for the LIBOR
Certificates, provided however, that for any Distribution Date on which the
Class LT-IO Interest is entitled to a portion of interest accruals on a
SWAP REMIC Regular Interest ending with a designation "A" as described in
footnote 14 below, such weighted average shall be computed by first
subjecting the rate on such SWAP REMIC Regular Interest to a cap equal to
Swap LIBOR for such Distribution Date.
(11) For each Distribution Date, the interest rate for the Class LTII1B Interest
shall be a per annum rate equal to the product of (i) the weighted average
of the interest rates on the SWAP REMIC Regular Interests beginning with
the designation "1" for such Distribution Date and (ii) a fraction the
numerator of which is 30 and the denominator of which is the actual number
of days in the Accrual Period for the LIBOR Certificates, provided,
however, that for any Distribution Date on which the Class LT-IO Interest
is entitled to a portion of interest accruals on a SWAP REMIC Regular
Interest ending with a designation "A" as described in footnote 14 below,
such weighted average shall be computed by first subjecting the rate on
such SWAP REMIC Regular Interest to a cap equal to Swap LIBOR for such
Distribution Date.
(12) For each Distribution Date, the interest rate for the Class LTII2B Interest
shall be a per annum rate equal to the product of (i) the weighted average
of the interest rates on the SWAP REMIC Regular Interests beginning with
the designation "2" for such Distribution Date and (ii) a fraction the
numerator of which is 30 and the denominator of which is the actual number
of days in the Accrual Period for the LIBOR Certificates, provided,
however, that for any Distribution Date on which the Class LT-IO Interest
is entitled to a portion of interest accruals on a SWAP REMIC Regular
Interest ending with a designation "A" as described in footnote 14 below,
such weighted average shall be computed by first subjecting the rate on
such SWAP REMIC Regular Interest to a cap equal to Swap LIBOR for such
Distribution Date.
(13) For each Distribution Date, the interest rate for the Class LTII3B Interest
shall be a per annum rate equal to the product of (i) the weighted average
of the interest rates on the SWAP REMIC Regular Interests beginning with
-11-
the designation "3" for such Distribution Date and (ii) a fraction the numerator
of which is 30 and the denominator of which is the actual number of days in the
Accrual Period for the LIBOR Certificates, provided, however, that for any
Distribution Date on which the Class LT-IO Interest is entitled to a portion of
interest accruals on a SWAP REMIC Regular Interest ending with a designation "A"
as described in footnote 14 below, such weighted average shall be computed by
first subjecting the rate on such SWAP REMIC Regular Interest to a cap equal to
Swap LIBOR for such Distribution Date.
(14) The Class LT-IO Interest is an interest-only class that does not have a
principal balance. For only those Distribution Dates listed in the first
column of the table below, the Class LT-IO Interest shall be entitled to
interest accrued on the SWAP REMIC Regular Interest listed in the second
column below at a per annum rate equal to the excess, if any, of (i) the
interest rate for such SWAP REMIC Regular Interest for such Distribution
Date over (ii) Swap LIBOR for such Distribution Date.
SWAP REMIC
Distribution Date Regular Interest
----------------- ----------------
7 Class 1-SW1A
Class 2-SW1A
Class 3-SW1A
7-8 Class 1-SW2A
Class 2-SW2A
Class 3-SW2A
7-9 Class 1-SW3A
Class 2-SW3A
Class 3-SW3A
7-10 Class 1-SW4A
Class 2-SW4A
Class 3-SW4A
7-11 Class 1-SW5A
Class 2-SW5A
Class 3-SW5A
7-12 Class 1-SW6A
Class 2-SW6A
Class 3-SW6A
7-13 Class 1-SW7A
Class 2-SW7A
Class 3-SW7A
7-14 Class 1-SW8A
Class 2-SW8A
Class 3-SW8A
7-15 Class 1-SW9A
Class 2-SW9A
Class 3-SW9A
7-16 Class 1-SW10A
Class 2-SW10A
Class 3-SW10A
7-17 Class 1-SW11A
Class 2-SW11A
Class 3-SW11A
-12-
7-18 Class 1-SW12A
Class 2-SW12A
Class 3-SW12A
7-19 Class 1-SW13A
Class 2-SW13A
Class 3-SW13A
7-20 Class 1-SW14A
Class 2-SW14A
Class 3-SW14A
7-21 Class 1-SW15A
Class 2-SW15A
Class 3-SW15A
7-22 Class 1-SW16A
Class 2-SW16A
Class 3-SW16A
7-23 Class 1-SW17A
Class 2-SW17A
Class 3-SW17A
7-24 Class 1-SW18A
Class 2-SW18A
Class 3-SW18A
7-25 Class 1-SW19A
Class 2-SW19A
Class 3-SW19A
7-26 Class 1-SW20A
Class 2-SW20A
Class 3-SW20A
7-27 Class 1-SW21A
Class 2-SW21A
Class 3-SW21A
7-28 Class 1-SW22A
Class 2-SW22A
Class 3-SW22A
7-29 Class 1-SW23A
Class 2-SW23A
Class 3-SW23A
7-30 Class 1-SW24A
Class 2-SW24A
Class 3-SW24A
7-31 Class 1-SW25A
Class 2-SW25A
Class 3-SW25A
7-32 Class 1-SW26A
Class 2-SW26A
Class 3-SW26A
-13-
7-33 Class 1-SW27A
Class 2-SW27A
Class 3-SW27A
7-34 Class 1-SW28A
Class 2-SW28A
Class 3-SW28A
7-35 Class 1-SW29A
Class 2-SW29A
Class 3-SW29A
7-36 Class 1-SW30A
Class 2-SW30A
Class 3-SW30A
7-38 Class 1-SW31A
Class 2-SW31A
Class 3-SW31A
7-39 Class 1-SW32A
Class 2-SW32A
Class 3-SW32A
7-40 Class 1-SW33A
Class 2-SW33A
Class 3-SW33A
7-41 Class 1-SW34A
Class 2-SW34A
Class 3-SW34A
7-42 Class 1-SW35A
Class 2-SW35A
Class 3-SW35A
7-43 Class 1-SW36A
Class 2-SW36A
Class 3-SW36A
7-44 Class 1-SW37A
Class 2-SW37A
Class 3-SW37A
7-45 Class 1-SW38A
Class 2-SW38A
Class 3-SW38A
7-46 Class 1-SW39A
Class 2-SW39A
Class 3-SW39A
7-47 Class 1-SW40A
Class 2-SW40A
Class 3-SW40A
7-48 Class 1-SW41A
Class 2-SW41A
Class 3-SW41A
-14-
7-49 Class 1-SW42A
Class 2-SW42A
Class 3-SW42A
7-50 Class 1-SW43A
Class 2-SW43A
Class 3-SW43A
7-51 Class 1-SW44A
Class 2-SW44A
Class 3-SW44A
7-52 Class 1-SW45A
Class 2-SW45A
Class 3-SW45A
7-53 Class 1-SW46A
Class 2-SW46A
Class 3-SW46A
7-54 Class 1-SW47A
Class 2-SW47A
Class 3-SW47A
7-55 Class 1-SW48A
Class 2-SW48A
Class 3-SW48A
7-56 Class 1-SW49A
Class 2-SW49A
Class 3-SW49A
7-57 Class 1-SW50A
Class 2-SW50A
Class 3-SW50A
7-58 Class 1-SW51A
Class 2-SW51A
Class 3-SW51A
7-59 Class 1-SW52A
Class 2-SW52A
Class 3-SW52A
7-60 Class 1-SW53A
Class 2-SW53A
Class 3-SW53A
(15) The Class LTR Interest shall have no principal amount and shall bear no
interest.
UPPER TIER REMIC
The following table sets forth the designation, the initial principal
balances, the interest rates and Classes of Related Certificates for each of the
interests in the Upper Tier REMIC.
-15-
Initial
Principal Class of
Class Balance Rate Related Certificates
----- --------- --------- --------------------
UTA-1 (1) (2) A-1
UTA-2A (1) (2) A-2A
UTA-2B (1) (2) A-2B
UTA-3A (1) (2) A-3A
UTA-3B (1) (2) A-3B
UTA-3C (1) (2) A-3C
UTA-3D (1) (2) A-3D
UTM-1 (1) (2) M-1
UTM-2 (1) (2) M-2
UTM-3 (1) (2) M-3
UTM-4 (1) (2) M-4
UTM-5 (1) (2) M-5
UTM-6 (1) (2) M-6
UTB-1 (1) (2) B-1
UTB-2 (1) (2) B-2
UTB-3 (1) (2) B-3
Uncertificated Class C Interest (3) (3) N/A
UT-IO (4) (4) N/A
Residual Interest (1) (2) R
(1) The initial principal balance of each of these REMIC Regular Interests and
the Residual Interest shall equal the initial principal balance of its
Class of Related Certificates.
(2) The interest rates on each of these REMIC Regular Interests and the
Residual Interest shall be an annual rate equal to the Certificate Rate for
the Class of Related Certificates, provided that in lieu of the applicable
Available Funds Cap set forth in the definition of an applicable
Certificate Rate, the applicable Upper Tier REMIC Net WAC Cap shall be
used.
(3) The Uncertificated Class C Interest shall have an initial principal balance
equal to the initial Overcollateralization Amount. The Uncertificated Class
C Interest shall accrue interest on a notional balance set forth in the
definition of Class C Current Interest at a rate equal to the Class C
Distributable Interest Rate. The Uncertificated Class C Interest shall be
represented by the Class C Certificates.
(4) The Class UT-IO Interest shall have no principal amount and will not have
an interest rate, but will be entitled to 100% of the interest accrued with
respect to the Class LT-IO Interest. The Class UT-IO Interest shall be
represented by the Class C Certificates.
THE CERTIFICATES
The following table sets forth (or describes) the Class designation,
initial Class Certificate Balance or initial notional amount, integral dollar
multiples in excess thereof (except that one Certificate of each Class may be
issued in a different amount which must be in excess of the applicable minimum
dollar denomination) and minimum denomination for each Class of Certificates
comprising interests in the Trust Fund created hereunder.
-16-
Initial Class
Certificate Integral Minimum
Balance or Multiples in Denominations
Class Initial Excess of or Percentage
Designation Notional Amount Minimum Interest
----------- --------------- ------------ -------------
Class A-1 $180,475,000.00 $1.00 $25,000.00
Class A-2A $165,226,000.00 $1.00 $25,000.00
Class A-2B $ 18,359,000.00 $1.00 $25,000.00
Class A-3A $256,019,000.00 $1.00 $25,000.00
Class A-3B $ 75,497,000.00 $1.00 $25,000.00
Class A-3C $ 87,223,000.00 $1.00 $25,000.00
Class A-3D $ 46,527,000.00 $1.00 $25,000.00
Class R $ 100 N/A $ 100
Class M-1 $ 12,338,000.00 $1.00 $25,000.00
Class M-2 $ 4,406,000.00 $1.00 $25,000.00
Class M-3 $ 4,406,000.00 $1.00 $25,000.00
Class M-4 $ 4,406,000.00 $1.00 $25,000.00
Class M-5 $ 4,406,000.00 $1.00 $25,000.00
Class M-6 $ 3,525,000.00 $1.00 $25,000.00
Class B-1 $ 3,084,000.00 $1.00 $25,000.00
Class B-2 $ 3,084,000.00 $1.00 $25,000.00
Class B-3 $ 4,406,000.00 $1.00 $25,000.00
Class P N/A (1) 1% 100%
Class C (2) 1% (2)
----------
(1) The Class P Certificates shall not have minimum dollar denominations or
Class Certificate Balance and shall be issued in a minimum percentage
interest of 10% and an aggregate percentage interest of 100%. The Class P
Certificates will be entitled to receive Prepayment Charges on the
Prepayment Charge Mortgage Loans.
(2) The Class C Certificates shall not have minimum dollar denominations as the
Class Certificate Balance thereof shall vary over time as described herein
and shall be issued in a minimum percentage interest of 10% and an
aggregate percentage interest of 100%.
As of the Cut-off Date, the Mortgage Loans had an aggregate Stated
Principal Balance of $881,325,150.98.
In consideration of the mutual agreements herein contained, the Depositor,
the Trustee, Securities Administrator and the Master Servicer hereby agree as
follows:
-17-
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
otherwise expressly provided or unless the context otherwise requires, shall
have the meanings specified in this Article.
Accepted Master Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage master servicing practices of
prudent mortgage servicing institutions that master service mortgage loans of
the same type and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to the Trustee
or the Master Servicer (except in its capacity as successor to a Servicer), or
(y) as provided in the applicable Servicing Agreement, to the extent applicable
to any Servicer, but in no event below the standard set forth in clause (x).
Account: The Master Servicer Collection Account, Distribution Account and
any Protected Account as the context may require.
Accountant's Attestation: As defined in Section 3.17.
Accrual Period: With respect to the Certificates, their Corresponding REMIC
Regular Interests and the Lower Tier REMIC Interests and a Distribution Date,
the period from and including the preceding Distribution Date (or from the
Closing Date in the case of the first Distribution Date) to and including the
day prior to such Distribution Date and with respect to the SWAP REMIC Regular
Interests and any Distribution Date, the calendar month immediately preceding
the month in which such Distribution Date occurs. All calculations of interest
with respect to the Certificates, their Corresponding REMIC Regular Interests
and the Lower Tier REMIC Interests will be made on the basis of the actual
number of days elapsed in the related Accrual Period and a 360 day year and all
calculations of interest on the SWAP REMIC Regular Interests will be made on the
basis of a 360-day year consisting of twelve 30-day months.
Additional Disclosure Notification: As defined in Section 3.18(b).
Additional Form 10-D Disclosure: As defined in Section 3.18(e).
Additional Form 10-K Disclosure: As defined in Section 3.18(h).
Adjustment Date: means, with respect to a Mortgage Loan, generally the
first day of the month or months specified in the related mortgage note.
Adverse REMIC Event: As defined in Section 9.12(g).
Affiliate: As to any Person, any other Person controlling, controlled by or
under common control with such Person. "Control" means the power to direct the
management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise. "Controlled" and
"Controlling" have meanings correlative to the foregoing. The Master Servicer
may conclusively presume that a Person is not an Affiliate of another Person
unless a Responsible Officer of the Master Servicer has actual knowledge to the
contrary.
-18-
Agreement: This Pooling and Servicing Agreement, dated as of March 1, 2007,
by and among the Depositor, the Master Servicer, the Securities Administrator
and the Trustee, including the exhibits hereto, and all amendments hereof and
supplements hereto.
Applicable Credit Rating: For any long-term deposit or security, a credit
rating of "AAA" in the case of S&P or "Aaa" in the case of Xxxxx'x. For any
short-term deposit or security, a rating of "A-l+" in the case of S&P or "P-1"
in the case of Xxxxx'x.
Applied Realized Loss Amount: With respect to any class of Subordinate
Certificates and as to any Distribution Date, the sum of the Realized Losses
with respect to the Mortgage Loans which have been applied in reduction of the
Class Certificate Balance of such class.
Appraised Value: For any Mortgaged Property related to a Mortgage Loan, the
amount set forth as the appraised value of such Mortgaged Property in an
appraisal made for the mortgage originator in connection with its origination of
the related Mortgage Loan.
Assessment of Compliance: As defined in Section 3.17.
Assignment: 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 of record the sale
of the Mortgage Loan to the Trustee for the benefit of Certificateholders, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county, if permitted by law and accompanied by an
Opinion of Counsel to that effect.
Assignment Agreements: The CitiMortgage Assignment Agreement, the
Countrywide Assignment Agreement, the GreenPoint Assignment Agreement, the
National City Assignment Agreement, the PHH Assignment Agreement, the RFC
Assignment Agreement, the Xxxxx Fargo Assignment Agreement and the Wilshire
Servicing Agreement, which are attached hereto as Exhibits I-1 through I-8,
respectively.
Auction: The one-time auction conducted by the Securities Administrator, as
described in Section 10.01(b) hereof.
Available Funds Cap: means any of the Class A-1 Available Funds Cap, the
Class A-2 Available Funds Cap, the Class A-3 Available Funds Cap or the Weighted
Average Available Funds Cap.
Back-Up Certification: As defined in Section 3.18(k).
Bankruptcy Code: The United States Bankruptcy Code, as amended as codified
in 11 U.S.C. Sections 101-1330.
Book-Entry Certificates: Any of the Certificates that shall be registered
in the name of the Depository or its nominee, the ownership of which is
reflected on the books of the Depository or on the books of a Person maintaining
an account with the Depository (directly, as a Depository Participant, or
indirectly, as an indirect participant in accordance with the rules of
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the Depository and as described in Section 5.02 hereof). On the Closing Date,
the Certificates (other than the Class R Certificate) shall be Book-Entry
Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which the New York Stock Exchange or Federal Reserve is closed or on which
banking institutions in the jurisdiction in which the Trustee, the Master
Servicer, any Servicer or the Securities Administrator are authorized or
obligated by law or executive order to be closed.
Cap Contract: The confirmation and agreement, including the schedule
thereto and the related credit support annex, between the Cap Contract
Counterparty and the Supplemental Interest Trust Trustee for the benefit of the
Certificateholders (in the form of Exhibit B of Exhibit Q attached hereto).
Cap Contract Account: The separate Eligible Account created and maintained
by the Supplemental Interest Trust Trustee pursuant to Section 6.01(m) in the
name of the Supplemental Interest Trust Trustee for the benefit of the Issuing
Entity and designated "Xxxxx Fargo Bank, National Association, as Supplemental
Interest Trust Trustee of Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, MANA Series 2007-A2 - Cap Contract Account." Funds in
the Cap Contract Account shall be held in trust for the Issuing Entity for the
uses and purposes set forth in this Agreement.
Cap Contract Counterparty: The Royal Bank of Scotland plc with whom the
Securities Administrator, on behalf of the Issuing Entity, entered into each of
the Corridor Contracts and with whom the Supplemental Interest Trust Trustee, on
behalf of the Supplemental Interest Trust, entered into the Cap Contract.
Cap Payments: For each Distribution Date, the cap payment that the Cap
Counterparty is obligated to pay to the Supplemental Interest Trust if LIBOR (as
defined in the Cap Contract) is greater than 6.000%. The Cap Payment is based on
the lesser of (a) the Cap Contract Notional Balance for the Distribution Date
and (b) the excess if any, of (A) the beginning aggregate Certificate Principal
Balance for such Distribution Date over (B) the Swap Agreement Notional Balance
for such Distribution Date.
Cap Posted Collateral Account: The segregated Eligible Account created and
maintained by the Supplemental Interest Trust Trustee pursuant to Section
6.01(m) in the name of the Supplemental Interest Trust Trustee for the benefit
of the Issuing Entity and designated "Xxxxx Fargo Bank, N.A., as Supplemental
Interest Trust Trustee, in trust for registered holders of First Xxxxxxx Xxxxx
Alternative Note Asset Trust, Mortgage Loan Asset-Backed Certificates, Series
2007-A2." Funds in the Cap Posted Collateral Account shall be held in trust for
the Issuing Entity for the uses and purposes set forth in the Cap Contract.
Certificate: Any mortgage pass-through certificate issued pursuant to this
Agreement evidencing a beneficial ownership interest in that portion of the
Trust Fund related to the Mortgage Loans, signed and countersigned by the
Securities Administrator.
Certificate Margin: Means the Class A-1 Certificate Margin, the Class A-2A
Certificate Margin, the Class A-2B Certificate Margin, the Class A-3A
Certificate Margin, the Class A-3B Certificate Margin, the Class A-3C
Certificate Margin, the Class A-3D Certificate Margin, the
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Class M-1 Certificate Margin, the Class M-2 Certificate Margin, the Class M-3
Certificate Margin, the Class M-4 Certificate Margin, the Class M-5 Certificate
Margin, the Class M-6 Certificate Margin, the Class B-1 Certificate Margin, the
Class B-2 Certificate Margin, the Class B-3 Certificate Margin, and the Class R
Certificate Margin.
Certificate Owner: With respect to each Book-Entry Certificate, any
beneficial owner thereof.
Certificate Rate: Means, with respect to any class of the LIBOR
Certificates on any Distribution Date, the lesser of (1) One-Month LIBOR plus
the related Certificate Margin for such class of Certificates, (2) the related
Available Funds Cap and (3) the related Maximum Rate Cap.
Certificate Register: The register maintained pursuant to Section 5.02
hereof.
Certificateholder or Holder: The Person in whose name a Regular Certificate
is registered in the Certificate Register, except that a Disqualified
Organization or non-U.S. Person shall not be a Holder of the Class R Certificate
for any purpose hereof.
Certification Parties: As defined in Section 3.18(k).
Certifying Person: As defined in Section 3.18(k).
CitiMortgage: CitiMortgage, Inc., or any successor thereto.
CitiMortgage Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of March 1, 2007, among CitiMortgage, the
Depositor and the Sponsor pursuant to which the CitiMortgage Servicing
Agreements and the rights of the Sponsor thereunder (other than the rights to
enforce the representations and warranties with respect to the CitiMortgage
Loans) were assigned to the Depositor for the benefit of the Certificateholders.
CitiMortgage Loans: The Mortgage Loans serviced by CitiMortgage pursuant to
the CitiMortgage Servicing Agreement.
CitiMortgage Servicing Agreement: The Mortgage Servicing Purchase and Sale
Agreement, dated as of September 1, 2006, between the Sponsor and CitiMortgage.
Class: Collectively, Certificates which have the same priority of payment
and bear the same class designation and the form of which is identical except
for variation in the Percentage Interest evidenced thereby.
Class A-1 Available Funds Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest on the Mortgage Loans in Group 1 based on the Net Mortgage
Rates in effect on the related Due Date, less the pro rata portion (calculated
based on the ratio of the Stated Principal Balance of the Group 1
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Mortgage Loans to the Stated Principal Balance of the total pool of Mortgage
Loans) allocable to the Group 1 Mortgage Loans of any Net Swap Payments or Swap
Termination Payments (other than Defaulted Swap Termination Payments) owed to
the Swap Counterparty for such Distribution Date and (y) the aggregate Stated
Principal Balance of the Mortgage Loans in Group 1 as of the first day of the
related Accrual Period (or, in the case of the first Distribution Date, as of
the Cut-off Date) and (iii) a fraction, the numerator of which is 30, and the
denominator of which is the actual number of days in the related Accrual Period.
The Class A-1 Available Funds Cap shall relate to the Class A-1 and Class R
Certificates.
Class A-1 Certificate: Any Certificate designated as a "Class A-1
Certificate" on the face thereof substantially in the form annexed hereto as
Exhibit A-1, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein.
Class A-1 Certificate Rate: For the first Distribution Date, 5.53% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-1 Margin, (2) the Class A-1 Available Funds Cap for such
Distribution Date and (3) the Class A-1 Maximum Rate Cap for such Distribution
Date.
Class A-1 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class A-1 Certificates.
Class A-1 Corridor Contract: The confirmation and agreement, including the
schedule thereto, between the Securities Administrator on behalf of the Issuing
Entity and the Cap Contract Counterparty (in the form of Exhibit N-1 hereto).
Class A-1 Corridor Contract Notional Balance: With respect to any
Distribution Date, the Class A-1 Corridor Contract Notional Balance set forth
for such Distribution Date in the Class A-1 One-Month LIBOR Cap Table attached
hereto as Exhibit H-1.
Class A-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-1 Certificate Rate on
the Class A-1 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or a Class A-1 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-1 Certificates.
Class A-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-1 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-1 Certificate Rate for the related Accrual Period.
Class A-1 Lower Collar: With respect to each Distribution Date, the
applicable per annum rate set forth under the heading "1ML Strike Lower Collar"
in the Class A-1 One-Month LIBOR Cap Table (set forth on Exhibit H-1).
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Class A-1 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.210% per annum, and (ii) after the Initial Optional
Termination Date, 0.420% per annum.
Class A-1 Maximum Rate Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest that would have been due on the Group 1 Mortgage Loans had
the Group 1 Mortgage Loans provided for interest at their maximum lifetime Net
Mortgage Rates less the pro rata portion (calculated based on the ratio of the
Stated Principal Balance of the Group 1 Mortgage Loans to the Stated Principal
Balance of the total pool of Mortgage Loans) allocable to the Group 1 Mortgage
Loans of any Net Swap Payments or Swap Termination Payments owed to the Swap
Counterparty for such Distribution Date (other than Defaulted Swap Termination
Payments), and (y) the aggregate Stated Principal Balance of the Group 1
Mortgage Loans as of the first day of the related Accrual Period (or, in the
case of the first Distribution Date, as of the Cut-off Date) and (iii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the related Accrual Period. The Class A-1 Maximum Rate
Cap shall relate to the Class A-1 Certificates.
Class A-1 Upper Collar: With respect to each Distribution Date with respect
to which payments are received on the Class A-1 Corridor Contract, a rate equal
to the lesser of One-Month LIBOR and 10.290% per annum.
Class A-2 Available Funds Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest on the Mortgage Loans in Group 2 based on the Net Mortgage
Rates in effect on the related Due Date, less the pro rata portion (calculated
based on the ratio of the Stated Principal Balance of the Group 2 Mortgage Loans
to the Stated Principal Balance of the total pool of Mortgage Loans) allocable
to the Group 2 Mortgage Loans of any Net Swap Payments or Swap Termination
Payments (other than Defaulted Swap Termination Payments) owed to the Swap
Counterparty for such Distribution Date, and (y) the aggregate Stated Principal
Balance of the Mortgage Loans in Group 2 as of the first day of the related
Accrual Period (or, in the case of the first Distribution Date, as of the
Cut-off Date) and (iii) a fraction, the numerator of which is 30, and the
denominator of which is the actual number of days in the related Accrual Period.
Class A-2 Certificate: Any one of the Class A-2A and Class A-2B
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-1, executed by the Securities Administrator and
authenticated and delivered by the Securities Administrator, representing the
right to distributions as set forth herein and therein.
Class A-2 Corridor Contract: The confirmation and agreement, including the
schedule thereto, between the Securities Administrator on behalf of the Issuing
Entity and the Cap Contract Counterparty (in the form of Exhibit N-2 hereto).
Class A-2 Corridor Contract Notional Balance: With respect to any
Distribution Date, the Class A-2 Corridor Contract Notional Balance set forth
for such Distribution Date in the Class A-2 One-Month LIBOR Cap Table attached
hereto as Exhibit H-2.
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Xxxxx X-0 Xxxxx Xxxxxx: With respect to each Distribution Date, the
applicable per annum rate set forth under the heading "1ML Strike Lower Collar"
in the Class A-2 One-Month LIBOR Cap Table (set forth on Exhibit H-2).
Class A-2 Maximum Rate Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest that would have been due on the Group 2 Mortgage Loans had
the Group 2 Mortgage Loans provided for interest at their maximum lifetime Net
Mortgage Rates less the pro rata portion (calculated based on the ratio of the
Stated Principal Balance of the Group 2 Mortgage Loans to the Stated Principal
Balance of the total pool of Mortgage Loans) allocable to the Group 2 Mortgage
Loans of any Net Swap Payments or Swap Termination Payments owed to the Swap
Counterparty for such Distribution Date (other than Defaulted Swap Termination
Payments), and (y) the aggregate Stated Principal Balance of the Group 2
Mortgage Loans as of the first day of the related Accrual Period (or, in the
case of the first Distribution Date, as of the Cut-off Date) and (iii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the related Accrual Period. The Class A-2 Maximum Rate
Cap shall relate to the Class A-2 Certificates.
Class A-2 Upper Collar: With respect to each Distribution Date with respect
to which payments are received on the Class A-2 Corridor Contract, a rate equal
to the lesser of One-Month LIBOR and 10.290% per annum.
Class A-2A Certificate: Any Certificate designated as a "Class A-2A
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class A-2A Certificate Rate: For the first Distribution Date, 5.52% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2A Margin, (2) the Class A-2 Available Funds Cap for such
Distribution Date and (3) the Class A-2 Maximum Rate Cap for such Distribution
Date.
Class A-2A Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2A Certificate Rate on
the Class A-2A Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or a Class A-2A Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-2A Certificates.
For purposes of calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the Accrual Period in
which such Distribution Date occurs.
Class A-2A Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2A Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2A Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-2A Certificate Rate for the related Accrual Period.
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Class A-2A Margin: As of any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.200% per annum, and (ii) after the Initial
Optional Termination Date, 0.400% per annum.
Class A-2B Certificate: Any Certificate designated as a "Class A-2B
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class A-2B Certificate Rate: For the first Distribution Date, 5.60% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2B Margin, (2) the Class A-2 Available Funds Cap for such
Distribution Date and (3) the Class A-2 Maximum Rate Cap for such Distribution
Date.
Class A-2B Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2B Certificate Rate on
the Class A-2B Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or a Class A-2B Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Non-Supported Interest
Shortfall allocated on such Distribution Date to the Class A-2B Certificates.
For purposes of calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the Accrual Period in
which such Distribution Date occurs.
Class X-0X Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2B Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2B Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-2B Certificate Rate for the related Accrual Period.
Class A-2B Margin: As of any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.280% per annum, and (ii) after the Initial
Optional Termination Date, 0.560% per annum.
Class A-3 Available Funds Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest on the Mortgage Loans in Group 3 based on the Net Mortgage
Rates in effect on the related Due Date, less the pro rata portion (calculated
based on the ratio of the Stated Principal Balance of the Group 3 Mortgage Loans
to the Stated Principal Balance of the total pool of Mortgage Loans) allocable
to the Group 3 Mortgage Loans of any Net Swap Payments or Swap Termination
Payments (other than Defaulted Swap Termination Payments) owed to the Swap
Counterparty for such Distribution Date, and (y) the aggregate Stated Principal
Balance of the Mortgage Loans in Group 3 as of the first day of the related
Accrual Period (or, in the case of the first Distribution Date, as of the
Cut-off Date) and (iii) a fraction, the numerator of which is 30, and the
denominator of which is the actual number of days in the related Accrual Period.
Class A-3 Certificate: Any one of the Class A-3A, Class A-3B, Class A-3C
and Class A-3D Certificates as designated on the face thereof substantially in
the form annexed hereto as
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Xxxxxxx X-0, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein.
Class A-3 Corridor Contract: The confirmation and agreement, including the
schedule thereto, between the Securities Administrator on behalf of the Issuing
Entity and the Cap Contract Counterparty (in the form of Exhibit H-3 hereto).
Class A-3 Corridor Contract Notional Balance: With respect to any
Distribution Date, the Class A-3 Corridor Contract Notional Balance set forth
for such Distribution Date in the Class A-3 One-Month LIBOR Cap Table attached
hereto as Exhibit H-3.
Class A-3 Lower Collar: With respect to each Distribution Date, the
applicable per annum rate set forth under the heading "1ML Strike Lower Collar"
in the Class A-3 One-Month LIBOR Cap Table (set forth on Exhibit H-3).
Class A-3 Maximum Rate Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest that would have been due on the Group 3 Mortgage Loans had
the Group 3 Mortgage Loans provided for interest at their maximum lifetime Net
Mortgage Rates less the pro rata portion (calculated based on the ratio of the
Stated Principal Balance of the Group 3 Mortgage Loans to the Stated Principal
Balance of the total pool of Mortgage Loans) allocable to the Group 3 Mortgage
Loans of any Net Swap Payments or Swap Termination Payments owed to the Swap
Counterparty for such Distribution Date (other than Defaulted Swap Termination
Payments), and (y) the aggregate Stated Principal Balance of the Group 3
Mortgage Loans as of the first day of the related Accrual Period (or, in the
case of the first Distribution Date, as of the Cut-off Date) and (iii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the related Accrual Period. The Class A-3 Maximum Rate
Cap shall relate to the Class A-3 Certificates.
Class A-3 Upper Collar: With respect to each Distribution Date with respect
to which payments are received on the Class A-3 Corridor Contract, a rate equal
to the lesser of One-Month LIBOR and 10.311% per annum.
Class A-3A Certificate: Any Certificate designated as a "Class A-3A
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class A-3A Certificate Rate: For the first Distribution Date, 5.43% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-3A Margin, (2) the Class A-3 Available Funds Cap for such
Distribution Date and (3) the Class A-3 Maximum Rate Cap for such Distribution
Date.
Class A-3A Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-3A Certificate Rate on
the Class A-3A Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or a Class A-3A Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-3A Certificates.
For purposes of calculating
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interest, principal distributions on a Distribution Date will be deemed to have
been made on the first day of the Accrual Period in which such Distribution Date
occurs.
Class A-3A Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-3A Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-3A Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-3A Certificate Rate for the related Accrual Period.
Class A-3A Margin: As of any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.110% per annum, and (ii) after the Initial
Optional Termination Date, 0.220% per annum.
Class A-3B Certificate: Any Certificate designated as a "Class A-3B
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class A-3B Certificate Rate: For the first Distribution Date, 5.52% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-3B Margin, (2) the Class A-3 Available Funds Cap for such
Distribution Date and (3) the Class A-3 Maximum Rate Cap for such Distribution
Date.
Class A-3B Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-3B Certificate Rate on
the Class A-3B Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or a Class A-3B Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-3B Certificates.
For purposes of calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the Accrual Period in
which such Distribution Date occurs.
Class X-0X Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-3B Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-3B Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-3B Certificate Rate for the related Accrual Period.
Class A-3B Margin: As of any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.200% per annum, and (ii) after the Initial
Optional Termination Date, 0.400% per annum.
Class A-3C Certificate: Any Certificate designated as a "Class A-3C
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class A-3C Certificate Rate: For the first Distribution Date, 5.62% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-3C Margin,
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(2) the Class A-3 Available Funds Cap for such Distribution Date and (3) the
Class A-3 Maximum Rate Cap for such Distribution Date.
Class A-3C Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-3C Certificate Rate on
the Class A-3C Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or a Class A-3C Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-3C Certificates.
For purposes of calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the Accrual Period in
which such Distribution Date occurs.
Class A-3C Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-3C Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-3C Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-3C Certificate Rate for the related Accrual Period.
Class A-3C Margin: As of any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.300% per annum, and (ii) after the Initial
Optional Termination Date, 0.600% per annum.
Class A-3D Certificate: Any Certificate designated as a "Class A-3D
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class A-3D Certificate Rate: For the first Distribution Date, 5.62% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-3D Margin, (2) the Class A-3 Available Funds Cap for such
Distribution Date and (3) the Class A-3 Maximum Rate Cap for such Distribution
Date.
Class A-3D Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-3D Certificate Rate on
the Class A-3D Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or a Class A-3D Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-3D Certificates.
For purposes of calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the Accrual Period in
which such Distribution Date occurs.
Class A-3D Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-3D Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-3D Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-3D Certificate Rate for the related Accrual Period.
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Class A-3D Margin: As of any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.300% per annum, and (ii) after the Initial
Optional Termination Date, 0.600% per annum.
Class B Certificate: Any one of the Class B-1, Class B-2 or Class B-3
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-2, executed by the Securities Administrator and
authenticated and delivered by the Securities Administrator, representing the
right to distributions as set forth herein and therein.
Class B Certificateholder: Any Holder of a Class B Certificate.
Class B-1 Certificate: Any Certificate designated as "Class B-1 Certificate
"on the face thereof in the form of Exhibit A-2 hereto, representing the right
to distributions as set forth herein.
Class B-1 Certificate Rate: For the first Distribution Date, 6.32% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class B-1 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class B-1 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class B-1 Certificates.
Class B-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-1 Certificate Rate on
the Class B-1 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class B-1 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class B-1 Certificates.
Class B-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-1 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class B-1 Certificate Rate for the related Accrual Period.
Class B-1 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.000% per annum, and (ii) after the Initial Optional
Termination Date, 1.500% per annum.
Class B-1 Principal Distribution Amount: means, with respect to any
Distribution Date on or after the Stepdown Date, 100% of the Principal
Distribution Amount if the aggregate Class Certificate Balance of the Senior
Certificates and Class M Certificates has been reduced to zero and a Stepdown
Trigger Event exists, or, as long as a Stepdown Trigger Event does not exist,
the excess of (1) the sum of (A) the Class Certificate Balance of the Senior
Certificates (after taking into account distributions of the Senior Principal
Distribution Amount to the Senior Certificates for such Distribution Date), (B)
the Class Certificate Balance of the Class M-1 Certificates (after taking into
account distributions of the Class M-1 Principal Distribution Amount to the
Class M-
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1 Certificates for such Distribution Date), (C) the Class Certificate Balance of
the Class M-2 Certificates (after taking into account distributions of the Class
M-2 Principal Distribution Amount to the Class M-2 Certificates for such
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account distributions of the Class M-3 Principal
Distribution Amount to the Class M-3 Certificates for such Distribution Date),
(E) the Class Certificate Balance of the Class M-4 Certificates (after taking
into account distributions of the Class M-4 Principal Distribution Amount to the
Class M-4 Certificates for such Distribution Date), (F) the Class Certificate
Balance of the Class M-5 Certificates (after taking into account distributions
of the Class M-5 Principal Distribution Amount to the Class M-5 Certificates for
such Distribution Date), (G) the Class Certificate Balance of the Class M-6
Certificates (after taking into account distributions of the Class M-6 Principal
Distribution Amount to the Class M-6 Certificates for such Distribution Date)
and (H) the Class Certificate Balance of the Class B-1 Certificates immediately
prior to such Distribution Date over (2) the lesser of (A) 96.50% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of as of such Distribution Date over the Minimum Required
Overcollateralization Amount. Notwithstanding the above, (1) on any Distribution
Date prior to the Stepdown Date on which the aggregate Class Certificate Balance
of the Senior Certificates and Class M Certificates has been reduced to zero,
the Class B-1 Principal Distribution Amount will equal the lesser of (A) the
outstanding Class Certificate Balance of the Class B-1 Certificates and (B) 100%
of the Principal Distribution Amount remaining after any distributions on the
Senior Certificates and Class M Certificates and (2) in no event will the Class
B-1 Principal Distribution Amount with respect to any Distribution Date exceed
the Class Certificate Balance of the Class B-1 Certificates.
Class B-2 Certificate: Any Certificate designated as "Class B-2 Certificate
"on the face thereof in the form of Exhibit A-2 hereto, representing the right
to distributions as set forth herein.
Class B-2 Certificate Rate: For the first Distribution Date, 6.52% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class B-2 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class B-2 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class B-2 Certificates.
Class B-2 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-2 Certificate Rate on
the Class B-2 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class B-2 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class B-2 Certificates.
Class B-2 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-2 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-2 Certificates with respect to interest on such
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prior Distribution Dates and (2) interest on such excess (to the extent
permitted by applicable law) at the Class B-2 Certificate Rate for the related
Accrual Period.
Class B-2 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.200% per annum, and (ii) after the Initial Optional
Termination Date, 1.800% per annum.
Class B-2 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the aggregate Class Certificate Balance of the Class A, Class M and Class B-1
Certificates has been reduced to zero and a Stepdown Trigger Event exists, or,
as long as a Stepdown Trigger Event does not exist, the excess of (1) the sum of
(A) the Class Certificate Balance of the Senior Certificates (after taking into
account distributions of the Senior Principal Distribution Amount to the Senior
Certificates for such Distribution Date), (B) the Class Certificate Balance of
the Class M-1 Certificates (after taking into account distributions of the Class
M-1 Principal Distribution Amount to the Class M-1 Certificates for such
Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account distributions of the Class M-2 Principal
Distribution Amount to the Class M-2 Certificates for such Distribution Date),
(D) the Class Certificate Balance of the Class M-3 Certificates (after taking
into account distributions of Class M-3 Principal Distribution Amount to the
Class M-3 Certificates for such Distribution Date), (E) the Class Certificate
Balance of the Class M-4 Certificates (after taking into account distributions
of the Class M-4 Principal Distribution Amount to the Class M-4 Certificates for
such Distribution Date), (F) the Class Certificate Balance of the Class M-5
Certificates (after taking into account distributions of the Class M-5 Principal
Distribution Amount to the Class M-5 Certificates for such Distribution Date),
(G) the Class Certificate Balance of the Class M-6 Certificates (after taking
into account distributions of the Class M-6 Principal Distribution Amount to the
Class M-6 Certificates for such Distribution Date), (H) the Class Certificate
Balance of the Class B-1 Certificates (after taking into account distributions
of the Class B-1 Principal Distribution Amount to the Class B-1 Certificates for
such Distribution Date), and (I) the Class Certificate Balance of the Class B-2
Certificates immediately prior to such Distribution Date over (2) the lesser of
(A) 97.20% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (B) the excess of the aggregate Stated Principal
Balance of the Mortgage Loans as of such Distribution Date over the Minimum
Required Overcollateralization Amount. Notwithstanding the above, (1) on any
Distribution Date prior to the Stepdown Date on which the aggregate Class
Certificate Balance of the Class A, Class M and Class B-1 Certificates has been
reduced to zero, the Class B-2 Principal Distribution Amount will equal the
lesser of (A) the outstanding Class Certificate Balance of the Class B-2
Certificates and (B) 100% of the Principal Distribution Amount remaining after
any distributions on the Class A, Class M and Class B-1 Certificates and (2) in
no event will the Class B-2 Principal Distribution Amount with respect to any
Distribution Date exceed the Class Certificate Balance of the Class B-2
Certificates.
Class B-3 Certificate: Any Certificate designated as "Class B-3 Certificate
"on the face thereof in the form of Exhibit A-2 hereto, representing the right
to distributions as set forth herein.
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Class B-3 Certificate Rate: For the first Distribution Date, 6.72% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class B-3 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class B-3 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class B-3 Certificates.
Class B-3 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-3 Certificate Rate on
the Class B-3 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class B-3 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class B-3 Certificates.
Class B-3 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-3 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-3 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class B-3 Certificate Rate for the related Accrual Period.
Class B-3 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.400% per annum, and (ii) after the Initial Optional
Termination Date, 2.100% per annum.
Class B-3 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the aggregate Class Certificate Balance of the Class A, Class M, Class B-1 and
Class B-2 Certificates has been reduced to zero and a Stepdown Trigger Event
exists, or, as long as a Stepdown Trigger Event does not exist, the excess of
(1) the sum of (A) the Class Certificate Balance of the Senior Certificates
(after taking into account distributions of the Senior Principal Distribution
Amount to the Senior Certificates for such Distribution Date), (B) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account
distributions of the Class M-1 Principal Distribution Amount to the Class M-1
Certificates for such Distribution Date), (C) the Class Certificate Balance of
the Class M-2 Certificates (after taking into account distributions of the Class
M-2 Principal Distribution Amount to the Class M-2 Certificates for such
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account distributions of Class M-3 Principal
Distribution Amount to the Class M-3 Certificates for such Distribution Date),
(E) the Class Certificate Balance of the Class M-4 Certificates (after taking
into account distributions of the Class M-4 Principal Distribution Amount to the
Class M-4 Certificates for such Distribution Date), (F) the Class Certificate
Balance of the Class M-5 Certificates (after taking into account distributions
of the Class M-5 Principal Distribution Amount to the Class M-5 Certificates for
such Distribution Date), (G) the Class Certificate Balance of the Class M-6
Certificates (after taking into account distributions of the Class M-6 Principal
Distribution Amount to the Class M-6 Certificates for such Distribution Date),
(H) the Class Certificate Balance of the Class B-1 Certificates (after taking
into account distributions of the Class B-1 Principal Distribution Amount to the
Class B-1 Certificates for such Distribution
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Date), (I) the Class Certificate Balance of the Class B-2 Certificates (after
taking into account distributions of the Class B-2 Principal Distribution Amount
to the Class B-2 Certificates for such Distribution Date), and (J) the Class
Certificate Balance of the Class B-3 Certificates immediately prior to such
Distribution Date over (2) the lesser of (A) 98.20% of the aggregate Stated
Principal Balance of the Mortgage Loans as of such Distribution Date and (B) the
excess of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date over the Minimum Required Overcollateralization Amount.
Notwithstanding the above, (1) on any Distribution Date prior to the Stepdown
Date on which the aggregate Class Certificate Balance of the Class A, Class M,
Class B-1 and Class B-2 Certificates has been reduced to zero, the Class B-3
Principal Distribution Amount will equal the lesser of (A) the outstanding Class
Certificate Balance of the Class B-3 Certificates and (B) 100% of the Principal
Distribution Amount remaining after any distributions on the Class A, Class M,
Class B-1 and Class B-2 Certificates and (2) in no event will the Class B-3
Principal Distribution Amount with respect to any Distribution Date exceed the
Class Certificate Balance of the Class B-3 Certificates.
Class C Applied Realized Loss Amount: As of any Distribution Date, the sum
of all Realized Loss Amounts with respect to the Mortgage Loans which have been
applied to the reduction of the Class Certificate Balance of the Class C
Certificates.
Class C Certificate: Any Certificate designated as a "Class C Certificate"
on the face thereof, in the form of Exhibit A-5 hereto, representing the right
to distributions as set forth herein.
Class C Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class C Certificates.
Class C Current Interest: As of any Distribution Date, the interest accrued
during the related Accrual Period at the Class C Distributable Interest Rate on
a notional amount equal to the aggregate principal balance of the Lower Tier
REMIC Regular Interests immediately prior to such Distribution Date, plus the
interest portion of any previous distributions on such Class that is recovered
as a voidable preference by a trustee in bankruptcy, less any Prepayment
Interest Shortfalls allocated on such Distribution Date to the Class C
Certificates.
Class C Distributable Interest Rate: The excess, if any, of (a) the
weighted average of the interest rates on the Lower Tier REMIC Regular Interests
(other than the Class LT-IO Interest) over (b) two times the weighted average of
the interest rates on the Lower Tier REMIC I Marker Interests and the Class LTIX
Interest (treating for purposes of this clause (b) the interest rate on each of
the Lower Tier REMIC I Marker Interests as being subject to a cap and a floor
equal to the interest rate of the Corresponding REMIC Regular Interest of the
Corresponding Certificates (as adjusted, if necessary, to reflect the length of
the Accrual Period for the LIBOR Certificates) and treating the Class LTIX
Interest as being capped at zero). The averages described in the preceding
sentence shall be weighted on the basis of the respective principal balances of
the Lower Tier REMIC Regular Interests immediately prior to any date of
determination.
Class C Interest Carry Forward Amount: As of any Distribution Date, the
excess of (A) the Class C Current Interest with respect to prior Distribution
Dates over (B) the amount actually distributed to the Class C Certificates with
respect to interest on such prior Distribution Dates or
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added to the aggregate Class Certificate Balance of the Class C Certificates
(other than amounts so added attributable to Subsequent Recoveries or proceeds
of the Swap Agreement or Cap Contract).
Class C Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class C Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class C Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Class Certificate
Balance of such Class C Certificates (A) pursuant to the last sentence of the
definition of "Class Certificate Balance" or (B) attributable to distributions
of proceeds of the Swap Agreement or Cap Contract.
Class Certificate Balance: As to any Certificate and as of any Distribution
Date, the Initial Class Certificate Balance of such Certificate less the sum of
(1) all amounts distributed with respect to such Certificate in reduction of the
Class Certificate Balance thereof on previous Distribution Dates pursuant to
Section 6.01, and (2) any Realized Loss Amounts allocated to such Certificate on
previous Distribution Dates pursuant to Section 6.01(j). On each Distribution
Date, after all distributions of principal on such Distribution Date, a portion
of the Class C Interest Carry Forward Amount in an amount equal to the excess of
the Overcollateralization Amount on such Distribution Date over the
Overcollateralization Amount as of the preceding Distribution Date (or, in the
case of the first Distribution Date, the initial Overcollateralization Amount
(based on the Stated Principal Balance of the Mortgage Loans as of the Cut-Off
Date)) will be added to the aggregate Class Certificate Balance of the Class C
Certificates (on a pro rata basis). Notwithstanding the immediately preceding
sentence, however, to the extent any excess referred to in the immediately
preceding sentence is attributable to distributions of proceeds of the Swap
Agreement or Cap Contract, such sentence shall be applied by substituting "Class
C Unpaid Realized Loss Amount" for "Class C Interest Carry Forward Amount".
Notwithstanding the foregoing on any Distribution Date relating to a Due Period
in which a Subsequent Recovery has been received by the related Servicer, the
Class Certificate Balance of any Class of Certificates then outstanding for
which any Realized Loss Amount has been allocated will be increased, in order of
seniority, by an amount equal to the lesser of (i) the Unpaid Realized Loss
Amount for such Class of Certificates and (ii) the total of any Subsequent
Recovery distributed on such date to the Certificateholders (reduced by the
amount of the increase in the Class Certificate Balance of any more senior Class
of Certificates pursuant to this sentence on such Distribution Date).
Class LT-IO Interest: An uncertificated regular interest in the Lower Tier
REMIC with the characteristics set forth in the description of the Lower Tier
REMIC in the Preliminary Statement.
Class LTA-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificates and an interest rate equal to the Net
Rate.
Class LTA-2A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
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Class LTA-2B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTA-3A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTA-3B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTA-3C Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTA-3D Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-2 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-3 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTIX Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to the excess of (i) 50% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date
over (ii) the initial principal balance of the Lower Tier REMIC I Marker
Interests, and with an interest rate equal to the Net Rate.
Class LTII1A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the excess of (i) the
aggregate Stated Principal Balance of the Group 1 Mortgage Loans as of the
Cut-off Date over (ii) the aggregate of the initial Class Certificate Balances
of the Group 1 Certificates, and with an interest rate equal to the Net Rate.
Class LTII1B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the aggregate Stated
Principal Balance of the Group 1 Mortgage Loans as of the Cut-off Date, and with
an interest rate equal to the rate set forth in footnote 11 to the description
of the Lower Tier REMIC in the Preliminary Statement.
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Class LTII2A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the excess of (i) the
aggregate Stated Principal Balance of the Group 2 Mortgage Loans as of the
Cut-off Date over (ii) the aggregate of the initial Class Certificate Balances
of the Group 2 Certificates, and with an interest rate equal to the Net Rate.
Class LTII2B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the aggregate Stated
Principal Balance of the Group 2 Mortgage Loans as of the Cut-off Date, and with
an interest rate equal to the rate set forth in footnote 12 to the description
of the Lower Tier REMIC in the Preliminary Statement.
Class LTII3A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the excess of (i) the
aggregate Stated Principal Balance of the Group 3 Mortgage Loans as of the
Cut-off Date over (ii) the aggregate of the initial Class Certificate Balances
of the Group 3 Certificates, and with an interest rate equal to the Net Rate.
Class LTII3B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the aggregate Stated
Principal Balance of the Group 3 Mortgage Loans as of the Cut-off Date, and with
an interest rate equal to the rate set forth in footnote 13 to the description
of the Lower Tier REMIC in the Preliminary Statement.
Class LTIIX Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to the excess of (i) 50% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date
over (ii) the initial principal balance of the Lower Tier REMIC II Marker
Interests, and with an interest rate equal to the Net Rate.
Class LTM-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-2 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-3 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-4 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-5 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
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Class LTM-6 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTR Interest: The sole class of "residual interest" in the Lower Tier
REMIC.
Class M Certificate: Any one of the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5 and Class M-6 Certificates as designated on the face thereof
substantially in the form annexed hereto as Exhibit A-1, executed by the
Securities Administrator and authenticated and delivered by the Securities
Administrator, representing the right to distributions as set forth herein and
therein.
Class M Certificateholder: Any Holder of a Class M Certificate.
Class M-1 Certificate: Any Certificate designated as a "Class M-1
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class M-1 Certificate Rate: For the first Distribution Date, 5.63% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-1 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class M-1 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class M-1 Certificates.
Class M-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-1 Certificate Rate on
the Class M-1 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class M-1 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-1 Certificates.
Class M-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-1 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-1 Certificate Rate for the related Accrual Period.
Class M-1 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.310% per annum, and (ii) after the Initial Optional
Termination Date, 0.4650% per annum.
Class M-1 Principal Distribution Amount: with respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the aggregate Class Certificate Balance of the Senior Certificates has been
reduced to zero and a Stepdown Trigger Event exists, or, as long as a Stepdown
Trigger Event does not exist, the excess of (1) the sum of (A) the aggregate
Class Certificate Balance of the Senior Certificates (after taking into account
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distributions of the Senior Principal Distribution Amount to the Senior
Certificates for such Distribution Date) and (B) the Class Certificate Balance
of the Class M-1 Certificates immediately prior to such Distribution Date over
(2) the lesser of (A) 91.00% of the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date and (B) the excess of the aggregate
Stated Principal Balance of the Mortgage Loans as of such Distribution Date over
the Minimum Required Overcollateralization Amount. Notwithstanding the above,
(1) on any Distribution Date prior to the Stepdown Date on which the aggregate
Class Certificate Balance of the Senior Certificates has been reduced to zero,
the Class M-1 Principal Distribution Amount will equal the lesser of (A) the
outstanding Class Certificate Balance of the Class M-1 Certificates and (B) 100%
of the Principal Distribution Amount remaining after any distributions on the
Senior Certificates and (2) in no event will the Class M-1 Principal
Distribution Amount with respect to any Distribution Date exceed the Class
Certificate Balance of the Class M-1 Certificates.
Class M-2 Certificate: Any Certificate designated as a "Class M-2
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class M-2 Certificate Rate: For the first Distribution Date, 5.64% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-2 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class M-2 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class M-2 Certificates.
Class M-2 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-2 Certificate Rate on
the Class M-2 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class M-2 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-2 Certificates.
Class M-2 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-2 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-2 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-2 Certificate Rate for the related Accrual Period.
Class M-2 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.320% per annum, and (ii) after the Initial Optional
Termination Date, 0.480% per annum.
Class M-2 Principal Distribution Amount: with respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Class Certificate Balance of each class of Senior Certificates and Class M-1
Certificates has been reduced to zero and a Stepdown Trigger Event exists, or,
as long as a Stepdown Trigger Event does not exist, the
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excess of (1) the sum of (A) the aggregate Class Certificate Balance of the
Senior Certificates (after taking into account distributions of the Senior
Principal Distribution Amount to the Senior Certificates for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distributions of the Class M-1 Principal Distribution Amount
to the Class M-1 Certificates for such Distribution Date) and (C) the Class
Certificate Balance of the Class M-2 Certificates immediately prior to such
Distribution Date over (2) the lesser of (A) 92.00% of the aggregate Stated
Principal Balance of the Mortgage Loans as of such Distribution Date and (B) the
excess of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date over the Minimum Required Overcollateralization Amount.
Notwithstanding the above, (1) on any Distribution Date prior to the Stepdown
Date on which the aggregate Class Certificate Balance of the Senior Certificates
and the Class M-1 Certificates has been reduced to zero, the Class M-2 Principal
Distribution Amount will equal the lesser of (A) the outstanding Class
Certificate Balance of the Class M-2 Certificates and (B) 100% of the Principal
Distribution Amount remaining after any distributions on the Senior Certificates
and Class M-1 Certificates and (2) in no event will the Class M-2 Principal
Distribution Amount with respect to any Distribution Date exceed the Class
Certificate Balance of the Class M-2 Certificates
Class M-3 Certificate: Any Certificate designated as a "Class M-3
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class M-3 Certificate Rate: For the first Distribution Date, 5.66% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-3 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class M-3 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class M-3 Certificates.
Class M-3 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-3 Certificate Rate on
the Class M-3 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class M-3 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-3 Certificates.
Class M-3 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-3 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-3 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-3 Certificate Rate for the related Accrual Period.
Class M-3 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.340% per annum, and (ii) after the Initial Optional
Termination Date, 0.510% per annum.
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Class M-3 Principal Distribution Amount: with respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Class Certificate Balance of each class of Class A, Class M-1 and Class M-2
Certificates has been reduced to zero and a Stepdown Trigger Event exists, or,
as long as a Stepdown Trigger Event does not exist, the excess of (1) the sum of
(A) the aggregate Class Certificate Balance of the Senior Certificates (after
taking into account distributions of the Senior Principal Distribution Amount to
the Senior Certificates for such Distribution Date), (B) the Class Certificate
Balance of the Class M-1 Certificates (after taking into account distributions
of the Class M-1 Principal Distribution Amount to the Class M-1 Certificates for
such Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account distributions of the Class M-2 Principal
Distribution Amount to the Class M-2 Certificates for such Distribution Date)
and (D) the Class Certificate Balance of the Class M-3 Certificates immediately
prior to such Distribution Date over (2) the lesser of (A) 93.00% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date over the Minimum Required
Overcollateralization Amount. Notwithstanding the above, (1) on any Distribution
Date prior to the Stepdown Date on which the aggregate Class Certificate Balance
of the Class A, Class M-1 and Class M-2 Certificates has been reduced to zero,
the Class M-3 Principal Distribution Amount will equal the lesser of (A) the
outstanding Class Certificate Balance of the Class M-3 Certificates and (B) 100%
of the Principal Distribution Amount remaining after any distributions on the
Class A, Class M-1 and Class M-2 Certificates and (2) in no event will the Class
M-3 Principal Distribution Amount with respect to any Distribution Date exceed
the Class Certificate Balance of the Class M-3 Certificates.
Class M-4 Certificate: Any Certificate designated as a "Class M-4
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class M-4 Certificate Rate: For the first Distribution Date, 5.71% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-4 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class M-4 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class M-4 Certificates.
Class M-4 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-4 Certificate Rate on
the Class M-4 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class M-4 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-4 Certificates.
Class M-4 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-4 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-4 Certificates with respect to interest on such
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prior Distribution Dates and (2) interest on such excess (to the extent
permitted by applicable law) at the Class M-4 Certificate Rate for the related
Accrual Period.
Class M-4 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.3900% per annum, and (ii) after the Initial
Optional Termination Date, 0.5850% per annum.
Class M-4 Principal Distribution Amount: with respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Class Certificate Balance of each class of Class A, Class M-1, Class M-2 and
Class M-3 Certificates has been reduced to zero and a Stepdown Trigger Event
exists, or, as long as a Stepdown Trigger Event does not exist, the excess of
(1) the sum of (A) the aggregate Class Certificate Balance of the Senior
Certificates (after taking into account distributions of the Senior Principal
Distribution Amount to the Senior Certificates for such Distribution Date), (B)
the Class Certificate Balance of the Class M-1 Certificates (after taking into
account distributions of the Class M-1 Principal Distribution Amount to the
Class M-1 Certificates for such Distribution Date), (C) the Class Certificate
Balance of the Class M-2 Certificates (after taking into account distributions
of the Class M-2 Principal Distribution Amount to the Class M-2 Certificates for
such Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account distributions of the Class M-3 Principal
Distribution Amount to the Class M-3 Certificates for such Distribution Date)
and (E) the Class Certificate Balance of the Class M-4 Certificates immediately
prior to such Distribution Date over (2) the lesser of (A) 94.00% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date over the Minimum Required
Overcollateralization Amount. Notwithstanding the above, (1) on any Distribution
Date prior to the Stepdown Date on which the aggregate Class Certificate Balance
of the Class A, Class M-1, Class M-2 and Class M-3 Certificates has been reduced
to zero, the Class M-4 Principal Distribution Amount will equal the lesser of
(A) the outstanding Class Certificate Balance of the Class M-4 Certificates and
(B) 100% of the Principal Distribution Amount remaining after any distributions
on the Class A, Class M-1, Class M-2 and Class M-3 Certificates and (2) in no
event will the Class M-4 Principal Distribution Amount with respect to any
Distribution Date exceed the Class Certificate Balance of the Class M-4
Certificates.
Class M-5 Certificate: Any Certificate designated as a "Class M-5
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class M-5 Certificate Rate: For the first Distribution Date, 5.73% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-5 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class M-5 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class M-5 Certificates.
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Class M-5 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-5 Certificate Rate on
the Class M-5 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class M-5 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-5 Certificates.
Class M-5 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-5 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-5 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-5 Certificate Rate for the related Accrual Period.
Class M-5 Margin: Means As of any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.4100% per annum, and (ii) after the Initial
Optional Termination Date, 0.6150% per annum.
Class M-5 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Class Certificate Balance of each class of Class A, Class M-1, Class M-2,
Class M-3 and Class M-4 Certificates has been reduced to zero and a Stepdown
Trigger Event exists, or, as long as a Stepdown Trigger Event does not exist,
the excess of (1) the sum of (A) the aggregate Class Certificate Balance of the
Senior Certificates (after taking into account distributions of the Senior
Principal Distribution Amount to the Senior Certificates for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distributions of the Class M-1 Principal Distribution Amount
to the Class M-1 Certificates for such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account
distributions of the Class M-2 Principal Distribution Amount to the Class M-2
Certificates for such Distribution Date), (D) the Class Certificate Balance of
the Class M-3 Certificates (after taking into account distributions of the Class
M-3 Principal Distribution Amount to the Class M-3 Certificates for such
Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account distributions of the Class M-4 Principal
Distribution Amount to the Class M-4 Certificates for such Distribution Date)
and (F) the Class Certificate Balance of the Class M-5 Certificates immediately
prior to such Distribution Date over (2) the lesser of (A) 95.00% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date over the Minimum Required
Overcollateralization Amount. Notwithstanding the above, (1) on any Distribution
Date prior to the Stepdown Date on which the aggregate Class Certificate Balance
of the Class A, Class M-1, Class M-2, Class M-3 and Class M-4 Certificates has
been reduced to zero, the Class M-5 Principal Distribution Amount will equal the
lesser of (A) the outstanding Class Certificate Balance of the Class M-5
Certificates and (B) 100% of the Principal Distribution Amount remaining after
any distributions on the Class A, Class M-1, Class M-2, Class M-3 and Class M-4
Certificates and (2) in no event will the Class M-5 Principal Distribution
Amount with respect to any Distribution Date exceed the Class Certificate
Balance of the Class M-5 Certificates.
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Class M-6 Certificate: Any Certificate designated as a "Class M-6
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class M-6 Certificate Rate: For the first Distribution Date, 5.80% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-6 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class M-6 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class M-6 Certificates.
Class M-6 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-6 Certificate Rate on
the Class M-6 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class M-6 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-6 Certificates.
Class M-6 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-6 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-6 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-6 Certificate Rate for the related Accrual Period.
Class M-6 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.480% per annum, and (ii) after the Initial Optional
Termination Date, 0.720% per annum.
Class M-6 Principal Distribution Amount: with respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Class Certificate Balance of each class of Class A, Class M-1, Class M-2,
Class M-3, Class M-4 and Class M-5 Certificates has been reduced to zero and a
Stepdown Trigger Event exists, or, as long as a Stepdown Trigger Event does not
exist, the excess of (1) the sum of (A) the aggregate Class Certificate Balance
of the Senior Certificates (after taking into account distributions of the
Principal Distribution Amount to the Senior Certificates for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distributions of the Class M-1 Principal Distribution Amount
to the Class M-1 Certificates for such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account
distributions of the Class M-2 Principal Distribution Amount to the Class M-2
Certificates for such Distribution Date), (D) the Class Certificate Balance of
the Class M-3 Certificates (after taking into account distributions of the Class
M-3 Principal Distribution Amount to the Class M-3 Certificates for such
Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account distributions of the Class M-4 Principal
Distribution Amount to the Class M-4 Certificates for such Distribution Date),
(F) the Class Certificate Balance of the Class M-5 Certificates (after taking
into account distributions of the Class M-5 Principal Distribution Amount to the
Class M-5 Certificates for such Distribution Date) and (G)
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the Class Certificate Balance of the Class M-6 Certificates immediately prior to
such Distribution Date over (2) the lesser of (A) 95.80% of the aggregate Stated
Principal Balance of the Mortgage Loans as of such Distribution Date and (B) the
excess of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date over the Minimum Required Overcollateralization Amount.
Notwithstanding the above, (1) on any Distribution Date prior to the Stepdown
Date on which the aggregate Class Certificate Balance of the Class A, Class M-1,
Class M-2, Class M-3, Class M-4 and Class M-5 Certificates has been reduced to
zero, the Class M-6 Principal Distribution Amount will equal the lesser of (A)
the outstanding Class Certificate Balance of the Class M-6 Certificates and (B)
100% of the Principal Distribution Amount remaining after any distributions on
the Class A, Class M-1, Class M-2, Class M-3, Class M-4 and Class M-5
Certificates and (2) in no event will the Class M-6 Principal Distribution
Amount with respect to any Distribution Date exceed the Class Certificate
Balance of the Class M-6 Certificates.
Class P Certificate: Any one of the Class P Certificates as designated on
the face thereof substantially in the forum of annexed hereto as Exhibit A-4,
executed by the Securities Administrator and authenticated and delivered by the
Securities Administrator representing the right to distributions of Prepayment
Charges received on the Prepayment Charge Mortgage Loans as set forth herein.
Class R Certificate: The Class R Certificate executed, authenticated and
delivered by the Securities Administrator substantially in the form annexed
hereto as Exhibit A-3 and evidencing the ownership of the residual interest in
each REMIC.
Class R Certificate Rate: For the first Distribution Date, 5.53% per annum.
As of any Distribution Date thereafter, the least of (1) One-Month LIBOR plus
the Class R Margin, (2) the Class A-1 Available Funds Cap for such Distribution
Date and (3) the Class A-1 Maximum Rate Cap for such Distribution Date.
Class R Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class R Certificate.
Class R Current Interest: As of any Distribution Date, the interest accrued
during the related Accrual Period at the Class R Certificate Rate on the Class R
Class Certificate Balance as of such Distribution Date plus the portion of any
previous distributions on such Class in respect of Current Interest or a Class R
Interest Carry Forward Amount that is recovered as a voidable preference by a
trustee in bankruptcy, less any Prepayment Interest Shortfalls allocated on such
Distribution Date to the Class R Certificate. For purposes of calculating
interest, principal distributions on a Distribution Date will be deemed to have
been made on the first day of the Accrual Period in which such Distribution Date
occurs.
Class R Interest Carry Forward Amount: As of any Distribution Date, the sum
of (1) the excess of (A) the Class R Current Interest with respect to prior
Distribution Dates over (B) the amount actually distributed to the Class R
Certificate with respect to interest on such prior Distribution Dates and (2)
interest on such excess (to the extent permitted by applicable law) at the Class
R Certificate Rate for the related Accrual Period.
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Class R Margin: With respect to any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.210%, and (ii) after the Initial Optional
Termination Date, 0.420%.
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Subordinate Certificates, the fraction (expressed as a percentage)
the numerator of which is the Class Certificate Balance of such Class of
Subordinate Certificates immediately prior to such Distribution Date and the
denominator of which is the aggregate of the Class Certificate Balances of all
Classes of Certificates immediately prior to such Distribution Date.
Class SWR Interest: The sole class of "residual interest" in the SWAP
REMIC.
Closing Date: March 30, 2007.
Code: The Internal Revenue Code of 1986, as amended.
Commission: The Securities and Exchange Commission.
Compensating Interest Payment: As defined in Section 6.05.
Cooperative: A corporation that has been formed for the purpose of
cooperative apartment ownership.
Cooperative Assets: Shares issued by Cooperatives, the related Cooperative
Lease and any other collateral securing the Cooperative Loans.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the cooperative apartment occupied
by the Mortgagor and relating to the related Cooperative Assets, which lease or
agreement confers an exclusive right to the holder of such Cooperative Assets to
occupy such apartment.
Cooperative Loan: The indebtedness of a Mortgagor evidenced by a Mortgage
Note which is secured by Cooperative Assets and which is being sold to the
Depositor pursuant to this Agreement, the Mortgage Loans so sold being
identified in the Mortgage Loan Schedule.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
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: Issuer Services - Xxxxxxx Xxxxx Mortgage Investors, Inc.,
MANA Series 2007-A2, 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 - MANA 2007-A2, and
for all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, 00000,
Attn: Client Service Manager - MANA 2007-A2.
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Corresponding Certificates: With respect to the Class LTA-1 Interest, the
Class A-1 and Class R Certificates. With respect to the Class LTA-2A Interest,
the Class A-2A Certificates. With respect to the Class LTA-2B Interest, the
Class A-2B Certificates. With respect to the Class LTA-2C Interest, the Class
A-2C Certificates. With respect to the Class LTA-2D Interest, the Class A-2D
Certificates. With respect to the Class LTA-3 Interest, the Class A-3
Certificates. With respect to the Class LTM-1 Interest, the Class M-1
Certificates. With respect to the Class LTM-2 Interest, the Class M-2
Certificates. With respect to the Class LTM-3 Interest, the Class M-3
Certificates. With respect to the Class LTM-4 Interest, the Class M-4
Certificates. With respect to the Class LTM-5 Interest, the Class M-5
Certificates. With respect to the Class LTM-6 Interest, the Class M-6
Certificates. With respect to the Class LTB-1 Interest, the Class B-1
Certificates. With respect to the Class LTB-2 Interest, the Class B-2
Certificates. With respect to the Class LTB-3 Interest, the Class B-3
Certificates.
Corresponding REMIC Regular Interest: For each Class of Certificates, the
interest in the Upper Tier REMIC listed on the same row in the table entitled
"Upper Tier REMIC" in the Preliminary Statement.
Corridor Contract: Any of the Class A-1 Corridor Contract, the Class A-2
Corridor Contract, the Class A-3 Corridor Contract or the Subordinate
Certificates Corridor Contract.
Corridor Contract Account: The separate Eligible Account created and
maintained by the Securities Administrator pursuant to Section 6.01(l) in the
name of the Securities Administrator for the benefit of the Issuing Entity and
designated "Xxxxx Fargo Bank, National Association, as Securities Administrator
for Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through Certificates,
MANA Series 2007-A2 - Corridor Contract Account." Funds in the Corridor Contract
Account shall be held in trust for the Issuing Entity for the uses and purposes
set forth in this Agreement.
Corridor Contract Notional Balance: Any of the Class A-1 Corridor Contract
Notional Balance, the Class A-2 Corridor Contract Notional Balance, Class A-3
Corridor Contract Notional Balance or Subordinate Certificates Corridor Contract
Notional Balance.
Corridor Contract Termination Date: The Distribution Date in September
2007.
Countrywide: Countrywide Home Loans Servicing LP, or any successor thereto.
Countrywide Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of March 1, 2007, among Countrywide, Countrywide
Home Loans, Inc., the Depositor and the Sponsor pursuant to which the
Countrywide Servicing Agreement and the rights of the Sponsor thereunder (other
than the rights to enforce the representations and warranties with respect to
the Countrywide Loans) were assigned to the Depositor for the benefit of the
Certificateholders.
Countrywide Loans: The Mortgage Loans serviced by Countrywide pursuant to
the Countrywide Servicing Agreement.
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Countrywide Servicing Agreement: The Master Mortgage Loan Purchase and
Servicing Agreement, dated as of November 1, 2004, between Xxxxxxx Xxxxx Bank,
USA and Countrywide Home Loans, Inc.
Current Interest: Any of the Class A-1 Current Interest, the Class A-2A
Current Interest, the Class A-2B Current Interest, the Class A-3A Current
Interest, the Class A-3B Current Interest, the Class A-3C Current Interest, the
Class A-3D Current Interest, the Class R Current Interest, the Class M-1 Current
Interest, the Class M-2 Current Interest, the Class M-3 Current Interest, the
Class M-4 Current Interest, the Class M-5 Current Interest, the Class M-6
Current Interest, the Class B-1 Current Interest, the Class B-2 Current
Interest, the Class B-3 Current Interest and the Class C Current Interest.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Principal Prepayment in Full.
Custodial Agreement: An agreement, dated as of the Closing Date among the
Depositor, the Master Servicer, the Securities Administrator, the Trustee and
the Custodian in substantially the form of Exhibit G hereto.
Custodian: Xxxxx Fargo Bank, N.A., including any successors in interest, or
any successor custodian appointed pursuant to the provisions hereof and of the
Custodial Agreement.
Cut-off Date: March 1, 2007.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the calendar day
immediately preceding the Cut-off Date after application of all payments of
principal due on or prior to the Cut-off Date, whether or not received, and all
principal prepayments received prior to the Cut-off Date, but without giving
effect to any installments of principal received in respect of Due Dates after
the Cut-off Date.
Debt Service Reduction: Any reduction of the Monthly Payments which a
Mortgagor is obligated to pay with respect to a Mortgage Loan as a result of any
proceeding under the Bankruptcy Code or any other similar state law or other
proceeding.
Defaulted Swap Termination Payment: Any payment required to be made by the
Supplemental Interest Trust to the Swap Counterparty pursuant to the Swap
Agreement as a result of an event of default under the Swap Agreement with
respect to which the Swap Counterparty is the defaulting party or a termination
event under that agreement (other than illegality or a tax event) with respect
to which the Swap Counterparty is the sole Affected Party (as defined in the
Swap Agreement).
Defective Mortgage Loan: A Mortgage Loan replaced or to be replaced by one
or more Substitute Mortgage Loans.
Deficient Valuation: With respect to any Mortgage Loan, a valuation of the
related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
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Definitive Certificates: As defined in Section 5.06.
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation,
or any successor in interest.
Depository: The Depository Trust Company, the nominee of which is Cede &
Co., or any successor thereto.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Designated Depository Institution: A depository institution (commercial
bank, federal savings bank, mutual savings bank or savings and loan association)
or trust company (which may include the Trustee), the deposits of which are
fully insured by the FDIC to the extent provided by law.
Determination Date: With respect to each Mortgage Loan, the Determination
Date as defined in the related Servicing Agreement.
Disqualified Organization: A "disqualified organization" as defined in
Section 860 E(e)(5) of the Code.
Distribution Account: The trust account or accounts created and maintained
pursuant to Section 4.04, which shall be denominated "Xxxxx Fargo Bank, National
Association, 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, MANA Series 2007-A2 - Distribution Account."
The Distribution Account shall be an Eligible Account.
Distribution Account Deposit Date: The Business Day prior to each
Distribution Date.
Distribution Date: The 25th day of any month, beginning in April 2007, or,
if such 25th day is not a Business Day, the Business Day immediately following.
Due Date: With respect to each Mortgage Loan, the date in each month on
which its Monthly Payment is due if such due date is the first day of a month
and otherwise is deemed to be the first day of the following month or such other
date specified in the related Servicing Agreement.
Due Period: With respect to any Distribution Date and each Mortgage Loan,
the period commencing on the second day of the month preceding the month in
which the Distribution Date occurs and ending at the close of business on the
first day of the month in which the Distribution Date occurs.
Eligible Account: Any of (i) a segregated account maintained with a federal
or state chartered depository institution (A) the short-term obligations of
which are rated A-1 or better by S&P and P-1 by Xxxxx'x at the time of any
deposit therein or (B) insured by the FDIC (to the limits established by such
Corporation), the uninsured deposits (as evidenced in writing by the
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Rating Agencies that use of any such account as the Distribution Account will
not have an adverse effect on the then-current ratings assigned to the Classes
of Certificates then rated by the Rating Agencies) in which account are
otherwise secured such that, as evidenced by an Opinion of Counsel (obtained by
the Person requesting that the account be held pursuant to this clause (i))
delivered to the Securities Administrator prior to the establishment of such
account, the Certificateholders will have a claim with respect to the funds in
such account and a perfected first priority security interest against any
collateral (which shall be limited to Permitted Investments, each of which shall
mature not later than the Business Day immediately preceding the Distribution
Date next following the date of investment in such collateral or the
Distribution Date if such Permitted Investment is an obligation of the
institution that maintains the Distribution Account) securing such funds that is
superior to claims of any other depositors or general creditors of the
depository institution with which such account is maintained, (ii) a segregated
trust account or accounts maintained with a federal or state chartered
depository institution or trust company with trust powers acting in its
fiduciary capacity or (iii) a segregated account or accounts of a depository
institution acceptable to the Rating Agencies (as evidenced in writing by the
Rating Agencies that use of any such account as the Distribution Account will
not have an adverse effect on the then-current ratings assigned to the Classes
of the Certificates then rated by the Rating Agencies). Eligible Accounts may
bear interest.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that would satisfy the requirements of
Prohibited Transaction Exemption 90-29, Exemption Application No. D-8012, 55
Fed. Reg. 21459 (1990), as amended, granted to the underwriter by the United
States Department of Labor (or any other applicable underwriter's exemption
granted by the United States Department of Labor), 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 Certificates: The Class C and the Class P Certificates and
any other Certificate, as long as the acquisition and holding of such
Certificate is not covered by and exempt under an underwriter's exemption.
Event of Default: An event of default described in Section 8.01.
Excess Interest: On any Distribution Date, for the Senior Certificates,
Class M and Class B Certificates, the excess, if any, of (1) the amount of
interest such Class of Certificates is entitled to receive on such Distribution
Date over (2) the amount of interest such Class of Certificates would have been
entitled to receive on such Distribution Date at an interest rate equal to the
REMIC Pass-Through Rate.
Excess Liquidation Proceeds: To the extent that such amount is not required
by law to be paid to the related Mortgagor, the amount, if any, by which
Liquidation Proceeds with respect to a Liquidated Mortgage Loan exceed the sum
of (i) the Outstanding Principal Balance of such Mortgage Loan and accrued but
unpaid interest at the related Mortgage Interest Rate through the
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last day of the month in which the related Liquidation Date occurs, plus (ii)
related Liquidation Expenses.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Extra Principal Distribution Amount: With respect to any Distribution Date,
(1) prior to the Stepdown Date, the excess, if any, of (A) the sum of (x) the
aggregate Class Certificate Balance of the Certificates (other than the Class C
Certificates) reduced by the Principal Funds with respect to such Distribution
Date and (y) $7,931,926 over (B) the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date and (2) on and after the Stepdown
Date, the excess, if any, of (A) the sum of (x) the aggregate Class Certificate
Balance of the Certificates (other than the Class C Certificates) reduced by the
Principal Funds with respect to such Distribution Date and (y) the greater of
(a) 1.80% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (b) the Minimum Required Overcollateralization Amount
less (B) the aggregate Stated Principal Balance of the Mortgage Loans; provided,
however, that if on any Distribution Date a Stepdown Trigger Event is in effect,
the Extra Principal Distribution Amount will not be reduced to the applicable
percentage of then-current aggregate Stated Principal Balance of the Mortgage
Loans (and will remain fixed at the applicable percentage of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Due Date immediately
prior to the Stepdown Trigger Event) until the next Distribution Date on which
the Stepdown Trigger Event is not in effect.
Extraordinary Trust Fund Expenses: Any amounts reimbursable to the Master
Servicer or the Depositor pursuant to this Agreement, including but not limited
to Sections 4.03, 4.05 and 7.04, any amounts reimbursable to the Trustee and the
Securities Administrator from the Trust Fund pursuant to this Agreement,
including but not limited to Section 9.05, and any other costs, expenses,
liabilities and losses borne by the Trust Fund (exclusive of any cost, expense,
liability or loss that is specific to a particular Mortgage Loan or REO Property
and is taken into account in calculating a Realized Loss in respect thereof) for
which the Trust Fund has not and, in the reasonable good faith judgment of the
Securities Administrator, shall not, obtain reimbursement or indemnification
from any other Person.
Xxxxxx Xxx: Federal National Mortgage Association or any successor thereto.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
Final Certification: The certification substantially in the form of Exhibit
Two to the Custodial Agreement.
Fitch: Fitch Ratings or its successor in interest.
Floating Rate Certificate Carryover: With respect to a Distribution Date,
in the event that the Certificate Rate for a class of Senior, Class M or Class B
Certificates is based upon the related Available Funds Cap or the related
Maximum Rate Cap, the sum of (A) the excess of (1) the amount of interest that
such Class would have been entitled to receive on such Distribution Date had the
Certificate Rate for that Class not been calculated based on the related
Available Funds Cap or the related Maximum Rate Cap, up to but not exceeding the
greater of (a) the related Maximum Rate Cap or (b) the sum of (i) the related
Available Funds Cap and (ii) the
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product of (AA) a fraction, the numerator of which is 360 and the denominator of
which is the actual number of days in the related Accrual Period and (BB) the
sum of (x) the quotient obtained by dividing (I) an amount equal to the
proceeds, if any, payable under the related Corridor Contract with respect to
such Distribution Date and (II) the aggregate Class Certificate Balance of each
of the Classes of Certificates to which such Corridor Contract relates for such
Distribution Date and (y) the quotient obtained by dividing (I) an amount equal
to the sum of (xx) any Net Swap Payments owed by the Swap Counterparty for such
Distribution Date and (yy) any Cap Payment owed by the Cap Contract Counterparty
for such Distribution Date by (II) the aggregate Stated Principal Balance of the
Mortgage Loans as of the immediately preceding Distribution Date over (2) the
amount of interest such Class was entitled to receive on such Distribution Date
based on the related Available Funds Cap, (B) the unpaid portion of any such
excess from prior Distribution Dates (and interest accrued thereon at the then
applicable Certificate Rate for such class, without giving effect to the related
Available Funds Cap or the related Maximum Rate Cap) and (C) any amount
previously distributed with respect to Floating Rate Certificate Carryover for
such Class that is recovered as a voidable preference by a trustee in
bankruptcy.
Form 8-K Disclosure Information: As defined in Section 3.18(a).
Xxxxxxx Mac: Xxxxxxx Mac, formerly the Federal Home Loan Mortgage
Corporation, or any successor thereto.
GreenPoint: GreenPoint Mortgage Funding, Inc., or any successor thereto.
GreenPoint Assignment Agreement: The Assignment, Assumption and Recognition
Agreement, dated as of March 1, 2007, among GreenPoint, the Depositor and the
Sponsor pursuant to which the GreenPoint Servicing Agreement and the rights of
the Sponsor thereunder (other than the rights to enforce the representations and
warranties with respect to the GreenPoint Loans) were assigned to the Depositor
for the benefit of the Certificateholders.
GreenPoint Loans: The Mortgage Loans serviced by GreenPoint pursuant to the
GreenPoint Servicing Agreement.
GreenPoint Servicing Agreement: The Master Mortgage Loan Purchase and
Servicing Agreement, dated as of April 1, 2003, among Xxxxxxx Xxxxx Mortgage
Holdings Inc., GreenPoint and Terwin Advisors, LLC.
Gross Margin: As to each Mortgage Loan, the fixed percentage set forth in
the related Mortgage Note and indicated on the Mortgage Loan Schedule which
percentage is added to the related Index on each Interest Adjustment Date to
determine (subject to rounding, the minimum and maximum Mortgage Interest Rate
and the Periodic Rate Cap) the Mortgage Interest Rate until the next Interest
Adjustment Date.
Group 1 Certificates: The Class A-1 and Class R Certificates.
Group 1 Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
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Group 1 Net WAC: The Net WAC of Loan Group 1.
Group 1 Principal Distribution Amount: As of any Distribution Date, the
amount equal to the lesser of (i) the aggregate Class Certificate Balance of the
Class A-1 and Class R Certificates and (ii) the product of (x) the Group 1
Principal Distribution Percentage and (y) the Senior Principal Distribution
Amount; provided, however, that (A) with respect to any Distribution Date on
which the Class A-1 and Class R Certificates are outstanding and the Class
Certificate Balances of the Class A-2 Certificates are reduced to zero, the
Group 2 Principal Distribution Percentage of the Senior Principal Distribution
Amount in excess of the amount necessary to reduce the Class Certificate Balance
of the Class A-2 Certificates to zero will be applied pro rata to increase the
Group 1 Principal Distribution Amount (so long as any of the Class A-1 and Class
R Certificates are outstanding) and the Group 3 Principal Distribution Amount
(so long as any of the Class A-3 Certificates are outstanding) in proportion to
the respective Class Certificate Balance of such Classes, as applicable, and (B)
with respect to any Distribution Date on which the Class A-1 and Class R
Certificates are outstanding and the Class Certificate Balances of the Class A-3
Certificates are reduced to zero, the Group 3 Principal Distribution Percentage
of the Senior Principal Distribution Amount in excess of the amount necessary to
reduce the Class Certificate Balance of the Class A-3 Certificates to zero will
be applied pro rata to increase the Group 1 Principal Distribution Amount (so
long as any of the Class A-1 and Class R Certificates are outstanding) and the
Group 2 Principal Distribution Amount (so long as any of the Class A-2
Certificates are outstanding) in proportion to the respective Class Certificate
Balance of such Classes, as applicable.
Group 1 Principal Distribution Percentage: With respect to any Distribution
Date, a fraction expressed as a percentage, the numerator of which is the amount
of Principal Funds received with respect to the Group 1 Mortgage Loans and the
denominator of which is the amount of Principal Funds received from all of the
Mortgage Loans.
Group 2 Certificates: The Class A-2A and Class A-2B Certificates.
Group 2 Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group 2 Net WAC: The Net WAC of Loan Group 2.
Group 2 Principal Distribution Amount: As of any Distribution Date, the
amount equal to the lesser of (i) the aggregate Class Certificate Balance of the
Class A-2 Certificates and (ii) the product of (x) the Group 2 Principal
Distribution Percentage and (y) the Senior Principal Distribution Amount;
provided, however, that (A) with respect to any Distribution Date on which the
Class A-2 Certificates are outstanding and the Class Certificate Balances of the
Class A-1 and Class R Certificates are reduced to zero, the Group 1 Principal
Distribution Percentage of the Senior Principal Distribution Amount in excess of
the amount necessary to reduce the Class Certificate Balance of the Class A-1
Certificates and Class R Certificates to zero will be applied pro rata to
increase the Group 2 Principal Distribution Amount (so long as any of the Class
A-2 Certificates are outstanding) and the Group 3 Principal Distribution Amount
(so long as any of the Class A-3 Certificates are outstanding) in proportion to
the respective Class Certificate Balances of such Classes, as applicable, and
(B) with respect to any Distribution Date
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on which the Class A-2 Certificates are outstanding and the Class Certificate
Balances of the Class A-3 Certificates are reduced to zero, the Group 3
Principal Distribution Percentage of the Senior Principal Distribution Amount in
excess of the amount necessary to reduce the Class Certificate Balance of the
Class A-3 Certificates to zero will be applied pro rata to increase the Group 1
Principal Distribution Amount (so long as any of the Class A-1 or Class R
Certificates are outstanding) and the Group 2 Principal Distribution Amount (so
long as any of the Class A-2 Certificates are outstanding) in proportion to the
respective Class Certificate Balances of such Classes, as applicable.
Group 2 Principal Distribution Percentage: With respect to any Distribution
Date, a fraction expressed as a percentage, the numerator of which is the amount
of Principal Funds received with respect to the Group 2 Mortgage Loans and the
denominator of which is the amount of Principal Funds received from all of the
Mortgage Loans.
Group 3 Certificates: The Class A-3A, Class A-3B, Class A-3C and Class A-3D
Certificates.
Group 3 Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group 3 Net WAC: The Net WAC of Loan Group 3.
Group 3 Principal Distribution Amount: As of any Distribution Date, the
amount equal to the lesser of (i) the aggregate Class Certificate Balance of the
Class A-3 Certificates and (ii) the product of (x) the Group 3 Principal
Distribution Percentage and (y) the Senior Principal Distribution Amount;
provided, however, that (A) with respect to any Distribution Date on which the
Class A-3 Certificates are outstanding and the Class Certificate Balances of the
Class A-1 and Class R Certificates are reduced to zero, the Group 1 Principal
Distribution Percentage of the Senior Principal Distribution Amount in excess of
the amount necessary to reduce the Class Certificate Balance of the Class A-1
Certificates and Class R Certificates to zero will be applied pro rata to
increase the Group 2 Principal Distribution Amount (so long as any of the Class
A-2 Certificates are outstanding) and the Group 3 Principal Distribution Amount
(so long as any of the Class A-3 Certificates are outstanding) in proportion to
the respective Class Certificate Balances of such Classes, as applicable, and
(B) with respect to any Distribution Date on which the Class A-3 Certificates
are outstanding and the Class Certificate Balances of the Class A-2 Certificates
are reduced to zero, the Group 2 Principal Distribution Percentage of the Senior
Principal Distribution Amount in excess of the amount necessary to reduce the
Class Certificate Balance of the Class A-2 Certificates to zero will be applied
pro rata to increase the Group 1 Principal Distribution Amount (so long as any
of the Class A-1 or Class R Certificates are outstanding) and the Group 3
Principal Distribution Amount (so long as any of the Class A-3 Certificates are
outstanding) in proportion to the respective Class Certificate Balances of such
Classes, as applicable.
Group 3 Principal Distribution Percentage: With respect to any Distribution
Date, a fraction expressed as a percentage, the numerator of which is the amount
of Principal Funds received with respect to the Group 3 Mortgage Loans and the
denominator of which is the amount of Principal Funds received from all of the
Mortgage Loans.
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Indemnified Persons: The Trustee, the Master Servicer, the Servicers, the
Depositor and the Securities Administrator and their officers, directors, agents
and employees and, with respect to the Trustee, any separate co-trustee and its
officers, directors, agents and employees.
Independent: When used with respect to any specified Person, any such
Person who (a) is in fact independent of the Depositor, the Master Servicer and
their respective Affiliates, (b) does not have any direct financial interest in
or any material indirect financial interest in the Depositor or the Master
Servicer or any Affiliate thereof, and (c) is not connected with the Depositor
or the Master Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor or the Master Servicer or any Affiliate thereof merely because
such Person is the beneficial owner of 1% or less of any class of securities
issued by the Depositor or the Master Servicer or any Affiliate thereof, as the
case may be.
Index: The index, if any, specified in a Mortgage Note by reference to
which the related Mortgage Interest Rate will be adjusted from time to time.
Initial Certification: The certification substantially in the form of
Exhibit One to the Custodial Agreement.
Initial Class Certificate Balance: With respect to any Regular Certificate,
the amount designated "Initial Class Certificate Balance" on the face thereof.
Initial Optional Termination Date: The first Distribution Date following
the date on which the aggregate Stated Principal Balance of the Mortgage Loans
is less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
Insurance Policy: With respect to any Mortgage Loan, any standard hazard
insurance policy, flood insurance policy or title insurance policy.
Insurance Proceeds: Amounts paid by the insurer under any Insurance Policy
covering any Mortgage Loan or Mortgaged Property other than amounts required to
be paid over to the Mortgagor pursuant to law or the related Mortgage Note or
Security Instrument and other than amounts used to repair or restore the
Mortgaged Property or to reimburse insured expenses.
Interest Adjustment Date: With respect to a Mortgage Loan, the date, if
any, specified in the related Mortgage Note on which the Mortgage Interest Rate
is subject to adjustment.
Interest Carry Forward Amount: Any of the Class A-1 Interest Carry Forward
Amount, the Class A-2A Interest Carry Forward Amount, the Class A-2B Interest
Carry Forward Amount, the Class A-3A Interest Carry Forward Amount, the Class
A-3B Interest Carry Forward Amount, the Class A-3C Interest Carry Forward
Amount, the Class A-3D Interest Carry Forward Amount, the Class R Interest Carry
Forward Amount, the Class M-1 Interest Carry Forward Amount, the Class M-2
Interest Carry Forward Amount, the Class M-3 Interest Carry Forward Amount, the
Class M-4 Interest Carry Forward Amount, the Class M-5 Interest Carry Forward
Amount, the Class M-6 Interest Carry Forward Amount, the Class B-1 Interest
Carry Forward Amount, the
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Class B-2 Interest Carry Forward Amount, the Class B-3 Interest Carry Forward
Amount or the Class C Interest Carry Forward Amount, as the case may be.
Interest Determination Date: Each date that is the second LIBOR Business
Day preceding the commencement of each Accrual Period for the Certificates.
Interest Funds: With respect to any Distribution Date and the Mortgage
Loans, the sum, without duplication, of (1) all scheduled interest due during
the related Due Period that is received before the related Servicer Remittance
Date less the Servicing Fee and the mortgage insurance premiums, (2) all
Advances relating to interest, (3) all Compensating Interest Payments, (4)
liquidation proceeds collected during the related Prepayment Period (to the
extent such liquidation proceeds relate to interest), (5) proceeds of any
Mortgage Loan purchased by the Depositor or any transferor under the Pooling and
Servicing Agreement during the related Prepayment Period for document defects,
breach of a representation or warranty, realization upon default or optional
termination (to the extent such proceeds relate to interest) and (6) Prepayment
Charges received with respect to the related Mortgage Loans, less all
non-recoverable Advances relating to interest and certain indemnification
amounts, expenses reimbursed to the Trustee, Securities Administrator, Master
Servicer and the Servicers.
Investor Representation Letter: As defined in Section 5.02(b).
Issuing Entity: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-A2.
Latest Possible Maturity Date: With respect to the Certificates, the
Distribution Date in March 2037.
LIBOR Business Day: Any day on which banks in the City of London, England
and New York City, U.S.A. are open and conducting transactions in foreign
currency and exchange.
LIBOR Certificates: Any of the Certificates (other than the Class C and
Class P Certificates).
Liquidated Mortgage Loan: Any defaulted Mortgage Loan (including any REO
Property) as to which the related Servicer has determined that all amounts it
expects to recover from or on account of such Mortgage Loan have been recovered.
Liquidation Date: With respect to any Liquidated Mortgage Loan, the date on
which the related Servicer has certified that such Mortgage Loan has become a
Liquidated Mortgage Loan.
Liquidation Expenses: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Master
Servicer or the related Servicer in connection with the liquidation of such
Mortgage Loan and the related Mortgaged Property, such expenses including (a)
property protection expenses, (b) property sales expenses, (c) foreclosure and
sale costs, including court costs and reasonable attorneys' fees, and (d)
similar expenses reasonably paid or incurred in connection with liquidation.
Liquidation Proceeds: With respect to any Mortgage Loan, cash received in
connection with the liquidation of a defaulted Mortgage Loan, whether through
trustee's sale, foreclosure
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sale or otherwise, and amounts received through Insurance Proceeds and
condemnation proceeds.
Loan Group: Loan Group 1, Loan Group 2 or Loan Group 3, as applicable.
Loan Group 1: The group of Mortgage Loans designated as belonging to Loan
Group 1 on the Mortgage Loan Schedule.
Loan Group 2: The group of Mortgage Loans designated as belonging to Loan
Group 2 on the Mortgage Loan Schedule.
Loan Group 3: The group of Mortgage Loans designated as belonging to Loan
Group 3 on the Mortgage Loan Schedule.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which is the
Original Value of the related Mortgaged Property.
Lower Tier REMIC: As described in the Preliminary Statement and Section
9.12.
Lower Tier REMIC Interests: Each of the Class LTA-1 Interest, the Class
LTA-2A Interest, the Class LTA-2B Interest, the Class LTA-3A Interest, the Class
LTA-3B Interest, the Class LTA-3C Interest, the Class LTA-3D Interest, the Class
LTM-1 Interest, the Class LTM-2 Interest, the Class LTM-3 Interest, the Class
LTM-4 Interest, the Class LTM-5 Interest, the Class LTM-6 Interest, the Class
LTB-1 Interest, the Class LTB-2 Interest, the Class LTB-3 Interest, the Class
LTIX Interest, the Class LTIIX Interest, the Class LTII1A Interest, the Class
LTII1B Interest, the Class LTII2A Interest, the Class LTII2B Interest, the Class
LTII3A Interest, the Class LTII3B Interest, the Class LT-IO Interest and the
Class LTR Interest.
Lower Tier REMIC I Marker Interests: Each of the classes of Lower Tier
REMIC Regular Interests other than the Class LTIX Interest, the Class LTIIX
Interest, the Class LTII1A Interest, the Class LTII1B Interest, the Class LTII2A
Interest, the Class LTII2B Interest, the Class LTII3A Interest, the Class LTII3B
Interest, and the Class LT-IO Interest.
Lower Tier REMIC II Marker Interests: Each of the Class LTII1A Interest,
the Class LTII1B Interest, the Class LTII2A Interest, the Class LTII2B Interest,
the Class LTII3A Interest and the Class LTII3B Interest.
Lower Tier REMIC Regular Interests: Each of the Lower Tier REMIC Interests
other than the Class LTR Interest.
Lower Tier REMIC Subordinated Balance Ratio: The ratio among (i) the
principal balance of the Class LTII1A Interest, (ii) the principal balance of
the Class LTII2A Interest and (iii) the principal balance of the Class LTII3A
Interest that is equal to the ratio among (i) the excess of (A) the aggregate
Stated Principal Balance of the Group 1 Mortgage Loans over (B) the current
Class Certificate Balance of the Class A-1 and Class R Certificates, (ii) the
excess of (A) the aggregate Stated Principal Balance of the Group 2 Mortgage
Loans over (B) the current Class Certificate Balance of the Class A-2
Certificates and (iii) the excess of (A) the aggregate
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Stated Principal Balance of the Group 3 Mortgage Loans over (B) the current
Class Certificate Balance of the Class A-3 Certificates.
Master Servicer: Xxxxx Fargo Bank, N.A. including any successors in
interest who meet the qualifications for a master servicer set forth in this
Agreement, and any successor master servicer appointed hereunder.
Master Servicer Collection Account: The trust account or accounts created
and maintained pursuant to Section 4.02, which shall be denominated "Xxxxx Fargo
Bank, National Association as Master Servicer for HSBC Bank USA, National
Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MANA Series 2007-A2 - Master Servicer
Collection Account." The Master Servicer Collection Account shall be an Eligible
Account.
Master Servicing Compensation: The meaning specified in Section 3.14.
Maximum Lifetime Mortgage Rate: The maximum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
Maximum Rate Cap: Any of the Class A-1 Maximum Rate Cap, Class A-2 Maximum
Rate Cap, Class A-3 Maximum Rate Cap or the Weighted Average Maximum Rate Cap.
Minimum Lifetime Mortgage Rate: The minimum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
Minimum Required Overcollateralization Amount: An amount equal to the
product of (x) 0.50% and (y) the Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
MLML: Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware corporation, or any
successor in interest.
Monthly Advance: An advance of principal or interest required to be made by
the applicable Servicer pursuant to the related Servicing Agreement or the
Master Servicer pursuant to Section 6.04.
Monthly Payment: With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest on such Mortgage Loan which is payable by the
related Mortgagor from time to time under the related Mortgage Note, determined:
(a) after giving effect to (i) any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction in the
amount of interest collectible from the related Mortgagor pursuant to the Relief
Act; (b) without giving effect to any extension granted or agreed to by the
related Servicer pursuant to related Servicing Agreement; and (c) on the
assumption that all other amounts, if any, due under such Mortgage Loan are paid
when due.
Monthly Statement: The statement distributed to Certificateholders pursuant
to Section 6.03.
Moody's: Xxxxx'x Investors Service, Inc. or its successor in interest.
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Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on, or first priority security interest in, a Mortgaged Property securing a
Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01(b) pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues from time
to time on any Mortgage Loan pursuant to the related Mortgage Note, which rate
is equal to the "Mortgage Interest Rate" set forth with respect thereto on the
Mortgage Loan Schedule.
Mortgage Loan: A mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the Trust Fund,
as identified in the Mortgage Loan Schedule, including a mortgage loan the
property securing which has become an REO Property.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase Agreement,
dated as of March 1, 2007, between the Sponsor and the Depositor, as purchaser,
and all amendments thereof and supplements thereto, attached hereto as Exhibit
J.
Mortgage Loan Schedule: The Mortgage Loan Schedule, attached hereto as
Exhibit B, with respect to the Mortgage Loans and as amended from time to time
to reflect the repurchase or substitution of Mortgage Loans pursuant to this
Agreement.
Mortgage Note: The originally executed note or other evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
Mortgage Pool: The pool of Mortgage Loans, identified on Exhibit B from
time to time, and any REO Properties acquired in respect thereof.
Mortgaged Property: Land and improvements securing the indebtedness of a
Mortgagor under the related Mortgage Loan or, in the case of REO Property, such
REO Property.
Mortgagor: The obligor on a Mortgage Note.
National City: National City Mortgage Co., or any successor thereto.
National City Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of March 1, 2007, among National City, the
Depositor and the Sponsor pursuant to which the National City Servicing
Agreements and the rights of the Sponsor thereunder (other than the rights to
enforce the representations and warranties with respect to the National City
Loans) were assigned to the Depositor for the benefit of the Certificateholders.
National City Loans: The Mortgage Loans serviced by National City pursuant
to the National City Servicing Agreement.
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National City Servicing Agreement: The Master Seller's Warranties and
Servicing Agreement, dated as of May 1, 2004, between Xxxxxxx Xxxxx Bank, USA
and National City, as amended by Amendment Number One, dated as of March 22,
2006.
Net Excess Cashflow: Any Interest Funds and Principal Funds not otherwise
required to be distributed with respect to principal of and interest on the
Certificates and not otherwise required to be distributed to the Class P
Certificates.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan, Liquidation
Proceeds net of (i) Liquidation Expenses which are payable therefrom by the
related Servicer or the Master Servicer in accordance with the related Servicing
Agreement or this Agreement and (ii) unreimbursed advances by the related
Servicer or the Master Servicer and Monthly Advances.
Net Mortgage Rate: With respect to each Mortgage Loan, the Mortgage
Interest Rate in effect from time to time less the Servicing Fee Rate and the
rate paid to mortgage insurance providers (each expressed as a per annum rate).
Net Rate: The per annum rate set forth in footnote 10 to the description of
the Lower Tier REMIC in the Preliminary Statement hereto (such rate being based
on the weighted average of the interest rates on the SWAP REMIC Regular
Interests as adjusted and as set forth in such footnote).
Net Swap Payment: With respect to any Distribution Date, any net payment
(other than a Swap Termination Payment or Defaulted Swap Termination Payment)
made by the Supplemental Interest Trust to the Swap Counterparty on the related
Fixed Rate Payer Payment Date (as defined in the Swap Agreement) or made by the
Swap Counterparty to the Supplemental Interest Trust on the related Floating
Rate Payer Payment Date (as defined in the Swap Agreement). In each case, the
Net Swap Payment shall not be less than zero.
Net WAC: With respect to any Distribution Date and for any Loan Group, the
weighted average Net Mortgage Rate for the Mortgage Loans in such Loan Group
calculated based on the respective Net Mortgage Rates and the Stated Principal
Balances of such Mortgage Loans as of the preceding Distribution Date (or, in
the case of the first Distribution Date, as of the Cut-off Date).
Offered Certificate: Any Senior Certificate or Subordinate Certificate
issued hereunder.
Officer's Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President or Assistant
Vice President or other authorized officer of the Master Servicer or the
Depositor, as applicable, and delivered to the Trustee, as required by this
Agreement.
One-Month LIBOR: With respect to any Accrual Period, the rate determined by
the Securities Administrator on the related Interest Determination Date on the
basis of (a) the offered rates for one-month United States dollar deposits, as
such rates appear on Telerate page 3750, as of 11:00 a.m. (London time) on such
Interest Determination Date or (b) if such rate does not appear on Telerate Page
3750 as of 11:00 a.m. (London time), the offered rates of the Reference Banks
for one-month United States dollar deposits, as such rates appear on the
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Reuters Screen LIBO Page, as of 11:00 a.m. (London time) on such Interest
Determination Date. If One-Month LIBOR is determined pursuant to clause (b)
above, on each Interest Determination Date, One-Month LIBOR for the related
Accrual Period will be established by the Securities Administrator as follows:
(i) If on such Interest Determination Date two or more Reference Banks
provide such offered quotations, One-Month LIBOR for the related Accrual
Period shall be the arithmetic mean of such offered quotations (rounded
upwards if necessary to the nearest whole multiple of 0.03125%).
(ii) If on such Interest Determination Date fewer than two Reference
Banks provide such offered quotations, One-Month LIBOR for the related
Accrual Period shall be the higher of (i) One-Month LIBOR as determined on
the previous Interest Determination Date and (ii) the Reserve Interest
Rate.
Opinion of Counsel: A written opinion of counsel who is or are acceptable
to the Trustee and who, unless required to be Independent (an "Opinion of
Independent Counsel"), may be internal counsel for the Master Servicer or the
Depositor.
Optional Termination: The termination hereunder of that portion of the
Trust Fund related to the Certificates pursuant to Section 10.01(a) hereof.
Optional Termination Amount: The amount received by the Securities
Administrator in connection with any purchase of all of the Mortgage Loans and
REO Properties pursuant to Section 10.01(b) hereof.
Optional Termination Price: On any date after the Initial Optional
Termination Date, an amount equal to the sum of (A) the aggregate Stated
Principal Balance of each Mortgage Loan (other than any Mortgage Loan that has
become an REO Property) as of the Distribution Date on which the proceeds of the
Optional Termination are distributed to the Certificateholders, plus accrued
interest thereon at the applicable Mortgage Rate as of the Due Date preceding
the Distribution Date on which the proceeds of the Optional Termination are
distributed to Certificateholders and the fair market value of any REO Property,
plus accrued interest thereon as of the Distribution Date on which the proceeds
of the Optional Termination are distributed to Certificateholders, (B) any
unreimbursed out-of-pocket costs, fees and expenses and indemnity amounts owed
to the Master Servicer, the Trustee or the Securities Administrator (including
any amounts incurred by the Securities Administrator in connection with
conducting the Auction), a Servicer or the Master Servicer and any unpaid or
unreimbursed Servicing Fees, Monthly Advances and Servicing Advances, (C) any
unreimbursed costs, penalties and/or damages incurred by the Trust Fund in
connection with any violation relating to any of the Mortgage Loans of any
predatory or abusive lending law, (D) in the event an Auction has been
conducted, all reasonable fees and expenses incurred by the Securities
Administrator to conduct the Auction and (E) any unpaid Net Swap Payments, any
Swap Termination Payment and any other amounts owed to the Swap Counterparty and
determined in accordance with the Swap Agreement.
Original Value: The lesser of (i) the Appraised Value or (ii) the sales
price of a Mortgaged Property at the time of origination of a Mortgage Loan,
except in instances where
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either clauses (i) or (ii) is unavailable, the other may be used to determine
the Original Value, or if both clauses (i) and (ii) are unavailable, Original
Value may be determined from other sources reasonably acceptable to the
Depositor.
Outstanding Mortgage Loan: With respect to any Due Date, a Mortgage Loan
which, prior to such Due Date, was not the subject of a Principal Prepayment in
Full, did not become a Liquidated Mortgage Loan and was not purchased or
replaced.
Outstanding Principal Balance: As of the time of any determination, the
principal balance of a Mortgage Loan remaining to be paid by the Mortgagor, or,
in the case of an REO Property, the principal balance of the related Mortgage
Loan remaining to be paid by the Mortgagor at the time such property was
acquired by the Trust Fund less any Net Liquidation Proceeds with respect
thereto to the extent applied to principal.
Overcollateralization Amount: As of any date of determination, the excess
of (1) the Stated Principal Balance of the Mortgage Loans over (2) the Class
Certificate Balance of the Certificates (other than the Class P Certificates and
the Class C Certificates).
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Percentage Interest: With respect to any Certificate (other than the Class
R and Class P Certificates), a fraction, expressed as a percentage, the
numerator of which is the Initial Class Certificate Balance represented by such
Certificate and the denominator of which is the Initial Class Certificate
Balance of the related Class. With respect to the Class R and Class P
Certificates, the Percentage Interest evidenced thereby shall be as specified on
the face thereof, or otherwise, be equal to 100%.
Periodic Rate Cap: With respect to each Mortgage Loan, the maximum
adjustment that can be made to the Mortgage Interest Rate on each Interest
Adjustment Date in accordance with its terms, regardless of changes in the
applicable Index.
Permitted Investments: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the
Certificateholders (provided that such obligation or security must be a
"permitted investment" within the meaning of such term as provided for in
Section 860G(a)(5) of the Code):
(i) direct obligations of, and obligations the timely payment of which
are fully guaranteed by the United States of America or any agency or
instrumentality of the United States of America the obligations of which
are backed by the full faith and credit of the United States of America;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States of America or any state
thereof (including the Trustee or the Master Servicer or its Affiliates
acting in its commercial banking capacity) and subject to supervision and
examination by federal and/or state banking authorities, provided that the
commercial
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paper and/or the short-term debt rating and/or the long-term unsecured debt
obligations of such depository institution or trust company at the time of
such investment or contractual commitment providing for such investment
have the Applicable Credit Rating or better from each Rating Agency and (b)
any other demand or time deposit or certificate of deposit that is fully
insured by the Federal Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by an agency or instrumentality of the United States of America,
the obligations of which are backed by the full faith and credit of the
United States of America, in either case entered into with a depository
institution or trust company (acting as principal) described in clause
(ii)(a) above where the Trustee holds the security therefor;
(iv) securities bearing interest or sold at a discount issued by any
corporation (including the Trustee, the Securities Administrator or the
Master Servicer or its Affiliates) incorporated under the laws of the
United States of America or any state thereof that have the Applicable
Credit Rating or better from each Rating Agency at the time of such
investment or contractual commitment providing for such investment;
provided, however, that securities issued by any particular corporation
will not be Permitted Investments to the extent that investments therein
will cause the then outstanding principal amount of securities issued by
such corporation and held as part of the Issuing Entity to exceed 10% of
the aggregate Outstanding Principal Balances of all the Mortgage Loans and
Permitted Investments held as part of the Issuing Entity;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
having the Applicable Credit Rating or better from each Rating Agency at
the time of such investment;
(vi) a Reinvestment Agreement issued by any bank, insurance company or
other corporation or entity;
(vii) any other demand, money market or time deposit, obligation,
security or investment as may be acceptable to either Rating Agency as
evidenced in writing by each Rating Agency to the Trustee, the Securities
Administrator or Master Servicer;
(viii) any money market or common trust fund having the Applicable
Credit Rating or better from each Rating Agency (if such fund is rated by
each such Rating Agency), including any such fund for which the Trustee,
Securities Administrator or Master Servicer or any affiliate of the
Trustee, Securities Administrator or Master Servicer acts as a manager or
an advisor; provided, however, that no instrument or security shall be a
Permitted Investment if such instrument or security evidences a right to
receive only interest payments with respect to the obligations underlying
such instrument or if such security provides for payment of both principal
and interest with a yield to maturity in excess of 120% of the yield to
maturity at par or if such instrument or security is purchased at a price
greater than par; and
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(ix) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except if S&P is a Rating Agency,
"AAAm" or "AAAM-G" by S&P) and restricted to obligations issued or
guaranteed by the United States of America or entities whose obligations
are backed by the full faith and credit of the United States of America and
repurchase agreements collateralized by such obligations.
Permitted Transferee: Any Person other than a Disqualified Organization or
an "electing large partnership" (as defined by Section 775 of the Code).
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PHH: PHH Mortgage Corporation, or any successor thereto.
PHH Assignment Agreement: The Assignment, Assumption and Recognition
Agreement, dated as of March 1, 2007, among PHH, the Depositor and the Sponsor
pursuant to which the PHH Servicing Agreement and the rights of the Sponsor
thereunder (other than the rights to enforce the representations and warranties
with respect to the PHH Loans) were assigned to the Depositor for the benefit of
the Certificateholders.
PHH Loans: The Mortgage Loans serviced by PHH pursuant to the PHH Servicing
Agreement.
PHH Servicing Agreement: The Mortgage Loan Flow Purchase, Sale and
Servicing Agreement, dated as of March 27, 2001, among Xxxxxxx Xxxxx Mortgage
Capital, Inc., PHH and Xxxxxx'x Gate Residential Mortgage Trust.
Physical Certificate: The Residual Certificate.
Pooling and Servicing Agreement: The Pooling and Servicing Agreement
relating to the Mortgage Pass-Through Certificates, MANA Series 2007-A2.
Posted Collateral: As defined in the Swap Agreement or the Cap Contract, as
applicable.
Prepayment Charge: With respect to any Prepayment Period, any prepayment
premium, charge or other amount payable by a Mortgagor in connection with any
Principal Prepayment on the Prepayment Charge Mortgage Loans.
Prepayment Charge Mortgage Loans: Any of the Mortgage Loans that are
subject to existing prepayment premiums.
Prepayment Interest Shortfall: As to any Distribution Date and any Mortgage
Loan (other than a Mortgage Loan relating to an REO Property) that was the
subject of (a) a Principal Prepayment in Full during the related Prepayment
Period, an amount equal to the excess of one month's interest at the Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan over the
amount of interest (adjusted to the Net Mortgage Rate) paid by the Mortgagor for
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such Prepayment Period to the date of such Principal Prepayment in Full or (b) a
Curtailment during the prior calendar month, an amount equal to one month's
interest at the Net Mortgage Rate on the amount of such Curtailment. The
obligations of the Master Servicer in respect of any Prepayment Interest
Shortfall are set forth in Section 6.05.
Prepayment Period: With respect to any Mortgage Loan and any Distribution
Date (i) for prepayments or liquidations in full and any prepayment charges
associated with such payments in full, the period from and including the 15th
date of the calendar month preceding the month in which such Distribution Date
occurs (or, in the case of the first Distribution Date, beginning on the Cut-off
Date) and including the 14th day of the calendar month in which such
Distribution Date occurs or, in the case of Xxxxx Fargo, the period from and
including the 14th date of the calendar month preceding the month in which such
Distribution Date occurs (or, in the case of the first Distribution Date,
beginning on the Cut-off Date) and including the 13th day of the calendar month
in which such Distribution Date occurs and (ii) for partial prepayments or
liquidations and any prepayment charges associated with such partial
prepayments, the calendar month preceding the calendar month in which such
Distribution Date occurs.
Primary Mortgage Insurance Policy: Any primary mortgage guaranty insurance
policy issued in connection with a Mortgage Loan which provides compensation to
a Mortgage Note holder in the event of default by the obligor under such
Mortgage Note or the related Security Instrument, if any or any replacement
policy therefor through the related Accrual Period for such Class relating to a
Distribution Date.
Principal Distribution Amount: with respect to each Distribution Date, the
sum of (1) the Principal Funds for such Distribution Date and (2) any Extra
Principal Distribution Amount for such Distribution Date.
Principal Funds: means, with respect to any Distribution Date and the
Mortgage Loans, the sum, without duplication, of (1) the scheduled principal due
during the related Due Period and received before the related Servicer
Remittance Date or advanced on or before the related Servicer Remittance Date,
(2) prepayments of principal collected in the related Prepayment Period, (3) the
Stated Principal Balance of each Mortgage Loan that was purchased by the
Depositor or the Servicer during the related Prepayment Period or, in the case
of a purchase in connection with an optional termination, on the Business Day
prior to such Distribution Date, (4) the amount, if any, by which the aggregate
unpaid principal balance of any replacement Mortgage Loans is less than the
aggregate unpaid principal balance of any Mortgage Loans delivered by the
Sponsor in connection with a substitution of a Mortgage Loan, (5) all
liquidation proceeds collected during the related Prepayment Period (to the
extent such liquidation proceeds related to principal), (6) all Subsequent
Recoveries applicable to the related Prepayment Period and (7) all other
collections and recoveries in respect of principal applicable to the related
Prepayment Period less (A) all non-recoverable Advances relating to principal
and all non-recoverable Servicing Advances reimbursed applicable to the related
Prepayment Period and (B) indemnification amounts and expenses reimbursable to
the Trustee, Securities Administrator, Master Servicer and the Servicer
hereunder.
Principal Prepayment: Any Principal Prepayment in Full or Curtailment or
other recovery of principal on a Mortgage Loan which is received in advance of
its scheduled Due
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Date to the extent that it is not accompanied by an amount as to interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment, including Insurance Proceeds and
Repurchase Proceeds, but excluding the principal portion of Net Liquidation
Proceeds.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire unpaid principal balance of the Mortgage Loan.
Prospectus Supplement: The Prospectus Supplement dated March 28, 2007,
relating to the public offering of the Offered Certificates.
Protected Account: An account established and maintained for the benefit of
Certificateholders by each Servicer with respect to the related Mortgage Loans
and with respect to REO Property pursuant to the respective Servicing Agreement.
The Protected Account shall be an Eligible Account.
Purchase Price: With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03 or 10.01, and as
confirmed by an Officers' Certificate from the Master Servicer to the Trustee,
an amount equal to the sum of (i) 100% of the Stated Principal Balance thereof
as of the date of purchase (or such other price as provided in Section 10.01),
(ii) accrued interest on such Stated Principal Balance at the applicable
Mortgage Interest Rate in effect from time to time from the Due Date as to which
interest was last covered by a payment by the Mortgagor or an advance by the
related Servicer or Master Servicer, which payment or advance had as of the date
of purchase been distributed to Certificateholders, through the end of the
calendar month in which the purchase is to be effected less any unreimbursed
Monthly Advances and any unpaid Servicing Fees payable to the purchaser of the
Mortgage Loan and (iii) any costs and damages incurred by the Issuing Entity in
connection with any violation by such Mortgage Loan or REO Property of any
predatory or abusive-lending law.
Qualified Servicer: Any servicer with a servicer rating by each of the
Rating Agencies equal to or better than the servicer rating of PHH Mortgage
Corporation at the time of any such servicing transfer.
Rating Agencies: Xxxxx'x and S&P.
Rating Agency Condition: As defined in the Swap Agreement.
Realized Loss: With respect to a Liquidated Mortgage Loan, the amount by
which the remaining unpaid principal balance of the Mortgage Loan exceeds the
amount of Liquidation Proceeds applied to the principal balance of the related
Mortgage Loan. To the extent the Master Servicer receives Subsequent Recoveries
with respect to any Mortgage Loan, the amount of the Realized Loss with respect
to that Mortgage Loan will be reduced to the extent such recoveries are applied
to reduce the Class Certificate Balance of any Class of Certificates on any
Distribution Date.
Realized Loss Amount: With respect to any Distribution Date, the amount, if
any, by which the aggregate Class Certificate Balance of the Certificates after
distributions of principal
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on such Distribution Date exceeds the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date.
Record Date: With respect to each Distribution Date and each class of
Offered Certificates, the close of business on the last Business Day of the
month immediately preceding the month in which the related Distribution Date
occurs (or the Closing Date in the case of the first Distribution Date).
Regular Certificates: Any of the Class A-1, Class A-2A, Class X-0X, Xxxxx
X-0X, Xxxxx X-0X, Class A-3C, Class A-3D, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class B-1, Class B-2 or Class B-3 Certificates.
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 clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed Reg. 1,506-1,631 (January 7, 2005) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Reinvestment Agreements: One or more reinvestment agreements, acceptable to
each of the Rating Agencies, from a bank, insurance company or other corporation
or entity (including the Trustee).
Related Certificates: For each interest in the Upper Tier REMIC, the Class
of Certificates listed on the same row in the table entitled "Upper Tier REMIC"
in the Preliminary Statement.
Relevant Servicing Criteria: The Servicing Criteria applicable to the
various parties, as set forth on Exhibit K hereto. For clarification purposes,
multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Securities Administrator, the Trustee, the Custodian or a
Servicer, the term "Relevant Servicing Criteria" may refer to one or more
discrete functions specified in the Relevant Servicing Criteria applicable to
such parties.
Relief Act: The Servicemembers Civil Relief Act, as amended, or similar
state statute.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Monthly Payment
or portion thereof has been reduced or postponed due to the application of the
Relief Act.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC as
described in the Preliminary Statement and Section 9.12.
REMIC 1: Not applicable.
REMIC 1 Interest: Not applicable.
REMIC 1 Regular Interest: Not applicable.
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REMIC 1 Subordinate Balance Ratio: Not applicable.
REMIC 2: Not applicable.
REMIC 2 Interest: Not applicable.
REMIC 2 Regular Interest: Not applicable.
REMIC Opinion: An Opinion of Counsel to the effect that a contemplated
action will neither adversely affect the status as a REMIC of any REMIC created
hereunder nor subject any such REMIC to any tax under the REMIC Provisions.
REMIC Pass-Through Rate: In the case of a Class of the Senior Certificates,
Class M Certificates and Class B Certificates, the Upper Tier REMIC Net WAC Cap
for the Corresponding REMIC Regular Interest.
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 Regular Interests: Each of the interests in the Upper Tier REMIC as
set forth in the Preliminary Statement other than the Residual Interest.
REMIC Swap Rate: For each Distribution Date (and the related Accrual
Period), a per annum rate equal to the Fixed Rate under the Swap Agreement for
such Distribution Date, as set forth in the Prospectus Supplement.
REO Property: A Mortgaged Property acquired by the Servicer or Master
Servicer on behalf of the Trust Fund through foreclosure or deed-in-lieu of
foreclosure, as described in Section 3.15 in connection with a defaulted
Mortgage Loan.
Reportable Event: As defined in Section 3.18(a).
Reporting Servicer: As defined in Section 3.18(h).
Repurchase Proceeds: The Repurchase Price in connection with any repurchase
of a Mortgage Loan by the Sponsor and any cash deposit in connection with the
substitution of a Mortgage Loan.
Request for Release: A request for release in the form attached hereto as
Exhibit D.
Required Insurance Policy: With respect to any Mortgage Loan, any insurance
policy which is required to be maintained from time to time under this Agreement
with respect to such Mortgage Loan.
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Required Percentage: With respect to a Distribution Date, the quotient of
(x) the excess of (1) the aggregate Stated Principal Balance of the Mortgage
Loans over (2) the Class Certificate Balance of the most senior class of
Certificates outstanding as of such Distribution Date, prior to giving effect to
distributions to be made on such Distribution Date, and (y) the Stated Principal
Balances of the Mortgage Loans. As used herein, the Class Certificate Balance of
the most senior class of Certificates will equal the aggregate Class Certificate
Balance of the Senior Certificates as of such date of calculation.
Reserve Interest Rate: The rate per annum that the Securities Administrator
determines to be either (1) the arithmetic mean (rounded upwards if necessary to
the nearest whole multiple of 0.03125%) of the one-month United States dollar
lending rates which New York City banks selected by the Securities Administrator
are quoting on the relevant Interest Determination Date to the principal London
offices of leading banks in the London interbank market or (2) in the event that
the Securities Administrator can determine no such arithmetic mean, the lowest
one-month United States dollar lending rate which New York City banks selected
by the Securities Administrator are quoting on such Interest Determination Date
to leading European banks.
Residual Certificate: The Class R Certificate.
Residual Interest: An interest in the Upper Tier REMIC that is entitled to
all distributions of principal and interest on the Class R Certificate other
than (i) distributions in respect of the Class SWR Interest and the Class LTR
Interest and (ii) distributions on the Class R Certificate in respect of Excess
Interest.
Responsible Officer: Any officer assigned to the Corporate Trust Office (or
any successor thereto), including any Vice President, Assistant Vice President,
Trust Officer, any Assistant Secretary, any trust officer or any other officer
of the Trustee or Securities Administrator customarily performing functions
similar to those performed by any of the above designated officers and having
direct responsibility for the administration of this Agreement, and any other
officer of the Trustee or Securities Administrator to whom a matter arising
hereunder may be referred because of such officers familiarity with the subject
matter thereof.
Reuter's Screen LIBO Page: means the display designated as page "LIBO" on
the Reuters Monitor Money Rates Service (or such other page as may replace the
LIBO page on that service for the purpose of displaying London interbank offered
rates of major banks).
RFC: Residential Funding Company, LLC, or any successor thereto.
RFC Assignment Agreement: The Assignment, Assumption and Recognition
Agreement, dated as of March 1, 2007, among RFC, the Depositor and the Sponsor
pursuant to which the Xxxxx Fargo Servicing Agreements and the rights of the
Sponsor thereunder (other than the rights to enforce the representations and
warranties with respect to the RFC Loans) were assigned to the Depositor for the
benefit of the Certificateholders.
RFC Loans: The Mortgage Loans serviced by RFC pursuant to the RFC Servicing
Agreement.
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RFC Servicing Agreement: The Standard Terms and Provisions of Sale and
Servicing Agreement, dated as of February 1, 2007, between MLML and RFC.
Xxxxxxxx-Xxxxx Act: The Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
Xxxxxxxx-Xxxxx Certification: A written certification signed by an officer
of the Master Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act, and (ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided that if, after the Closing Date (a) the Xxxxxxxx-Xxxxx Act is amended,
(b) the Rules referred to in clause (ii) are modified or superseded by any
subsequent statement, rule or regulation of the Commission or any statement of a
division thereof, or (c) any future releases, rules and regulations are
published by the Commission from time to time pursuant to the Xxxxxxxx-Xxxxx
Act, which in any such case affects the form or substance of the required
certification and results in the required certification being, in the reasonable
judgment of the Master Servicer, materially more onerous that then form of the
required certification as of the Closing Date, the Xxxxxxxx-Xxxxx Certification
shall be as agreed to by the Master Servicer and the Depositor following a
negotiation in good faith to determine how to comply with any such new
requirements.
S&P: Standard and Poor's, a division of The XxXxxx-Xxxx Companies, Inc. or
its successor in interest.
Scheduled Payment: With respect to any Mortgage Loan and any month, the
scheduled payment or payments of principal and interest due during such month on
such Mortgage Loan which either is payable by a Mortgagor in such month under
the related Mortgage Note or, in the case of REO Property, would otherwise have
been payable under the related Mortgage Note.
Scheduled Principal: The principal portion of any Scheduled Payment.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo Bank, N.A., or any successor in
interest, or any successor securities administrator appointed as herein
provided.
Security Agreement: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
Security Instrument: A written instrument creating a valid first lien on a
Mortgaged Property securing a Mortgage Note, which may be any applicable form of
mortgage, deed of trust, deed to secure debt or security deed, including any
riders or addenda thereto.
Senior Certificates: Any of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates and the Class R Certificates.
Senior Class Certificate Balance: As of any date of determination, the sum
of the Class A-1 Class Certificate Balance, the Class A-2A Class Certificate
Balance, the Class A-2B Class Certificate Balance, the Class A-3A Class
Certificate Balance, the Class A-3B Class Certificate
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Balance, the Class A-3C Class Certificate Balance, the Class A-3D Class
Certificate Balance and the Class R Class Certificate Balance.
Senior Principal Distribution Amount: (1) With respect to any Distribution
Date prior to the related Stepdown Date or as to which a Stepdown Trigger Event
exists, 100% of the Principal Distribution Amount for such Distribution Date and
(2) with respect to any Distribution Date on or after the Stepdown Date and as
to which a Stepdown Trigger Event does not exist, the excess of (A) the Class
Certificate Balance of the Senior Certificates immediately prior to such
Distribution Date over (B) the lesser of (i) 88.20% of the aggregate Stated
Principal Balance of the Mortgage Loans as of such Distribution Date and (ii)
the excess of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date over the Minimum Required Overcollateralization Amount;
provided, however, that in no event will the Senior Principal Distribution
Amount with respect to any Distribution Date exceed the aggregate Class
Certificate Balance of the Senior Certificates.
Servicer: With respect to each Mortgage Loan, CitiMortgage, Countrywide,
GreenPoint, National City, PHH, RFC, Xxxxx Fargo or Wilshire, as applicable, and
as specified on the Mortgage Loan Schedule.
Servicer Remittance Date: With respect to each Mortgage Loan, the date set
forth in the related Servicing Agreement.
Servicing Advances: All customary, reasonable and necessary "out of pocket"
costs and expenses incurred in the performance by a Servicer of its servicing
obligations, including, but not limited to, the cost of (1) the preservation,
inspection, restoration and protection of a Mortgaged Property, including
without limitation advances in respect of prior liens, real estate taxes and
assessments, (2) any collection, enforcement or judicial proceedings, including
without limitation foreclosures, collections and liquidations, (3) the
conservation, management, sale and liquidation of any REO Property, (4)
executing and recording instruments of satisfaction, deeds of reconveyance,
substitutions of trustees on deeds of trust or Assignments of Mortgage to the
extent not otherwise recovered from the related Mortgagors or payable under the
related Servicing Agreement, (5) correcting errors of prior servicers; costs and
expenses charged to such Servicer by the Trustee; tax tracking; title research;
flood certifications; and lender paid mortgage insurance and (6) obtaining or
correcting any legal documentation required to be included in the Mortgage Files
and reasonably necessary for a Servicer to perform its obligations under the
related Servicing Agreement.
Servicing Agreements: The CitiMortgage Servicing Agreement, the Countrywide
Servicing Agreement, the GreenPoint Servicing Agreement, the National City
Servicing Agreement, the PHH Servicing Agreement, the RFC Servicing Agreement,
the Xxxxx Fargo Servicing Agreement and the Wilshire Servicing Agreement.
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 Mortgage Loan and Distribution Date, an amount
equal to the product of (i) the Stated Principal Balance of such Mortgage Loan
as of the preceding
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Distribution Date and (ii) the applicable Servicing Fee Rate. Such fee shall be
payable monthly, computed on the basis of the same principal amount and period
respectively which any related interest payment on a Mortgage Loan is computed.
If the Index and/or Gross Margin are adjusted as provided in the related
Mortgage Note, the Servicing Fee shall be the rate per annum in effect
immediately prior to such adjustment.
Servicing Fee Rate: As to any Mortgage Loan, a per annum rate as set forth
in the Mortgage Loan Schedule.
Servicing Function Participant: Any Sub-Servicer, Subcontractor or any
other Person, engaged by a Servicer, the Custodian, the Master Servicer, the
Paying Agent, the Securities Administrator and the Trustee.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
names and specimen signatures appear on a list of servicing officers furnished
to the Trustee by the Master Servicer, as such list may be amended from time to
time.
Servicing Rights Owner: With respect to the Wilshire Loans and PHH Loans,
MLML, or its transferee or assignee, in its capacity as owner of the servicing
rights.
Significance Estimate: With respect to any Distribution Date, and in
accordance with Item 1115 of Regulation AB, shall be an amount determined based
on the reasonable good-faith estimate by the Depositor or its affiliate (and
reported to the Securities Administrator) of the aggregate maximum probable
exposure of the outstanding Certificates to the Swap Agreement, the Cap Contract
and the Corridor Contracts, as applicable.
Significance Percentage: With respect to any Distribution Date, and in
accordance with Item 1115 of Regulation AB, shall be a percentage equal to the
Significance Estimate divided by the aggregate outstanding Stated Principal
Balance of the Mortgage Loans, prior to the distribution of the Principal
Distribution Amount on such Distribution Date.
Sponsor: Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware corporation, or
any successor in interest.
Startup Day: The Closing Date.
Stated Principal Balance: With respect to any Mortgage Loan and
Distribution Date, the unpaid principal balance of such Mortgage Loan as of the
Due Date in the related Due Period, as specified in the amortization schedule at
the time relating thereto (before any adjustment to such amortization schedule
by reason of any moratorium or similar waiver or grace period), after giving
effect to any previous partial prepayments and Liquidation Proceeds received and
to the payment of principal due on such Due Date and irrespective of any
delinquency in payment by the related Mortgagor. With respect to any Mortgage
Loan and the Cut-off Date, the Cut-off Date Principal Balance thereof.
Stepdown Date: The earlier of: (A) the first Distribution Date on which the
aggregate Class Certificate Balance of the Senior Certificates has been reduced
to zero; and (B) the later to
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occur of (1) the Distribution Date in April 2010 or (2) the first Distribution
Date on which the Class Certificate Balance of the Senior Certificates (after
giving effect to distributions of the Principal Funds amount for such
Distribution Date) is less than or equal to 88.20% of the aggregate Stated
Principal Balances of the Mortgage Loans.
Stepdown Required Loss Percentage: For any Distribution Date, the
applicable percentage for such Distribution Date set forth in the following
table:
DISTRIBUTION DATE STEPDOWN REQUIRED
OCCURRING IN LOSS PERCENTAGE
------------------------- --------------------------------------------------------
April 2009 - March 2010 0.20% with respect to April 2009, plus an additional
1/12th of 0.35% for each month thereafter
April 2010 - March 2011 0.55% with respect to April 2010, plus an additional
1/12th of 0.35% for each month thereafter
April 2011 - March 2012 0.90% with respect to April 2011, plus an additional
1/12th of 0.40% for each month thereafter
April 2012 - March 2013 1.30% with respect to April 2012, plus an additional
1/12th of 0.25% for each month thereafter
April 2013 and thereafter 155%
Stepdown Trigger Event: The situation that exists with respect to any
Distribution Date on or after the Stepdown Date, if (a) the quotient of (1) the
aggregate Stated Principal Balance of all Mortgage Loans 60 or more days
delinquent, measured on a rolling three-month basis (including Mortgage Loans in
foreclosure, REO Properties and Mortgage Loans with respect to which the
applicable mortgagor is in bankruptcy) and (2) the Stated Principal Balance of
all of the Mortgage Loans as of the preceding Servicer Remittance Date, equals
or exceeds the product of (i) 40.00% and (ii) the Required Percentage or (b) the
quotient (expressed as a percentage) of (1) the aggregate Realized Losses
incurred from the Cut-off Date through the last day of the calendar month
preceding such Distribution Date and (2) the aggregate principal balance of the
Mortgage Loans as of the Cut-off Date exceeds the Stepdown Required Loss
Percentage.
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 any Servicer (or a
Sub-Servicer of any Servicer), the Master Servicer, the Trustee, the Custodian
or the Securities Administrator.
Subordinate Certificate Corridor Contract: means a confirmation and
agreement including the schedule thereto between the Securities Administrator on
behalf of the Issuing Entity and the Cap Contract Counterparty for the benefit
of the Subordinate Certificates.
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Subordinate Certificate Corridor Contract Notional Balance: With respect to
any Distribution Date, the Subordinate Certificate Corridor Contract Notional
Balance set forth for such Distribution Date in the Subordinate Certificate
One-Month LIBOR Cap Table attached hereto as Exhibit H-4.
Subordinate Certificates Lower Collar: With respect to each Distribution
Date, the applicable per annum rate set forth under the heading "1ML Strike
Lower Collar" in the Subordinate Certificate One-Month LIBOR Cap Table (set
forth on Exhibit H-4).
Subordinate Certificates Upper Collar: With respect to each Distribution
Date with respect to which payments are received on the Subordinate Certificate
Corridor Contract, a rate equal to the lesser of One-Month LIBOR and 9.986% per
annum.
Subsequent Recoveries: Any amount recovered by a Servicer or the Master
Servicer (net of reimbursable expenses) with respect to a Liquidated Mortgage
Loan with respect to which a Realized Loss was incurred after the liquidation or
disposition of such Mortgage Loan.
Sub-Servicer: Any Person that services Mortgage Loans on behalf of a
Servicer, and is responsible for the performance (whether directly or through
sub-servicers or Subcontractors) of servicing functions required to be performed
under this Agreement, any related Servicing Agreement or any sub-servicing
agreement that are identified in Item 1122(d) of Regulation AB.
Substitute Mortgage Loan: With respect to any Mortgage Loan, which is
tendered to the Trustee pursuant to the related Servicing Agreement, the related
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, in each case, (i) which has an Outstanding Principal Balance not
greater nor materially less than the Mortgage Loan for which it is to be
substituted; (ii) which has a Mortgage Interest Rate and Net Rate not less than,
and not materially greater than, such Mortgage Loan; (iii) which has a maturity
date not materially earlier or later than such Mortgage Loan and not later than
the latest maturity date of any Mortgage Loan; (iv) which is of the same
property type and occupancy type as such Mortgage Loan; (v) which has a
Loan-to-Value Ratio not greater than the Loan-to-Value Ratio of such Mortgage
Loan; (vi) which is current in payment of principal and interest as of the date
of substitution; (vii) as to which the payment terms do not vary in any material
respect from the payment terms of the Mortgage Loan for which it is to be
substituted and (viii) which has a Gross Margin, Periodic Rate Cap and Maximum
Lifetime Mortgage Rate no less than those of such Mortgage Loan, has the same
Index and interval between Interest Adjustment Dates as such Mortgage Loan, and
a Minimum Lifetime Mortgage Rate no lower than that of such Mortgage Loan.
Subordinate Certificates: Any of the Class M and the Class B Certificates.
Supplemental Interest Trust: The separate trust, established pursuant to
Section 6.01(m) of this Agreement and held by the Securities Administrator for
the benefit of the holders of the Certificates as a segregated subtrust of the
Trust Fund, (i) in which the Cap Contract and the Swap Agreement will be held,
any Swap Termination Payments or Net Swap Payments received from the Swap
Counterparty will be deposited, any Cap Payments received from the Cap Contract
Counterparty will be deposited as set forth in Section 6.01 hereof and (ii) out
of which
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certain distributions to the Certificateholders will be made and any Swap
Termination Payments or Net Swap Payments owed to the Swap Counterparty will be
paid.
Supplemental Interest Trust Trustee: Xxxxx Fargo Bank, N.A., a national
banking association, not in its individual capacity, but solely in its capacity
as trustee of the Supplemental Interest Trust for the benefit of the
Certificateholders under this Agreement, and any successor thereto, and any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
Swap Account: The separate Eligible Account created and maintained by the
Supplemental Interest Trust Trustee pursuant to Section 6.01(m) in the name of
the Supplemental Interest Trust Trustee for the benefit of the Supplemental
Interest Trust and designated "Xxxxx Fargo Bank, N.A., as supplemental interest
trust trustee, in trust for registered holders of Xxxxxxx Xxxxx Alternative Note
Asset Trust, Series 2007-A2." Funds in the Swap Account shall be held in trust
for the Supplemental Interest Trust for the uses and purposes set forth in this
Agreement.
Swap Agreement: The confirmation and agreement, including the schedule
thereto and the related credit support annex, between the Swap Counterparty and
the trustee of the Supplemental Interest Trust for the benefit of the
Certificateholders (attached as Exhibit R hereto) or any other swap agreement
(including any related schedules) held by the Supplemental Interest Trust
pursuant to Section 6.01(m) hereof.
Swap Agreement Notional Balance: As defined in the Swap Agreement.
Swap Counterparty: The Royal Bank of Scotland plc, or any successor
counterparty who meets the requirements set forth in the Swap Agreement.
Swap LIBOR: With respect to any Distribution Date (and the related Accrual
Period) the product of (i) the Floating Rate Option (as defined in the Swap
Agreement for the related Swap Payment Date), (ii) two and (iii) the quotient of
(a) the actual number of days in the Accrual Period for the Lower Tier REMIC
Interests divided by (b) 30.
Swap Payment Date: For so long as the Swap Agreement is in effect or
amounts remain unpaid thereunder, the Business Day immediately preceding each
Distribution Date.
Swap Posted Collateral Account: The segregated Eligible Account created and
maintained by the Supplemental Interest Trust Trustee pursuant to Section
6.01(m) in the name of the Supplemental Interest Trust Trustee for the benefit
of the Supplemental Interest Trust and designated "Xxxxx Fargo Bank, N.A., as
supplemental interest trust trustee, in trust for registered holders of Xxxxxxx
Xxxxx Alternative Note Asset Trust, Series 2007-A2." Funds in the Swap Posted
Collateral Account shall be held in trust for the Supplemental Interest Trust
for the uses and purposes set forth in the Swap Agreement
SWAP REMIC: As described in the Preliminary Statement.
SWAP REMIC Interests: Each of the interests in the SWAP REMIC as set forth
in the Preliminary Statement.
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SWAP REMIC Regular Interests: Each of the SWAP REMIC Interests other than
the Class SWR Interest.
Swap Termination Payment: Any payment payable by the Supplemental Interest
Trust or the Swap Counterparty upon termination of the Swap Agreement determined
in accordance with the Swap Agreement.
Tax Matters Person: The Securities Administrator or any successor thereto
or assignee thereof shall serve as tax administrator hereunder and as agent for
the Tax Matters Person. The Holder of the Residual Certificates shall be the Tax
Matters Person for the related REMIC, as more particularly set forth in Section
9.12 hereof.
Transfer: Any direct or indirect transfer or sale of any Ownership Interest
in a certificate.
Transferor Representation Letter: As defined in Section 5.02(b).
Trust Fund: The corpus of the Issuing Entity created pursuant to Article II
of this Agreement.
Trustee: HSBC Bank USA, National Association, or its successor in interest,
or any successor trustee appointed as herein provided.
Uncertificated Class C Interest: An uncertificated REMIC Regular Interest
having the characteristics described in the Preliminary Statement.
Undercollateralized Group: On any Distribution Date, a Mortgage Group
having aggregate Stated Principal Balance which is less than the aggregate Class
Certificate Balance of the Senior Certificates related to such Mortgage Group.
Uninsured Cause: Any cause of damage to a Mortgaged Property or related REO
Property such that the complete restoration of such Mortgaged Property or
related REO Property is not fully reimbursable by the hazard insurance policies
required to be maintained pursuant the related Servicing Agreement, without
regard to whether or not such policy is maintained.
United States Person: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any state thereof or the District of Columbia
(except, in the case of a partnership, to the extent provided in regulations),
provided that, for purposes solely of the Class R Certificate, no partnership or
other entity treated as a partnership for United States federal income tax
purposes shall be treated as a United States Person unless all persons that own
an interest in such partnership either directly or through any entity that is
not a corporation for United States federal income tax purposes are United
States Persons, or an estate whose income is subject to United States federal
income tax regardless of its source, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more such United States Persons have the authority to control
all substantial decisions of the trust. To the extent prescribed in regulations
by the Secretary of the Treasury, which have not yet been issued, a trust which
was in existence on August 20, 1996 (other than a trust treated as owned by the
grantor under subpart
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E of part I of subchapter J of chapter 1 of the Code), and which was treated as
a United States person on August 20, 1996 may elect to continue to be treated as
a United States person notwithstanding the previous sentence.
Unpaid Realized Loss Amount: With respect to any class of the Subordinate
Certificates and as to any Distribution Date, the excess of (1) Applied Realized
Loss Amounts with respect to such class over (2) the sum of (x) all
distributions in reduction of the Unpaid Applied Realized Loss Amounts on all
previous Distribution Dates and (y) all increases in the Class Certificate
Balance of such class pursuant to the last sentence of the definition of "Class
Certificate Balance." Any amounts distributed to a class of Subordinate
Certificates in respect of any Unpaid Realized Loss Amount will not be applied
to reduce the Class Certificate Balance of such class.
Upper Collar: Any of the Class A-1 Upper Collar, the Class A-2 Upper
Collar, the Class A-3 Upper Collar or the Subordinate Certificates Upper Collar.
Upper Tier REMIC: As described in the Preliminary Statement and Section
9.12.
Upper Tier REMIC Net WAC Cap: In the case of the Class UTA-1 Interest and
the Residual Interest, a per annum rate equal to the weighted average of the
interest rate of the Class LTII1B Interest for such Distribution Date. In the
case of the Class UTA-2A and Class UTA-2B Interests, a per annum rate equal to
the weighted average of the interest rate for the Class LTII2B for such
Distribution Date. In the case of the Class UTA-3A, Class UTA-3B, Class UTA-3C,
Class UTA-3D Interests, a per annum rate equal to the weighted average of the
interest rate for the Class LTII3B for such Distribution Date. In the case of
the Class UTM-1, Class UTM-2, Class UTM-3, Class UTM-4, Class UTM-5, Class
UTM-6, Class UTB-1, Class UTB-2 and Class UTB-3 Interests, a per annum rate
equal to the weighted average of the interest rates of Class LTII1B, Class
LTII2B and Class LTII3B Interests for such Distribution weighted, respectively,
on the basis of the uncertificated principal balances of the Class LTII1A, the
Class LTII2A and the Class LTII3A Interests.
Voting Rights: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. The Voting Rights allocated among Holders
of such Certificates outstanding shall be the fraction, expressed as a
percentage, the numerator of which is the aggregate Class Certificate Balance of
all the Certificates of such Class then outstanding and the denominator of which
is the aggregate Class Certificate Balance of all the Certificates then
outstanding (other than the Class R Certificate). 99.00% of all Voting Rights
will be allocated among all holders of the Certificates (other than the Class R
Certificate) in proportion to their then outstanding Class Certificate Balances,
and 1.00% of the Voting Rights shall be allocated to the Class R Certificate;
provided, however, that any Certificate registered in the name of the Master
Servicer, the Depositor or the Securities Administrator or any of their
respective affiliates shall not be included in the calculation of Voting Rights.
The Class P Certificates shall have no voting rights.
Weighted Average Available Funds Cap: With respect to a Distribution Date,
the per annum rate equal to the weighted average of the Class A-1 Available
Funds Cap, the Class A-2 Available Funds Cap and the Class A-3 Available Funds
Cap (weighted in proportion to the
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results of subtracting from the aggregate Stated Principal Balance of the
related Loan Group, the current Class Certificate Balance of the Class A-1 and
Class R certificates, in the case of Loan Group 1, the Class A-2A and Class A-2B
certificates, in the case of Loan Group 2 or the Class A-3A, Class A-3B, Class
A-3C and Class A-3D Certificates, in the case of Loan Group 3).
Weighted Average Maximum Rate Cap: With respect to a Distribution Date, the
per annum rate equal to the weighted average (weighted in proportion to the
results of subtracting from the aggregate Stated Principal Balance of the
related Loan Group, the current Class Certificate Balance of the Class A-1 and
Class R Certificates, in the case of Loan Group 1, Class A-2A and Class A-2B
Certificates, in the case of Loan Group 2 or the Class A-3A, Class A-3B, Class
A-3C and Class A-3D Certificates, in the case of Loan Group 3) of the Class A-1
Maximum Rate Cap, the Class A-2 Maximum Rate Cap and the Class A-3 Maximum Rate
Cap.
Xxxxx Fargo: Xxxxx Fargo Bank, N.A., or any successor thereto.
Xxxxx Fargo Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of March 1, 2007, among Xxxxx Fargo, the
Depositor and the Sponsor pursuant to which the Xxxxx Fargo Servicing Agreements
and the rights of the Sponsor thereunder (other than the rights to enforce the
representations and warranties with respect to the Xxxxx Fargo Loans) were
assigned to the Depositor for the benefit of the Certificateholders.
Xxxxx Fargo Loans: The Mortgage Loans serviced by Xxxxx Fargo pursuant to
the Xxxxx Fargo Servicing Agreement.
Xxxxx Fargo Servicing Agreement: The Seller's Warranties and Servicing
Agreement, dated as of November 1, 2006, between the Xxxxxxx Xxxxx Bank, USA and
Xxxxx Fargo.
Wilshire: Wilshire Credit Corporation.
Wilshire Servicing Agreement: The Reconstituted Servicing Agreement, dated
as of March 1, 2007, between Wilshire and the Depositor and acknowledged by
Xxxxx Fargo, as securities administrator and master servicer, pursuant to which
Wilshire will service the Wilshire Loans for the benefit of the
Certificateholders.
Wilshire Loans: The Mortgage Loans serviced by Wilshire pursuant to the
Wilshire Servicing Agreement.
Section 1.02 Accounting.
Unless otherwise specified herein, for the purpose of any definition or
calculation, whenever amounts are required to be netted, subtracted or added or
any distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication of
such functions.
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ARTICLE II
CONVEYANCE OF MORTGAGE
LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans to Trustee.
(a) The Depositor concurrently with the execution and delivery of this
Agreement, sells, transfers and assigns to the Issuing Entity without recourse
all its right, title and interest in and to (i) the Mortgage Loans identified in
the Mortgage Loan Schedule, including all interest and principal due with
respect to the Mortgage Loans after the Cut-off Date, but excluding any payments
of principal and interest due on or prior to the Cut-off Date; (ii) such assets
as shall from time to time be credited or are required by the terms of this
Agreement to be credited to the Master Servicer Collection Account, (iii) such
assets relating to the Mortgage Loans as from time to time may be held by the
Servicers in Protected Accounts, the Master Servicer in the Master Servicer
Collection Account and the Securities Administrator in the Distribution Account
for the benefit of the Trustee on behalf of the Certificateholders, (iv) any REO
Property, (v) the Required Insurance Policies and any amounts paid or payable by
the insurer under any Insurance Policy (to the extent the mortgagee has a claim
thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in
Subsection 2.03(a), (vii) the rights with respect to the Servicing Agreements as
assigned to the Depositor on behalf of the Certificateholders by the Assignment
Agreements, (viii) the Corridor Contracts and Corridor Contract Account, (ix)
the Cap Contract and Cap Contract Account, (x) the Swap Agreement and Swap
Account and (xi) any proceeds of the foregoing. Although it is the intent of the
parties to this Agreement that the conveyance of the Depositor's right, title
and interest in and to the Mortgage Loans and other assets in the Trust Fund
pursuant to this Agreement shall constitute a purchase and sale and not a loan,
in the event that such conveyance is deemed to be a loan, it is the intent of
the parties to this Agreement that the Depositor shall be deemed to have granted
to the Trustee a first priority perfected security interest in all of the
Depositor's right, title and interest in, to and under the Mortgage Loans and
other assets in the Trust Fund, and that this Agreement shall constitute a
security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor
hereby deposits with the Trustee or the Custodian, as its agent, the following
documents or instruments
(I) with respect to each Mortgage Loan, other than a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2007-A2, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
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(iii) an original Assignment of the Mortgage executed in the following
form: "HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2007-A2.
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the immediately
preceding clause (iii), if applicable and only to the extent available to
the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) the original power of attorney, if applicable.
and (II) with respect to each Mortgage Loan that is a Cooperative Loan:
(x) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2007-A2, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(xi) the original duly executed assignment of Security Agreement to
the Trustee;
(xii) the acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and any
required continuation statements;
(xiii) the acknowledgment copy of the original executed Form UCC-3
with respect to the Security Agreement, indicating the Trustee as the
assignee of the secured party;
(xiv) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank attached;
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(xv) the original collateral assignment of the proprietary lease by
Mortgagor to the originator;
(xvi) a copy of the recognition agreement;
(xvii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3 with
evidence of filing thereon; and
(xviii) the originals of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loan;
provided, however, that in lieu of the foregoing, the Depositor may deliver the
following documents, under the circumstances set forth below: (w) the Depositor
may deliver a Mortgage Note pursuant to (a)(i) and (b)(i) endorsed in blank,
provided that the endorsement is completed within 60 days of the Closing Date;
(x) in lieu of the original Mortgage, assignments to the Trustee or its
Custodian, as applicable, or intervening assignments thereof which have been
delivered, are being delivered or will, upon receipt of recording information
relating to the Mortgage required to be included thereon, be delivered to
recording offices for recording and have not been returned to the Depositor in
time to permit their delivery as specified above, the Depositor may deliver a
true copy thereof with a certification by the Depositor on the face of such
copy, substantially as follows: "Certified to be a true and correct copy of the
original, which has been transmitted for recording"; and (y) in lieu of the
Mortgage, assignment to the Trustee or intervening assignments thereof, if the
applicable jurisdiction retains the originals of such documents (as evidenced by
a certification from the Depositor or the Master Servicer, to such effect) the
Depositor may deliver photocopies of such documents containing an original
certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; and provided, further, however,
that in the case of Mortgage Loans which have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Depositor, in lieu of delivering
the above documents, may deliver to the Trustee or its Custodian, as applicable,
a certification to such effect and shall deposit all amounts paid in respect of
such Mortgage Loans in the Distribution Account on the Closing Date. The
Depositor shall deliver such original documents (including any original
documents as to which certified copies had previously been delivered) to the
Trustee or its Custodian, as applicable, promptly after they are received. As of
the date hereof, recordation of the assignment of the Mortgage Loans to the
Trustee or the Custodian, as applicable, is not required in any state by either
Rating Agency to obtain the initial rating on the Certificates (upon which
statement the Master Servicer, the Trustee and the Custodian may each
conclusively rely).
If any original Mortgage Note referred to in Section 2.01(b)(I)(i) or
2.01(b)(II)(i) above cannot be located, the obligations of the Depositor to
deliver such documents shall be deemed to be satisfied upon delivery to the
Trustee or its Custodian, as applicable, of a photocopy of such Mortgage Note,
if available, with a lost note affidavit. If any of the original Mortgage Notes
for which a lost note affidavit was delivered to the Trustee or its Custodian,
as applicable, is subsequently located, such original Mortgage Note shall be
delivered to the Trustee or its Custodian, as applicable, within three Business
Days.
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(c) The parties hereto agree that it is not intended that any mortgage loan
be included in the Trust Fund that is, without limitation, a "High Cost Loan" as
defined by the Home Ownership and Equity Protection Act of 1994 or any other
applicable anti-predatory lending laws, including but not limited to (i) a
"High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a "High-Cost Home Loan" as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a "High Cost Home
Mortgage Loan" as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) a "High-Cost Home Loan" as defined by the
Indiana High Cost Home Loan Law effective January 1, 2005.
(d) 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 Mortgage Files, including but not
limited to certain insurance policies and documents contemplated by Section 3.12
of this Agreement, and preparation and delivery of the certifications shall be
performed by the Custodian(s) pursuant to the terms and conditions of the
Custodial Agreement(s).
Section 2.02 Acceptance of Mortgage Loans by Trustee.
(a) The Trustee acknowledges the sale, transfer and assignment of the Trust
Fund to it by the Depositor and its receipt thereof, subject to further review
and the exceptions which may be noted pursuant to the procedures described
below, and declares that it, or the Custodian on its behalf, holds the documents
(or certified copies thereof) delivered to it pursuant to Section 2.01,
including four Corridor Contracts (forms of which are attached hereto as
Exhibits N-1, N-2, N-3 and N-4), and declares that it will continue to hold
those documents and any amendments, replacements or supplements thereto and all
other assets of the Trust Fund delivered to it as Trustee in trust for the use
and benefit of all present and future Holders of the Certificates. On or before
the Closing Date (or, with respect to any Substitute Mortgage Loan, within five
Business Days after the receipt by the Trustee or Custodian thereof), the
Trustee agrees, for the benefit of the Certificateholders, to review or cause to
be reviewed by the Custodian on its behalf (under the Custodial Agreement), each
Mortgage File delivered to it and to execute and deliver, or cause to be
executed and delivered, to the Depositor on the Closing Date an Initial
Certification. In conducting such review, the Trustee or Custodian will certify
as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in the
exception report annexed thereto as not being covered by such certification),
(i) all documents constituting part of such Mortgage File (other than such
documents described in Section 2.01(b)(I)(iii)) required to be delivered to it
pursuant to this Agreement are in its possession, provided that with respect to
the documents described in Section 2.01(b)(I)(v), (vi), (viii) and (ix) and
2.01(b)(II)(viii) and (ix) to the extent the Trustee or the Custodian on its
behalf has actual knowledge that such documents exist, (ii) such documents have
been reviewed by it and are not torn, mutilated, defaced or otherwise altered
(except if initialed by the obligor) and appear to relate on their face to such
Mortgage Loan, (iii) based on its examination and only as to the foregoing, 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 accurately reflects information set forth
in the Mortgage File and (iv) with respect to Mortgage Loans with a Mortgage
Interest Rate subject to
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adjustment, the Gross Margin, the lifetime cap and the periodic cap for such
Mortgage Loan. In performing any such review, the Trustee, or the Custodian, as
its agent, may conclusively rely on the purported due execution and genuineness
of any such document and on the purported genuineness of any signature thereon.
Notwithstanding anything to the contrary in this Agreement, it is herein
acknowledged that, in conducting such review, the Trustee or the Custodian on
its behalf is under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine whether they
are genuine, enforceable, or appropriate for the represented purpose or whether
they have actually been recorded or that they are other than what they purport
to be on their face, or to determine whether any Person executing any documents
is authorized to do so or whether any signature is genuine.
If the Trustee or the Custodian, as its agent, finds any document
constituting part of the Mortgage File not to have been executed or received, or
to be unrelated to the Mortgage Loans identified in Exhibit B or to appear to be
defective on its face, the Trustee or the Custodian, as its agent, shall
promptly notify the Sponsor. In accordance with the Mortgage Loan Purchase
Agreement, the Sponsor shall correct or cure any such defect within ninety (90)
days from the date of notice from the Trustee or the Custodian, as its agent, of
the defect and if the Sponsor fails to correct or cure the defect within such
period, and such defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the Trustee, shall enforce the
Sponsor's obligation pursuant to the Mortgage Loan Purchase Agreement, within 90
days from the Trustee's or the Custodian's notification, to purchase such
Mortgage Loan at the Purchase Price; provided that, if such defect would cause
the Mortgage Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such cure or repurchase must occur within 90 days
from the date such breach was discovered; provided, however, that if such defect
relates solely to the inability of the Sponsor to deliver the original Security
Instrument or intervening assignments thereof, or a certified copy because the
originals of such documents, or a certified copy have not been returned by the
applicable jurisdiction, the Sponsor shall not be required to purchase such
Mortgage Loan if the Sponsor delivers such original documents or certified copy
promptly upon receipt, but in no event later than 360 days after the Closing
Date. The foregoing repurchase obligation shall not apply in the event that the
Sponsor cannot deliver such original or copy of any document submitted for
recording to the appropriate recording office in the applicable jurisdiction
because such document has not been returned by such office; provided that the
Sponsor shall instead deliver a recording receipt of such recording office or,
if such receipt is not available, a certificate confirming that such documents
have been accepted for recording, and delivery to the Trustee or the Custodian,
as its agent, shall be effected by the Sponsor within thirty days of its receipt
of the original recorded document.
(b) No later than 180 days after the Closing Date, the Trustee or the
Custodian, as its agent, will review, for the benefit of the Certificateholders,
the Mortgage Files delivered to it and will execute and deliver or cause to be
executed and delivered to the Depositor a Final Certification. In conducting
such review, the Trustee or the Custodian, as its agent, will certify as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified in the exception
report annexed thereto as not being covered by such certification), that (i) all
documents constituting part of such Mortgage File (other than such documents
described in Section 2.01(b)(I)(v) and (ix)) required to be delivered to it
pursuant to this Agreement are in its possession, provided that with respect to
the documents described in Section 2.01(b)(I)(v), (vi), (viii) and (ix) and
2.01(b)(II)(viii) and (ix)
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to the extent the Trustee or the Custodian on its behalf has actual knowledge
that such documents exist, (ii) such documents have been reviewed by it and are
not torn, mutilated, defaced or otherwise altered (except if initialed by the
obligor) and appear regular on their face and relate to such Mortgage Loan,
(iii) based on its examination and only as to the foregoing, 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 accurately reflects information set forth in the Mortgage
File. In performing any such review, the Trustee, or the Custodian, as its
agent, may conclusively rely on the purported due execution and genuineness of
any such document and on the purported genuineness of any signature thereon.
Notwithstanding anything to the contrary in this Agreement, it is herein
acknowledged that, in conducting such review, the Trustee or the Custodian on
its behalf is under no duty or obligation (i) to inspect, review or examine any
such documents, instruments, certificates or other papers to determine whether
they are genuine, enforceable, or appropriate for the represented purpose or
whether they have actually been recorded or that they are other than what they
purport to be on their face, or to determine whether any Person executing any
documents is authorized to do so or whether any signature is genuine. If the
Trustee or the Custodian, as its agent, finds any document constituting part of
the Mortgage File not to have been executed or received, or to be unrelated to
the Mortgage Loans identified in Exhibit B or to appear to be defective on its
face, the Trustee or the Custodian, as its agent, shall promptly notify the
Sponsor. In accordance with the Mortgage Loan Purchase Agreement, the Sponsor
shall correct or cure any such defect within 90 days from the date of notice
from the Trustee of the defect and if the Sponsor is unable to cure such defect
within such period, and if such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the Trustee
shall enforce the Sponsor's obligation under the Mortgage Loan Purchase
Agreement to purchase such Mortgage Loan at the Purchase Price, provided,
however, that if such defect relates solely to the inability of the Sponsor to
deliver the original Security Instrument or intervening assignments thereof, or
a certified copy, because the originals of such documents, or a certified copy,
have not been returned by the applicable jurisdiction, the Sponsor shall not be
required to purchase such Mortgage Loan, if the Sponsor delivers such original
documents or certified copy promptly upon receipt, but in no event later than
360 days after the Closing Date.
(c) In the event that a Mortgage Loan is purchased by the Sponsor in
accordance with Subsections 2.02(a) or (b) above, the Sponsor shall remit to the
Master Servicer the Purchase Price for deposit in the Master Servicer Collection
Account and the Sponsor shall provide to the Trustee written notification
detailing the components of the Purchase Price. Upon deposit of the Purchase
Price in the Master Servicer Collection Account, the Depositor shall give
written notice thereof to the Trustee and the Custodian and the Trustee or the
Custodian, as its agent (upon receipt of a Request for Release in the form of
Exhibit D attached hereto with respect to such Mortgage Loan), shall release to
the Sponsor the related Mortgage File and the Trustee shall execute and deliver
all instruments of transfer or assignment, without recourse, furnished to it by
the Sponsor as are necessary to vest in the Sponsor title to and rights under
the Mortgage Loan. Such purchase shall be deemed to have occurred on the date on
which the Purchase Price in available funds is received by the Trustee. The
Depositor or Master Servicer shall amend the Mortgage Loan Schedule, to reflect
such repurchase and shall promptly notify the Rating Agencies and the Master
Servicer of such amendment. The obligation of the Sponsor to repurchase any
Mortgage Loan as to which such a defect in a constituent document exists shall
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be the sole remedy respecting such defect available to the Certificateholders or
to the Trustee on their behalf.
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement.
(a) The Depositor hereby assigns to the Trustee, on behalf of the
Certificateholders, all of its right, title and interest in the Mortgage Loan
Purchase Agreement, including but not limited to Depositor's rights pursuant to
the Servicing Agreements (noting that the Sponsor has retained the right in the
event of breach of the representations, warranties and covenants, if any, with
respect to the related Mortgage Loans of the related Servicer under the related
Servicing Agreement to enforce the provisions thereof and to seek all or any
available remedies). The obligations of the Sponsor to substitute or repurchase,
as applicable, a Mortgage Loan shall be the Trustee's and the
Certificateholders' sole remedy for any breach thereof. At the request of the
Trustee, the Depositor shall take such actions as may be necessary to enforce
the above right, title and interest on behalf of the Trustee and the
Certificateholders or shall execute such further documents as the Trustee may
reasonably require in order to enable the Trustee to carry out such enforcement.
With respect to the representations and warranties described in the Mortgage
Loan Purchase Agreement that are made to the best of the Sponsor's knowledge, if
it is discovered by any of the Depositor, the Sponsor, the Master Servicer, the
Securities Administrator 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.
(b) If the Depositor, the Master Servicer, Securities Administrator or the
Trustee discovers a breach of any of the representations and warranties set
forth in the Mortgage Loan Purchase Agreement, which breach materially and
adversely affects the value of the interests of Certificateholders or the
Trustee in the related Mortgage Loan, the party discovering the breach shall
give prompt written notice of the breach to the other parties. The Sponsor,
within 90 days of its discovery or receipt of notice that such breach has
occurred (whichever occurs earlier), shall cure the breach in all material
respects or, subject to the Mortgage Loan Purchase Agreement or Section 2.04 of
this Agreement, as applicable, shall purchase the Mortgage Loan or any property
acquired with respect thereto from the Trustee; provided, however, that if there
is a breach of any representation set forth in the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, and the Mortgage
Loan or the related property acquired with respect thereto has been sold, then
the Sponsor shall pay, in lieu of the Purchase Price, any excess of the Purchase
Price over the Net Liquidation Proceeds received upon such sale. (If the Net
Liquidation Proceeds exceed the Purchase Price, any excess shall be paid to the
Sponsor to the extent not required by law to be paid to the borrower.) Any such
purchase by the Sponsor shall be made by providing an amount equal to the
Purchase Price to the Master Servicer for deposit in the Master Servicer
Collection Account and written notification detailing the components of such
Purchase Price. The Depositor shall notify the Trustee in writing of the deposit
of the Purchase Price and submit to the Trustee or the Custodian, as its agent,
a Request for Release, and the Trustee shall release, or the Trustee shall cause
the Custodian to release, to the Sponsor the related Mortgage File and the
Trustee shall execute and deliver all instruments of transfer or assignment
furnished to it by the Sponsor, without recourse, as are necessary to vest in
the Sponsor title to and rights under the Mortgage Loan or any property acquired
with respect
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thereto. Such purchase shall be deemed to have occurred on the date on which the
Purchase Price in available funds is received by the Master Servicer. The
Depositor or the Master Servicer shall amend the Mortgage Loan Schedule to
reflect such repurchase and shall promptly notify the Master Servicer and the
Rating Agencies of such amendment. Enforcement of the obligation of the Sponsor
to purchase (or substitute a Substitute Mortgage Loan for) any Mortgage Loan or
any property acquired with respect thereto (or pay the Purchase Price as set
forth in the above proviso) as to which a breach has occurred and is continuing
shall constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on their behalf.
Section 2.04 Substitution of Mortgage Loans. Notwithstanding anything to
the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant
to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this
Agreement, the Sponsor may, no later than the date by which such purchase by the
Sponsor would otherwise be required, tender to the Trustee a Substitute Mortgage
Loan accompanied by a certificate of an authorized officer of the Sponsor that
such Substitute Mortgage Loan conforms to the requirements set forth in the
definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement
or this Agreement, as applicable; provided, however, that substitution pursuant
to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, in lieu of purchase shall not be permitted after the termination of
the two-year period beginning on the Startup Day; provided, further, that if the
breach would cause the Mortgage Loan to be other than a "qualified mortgage" as
defined in Section 860G(a)(3) of the Code, any such cure or substitution must
occur within 90 days from the date the breach was discovered. The Trustee or the
Custodian, as its agent, shall examine the Mortgage File for any Substitute
Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the
Custodian, as its agent, shall notify the Sponsor, in writing, within five
Business Days after receipt, whether or not the documents relating to the
Substitute Mortgage Loan satisfy the requirements of the fourth sentence of
Subsection 2.02(a). Within two Business Days after such notification, the
Sponsor shall provide to the Securities Administrator for deposit in the
Distribution Account the amount, if any, by which the Outstanding Principal
Balance as of the next preceding Due Date of the Mortgage Loan for which
substitution is being made, after giving effect to Scheduled Principal due on
such date, exceeds the Outstanding Principal Balance as of such date of the
Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such
date, which amount shall be treated for the purposes of this Agreement as if it
were the payment by the Sponsor of the Purchase Price for the purchase of a
Mortgage Loan by the Sponsor. After such notification to the Sponsor and, if any
such excess exists, upon written notification of the receipt of such deposit,
the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be
deemed to be a Mortgage Loan hereunder. In the event of such a substitution,
accrued interest on the Substitute Mortgage Loan for the month in which the
substitution occurs and any Principal Prepayments made thereon during such month
shall be the property of the Issuing Entity and accrued interest for such month
on the Mortgage Loan for which the substitution is made and any Principal
Prepayments made thereon during such month shall be the property of the Sponsor.
The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the
month of substitution shall be the property of the Sponsor and the Scheduled
Principal on the Mortgage Loan for which the substitution is made due on such
Due Date shall be the property of the Issuing Entity. Upon acceptance of the
Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request
for Release for such Mortgage Loan), the Trustee shall release to the Sponsor
the related Mortgage File related to any Mortgage Loan released pursuant to the
Mortgage Loan Purchase Agreement or Section
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2.04 of this Agreement, as applicable, and shall execute and deliver all
instruments of transfer or assignment, without recourse, in form as provided to
it as are necessary to vest in the Sponsor title to and rights under any
Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or
Section 2.04 of this Agreement, as applicable. The Sponsor shall deliver the
documents related to the Substitute Mortgage Loan in accordance with the
provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and
2.02(b) of this Agreement, as applicable, with the date of acceptance of the
Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time
periods set forth in those Subsections. The representations and warranties set
forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made
by the Sponsor with respect to each Substitute Mortgage Loan as of the date of
acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend
the Mortgage Loan Schedule to reflect such substitution and shall provide a copy
of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.
Notwithstanding any other provision of this Agreement, the right to
substitute Mortgage Loans pursuant to this Article II shall be subject to the
additional limitations that no substitution of a Mortgage Loan shall be made
unless the Securities Administrator and the Trustee shall have received an
Opinion of Counsel (at the expense of the party seeking to make the
substitution) that, under current law, such substitution will not (A) affect
adversely the status of any REMIC established hereunder as a REMIC, or of the
related "regular interests" as "regular interests" in any such REMIC, or (B)
cause any such REMIC to engage in a "prohibited transaction" or prohibited
contribution pursuant to the REMIC provisions.
Section 2.05 Issuance of Certificates. The Trustee acknowledges the
assignment to it on behalf of the Issuing Entity of the Mortgage Loans and the
other assets comprising the Trust Fund and, concurrently therewith, the
Securities Administrator has signed, and countersigned and delivered to the
Depositor, in exchange therefor, Certificates in such authorized denominations
representing such Percentage Interests as the Depositor has requested. The
Trustee agrees that it will hold the Mortgage Loans and such other assets as may
from time to time be delivered to it segregated on the books of the Trustee in
trust for the benefit of the Certificateholders.
Section 2.06 Representations and Warranties Concerning the Depositor. The
Depositor hereby represents and warrants to the Trustee, the Master Servicer and
the Securities Administrator as follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
(b) is qualified and in good standing as a foreign corporation to do
business in each jurisdiction where such qualification is necessary, except
where the failure so to qualify would not reasonably be expected to have a
material adverse effect on the Depositor's business as presently conducted
or on the Depositor's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(ii) the Depositor has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform
its obligations under this Agreement;
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(iii) 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; and neither the execution and delivery of this Agreement,
nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Depositor or its properties or the articles of incorporation or by-laws of
the Depositor, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on the Depositor's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(iv) 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 those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Depositor enforceable against it in accordance with its terms (subject to
applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened against the Depositor, before or by
any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
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 the Depositor's
ability to enter into this Agreement or perform its obligations under this
Agreement; and the Depositor is not in default with respect to any order of
any court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this
Agreement; and
(vii) immediately prior to the transfer and assignment to the Trustee,
each Mortgage Note and each Mortgage were not subject to an assignment or
pledge, and the Depositor had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell such Mortgage Loan to
the Trustee free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest.
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Section 2.07 Representations and Warranties Concerning the Master Servicer
and Securities Administrator. Xxxxx Fargo Bank, N.A., in its capacity as Master
Servicer and Securities Administrator hereby represents and warrants to the
Sponsor, the Depositor 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, 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
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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.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicer. The Master Servicer shall supervise, monitor
and oversee the obligation of the Servicers to service and administer their
respective Mortgage Loans in accordance with the terms of the applicable
Servicing 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 each
Servicer as necessary from time-to-time to carry out the Master Servicer's
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by each Servicer and
shall cause each Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by such Servicer under the applicable
Servicing Agreement. The Master Servicer shall independently and separately
monitor each 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 Servicers' 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 6.03, 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 Servicers to the Master Servicer Collection
Account pursuant to the applicable Servicing Agreements.
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.
The Trustee shall furnish the Servicers and the Master Servicer with any
limited powers of attorney and other documents in form acceptable to it
necessary or appropriate to enable the Servicers and the Master Servicer to
service and administer the related Mortgage Loans and REO Property. The Trustee
shall have no liability with respect to the use of any such limited power of
attorney.
The Trustee or the Custodian shall provide access to the records and
documentation in possession of the Trustee or the Custodian regarding the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request and
during normal business hours at the office of the Trustee or the Custodian;
provided, however, that, unless otherwise required by law, the Trustee or the
Custodian shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee or the Custodian shall allow representatives of
the above entities to photocopy any of the records and documentation and shall
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provide equipment for that purpose at a charge that covers the Trustee's or the
Custodian's actual costs.
The Trustee shall execute and deliver to the related Servicer and the
Master Servicer upon request any court pleadings, requests for trustee's sale or
other documents necessary or desirable to (i) the foreclosure or trustee's sale
with respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
Section 3.02 REMIC-Related Covenants. For as long as each REMIC shall
exist, the Trustee and the Securities Administrator shall act in accordance
herewith to assure continuing treatment of such REMIC as a REMIC, and the
Trustee and the Securities Administrator shall comply with any directions of the
Depositor, the related Servicer or the Master Servicer to assure such continuing
treatment. In particular, the Trustee shall not (a) sell or permit the sale of
all or any portion of the Mortgage Loans or of any investment of deposits in an
Account unless such sale is as a result of a repurchase of the Mortgage Loans
pursuant to this Agreement or the Trustee and Securities Administrator have
received a REMIC Opinion prepared at the expense of the Issuing Entity; and (b)
other than with respect to a substitution pursuant to the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, accept any
contribution to any REMIC after the Startup Day without receipt of a REMIC
Opinion.
Section 3.03 Monitoring of Servicers.
(a) The Master Servicer shall be responsible for reporting to the Trustee,
Securities Administrator and the Depositor the compliance by each Servicer with
its duties under the related Servicing Agreement. In the review of each
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 of its Servicing Agreement. In the event that the Master Servicer, in its
judgment, determines that a Servicer should be terminated in accordance with its
Servicing Agreement, or that a notice should be sent pursuant to such Servicing
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, Securities Administrator 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 each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
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
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prosecution of claims, termination of the Servicing Agreements and the pursuit
of other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Master Servicer shall pay the costs of such enforcement at its own expense
subject to Section 3.03(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 any termination of a Servicer, appointment of a successor Servicer or
the transfer and assumption of servicing by the Master Servicer with respect to
any Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of a Servicer as a result of an event of default by
such 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 the related Servicing 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 4.03(b).
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume liability
for the representations and warranties of such Servicer, if any, that it
replaces.
Section 3.04 Fidelity Bond. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions insurance
policy, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer's behalf, and covering errors
and omissions in the performance of the Master Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.05 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 and the related Servicing Agreement, as applicable; provided,
however, that the Master Servicer shall not (and, consistent with its
responsibilities under
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Section 3.03, shall not permit any 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 any Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property, and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with the applicable Servicing
Agreement and this Agreement, and the Trustee shall execute and deliver such
other documents, as the Master Servicer may request, 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 any Servicer). If the Master Servicer or
the Trustee has been advised that it is likely that the laws of the state in
which action is to be taken prohibit such action if taken in the name of the
Trustee or that the Trustee would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Trustee in the appointment of a co-trustee
pursuant to Section 9.11 hereof. In the performance of its duties hereunder, the
Master Servicer shall be an independent contractor and shall not, except in
those instances where it is taking action in the name of the Trustee, be deemed
to be the agent of the Trustee.
Section 3.06 Due-on-Sale Clauses; Assumption Agreements. To the extent
provided in the applicable Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
applicable Servicing Agreement.
Section 3.07 Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan, or the
receipt by any Servicer of a notification that payment in full has been escrowed
in a manner customary for such purposes for payment to Certificateholders on the
next Distribution Date, the Servicers or the Master Servicer will, if required
under the applicable Servicing Agreement, promptly furnish to the Custodian, on
behalf of the Trustee, two copies of a certification substantially in the form
of Exhibit D hereto signed by a Servicing Officer or in a mutually agreeable
electronic format which will, in lieu of a signature on its face, originate from
a Servicing Officer (which
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certification shall include a statement to the effect that all amounts received
in connection with such payment that are required to be deposited in the
Protected Account maintained by the applicable Servicer pursuant to its
Servicing Agreement have been or will be so deposited) and shall request that
the Custodian, on behalf of the Trustee, deliver to the applicable Servicer the
related Mortgage File. Upon receipt of such certification and request, the
Custodian, on behalf of the Trustee, shall promptly, but in no less than three
(3) Business Days (or, to the extent that the applicable Servicer notifies the
Sponsor that a document is not in the Servicer's possession as part of the
Servicing File which is needed for purposes of the Servicer complying with any
applicable law, within such shorter period as may be necessary to enable the
Servicer to comply with such law), release the related Mortgage File to the
applicable Servicer and the Trustee and Custodian shall have no further
responsibility with regard to such Mortgage File. Upon any such payment in full,
each Servicer is authorized, to give, as agent for the Trustee, as the mortgagee
under the Mortgage that secured the Mortgage Loan, an instrument of satisfaction
(or assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed that no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Protected Account.
(b) From time to time and as appropriate for the servicing or foreclosure
of any Mortgage Loan and in accordance with the applicable Servicing Agreement,
the Trustee shall execute such documents as requested and as shall be prepared
and furnished to the Trustee by a Servicer or the Master Servicer and as are
necessary to the prosecution of any such proceedings. In connection with the
foregoing, the Custodian, on behalf of the Trustee, shall, upon the request of a
Servicer or the Master Servicer, and delivery to the Custodian, on behalf of the
Trustee, of two copies of a Request for Release signed by a Servicing Officer
substantially in the form of Exhibit D (or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
Servicing Officer), release the related Mortgage File held in its possession or
control to the related Servicer or the Master Servicer, as applicable. Such
trust receipt shall obligate the related Servicer or the Master Servicer to
return the Mortgage File to the Custodian on behalf of the Trustee, when the
need therefor by the Servicer or the Master Servicer no longer exists unless the
Mortgage Loan shall be liquidated, in which case, upon receipt of a certificate
of a Servicing Officer similar to that hereinabove specified, the Mortgage File
shall be released by the Custodian, on behalf of the Trustee, to the related
Servicer or the Master Servicer.
(c) The Servicers shall have no liability for, and shall be excused from,
any non-performance hereunder to the extent such non-performance is solely and
directly caused by (i) the failure of the Custodian to release (and not caused
by any failure or non-performance by the Servicers), in a manner consistent with
the terms of the Custodial Agreement, any Mortgage File requested by the
Servicers pursuant to a Request for Release and (ii) the unreasonable refusal of
the Trustee to execute a request for the execution of documents.
Section 3.08 Documents, Records and Funds in Possession of Master Servicer
To Be Held for Trustee.
(a) The Master Servicer shall transmit and each Servicer (to the extent
required by the related Servicing Agreement) shall transmit to the Trustee or
Custodian such documents and
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instruments coming into the possession of the Master Servicer or such Servicer
from time to time as are required by the terms hereof, or in the case of the
Servicers, the applicable Servicing Agreement, to be delivered to the Trustee or
Custodian. Any funds received by the Master Servicer or by a Servicer in respect
of any Mortgage Loan or which otherwise are collected by the Master Servicer or
by a Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan shall be held for the benefit of the Trustee and the
Certificateholders subject to the Master Servicer's right to retain or withdraw
from the Master Servicer Collection Account the Master Servicing Compensation
and other amounts provided in this Agreement, and to the right of each Servicer
to retain its Servicing Fee and other amounts as provided in the applicable
Servicing Agreement. The Master Servicer shall, and (to the extent provided in
the applicable Servicing Agreement) shall cause each Servicer to, provide access
to information and documentation regarding the Mortgage Loans to the Trustee,
its agents and accountants at any time upon reasonable request and during normal
business hours, and to Certificateholders that are savings and loan
associations, banks or insurance companies, the Office of Thrift Supervision,
the FDIC and the supervisory agents and examiners of such Office and Corporation
or examiners of any other federal or state banking or insurance regulatory
authority if so required by applicable regulations of the Office of Thrift
Supervision or other regulatory authority, such access to be afforded without
charge but only upon reasonable request in writing and during normal business
hours at the offices of the Master Servicer designated by it. In fulfilling such
a request, the Master Servicer shall not be responsible for determining the
sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the control
of, the Master Servicer, in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, shall be held by the Master Servicer for and on behalf of
the Trustee and the Certificateholders and shall be and remain the sole and
exclusive property of the Trustee; provided, however, that the Master Servicer
and each Servicer shall be entitled to setoff against, and deduct from, any such
funds any amounts that are properly due and payable to the Master Servicer or
such Servicer under this Agreement or the applicable Servicing Agreement.
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to maintain
or cause to be maintained standard fire and casualty insurance and, where
applicable, flood insurance, all in accordance with the provisions of the
related Servicing Agreements. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require such
additional insurance.
(b) Pursuant to Sections 4.01 and 4.02, any amounts collected by the
Servicers or the Master Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the Mortgagor in accordance with the
applicable Servicing Agreement) shall be deposited into the Master Servicer
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Collection Account, subject to withdrawal pursuant to Sections 4.02 and 4.03 in
accordance with the terms and conditions of the related Servicing Agreement. Any
cost incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 4.02 and 4.03.
Section 3.10 Presentment of Claims and Collection of Proceeds. The Master
Servicer shall (to the extent provided in the applicable Servicing Agreement)
cause the related Servicer to, prepare and present on behalf of the Trustee and
the Certificateholders all claims under the Insurance Policies and take such
actions (including the negotiation, settlement, compromise or enforcement of the
insured's claim) as shall be necessary to realize recovery under such policies.
Any proceeds disbursed to the Master Servicer (or disbursed to a Servicer and
remitted to the Master Servicer) in respect of such policies, bonds or contracts
shall be promptly deposited in the Master Servicer Collection Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition precedent to the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so deposited (or remitted).
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under the applicable Servicing Agreement) to
take, any action that would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of such Master
Servicer or Servicer, would have been covered thereunder. The Master Servicer
shall use its best reasonable efforts to cause each Servicer (to the extent
required under the related Servicing Agreement) to keep in force and effect (to
the extent that the Mortgage Loan requires the Mortgagor to maintain such
insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
any Servicer (to the extent required under the related Servicing Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer (to
the extent required under the related Servicing Agreement) to present, on behalf
of the Trustee and the Certificateholders, claims to the insurer under any
Primary Mortgage Insurance Policies and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policies respecting defaulted Mortgage Loans. Pursuant to Section 4.01
and 4.02, any amounts collected by the Master Servicer or any Servicer under any
Primary Mortgage Insurance Policies shall be deposited in the Master Servicer
Collection Account, subject to withdrawal pursuant to Section 4.03.
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Section 3.12 Trustee to Retain Possession of Certain Insurance Policies and
Documents. The Trustee or the Custodian shall retain possession and custody of
the originals (to the extent available) of any Primary Mortgage Insurance
Policies, or certificate of insurance if applicable, and any certificates of
renewal as to the foregoing as may be issued from time to time as contemplated
by this Agreement. Until all amounts distributable in respect of the
Certificates have been distributed in full and the Master Servicer otherwise has
fulfilled its obligations under this Agreement, the Trustee or its Custodian
shall also retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions of this Agreement. The Master
Servicer shall promptly deliver or cause to be delivered to the Trustee or the
Custodian upon the execution or receipt thereof the originals of any Primary
Mortgage Insurance Policies, any certificates of renewal, and such other
documents or instruments that constitute portions of the Mortgage File that come
into the possession of the Master Servicer from time to time.
Section 3.13 Realization Upon Defaulted Mortgage Loans. The Master Servicer
shall cause each Servicer (to the extent required under the related Servicing
Agreement) to foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments, all in accordance with the terms and
conditions of the applicable Servicing Agreement.
Section 3.14 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 Charge) shall be retained by the applicable Servicer
and shall not be deposited in the Protected 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.
Section 3.15 REO Property.
(a) In the event the Issuing Entity acquires ownership of any REO Property
in respect of any related Mortgage Loan, the deed or certificate of sale shall
be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
applicable Servicing Agreement, cause the applicable Servicer to sell, any REO
Property as expeditiously as possible and in accordance with the provisions of
this Agreement and the related Servicing Agreement, as applicable. Pursuant to
its efforts to sell such REO Property, the Master Servicer shall cause the
applicable Servicer to protect and conserve, such REO Property in the manner and
to the extent required by the applicable Servicing Agreement, in accordance with
the REMIC Provisions and in a manner that does not result in a tax on "net
income from foreclosure property" or cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Protected Account.
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(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Monthly Advances and other unreimbursed advances as well as
any unpaid Servicing Fees from Liquidation Proceeds received in connection with
the final disposition of such REO Property; provided, that any such unreimbursed
Monthly Advances as well as any unpaid Servicing Fees may be reimbursed or paid,
as the case may be, prior to final disposition, out of any net rental income or
other net amounts derived from such REO Property.
(d) To the extent provided in the related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of any
payment to the Master Servicer and the applicable Servicer as provided above
shall be deposited in the Protected Account on or prior to the Determination
Date in the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the related
Master Servicer Collection Account on the next succeeding Servicer Remittance
Date.
Section 3.16 Annual Statement as to Compliance.
Not later than March 1 of each calendar year (other than the calendar year
during which the Closing Date occurs), each Servicer shall deliver (or otherwise
make available) and each 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 P 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 the related Servicing
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, the related Servicing 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
ten-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.
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The Master Servicer shall include all annual statements of compliance
received by it from each Servicer with its own annual statement of compliance to
be submitted to the Securities Administrator pursuant to this Section. For the
avoidance of doubt, the Master Servicer and the Securities Administrator may
satisfy the requirements of this Section 3.16 by each delivering a single annual
statement of compliance containing all of the information required pursuant to
this Section 3.16.
In the event 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 3.16 or to such applicable
agreement, as the case may be, notwithstanding any such termination, assignment
or resignation.
Section 3.17 Reports on Assessment of Compliance and Attestation.
(a) Not later than March 1 of each calendar year (other than the calendar
year during which the Closing Date occurs) each 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, such 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 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 3.18, 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 3.18(h), (i), (j) and (k),
including, if there has been any material instance of noncompliance with the
Relevant Servicing
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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 Issuing Entity for which
a 10-K is required to be filed, 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
Master Servicer, and the Securities Administrator (or any Servicing Function
Participant engaged by them) submit their assessments to the Securities
Administrator, such parties will also at such time include the assessment and
attestation pursuant to this Section 3.17 of each Servicing Function Participant
engaged by it.
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 Servicer
by each 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 K or any similar exhibit set forth in each Servicing
Agreement in respect of each 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 Servicers with its own assessment of
compliance to be submitted to the Securities Administrator pursuant to this
Section. For the avoidance of doubt, the Master Servicer and the Securities
Administrator may satisfy the requirements of this Section 3.17 relating to
reports on assessment of compliance by each delivering a single annual report on
assessment of compliance containing all of the information required pursuant to
this Section 3.17.
In the event 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 3.17,
coupled with an attestation as required in this Section 3.17, or such applicable
agreement notwithstanding any such termination, assignment or resignation.
(b) Not later than March 1 of each calendar year (other than the calendar
year during which the Closing Date occurs) each 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, such 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 such
Servicer, the Master Servicer or any affiliate thereof) which is a member of the
American Institute of Certified Public
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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 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. 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 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 3.17(a) is coupled with an attestation meeting the
requirements of Section 3.17(b) and notify the Depositor of any exceptions.
The Master Servicer shall include each such attestation furnished to it by
the Servicers with its own attestation to be submitted to the Securities
Administrator pursuant to this Section. For the avoidance of doubt, the Master
Servicer and the Securities Administrator may satisfy the requirements of this
Section 3.17 relating to attestations by each delivering a single attestation
containing all of the information required pursuant to this Section 3.17.
In the event the Master Servicer, the Securities Administrator, the
Custodian, any 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
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Custodial Agreement, Servicing Agreement or sub-servicing agreement, as the case
may be, such party shall cause a registered public accounting firm to provide an
attestation pursuant to this Section 3.17, or such other applicable agreement,
notwithstanding any such termination, assignment or resignation.
Section 3.18 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 Q-3 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 Q-3 hereto shall use commercially reasonable
best efforts to provide immediate notice to the Master Servicer, the Securities
Administrator and the Depositor, by fax and by phone or by e-mail and by phone,
(B) each such party 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 O (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 (C) 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 Q-3 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.
Promptly, but no later than the close of business on the third Business Day
after the Reportable Event, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 8-K. In the absence of receipt of any written
changes or approval, or if the Depositor does not request a copy of a Form 8-K,
the Securities Administrator shall be entitled to assume that such Form 8-K is
in final form and the Securities Administrator may proceed with the process for
execution and filing of the Form 8-K. A duly authorized representative of the
Master Servicer shall sign each Form 8-K. If a Form 8-K cannot be filed on
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time or if a previously filed Form 8-K needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 3.18(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 3.18 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 3.18. The Depositor acknowledges that the performance by the Master
Servicer and the Securities Administrator of its duties under this Section 3.18
related to the timely preparation, execution and filing of Form 8-K is also
contingent upon the Servicers, 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 related Servicing Agreements, 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 obtain or receive, on a timely basis,
any information from any other party hereto or any Servicer, Custodian or
Servicing Function Participant needed to prepare, arrange for execution or file
such Form 8-K.
(e) Within fifteen (15) 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 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 Q-1 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 Q-1 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 Q-1 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 an Additional Disclosure Notification, and (ii) the Depositor will
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Securities
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit Q-1 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
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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
(provided that such Form 10-D includes any Additional Form 10-D Disclosure).
Within two Business Days after receipt of such copy, but no later than the 12th
calendar day after the Distribution Date, the Depositor shall notify the
Securities Administrator in writing (which may be furnished electronically) of
any changes to or approval of such Form 10-D. In the absence of receipt of any
written changes or approval, or if the Depositor does not request a copy of a
Form 10-D, the Securities Administrator shall be entitled to assume that such
Form 10-D is in final form and the Securities Administrator may proceed with the
process for execution and filing of the Form 10-D. A duly authorized
representative of the Master Servicer shall sign each Form 10-D. If a Form 10-D
cannot be filed on time or if a previously filed Form 10-D needs to be amended,
the Securities Administrator will follow the procedures set forth in Section
3.18(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
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such Form 10-D. The parties to this
Agreement acknowledge that the performance by the Master Servicer and the
Securities Administrator of its respective duties under this Section 3.18
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 3.18. The
Depositor acknowledges that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 3.18 related to the
timely preparation, execution and filing of Form 10-D is also contingent upon
the Servicers, 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
related Servicing Agreements, 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
obtain or 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
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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 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, the related Servicing
Agreements and Custodial Agreement: (i) an annual compliance statement for the
Master Servicer, each Servicer, the Securities Administrator and any Servicing
Function Participant engaged by any such party (together with the Custodian,
each a "Reporting Servicer"), as described in Section 3.16 of this Agreement,
the related Servicing 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 3.17 of this Agreement, the related
Servicing Agreement and the Custodial Agreement, and (B) if any Reporting
Servicer's report on assessment of compliance with Servicing Criteria described
in Section 3.17 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
3.17 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 3.17 of this Agreement, the related Servicing Agreement and
the Custodial Agreement, and (B) if any registered public accounting firm
attestation report described under Section 3.17 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 L,
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 Q-2 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 Q-2 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 Q-2 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 an Additional Disclosure Notification, and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the
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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 Q-2 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.
(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. 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 process for execution and filing of the Form
10-K. A senior officer of the Master Servicer in charge of the master servicing
function shall sign the Form 10-K. If a Form 10-K cannot be filed on time or if
a previously filed Form 10-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 3.18(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 Securities
Administrator shall be entitled to rely on such representations in preparing,
executing and/or filing any such Form 10-D. The parties to this Agreement
acknowledge that the performance by the Master Servicer and the Securities
Administrator of its duties under this Section 3.18 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 3.18, Section
3.16 and Section 3.17. The Depositor acknowledges that the performance by the
Master Servicer and the Securities Administrator of its duties under this
Section 3.18 related to the timely preparation, execution and filing of Form
10-K is also contingent upon the Servicers, 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 related Servicing Agreement, 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 obtain or
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receive any information from any other party hereto or any 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 L. Each Servicer shall sign and
provide, and each of the Servicers, 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 M) 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 Certifying Person on behalf of the
Issuing Entity. 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 3.18 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 Servicing Agreement or 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
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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 3.18 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 any 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.
(o) The Depositor and the Securities Administrator agree to use their good
faith efforts to cooperate in complying with the requirements of this Section
3.18.
(p) 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.
(q) Any notice or notification required to be delivered by the Securities
Administrator or Master Servicer to the Depositor pursuant to this Section 3.18,
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.
(r) For the avoidance of doubt, any filings or deliverables required under
this Section 3.18, may be prepared, delivered and filed in a consolidated
manner. The Master Servicer, the Securities Administrator and the Depositor may
satisfy the requirements of this Section 3.18 with a single set of filings and
deliverables addressing the requirements of this Section 3.18.
Section 3.19 Compliance with Regulation AB. Each of the parties hereto
acknowledges and agrees that the purpose of Sections 3.16, 3.17 and 3.18 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
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necessary to comply with the provisions of Regulation AB. Any such
supplementation or modification shall be made in accordance with Section 11.02
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 3.20 Servicing Rights Owner. At the Servicing Rights Owner's
request, Wilshire and/or PHH shall resign as Servicer of the Wilshire Loans
and/or PHH Loans upon the selection and appointment of a successor servicer by
the Servicing Rights Owner; provided that the Servicing Rights Owner delivers to
the Master Servicer, the Trustee and the Securities Administrator a letter
indicating that such successor servicer designated by the Servicing Rights Owner
meets the eligibility requirements for a successor servicer, including that such
successor servicer is a Qualified Servicer. No appointment of a successor
servicer hereunder shall be effective until the Master Servicer shall have
consented thereto. Upon such appointment, at the date specified in such letter
such successor servicer will become a servicer pursuant to the terms of this
Agreement. Any successor servicer shall be an institution that is a Xxxxxx Mae
and Xxxxxxx Mac approved seller/servicer in good standing, that has a net worth
of at least $15,000,000, and that is willing to service the Mortgage Loans and
executes and delivers to the Depositor, the Securities Administrator and the
Trustee an agreement accepting such delegation and assignment, that contains an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of Wilshire and/or PHH, with like effect as if
originally named as a party to this Agreement; and provided further that each
Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced as a result of such assignment and delegation.
ARTICLE IV
ACCOUNTS
Section 4.01 Protected Accounts.
(a) The Master Servicer shall enforce the obligation of each Servicer to
establish and maintain a Protected Account in accordance with the applicable
Servicing Agreement, with records to be kept with respect thereto on a Mortgage
Loan by Mortgage Loan basis, into which accounts shall be deposited within two
Business Days (or as of such other time specified in the related Servicing
Agreement) of receipt all collections of principal and interest on any Mortgage
Loan and with respect to any REO Property received by a Servicer, including
Principal Prepayments, Insurance Proceeds, Liquidation Proceeds, Subsequent
Recoveries and advances made from the Servicer's own funds (less servicing
compensation as permitted by the applicable Servicing Agreement in the case of
the Servicer) and all other amounts to be deposited in the Protected Account.
The Servicer is hereby authorized to make withdrawals from and deposits to the
related Protected Account for purposes required or permitted by this Agreement.
To the extent provided in the related Servicing Agreement, the Protected Account
shall be held in a Designated Depository Institution and segregated on the books
of such institution in the name of the Trustee for the benefit of
Certificateholders.
(b) To the extent provided in the related Servicing Agreement, amounts on
deposit in a Protected Account may be invested in Permitted Investments in the
name of the Trustee for the benefit of Certificateholders and, except as
provided in the preceding paragraph, not commingled
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with any other funds, such Permitted Investments to mature, or to be subject to
redemption or withdrawal, no later than the date on which such funds are
required to be withdrawn for deposit in the Master Servicer Collection Account,
and shall be held until required for such deposit. The income earned from
Permitted Investments made pursuant to this Section 4.01 and any other benefit
arising from holding a Protected Account shall be paid to the related Servicer
under the applicable Servicing Agreement, and the risk of loss of moneys
required to be distributed to the Certificateholders resulting from such
investments shall be borne by and be the risk of the related Servicer, as set
forth in the applicable Servicing Agreement. The related Servicer (to the extent
provided in the related Servicing Agreement) shall deposit the amount of any
such loss in the Protected Account within two Business Days of receipt of
notification of such loss but not later than the second Business Day prior to
the Distribution Date on which the moneys so invested are required to be
distributed to the Certificateholders.
(c) To the extent provided in the related Servicing Agreement and subject
to this Article IV, on or before each Servicer Remittance Date, the related
Servicer shall withdraw or shall cause to be withdrawn from the Protected
Accounts and shall immediately deposit or cause to be deposited in the Master
Servicer Collection Account amounts representing the following collections and
payments (other than with respect to principal of or interest on the Mortgage
Loans due on or before the Cut-off Date) with respect to each Loan Group:
(i) Monthly Payments on the Mortgage Loans received or any related
portion thereof advanced by such Servicer pursuant to the related Servicing
Agreement which were due on or before the related Due Date, net of the
amount thereof comprising the Servicing Fees;
(ii) Principal Prepayments in Full and any Liquidation Proceeds
received by such Servicer with respect to such Mortgage Loans in the
related Prepayment Period, with interest to the date of prepayment or
liquidation, net of the amount thereof comprising the Servicing Fees;
(iii) Curtailments received by such Servicer for such Mortgage Loans
in the related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals by the Master Servicer may be made from an Account only to
make remittances as provided in Section 4.01(c), 4.02 and 4.03; to reimburse the
Master Servicer or a Servicer for Monthly Advances which have been recovered by
subsequent collection from the related Mortgagor; to remove amounts deposited in
error; to remove fees, charges or other such amounts deposited on a temporary
basis; or to clear and terminate the account at the termination of this
Agreement in accordance with Section 10.01. As provided in Sections 4.01(c) and
4.02(b) certain amounts otherwise due to the Servicers may be retained by them
as set forth in the related Servicing Agreements and need not be deposited in
the Master Servicer Collection Account.
Section 4.02 Master Servicer Collection Account.
(a) The Master Servicer shall establish and maintain in the name of the
Trustee, for the benefit of the Certificateholders, the Master Servicer
Collection Account as a segregated trust
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account or accounts. The Master Servicer Collection Account may be a sub-account
of the Distribution Account. The Master Servicer will deposit in the Master
Servicer Collection Account as identified by the Master Servicer and as received
by the Master Servicer, the following amounts:
(i) Any amounts withdrawn from a Protected Account or other permitted
account;
(ii) Any Monthly Advance and any Compensating Interest Payments;
(iii) Any Insurance Proceeds, Liquidation Proceeds or Subsequent
Recoveries received by or on behalf of the Master Servicer or which were
not deposited in a Protected Account or other permitted account;
(iv) The repurchase price with respect to any Mortgage Loans
repurchased and all proceeds of any Mortgage Loans or property acquired in
connection with the optional termination of the trust;
(v) Any amounts required to be deposited with respect to losses on
investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the Master Servicer
and required to be deposited in the Master Servicer Collection Account
pursuant to this Agreement.
(b) All amounts deposited to the Master Servicer Collection Account shall
be held by the Master Servicer in the name of the Trustee in trust for the
benefit of the Certificateholders in accordance with the terms and provisions of
this Agreement. The requirements for crediting the Master Servicer Collection
Account or the Distribution Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of (i) prepayment or late payment charges or assumption, tax service,
statement account or payoff, substitution, satisfaction, release and other like
fees and charges and (ii) the items enumerated in Subsections 4.05(a)(i), (ii),
(iii), (iv), (vi), (vii), (viii), (ix), (xi) and (xii) with respect to the
Securities Administrator, need not be credited by the Master Servicer or the
related Servicer to the Distribution Account or the Master Servicer Collection
Account, as applicable. In the event that the Master Servicer shall deposit or
cause to be deposited to the Distribution Account any amount not required to be
credited thereto, the Securities Administrator, upon receipt of a written
request therefor signed by a Servicing Officer of the Master Servicer, shall
promptly transfer such amount to the Master Servicer from the Distribution
Account, any provision herein to the contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer Collection
Account shall be invested, in the name of the Trustee, or its nominee, for the
benefit of the Certificateholders, in Permitted Investments as directed by
Master Servicer. All Permitted Investments shall mature or be subject to
redemption or withdrawal on or before, and shall be held until, the next
succeeding Distribution Account Deposit Date. Any and all investment earnings on
amounts on deposit in the Master Servicer Collection Account from time to time
shall be for the account of the Master Servicer. The Master Servicer from time
to time shall be permitted to withdraw or
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receive distribution of any and all investment earnings from the Master Servicer
Collection Account. The risk of loss of moneys required to be distributed to the
Certificateholders resulting from such investments shall be borne by and be the
risk of the Master Servicer. The Master Servicer shall deposit the amount of any
such loss in the Master Servicer Collection Account within two Business Days of
receipt of notification of such loss but not later than the second Business Day
prior to the Distribution Date on which the moneys so invested are required to
be distributed to the Certificateholders.
Section 4.03 Permitted Withdrawals and Transfers from the Master Servicer
Collection Account.
(a) 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 the
Servicing Agreements. The Master Servicer may clear and terminate the Master
Servicer Collection Account pursuant to Section 10.01 and remove amounts from
time to time deposited in error.
(b) On an ongoing basis, the Master Servicer shall withdraw from the Master
Servicer Collection Account (i) 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(b), 3.03, 7.04 and 9.05 and (ii) any
amounts payable to the Master Servicer as set forth in Section 3.14.
(c) 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.
(d) 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.
Section 4.04 Distribution Account.
(a) The Securities Administrator shall establish and maintain in the name
of the Trustee, for the benefit of the Certificateholders, the Distribution
Account as a segregated trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be held by the
Securities Administrator in the name of the Trustee in trust for the benefit of
the Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of the Trust
Fund segregated on the books of the Securities Administrator and held by the
Securities Administrator in trust in its Corporate Trust Office, and the
Distribution Account and the funds deposited therein shall not be subject to,
and shall be protected to the maximum extent permitted by
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applicable law from, all claims, liens, and encumbrances of any creditors or
depositors of the Securities Administrator, the Trustee or the Master Servicer
(whether made directly, or indirectly through a liquidator or receiver of the
Securities Administrator, the Trustee or the Master Servicer). The Distribution
Account shall be an Eligible Account. The amount at any time credited to the
Distribution Account shall be (i) fully insured by the FDIC to the maximum
coverage provided thereby or (ii) invested in the name of the Trustee, in such
Permitted Investments selected by the Master Servicer or deposited in demand
deposits with such depository institutions as selected by the Master Servicer,
provided that time deposits of such depository institutions would be a Permitted
Investment. All Permitted Investments shall mature or be subject to redemption
or withdrawal on or before, and shall be held until, the next succeeding
Distribution Date if the obligor for such Permitted Investment is the Master
Servicer or, if such obligor is any other Person, the Business Day preceding
such Distribution Date. All investment earnings on amounts on deposit in the
Distribution Account or benefit from funds uninvested therein from time to time
shall be for the account of the Securities Administrator. The Securities
Administrator shall be permitted to withdraw or receive distribution of any and
all investment earnings from the Distribution Account on each Distribution Date.
If there is any loss on a Permitted Investment or demand deposit, the Securities
Administrator shall deposit such amount in the Distribution Account. With
respect to the Distribution Account and the funds deposited therein, the
Securities Administrator shall take such action as may be necessary to ensure
that the Certificateholders shall be entitled to the priorities afforded to such
a trust account (in addition to a claim against the estate of the Trust) as
provided by 12 U.S.C. Section 92a(e), and applicable regulations pursuant
thereto, if applicable, or any applicable comparable state statute applicable to
state chartered banking corporations.
Section 4.05 Permitted Withdrawals and Transfers from the Distribution
Account.
(a) 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 the Servicing Agreements 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 any 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 a 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 any 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 restoration of the related
Mortgaged Property which was damaged by an Uninsured Cause or in connection
with the liquidation of such Mortgage Loan;
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(iii) to reimburse the Master Servicer or any 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 4.03 (a) 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 any 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
4.03(a) 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 any 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 4.03 (a) as
servicing compensation;
(vi) to reimburse the Master Servicer or any Servicer for advances of
funds pursuant to Sections, 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 any 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 3.14;
(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 3.03, 7.04(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 related Servicer;
(xi) to reimburse or pay any Servicer any such amounts as are due
thereto under the applicable Servicing Agreement and have not been retained
by or paid to the Servicer, to the extent provided in the related Servicing
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;
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(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account pursuant to
Section 9.01.
(b) 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
4.02(b).
(c) On each Distribution Date, the Securities Administrator shall
distribute the Available Funds for each Loan Group to the Holders of the
Certificates in accordance with Section 6.01.
ARTICLE V
CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be executed by manual
or facsimile signature on behalf of the Securities Administrator by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Securities Administrator shall bind the Issuing Entity,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of such authentication and delivery. 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 set forth as attached hereto executed
by the Securities Administrator by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication. On
the Closing Date, the Securities Administrator shall authenticate the
Certificates to be issued at the written direction of the Depositor, or any
Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and Exchange of
Certificates.
(a) The Securities Administrator shall maintain, or cause to be maintained
in accordance with the provisions of Section 5.09 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Securities
Administrator shall provide for the registration of Certificates and of
Transfers and exchanges of Certificates as herein provided. Upon surrender for
registration of Transfer of any Certificate, the Securities Administrator shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class and of like
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Securities Administrator. Whenever any
Certificates are so surrendered for exchange, the
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Securities Administrator shall execute, authenticate and deliver the
Certificates that the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of Transfer
or exchange shall be accompanied by a written instrument of Transfer in form
satisfactory to the Securities Administrator duly executed by the holder thereof
or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of Transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer or exchange of Certificates may be required. All
Certificates surrendered for registration of Transfer or exchange shall be
canceled and subsequently destroyed by the Securities Administrator in
accordance with such Securities Administrator's customary procedures.
(b) No Transfer of a Class C or Class P Certificate shall be made unless
such Transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. In the event that a Transfer is to be made in reliance upon an exemption
from the Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
Transfer and such Certificateholder's prospective transferee shall (except with
respect to the initial transfer of a Class C or Class P Certificate by Xxxxxxx
Xxxxx & Co.) each certify to each Securities Administrator in writing the facts
surrounding the Transfer in substantially the form set forth in Exhibit F-1 (the
"Transferor Representation Letter") and (i) deliver a letter in substantially
the form of either Exhibit F-2 (the "Investor Representation Letter") or Exhibit
F-3 (the "Rule 144A Letter") or (ii) there shall be delivered to the Securities
Administrator an Opinion of Counsel that such Transfer may be made pursuant to
an exemption from the Securities Act, which Opinion of Counsel shall not be an
expense of the Depositor or the Securities Administrator. The Depositor shall
provide to any Holder of a Class C or Class P Certificate and any prospective
transferee designated by any such Holder, information regarding the related
Certificates and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for Transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A. The
Securities Administrator shall cooperate with the Depositor in providing the
Rule 144A information referenced in the preceding sentence, including providing
to the Depositor such information in the possession of the Securities
Administrator regarding the Certificates, the Mortgage Loans and other matters
regarding the Trust Fund as the Depositor shall reasonably request to meet its
obligation under the preceding sentence. Each Holder of a Class C or Class P
Certificate desiring to effect such Transfer shall, and does hereby agree to,
indemnify the Depositor and the Securities Administrator against any liability
that may result if the Transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of a Certificate that is neither an ERISA Restricted
Certificate nor a Class R Certificate shall be registered unless the transferee
provides the Securities Administrator with a representation that either (i) such
transferee is not, and is not acting for, on behalf of or with any assets of, an
employee benefit plan or other arrangement subject to Title I of ERISA or plan
subject to Section 4975 of the Code, or (ii) until the termination of the Swap
Agreement and the
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Cap Agreement, the acquisition and holding of the Certificate will not
constitute or result in a nonexempt prohibited transaction under Title I of
ERISA or Section 4975 of the Code.
No transfer of an ERISA Restricted Certificate or a Class R Certificate
will be registered unless the Securities Administrator has received (A) a
representation 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 subject to any state, local, federal, non-U.S. or other law 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 (B)
solely in the case of an ERISA Restricted Certificate (I) if the Certificate has
been the subject of an ERISA-Qualifying Underwriting, a representation to the
effect that such transferee is an insurance company that is acquiring the
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 (II) solely in the case of a
Definitive Certificate, an Opinion of Counsel satisfactory to the Securities
Administrator, and upon which the Securities Administrator shall be entitled to
rely, to the effect that the acquisition and holding of such Certificate will
not constitute or result in a nonexempt prohibited transaction under Title I of
ERISA or Section 4975 of the Code, or a violation of Similar Law, and will not
subject the Securities Administrator, the Master Servicer, the Trustee or the
Depositor to any obligation in addition to those expressly undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Master Servicer, the Trustee or the Depositor.
Except in the case of a Definitive Certificate, the representations set
forth in the two immediately preceding paragraphs of this Subsection 5.02(b),
other than clause (B)(II) in the immediately preceding paragraph, shall be
deemed to have been made to the Securities Administrator by the transferee's
acceptance of a Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in any Class of Certificate).
Notwithstanding any other provision herein to the contrary, any purported
transfer of a Certificate to or on behalf of a Plan without the delivery to the
Securities Administrator of a representation or an Opinion of Counsel
satisfactory to the Securities Administrator as described above shall be void
and of no effect. The Securities Administrator shall not be under any liability
to any Person for any registration or transfer of any Certificate that is in
fact not permitted by this Section 5.02(b), nor shall the Trustee or the
Securities Administrator 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 Securities Administrator in accordance with the foregoing
requirements. The Trustee or the Securities Administrator shall be entitled, but
not obligated, to recover from any Holder of any Certificate that was in fact a
Plan and that held such Certificate in violation of this Section 5.02(b) all
payments made on such 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.
(c) Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have
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agreed to be bound by the following provisions, and the rights of each Person
acquiring any Ownership Interest in a Class R Certificate are expressly subject
to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall be a Permitted Transferee and shall promptly notify the
Securities Administrator of any change or impending change in its status as
a Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be purchased,
transferred or sold, directly or indirectly, except in accordance with the
provisions hereof. No Ownership Interest in a Class R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any Class R
Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under subparagraph (b) above, the
Securities Administrator shall have been furnished with an affidavit (a
"Transferee's Letter") of the initial owner or the proposed transferee in
the form attached hereto as Exhibit E-1 and an affidavit (a "Transferor
Certificate") of the proposed transferor in the form attached hereto as
Exhibit E-2. In the absence of a contrary instruction from the transferor
of a Class R Certificate, declaration (11) in Appendix A of the
Transferee's Letter may be left blank. If the transferor requests by
written notice to the Securities Administrator prior to the date of the
proposed transfer that one of the two other forms of declaration (11) in
Appendix A of the Transferee's Letter be used, then the requirements of
this Section 5.02(c)(ii) shall not have been satisfied unless the
Transferee's Letter includes such other form of declaration.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (A) to obtain a Transferee's Letter from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class R Certificate, (B) to obtain a Transferee's Letter from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Class R Certificate and (C) not to
Transfer its Ownership Interest in a Class R Certificate or to cause the
Transfer of an Ownership Interest in a Class R Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee. Further, no transfer, sale or other disposition of any
Ownership Interest in a Class R Certificate may be made to a person who is
not a U.S. Person (within the meaning of Section 7701 of the Code) unless
such person furnishes the transferor and the Securities Administrator with
a duly completed and effective Internal Revenue Service Form W-8ECI (or any
successor thereto) and the Securities Administrator consents to such
transfer, sale or other disposition in writing.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Class R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Class R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Class R Certificate. The Securities Administrator shall be
under no liability to any Person for any registration of Transfer of a
Class R Certificate that is in fact not permitted by Section 5.02(b) and
this Section 5.02(c) or for making any payments due on such Certificate to
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the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transferee's Letter. The Securities
Administrator shall be entitled but not obligated to recover from any
Holder of a Class R Certificate that was in fact not a Permitted Transferee
at the time it became a Holder or, at such subsequent time as it became
other than a Permitted Transferee, all payments made on such Class R
Certificate at and after either such time. Any such payments so recovered
by the Securities Administrator shall be paid and delivered by the
Securities Administrator to the last preceding Permitted Transferee of such
Certificate.
(v) At the option of the Holder of the Class R Certificate, the Class
SWR Interest, the Class LTR Interest and the Residual Interest may be
severed and represented by separate certificates (with the separate
certificate that represents the Residual Interest also representing all
rights of the Class R Certificate to distributions attributable to an
interest rate on the Class R Certificate in excess of the REMIC
Pass-Through Rate); provided, however, that such separate certification may
not occur until the Securities Administrator receives a REMIC Opinion to
the effect that separate certification in the form and manner proposed
would not result in the imposition of federal tax upon the Issuing Entity
or any of the REMICs provided for herein or cause any of the REMICs
provided for herein to fail to qualify as a REMIC; and provided further,
that the provisions of Sections 5.02(b) and (c) will apply to each such
separate certificate as if the separate certificate were a Class R
Certificate. If, as evidenced by a REMIC Opinion, it is necessary to
preserve the REMIC status of any of the REMICs provided for herein, the
Class SWR Interest, the Class LTR Interest and the Residual Interest shall
be severed and represented by separate Certificates (with the separate
certificate that represents the Residual Interest also representing all
rights of the Class R Certificate to distributions attributable to an
interest rate on the Class R Certificate in excess of the REMIC
Pass-Through Rate).
The restrictions on Transfers of a Class R Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Class R Certificate may be deleted) with respect to Transfers occurring
after delivery to the Securities Administrator of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Securities Administrator or
the Depositor, to the effect that the elimination of such restrictions will not
cause any of the REMICs provided for herein to fail to qualify as a REMIC at any
time that the Certificates are outstanding or result in the imposition of any
tax on the Issuing Entity, any REMIC provided for herein, a Certificateholder or
another Person. Each Person holding or acquiring any Ownership Interest in a
Class R Certificate hereby consents to any amendment of this Agreement that,
based on an Opinion of Counsel furnished to the Securities Administrator, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Class R Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Class R Certificate that is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The transferor of the Class R Certificate shall notify the Securities
Administrator in writing upon the transfer of the Class R Certificate.
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(e) The preparation and delivery of all certificates, opinions and other
writings referred to above in this Section 5.02 shall not be an expense of the
Issuing Entity, the Depositor or the Securities Administrator.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate is surrendered to the Securities Administrator or the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and of the ownership thereof and
(b) there is delivered to the Securities Administrator such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Securities Administrator that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Securities Administrator may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Securities Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time. All Certificates surrendered to the Securities Administrator under the
terms of this Section 5.03 shall be canceled and destroyed by the Securities
Administrator in accordance with its standard procedures without liability on
its part.
Section 5.04 Persons Deemed Owners. The Securities Administrator and any
agent of the Securities Administrator may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Securities Administrator, nor any agent of the
Securities Administrator shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and Addresses. If
three or more Certificateholders (a) request such information in writing from
the Securities Administrator, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the
Depositor shall request such information in writing from the Securities
Administrator, then the Securities Administrator shall, within ten Business Days
after the receipt of such request, provide the Depositor or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of the Trust Fund held by the Securities Administrator, if
any. The Depositor and every Certificateholder, by receiving and holding a
Certificate, agree that the Securities Administrator shall not be held
accountable by reason of the disclosure of any such information as to the list
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06 Book-Entry Certificates. The Regular Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to the
Depository by or on behalf of the Depositor. The Book-Entry Certificates shall
initially be registered on the Certificate Register in the name of the
Depository
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or its nominee, and no Certificate Owner of a Book-Entry Certificate will
receive a definitive certificate representing such Certificate Owner's interest
in such Certificates, except as provided in Section 5.08. Unless and until
definitive, fully registered Certificates ("Definitive Certificates") have been
issued to the Certificate Owners of the Book-Entry Certificates pursuant to
Section 5.08:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor and the Securities Administrator may deal with the
Depository and the Depository Participants for all purposes (including the
making of distributions) as the authorized representative of the respective
Certificate Owners of the Book-Entry Certificates;
(c) registration of the Book-Entry Certificates may not be transferred by
the Securities Administrator except to another Depository;
(d) the rights of the respective Certificate Owners of the Book-Entry
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of the Book-Entry Certificates and the Depository and/or the
Depository Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 5.08, the Depository will
make book-entry transfers among the Depository Participants and receive and
transmit distributions of principal and interest on the related Certificates to
such Depository Participants;
(e) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants;
(f) the Securities Administrator may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants; and
(g) to the extent that the provisions of this Section conflict with any
other provisions of this Agreement, the provisions of this Section shall
control.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Certificateholders
evidencing a specified percentage of the aggregate unpaid principal amount of
any Class of Certificates, such direction or consent may be given by Certificate
Owners (acting through the Depository and the Depository Participants) owning
Book-Entry Certificates evidencing the requisite percentage of principal amount
of such Class of Certificates.
Section 5.07 Notices to Depository. Whenever any notice or other
communication is required to be given to Certificateholders of the Class with
respect to which Book-Entry Certificates have been issued, unless and until
Definitive Certificates shall have been issued to the related Certificate
Owners, the Securities Administrator shall give all such notices and
communications to the Depository.
Section 5.08 Definitive Certificates. If, after Book-Entry Certificates
have been issued with respect to any Certificates, (a) the Depository or the
Depositor advises the Securities Administrator that the Depository is no longer
willing, qualified or able to discharge properly its
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responsibilities under the Depository Agreement with respect to such
Certificates and the Securities Administrator or the Depositor is unable to
locate a qualified successor, (b) the Depositor notifies the Securities
Administrator and the Depository of its intent to terminate the book-entry
system through the Depository and, upon receipt of notice of such intent from
the Depository, the Certificate Owners of the Book-Entry Certificates agree to
initiate such termination or (c) after the occurrence and continuation of an
Event of Default, Certificate Owners of such Book-Entry Certificates having not
less than 51% of the Voting Rights evidenced by any Class of Book-Entry
Certificates advise the Securities Administrator and the Depository in writing
through the Depository Participants that the continuation of a book-entry system
with respect to Certificates of such Class through the Depository (or its
successor) is no longer in the best interests of the Certificate Owners of such
Class, then the Securities Administrator shall notify all Certificate Owners of
such Book-Entry Certificates, through the Depository, of the occurrence of any
such event and of the availability of Definitive Certificates to Certificate
Owners of such Class requesting the same. The Depositor shall provide the
Securities Administrator with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon surrender
to the Securities Administrator of any such Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Securities Administrator shall authenticate and deliver such Definitive
Certificates. Neither the Depositor nor the Securities Administrator shall be
liable for any delay in delivery of such instructions and each may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of such Definitive Certificates, all references herein to obligations
imposed upon or to be performed by the Depository shall be deemed to be imposed
upon and performed by the Securities Administrator, to the extent applicable
with respect to such Definitive Certificates and the Securities Administrator
shall recognize the Holders of such Definitive Certificates as
Certificateholders hereunder.
Section 5.09 Maintenance of Office or Agency. The Securities Administrator
will maintain or cause to be maintained at its expense an office or offices or
agency or agencies where Certificates may be surrendered for registration of
transfer or exchange. The Securities Administrator initially designates its
offices at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Client Service Manager - Xxxxxxx Xxxxx Alternative Note Asset Trust,
Series 2007-A2 as offices for such purposes. The Securities Administrator will
give prompt written notice to the Certificateholders of any change in such
location of any such office or agency. For the avoidance of doubt, the
Securities Administrator may satisfy the requirements of this Section 5.09 by
maintaining a single office or agency.
ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
Section 6.01 Distributions on the Certificates.
(a) [Reserved]
(b) On each Distribution Date, amounts on deposit in the Distribution
Account shall be treated for federal income tax purposes as applied to
distributions on the interests in each of the SWAP REMIC and the Lower Tier
REMIC in an amount sufficient to make the
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distributions on the respective Certificates on such Distribution Date in
accordance with the provisions of this Section 6.01.
On each Distribution Date, the interest distributable with respect to the
Certificates is the interest which has accrued thereon at the then applicable
related Certificate Rate during the related Accrual Period less applicable
related Prepayment Interest Shortfalls, if any.
All calculations of interest on the Certificates will be made on the basis
of a 360-day year and the actual number of days elapsed in the applicable
Accrual Period.
(c) On each Distribution Date (or on the related Swap Payment Date, with
respect to payments to the Supplemental Interest Trust), the Interest Funds for
such Distribution Date are required to be distributed in the following order of
priority, until such Interest Funds have been fully distributed:
(i) to the Class P Certificates, any Prepayment Charges collected on
the Prepayment Charge Mortgage Loans and (A) any amounts paid by the
Sponsor or the related Servicer in respect of Prepayment Charges pursuant
to this Agreement or the related Servicing Agreement and (B) any amounts
received in respect of any indemnification paid as a result of a Prepayment
Charge being unenforceable in breach of the representations and warranties
set forth in the Mortgage Loan Purchase Agreement received during the
related Prepayment Period;
(ii) to the Supplemental Interest Trust, any Net Swap Payments owed to
the Swap Counterparty;
(iii) to the Supplemental Interest Trust, any Swap Termination Payment
owed by the Supplemental Interest Trust to the Swap Counterparty (other
than any Defaulted Swap Termination Payment);
(iv) concurrently, to each class of the Senior Certificates, the
Current Interest and any Interest Carry Forward Amount with respect to each
such class; provided, however, that if Interest Funds are insufficient to
make a full distribution of the aggregate Current Interest and the
aggregate Interest Carry Forward Amount to the Senior Certificates,
Interest Funds will be distributed pro rata among each class of the Senior
Certificates based upon the ratio of (x) the Current Interest and Interest
Carry Forward Amount for each class of the Senior Certificates to (y) the
total amount of Current Interest and any Interest Carry Forward Amount for
the Senior Certificates in the aggregate;
(v) to the Class M-1 Certificates, the Current Interest for such class
and any Interest Carry Forward Amount with respect to such class;
(vi) to the Class M-2 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
(vii) to the Class M-3 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
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(viii) to the Class M-4 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
(ix) to the Class M-5 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
(x) to the Class M-6 Certificates, the Current Interest for such class
and any Interest Carry Forward Amount with respect to such class;
(xi) to the Class B-1 Certificates, the Current Interest for each such
class and any Interest Carry Forward Amount with respect to each such
class;
(xii) to the Class B-2 Certificates, the Current Interest for each
such class and any Interest Carry Forward Amount with respect to each such
class;
(xiii) to the Class B-3 Certificates, the Current Interest for each
such class and any Interest Carry Forward Amount with respect to each such
class; and
(xiv) any remainder pursuant to Section 6.01(g) hereof.
On each Distribution Date, subject to the proviso in (iv) above, the
Interest Funds received on the Group 1 Mortgage Loans will be deemed to be
distributed to the Class R and Class A-1 Certificates, Interest Funds received
on the Group 2 Mortgage Loans will be deemed to be distributed to the Class A-2
Certificates and Interest Funds received on the Group 3 Mortgage Loans will be
deemed to be distributed to the Class A-3 Certificates, in each case, until the
related Current Interest and Interest Carry Forward Amount of each such class or
classes of Senior Certificates for such Distribution Date has been paid in full.
Thereafter, Interest Funds not required for such distributions are available to
be applied to if necessary, to the class or classes of Senior Certificates that
are not related to such group of Mortgage Loans.
With respect to any Distribution Date, to the extent that the Prepayment
Interest Shortfall exceeds the Compensating Interest Payment payable by the
Servicers or the Master Servicer, such amount shall reduce the Current Interest
with respect to each Class of Certificates, pro rata, based upon the amount of
interest each such Class would otherwise be entitled to receive on such
Distribution Date.
(d) [RESERVED]
(e) On each Distribution Date (or in the case of any Net Swap Payments owed
to the Swap Counterparty, one business day (as defined in the Swap Agreement)
prior to such Distribution Date), the Securities Administrator shall, to the
extent of funds then available, make the following distributions from the
Distribution Account of an amount equal to the Principal Distribution Amount in
the following order of priority, and each such distribution shall be made only
after all distributions pursuant to Section 6.01(c) above shall have been made
until such amount shall have been fully distributed for such Distribution Date:
(i) to the Supplemental Interest Trust, any Net Swap Payments owed to
the Swap Counterparty, to the extent not paid pursuant to Section
6.01(c)(ii);
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(ii) to the Supplemental Interest Trust, any Swap Termination Payment
owed by the Supplemental Interest Trust to the Swap Counterparty (other
than any Defaulted Swap Termination Payment), to the extent not paid
pursuant to Section 6.01(c)(iii);
(iii) to the Senior Certificates, the Senior Principal Distribution
Amount shall be distributed as follows:
(1) the Group 1 Principal Distribution Amount shall be
distributed as follows: (I) first, to the Class R Certificate until its
Class Certificate Balance has been reduced to zero, and second, to the
Class A-1 Certificates, until the Class Certificate Balance of such Class
has been reduced to zero;
(2) the Group 2 Principal Distribution Amount will be
distributed, pro rata, based on the Class Certificate Balance for each
Class of the Class A-2 Certificates; provided, however, that on and after
the Distribution Date on which the aggregate Class Certificate Balance of
the Class M, Class B and Class C Certificates has been reduced to zero and
the Stated Principal Balance of the Mortgage Loans is equal to or less than
the aggregate Class Certificate Balance of the Senior Certificates, any
principal distributions will be allocated sequentially (i) first, to the
Class A-2A Certificates, until its Class Certificate Balance is reduced to
zero and (ii) second, to the Class A-2B Certificates, until its Class
Certificate Balance is reduced to zero; and
(3) the Group 3 Principal Distribution Amount will be
distributed, pro rata, based on the Class Certificate Balance for each
Class of the Class A-3 Certificates as follows: (i) first, to the Class
A-3A Certificates until the Class Certificate Balance of such class is
reduced to zero, second, to the Class A-3B Certificates, until the Class
Certificate Balance of such class is reduced to zero, and third, to the
Class A-3C, until the Class Certificate Balance of such class is reduced to
zero and (ii) to the Class A-3D Certificates until the Class Certificate
Balance of such Class has been reduced to zero; provided, however, that on
and after the Distribution Date on which the aggregate Class Certificate
Balance of the Class M, Class B and Class C Certificates has been reduced
to zero, the Group 3 Principal Distribution Amount will be distributed
sequentially (i) first, to the Class A-3A, Class A-3B and Class A-3C
Certificates, pro rata, among such classes, based on their respective Class
Certificate Balances, until their Class Certificate Balances have been
reduced to zero and (ii) second, to the Class A-3D Certificates, until its
Class Certificate Balance is reduced to zero
(iv) to the Class M-1 Certificates, the Class M-1 Principal
Distribution Amount;
(v) to the Class M-2 Certificates, the Class M-2 Principal
Distribution Amount;
(vi) to the Class M-3 Certificates, the Class M-3 Principal
Distribution Amount;
(vii) to the Class M-4 Certificates, the Class M-4 Principal
Distribution Amount;
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(viii) to the Class M-5 Certificates, the Class M-5 Principal
Distribution Amount;
(ix) to the Class M-6 Certificates, the Class M-6 Principal
Distribution Amount;
(x) to the Class B-1 Certificates, the Class B-1 Principal
Distribution Amount;
(xi) to the Class B-2 Certificates, the Class B-2 Principal
Distribution Amount;
(xii) to the Class B-3 Certificates, the Class B-3 Principal
Distribution Amount; and
(xiii) any remainder pursuant to Section 6.01(g) hereof.
If on any Distribution Date any Mortgage Group would be an
Undercollateralized Group after distributions on such date, then payments that
would otherwise be made pursuant to clauses (iv) through (xiii) above (such
reallocations to be made first from the most subordinated Class of Certificates)
shall be made to the Senior Certificates of the Undercollateralized Group until
such Loan Group is no longer an Undercollateralized Group.
(f) [RESERVED]
(g) On each Distribution Date (or in the case of any Net Swap Payments owed
to the Swap Counterparty, one business day (as defined in the Swap Agreement)
prior to such Distribution Date), the Securities Administrator shall, to the
extent of Interest Funds and Principal Funds then available, make the following
distributions up to the following amounts from the Distribution Account of the
remainders pursuant to Section 6.01(c)(xiv) and (e)(xiii) hereof and each such
distribution shall be made only after all distributions pursuant to Sections
6.01(c) and (e) above shall have been made until such remainders shall have been
fully distributed for such Distribution Date:
(i) to the Senior Certificates, any amounts due as described in the
same order of priority as set forth in Section 6.01(c)(iv) to the extent
unpaid by Interest Funds;
(ii) to the Subordinate Certificates, any amounts due as described in
the same order of priority as set forth in Section 6.01(c)(v) through
(xiii) to the extent unpaid by Interest Funds;
(iii) the Extra Principal Distribution Amount;
(iv) to the Class M-1 Certificates, any Unpaid Realized Loss Amount
for such class;
(v) to the Class M-2 Certificates, any Unpaid Realized Loss Amount for
such class;
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(vi) to the Class M-3 Certificates, any Unpaid Realized Loss Amount
for such class;
(vii) to the Class M-4 Certificates, any Unpaid Realized Loss Amount
for such class;
(viii) to the Class M-5 Certificates, any Unpaid Realized Loss Amount
for such class;
(ix) to the Class M-6 Certificates, any Unpaid Realized Loss Amount
for such class;
(x) to the Class B-1 Certificates, any Unpaid Realized Loss Amount for
such class;
(xi) to the Class B-2 Certificates, any Unpaid Realized Loss Amount
for such class;
(xii) to the Class B-3 Certificates, any Unpaid Realized Loss Amount
for such class;
(xiii) to the Offered Certificates, on a pro rata basis, based upon
outstanding Floating Rate Certificate Carryover for each such Class, the
Floating Rate Certificate Carryover for each such Class;
(xiv) to the Supplemental Interest Trust, any Defaulted Swap
Termination Payment to the extent not already paid; and
(xv) the remainder pursuant to Section 6.01(h) hereof.
(h) on each Distribution Date, the Securities Administrator shall allocate
the remainders pursuant to Section 6.01(g)(xv) as follows:
(i) to the Class C Certificates in the following order of priority,
(I) the Class C Current Interest, (II) the Class C Interest Carry Forward
Amount, (III) as principal on the Class C Certificate until the Class
Certificate Balance of the Class C Certificates has been reduced to zero
and (IV) the Class C Unpaid Realized Loss Amount; and
(ii) the remainder pursuant to Section 6.01(i) hereof.
(i) On each Distribution Date, the Securities Administrator shall allocate
the remainder pursuant to Section 6.01(h)(ii) hereof (i) to the Securities
Administrator to reimburse amounts or pay indemnification amounts owing to the
Securities Administrator from the Issuing Entity pursuant to Section 7.03 and
(ii) to the Class R Certificate and such distributions shall be made only after
all preceding distributions shall have been made until such remainder shall have
been fully distributed.
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(j) On each Distribution Date, after giving effect to distributions on such
Distribution Date, the Securities Administrator shall allocate the Realized Loss
Amount for the Certificates to reduce the Class Certificate Balances of the
Class C Certificates and the Subordinate Certificates in the following order of
priority:
(i) to the Class C Certificates, until the Class C Class Certificate
Balance is reduced to zero;
(ii) to the Class B-3 Certificates until the Class B-3 Class
Certificate Balance is reduced to zero;
(iii) to the Class B-2 Certificates until the Class B-2 Class
Certificate Balance is reduced to zero;
(iv) to the Class B-1 Certificates until the Class B-1 Class
Certificate Balance is reduced to zero;
(v) to the Class M-6 Certificates until the Class M-6 Class
Certificate Balance is reduced to zero;
(vi) to the Class M-5 Certificates until the Class M-5 Class
Certificate Balance is reduced to zero;
(vii) to the Class M-4 Certificates until the Class M-4 Class
Certificate Balance is reduced to zero;
(viii) to the Class M-3 Certificates until the Class M-3 Class
Certificate Balance is reduced to zero;
(ix) to the Class M-2 Certificates until the Class M-2 Class
Certificate Balance is reduced to zero; and
(x) to the Class M-1 Certificates until the Class M-1 Class
Certificate Balance is reduced to zero.
(k) Subject to Section 10.02 hereof respecting the final distribution, on
each Distribution Date the Securities Administrator shall make distributions to
each Certificateholder of record on the preceding Record Date either by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if such Holder has so
notified the Securities Administrator at least five (5) Business Days prior to
the related Record Date or, if not, by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register. Notwithstanding the foregoing, but subject to Section 10.02 hereof
respecting the final distribution, distributions with respect to Certificates
registered in the name of a Depository shall be made to such Depository in
immediately available funds.
In accordance with this Agreement, the Master Servicer shall prepare and
deliver an electronic report (the "Remittance Report") to the Securities
Administrator (or by such other
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means as the Master Servicer and the Securities Administrator may agree from
time to time) containing such data and information as to permit the Securities
Administrator to prepare the Monthly Statement to Certificateholders and make
the required distributions for the related Distribution Date. The Securities
Administrator will prepare the Monthly Report based solely upon the information
received from the Master Servicer, which in turn shall be based on information
from the Servicers and the Cap Contract Counterparty.
(l) The Securities Administrator is hereby directed by the Depositor to
execute the Corridor Contracts on behalf of the Issuing Entity in the form
presented to it by the Depositor and shall have no responsibility for the
contents of such Corridor Contracts, including, without limitation, the
representations and warranties contained therein. Any funds payable by the
Issuing Entity under the Corridor Contracts at closing shall be paid by the
Depositor. Notwithstanding anything to the contrary contained herein or in any
Corridor Contract, except as set forth in Section 2 of each Corridor Contract,
the Issuing Entity shall not be required to make any payments to the
counterparty under any Corridor Contract. Any payments received under the terms
of the related Corridor Contract will be available to pay the holders of the
related Class A-1 and Class R Certificates, Class A-2 Certificates, Class A-3
Certificates and Subordinate Certificates up to the amount of any Floating Rate
Certificate Carryovers remaining after all other distributions required under
this Section 6.01 are made on such Distribution Date, other than Floating Rate
Certificate Carryovers attributable to the fact that Realized Loss Amounts are
not allocated to the Senior Certificates. Any amounts received under the terms
of any Corridor Contract on a Distribution Date that are not used to pay such
Floating Rate Certificate Carryovers will be distributed to the holders of the
Class C Certificates. Payments in respect of such Floating Rate Certificate
Carryovers from proceeds of a Corridor Contract shall be paid to the related
Classes of Class A-1 and Class R Certificates, Class A-2 Certificates, Class A-3
Certificates and Subordinate Certificates, pro rata based upon such Floating
Rate Certificate Carryovers for each such class of Class A-1 and Class R
Certificates, Class A-2 Certificates, Class A-3 Certificates and Subordinate
Certificates. Amounts received on the Class A-1 Corridor Contract will only be
available to make payments on the Class A-1 and Class R Certificates, amounts
received on the Class A-2 Corridor Contract will only be available to make
payments on the Class A-2 Certificates, amounts received on the Class A-3
Corridor Contract will only be available to make payments on the Class A-3
Certificates and amounts received on the Subordinate Certificates Corridor
Contract will only be available to make payments on the Subordinate
Certificates.
(i) The Securities Administrator shall establish and maintain,
for the benefit of the Issuing Entity and the Certificateholders, the
Corridor Contract Account. On or prior to the Corridor Contract
Termination Date, amounts, if any, received by the Securities
Administrator for the benefit of the Trust Fund in respect of the
related Corridor Contract shall be deposited by the Securities
Administrator into the Corridor Contract Account and will be used to
pay Floating Rate Certificate Carryovers on the related Class A-1 and
Class R Certificates, Class A-2 Certificates, Class A-3 Certificates
and Subordinate Certificates to the extent provided in the immediately
preceding paragraph. With respect to any Distribution Date on or prior
to the Corridor Contract Termination Date, the amount, if any, payable
by the Cap Contract Counterparty under the related Corridor Contract
will equal the product of (i) the excess of (x) One-Month
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LIBOR (as determined by the Cap Contract Counterparty and subject to a
cap equal to the rate with respect to such Distribution Date as shown
under the heading "1ML Upper Collar" in the schedule to the related
Corridor Contract), over (y) the rate with respect to such
Distribution Date as shown under the heading "1ML Strike Lower Collar"
in the schedule to the related Corridor Contract, (ii) an amount equal
to the lesser of (x) the related Corridor Contract Notional Balance
for such Distribution Date and (y) the outstanding Class Certificate
Balance of the related classes of Certificates and (iii) the number of
days in such Accrual Period, divided by 360. If a payment is made to
the Issuing Entity under a Corridor Contract and the Securities
Administrator is required to distribute excess amounts to the holders
of the Class C Certificates as described above, information regarding
such distribution will be included in the monthly statement made
available on the Securities Administrator's website pursuant to
Section 6.03 hereof.
(ii) Amounts on deposit in the Corridor Contract Account will
remain uninvested pending distribution to Certificateholders.
(iii) Each Corridor Contract is scheduled to remain in effect
until the Corridor Contract Termination Date and will be subject to
early termination only in limited circumstances. Such circumstances
include certain insolvency or bankruptcy events in relation to the Cap
Contract Counterparty, the termination of the Trust Fund, the related
Corridor Contract becoming illegal or subject to certain kinds of
taxation and certain other events of default and termination events
(as further detailed in each Corridor Contract).
(m) On the Closing Date, the Supplemental Interest Trust shall be
established and maintained pursuant to this Agreement, as a separate trust, the
corpus of which shall be held by the Supplemental Interest Trust Trustee for the
benefit of the holders of the Certificates as a segregated subtrust of the Trust
Fund. The Supplemental Interest Trust shall hold the Cap Contract Account and
the Swap Account, each of which shall be an Eligible Account, and funds
deposited in each Account therein shall be held separate and apart from, and
shall not be commingled with, any other moneys, including, without limitation,
other moneys of the Securities Administrator or the Supplemental Interest Trust
Trustee held pursuant to this Agreement. In no event shall any funds deposited
in each Account within the Supplemental Interest Trust be credited to or made
available to any other Account of the Trust Fund. The records of the Securities
Administrator shall at all times reflect that the Supplemental Interest Trust is
a subtrust of the Trust Fund, the assets of which are segregated from other
assets of the Trust Fund.
The Supplemental Interest Trust Trustee is hereby directed by the Depositor
to execute the Swap Agreement and the Cap Contract on behalf of the Supplemental
Interest Trust in the forms presented to it by the Depositor and shall have no
responsibility for the contents of such Swap Agreement and Cap Contract,
including, without limitation, the representations and warranties contained
therein. The Supplemental Interest Trust Trustee shall have all of the rights
and protections of the Securities Administrator hereunder.
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The Supplemental Interest Trust Trustee shall enforce all of the rights of
the Supplemental Interest Trust and exercise any remedies under the Swap
Agreement or Cap Contract and, in the event the Swap Agreement is terminated as
a result of the designation by either party thereto of an Early Termination Date
(as defined in the Swap Agreement), at the direction of the Depositor, enter
into a replacement swap agreement with a replacement counterparty appointed by
the Depositor utilizing the amounts of the net Swap Termination Payments
received.
For each Distribution Date, through and including the Distribution Date in
March 2012, the Supplemental Interest Trust Trustee shall, based on the
Significance Estimate (which shall be provided to the Supplemental Interest
Trust Trustee by the Depositor within five (5) Business Days prior to the
Distribution Date), calculate the Significance Percentage of each of the Swap
Agreement, the Corridor Contracts and the Cap Contract. If on any such
Distribution Date, the Significance Percentage is equal to or greater than 9%,
the Supplemental Interest Trust Trustee shall promptly notify the Depositor and
the Depositor shall obtain the financial information required to be delivered by
the Swap Counterparty or the Cap Contract Counterparty, as applicable, pursuant
to the terms of the Swap Agreement or the Cap Contract, respectively. If, on any
succeeding Distribution Date through and including the Distribution Date in
March 2012, the Significance Percentage is equal to or greater than 10%, the
Supplemental Interest Trust Trustee shall promptly notify the Depositor and the
Depositor shall, within five (5) Business Days following such Distribution Date,
deliver to the Securities Administrator the financial information provided to it
by the Swap Counterparty or Cap Contract Counterparty, as applicable, in
Xxxxx-compatible format for inclusion in the Form 10-D relating to such
Distribution Date.
Any Swap Termination Payment received by the Supplemental Interest Trust
Trustee shall be deposited in the Swap Account and shall be used to make any
upfront payment required under a replacement swap agreement and any upfront
payment received from the counterparty to a replacement swap agreement shall be
used to pay any Swap Termination Payment owed to the Swap Counterparty.
Notwithstanding anything contained herein, in the event that a replacement
swap agreement cannot be obtained within thirty (30) days after receipt by the
Supplemental Interest Trust Trustee of the Swap Termination Payment paid by the
terminated Swap Counterparty, the Supplemental Interest Trust Trustee shall
deposit such Swap Termination Payment into a separate, segregated non-interest
bearing account established by the Supplemental Interest Trust Trustee and the
Supplemental Interest Trust Trustee shall, on each Distribution Date following
receipt of such Swap Termination Payment, withdraw from such account, an amount
equal to the Net Swap Payment, if any, that would have been paid to the
Supplemental Interest Trust by the original Swap Counterparty (computed in
accordance with the original Swap Agreement) and distribute such amount in
accordance with Section 6.01(m)(i)-(viii) of this Agreement. Any such account
shall not be an asset of any REMIC. Any amounts remaining in such account shall
be distributed to the holders of the Class C Certificates on the Distribution
Date following the earlier of (i) the termination of the Trust Fund pursuant to
Section 10.01 and (ii) March 25, 2012.
On any Distribution Date (or in the case of any Net Swap Payments, on the
related Swap Payment Date), any Swap Termination Payments or Net Swap Payments
owed to the Swap
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Counterparty will be paid out of and any Net Swap Payments or Swap Termination
Payments received from the Swap Counterparty will be deposited into the Swap
Account, any payments received from the Cap Contract Counterparty pursuant to
the Corridor Contracts will be deposited into the Corridor Contract Account and
any Cap Payments received from the Cap Contract Counterparty will be deposited
into the Cap Contract Account (each account, other than the Corridor Contract
Account, within the Supplemental Interest Trust). The Supplemental Interest
Trust will not be an asset of any REMIC. Funds in the Swap Account and the Cap
Contract Account within the Supplemental Interest Trust shall be distributed in
the following order of priority by the Securities Administrator (provided,
however, amounts relating to Cap Payments on deposit in the Cap Contract Account
will not be used to make any portion of the payments in paragraphs (i), (ii) and
(ix) below):
(i) to the Swap Counterparty, all Net Swap Payments, if any, owed
to the Swap Counterparty for such Distribution Date;
(ii) to the Swap Counterparty, any Swap Termination Payment,
other than a Defaulted Swap Termination Payment, if any, owed to the
Swap Counterparty;
(iii) to each class of the Senior Certificates, on a pro rata
basis, any Current Interest and any Interest Carry Forward Amount with
respect to such class to the extent unpaid;
(iv) sequentially, to the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates,
the Class M-5 Certificates, the Class M-6 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3
Certificates in that order, any Current Interest for such class to the
extent unpaid;
(v) sequentially, to the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates,
the Class M-5 Certificates, the Class M-6 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3
Certificates in that order, any Interest Carry Forward with respect to
such class to the extent unpaid;
(vi) to the Offered Certificates, to pay principal as described
and in the same manner and order of priority as set forth in Sections
6.01(e)(iii) through 6.01(e)(xii) in order to restore levels of the
Overcollateralization Amount, and after giving effect to distributions
from Principal Distribution Amount for each such Class;
(vii) sequentially, to the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates,
the Class M-5 Certificates, the Class M-6 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3
Certificates, in that order, any Unpaid Realized Loss Amount for such
class to the extent unpaid;
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(viii) to the Offered Certificates, on a pro rata basis, any
Floating Rate Certificate Carryover to the extent not paid based on
the amount of such unpaid Floating Rate Certificate Carryover;
(ix) to the Swap Counterparty, any Defaulted Swap Termination
Payment owed to the Swap Counterparty to the extent not already paid;
and
(x) to the Class C Certificates any remaining amount.
Notwithstanding the foregoing, however, after giving effect to proposed
distributions on any Distribution Date, the sum of the cumulative amounts
distributed pursuant to clause (vi) above and the cumulative amounts distributed
pursuant to clause (vii) above shall be limited to the aggregate amount of
cumulative Realized Losses incurred from the Cut-off Date through the last day
of the related Prepayment Period.
Upon termination of the Trust Fund, any amounts remaining in the Swap
Account and the Cap Contract Account within the Supplemental Interest Trust
shall be distributed pursuant to the priorities set forth in this Section
6.01(m).
With respect to the failure of the Swap Counterparty to perform any of its
obligations under the Swap Agreement, the breach by the Swap Counterparty of any
of its representations and warranties made pursuant to the Swap Agreement, or
the termination of the Swap Agreement, the Supplemental Interest Trust Trustee
shall send any notices and make any demands required hereunder (to the extent
that a Responsible Officer of the Securities Administrator has actual knowledge
or written notice of any such failure, breach or termination).
On the Closing Date, the Swap Counterparty and the Supplemental Interest
Trust Trustee (which is hereby authorized and directed by the Depositor to enter
into such credit support annex) will enter into a credit support annex in
relation to the Swap Agreement, which annex is intended to protect the
Supplemental Interest Trust from certain ratings downgrades that might hinder
the ability of the Swap Counterparty to continue its obligations under the Swap
Agreement.
Pursuant to and in accordance with the terms and provisions of the Swap
Agreement, the Swap Counterparty may be required to post additional collateral
in connection with its obligations under the Swap Agreement. In connection with
the foregoing, the Supplemental Interest Trust Trustee may be required to
establish a Swap Posted Collateral Account.
To the extent that the Swap Counterparty remits any Posted Collateral to
the Supplemental Interest Trust Trustee under the Swap Agreement, the
Supplemental Interest Trust Trustee shall, upon receipt of the Posted
Collateral, deposit the Posted Collateral into the Swap Posted Collateral
Account and shall hold, release and disburse such collateral in accordance with
the terms and provisions of the Swap Agreement. Where a termination event occurs
with respect to the Swap Counterparty under the Swap Agreement, or where the
Swap Counterparty fulfills certain obligations to the Supplemental Interest
Trust such as finding a replacement swap counterparty or a guarantor that meets
established criteria of the Rating Agencies, the Supplemental Interest Trust
Trustee shall make payments from the Swap Posted Collateral Account in
accordance with the provisions of the Swap Agreement. Amounts held in the Swap
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Posted Collateral Account will not be part of the Trust Fund and will not be
available for distribution to any Certificateholders, except to the extent
distributed to the Swap Account pursuant to the Swap Agreement. Any funds in the
form of cash held in the Swap Posted Collateral Account shall be invested by the
Supplemental Interest Trust Trustee in Permitted Investments described in clause
(ii) of the definition of Permitted Investments in accordance with the
instructions of the Swap Counterparty. Any earnings shall be remitted to the
Swap Counterparty in accordance with the Swap Agreement. Absent receipt by the
Supplemental Interest Trust Trustee of written instructions from the Swap
Counterparty, such funds shall remain uninvested.
On the Closing Date, the Cap Contract Counterparty and the Supplemental
Interest Trust Trustee (which is hereby authorized and directed by the Depositor
to enter into such credit support annex) will enter into a credit support annex
in relation to the Cap Contract, which annex is intended to protect the
Supplemental Interest Trust from certain ratings downgrades that might hinder
the ability of the Cap Contract Counterparty to continue its obligations under
the Cap Contract.
Pursuant to and in accordance with the terms and provisions of the Cap
Contract, the Cap Contract Counterparty may be required to post additional
collateral in connection with its obligations under the Swap Agreement. In
connection with the foregoing, the Supplemental Interest Trust Trustee may be
required to establish a Cap Posted Collateral Account.
To the extent that the Cap Contract Counterparty remits any Posted
Collateral to the Supplemental Interest Trust Trustee under the Cap Contract,
the Supplemental Interest Trust Trustee shall, upon receipt of the Posted
Collateral, deposit the Posted Collateral into the Cap Posted Collateral Account
and shall hold, release and disburse such collateral in accordance with the
terms and provisions of the Cap Contract. Where a termination event occurs with
respect to the Cap Contract Counterparty under the Cap Contract, or where the
Cap Contract Counterparty fulfills certain obligations to the Supplemental
Interest Trust such as finding a replacement cap contract counterparty or a
guarantor that meets established criteria of the Rating Agencies, the
Supplemental Interest Trust Trustee shall make payments from the Cap Posted
Collateral Account to the Cap Contract Counterparty in accordance with the
provisions of the Cap Contract. Amounts held in the Cap Posted Collateral
Account will not be part of the Trust Fund and will not be available for
distribution to any Certificateholders, except to the extent distributed to the
Cap Contract Account pursuant to the Cap Contract. Any funds in the form of cash
held in the Cap Posted Collateral Account shall be invested by the Supplemental
Interest Trust Trustee in Permitted Investments described in clause (ii) of the
definition of Permitted Investments in accordance with the instructions of the
Cap Contract Counterparty. Absent receipt by the Supplemental Interest Trust
Trustee of written instructions from the Cap Contract Counterparty, such funds
shall remain uninvested.
Section 6.02 Distributions.
(a) On each Distribution Date, other than the final Distribution Date, the
Securities Administrator shall distribute to each Certificateholder of record on
the directly preceding Record Date the Certificateholder's pro rata share of its
Class (based on the aggregate Percentage Interest represented by such Holder's
Certificates) of all amounts required to be
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distributed on such Distribution Date to such Class, based solely on information
provided to the Securities Administrator by the Master Servicer. The Securities
Administrator shall calculate the amount to be distributed to each Class and,
based on such amounts, the Securities Administrator shall determine the amount
to be distributed to each Certificateholder. All of the Securities
Administrator's calculations of payments shall be based solely on information
provided to the Securities Administrator by the Master Servicer or the
applicable Servicer. The Securities Administrator shall not be required to
confirm, verify or recompute any such information but shall be entitled to rely
conclusively on such information.
(b) Payment of the above amounts to each Certificateholder shall be made
(i) by check mailed to each Certificateholder entitled thereto at the address
appearing in the Certificate Register or (ii) upon receipt by the Securities
Administrator on or before the fifth Business Day preceding the Record Date of
written instructions from a Certificateholder by wire transfer to a United
States dollar account maintained by the payee at any United States depository
institution with appropriate facilities for receiving such a wire transfer;
provided, however, that the final payment in respect of each Class of
Certificates will be made only upon presentation and surrender of such
respective Certificates at the office or agency of the Securities Administrator
specified in the notice to Certificateholders of such final payment.
Section 6.03 Statements to Certificateholders.
(a) On each Distribution Date, the Securities Administrator will make
available to each Certificateholder and any other interested party a statement
(the "Monthly Statement"), based on information provided by the Master Servicer
and the Servicers generally setting forth among other information with respect
to the Certificates and Mortgage Loans:
(1) the amount of the related distribution to holders of each class of
certificates allocable to principal, separately identifying (A) the
aggregate amount of any principal prepayments included therein, (B)
the aggregate amount of all scheduled payments of principal included
therein and (C) any Extra Principal Distribution Amount, in the
aggregate and with respect to the Group 1 Mortgage Loans, Group 2
Mortgage Loans and Group 3 Mortgage Loans;
(2) the amount of such distribution to holders of each class of
Certificates allocable to interest;
(3) the Interest Carry Forward Amount for each class of Certificates;
(4) the Class Certificate Balance of each class of Certificates after
giving effect to the distribution of principal on such Distribution
Date;
(5) the aggregate outstanding principal balance of each class of
Certificates for the following Distribution Date;
(6) the amount of the Servicing Fee paid to or retained by the Servicers
and any amounts constituting reimbursement or indemnification of the
Servicers, the Master Servicer, the Trustee or the Securities
Administrator;
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(7) the Certificate Rate for each class of Certificates for such
Distribution Date;
(8) the amount of Monthly Advances on Mortgage Loans included in the
distribution on such Distribution Date;
(9) the cumulative amount of (A) Realized Losses and (B) Applied Realized
Loss Amounts to date, in the aggregate and with respect to the Group 1
Mortgage Loans, the Group 2 Mortgage Loans and the Group 3 Mortgage
Loans;
(10) the amount of (A) Realized Losses and (B) Applied Realized Loss
Amounts with respect to such Distribution Date, in the aggregate and
with respect to the Group 1 Mortgage Loans, the Group 2 Mortgage Loans
and the Group 3 Mortgage Loans;
(11) the number and aggregate principal amounts of Mortgage Loans (A)
delinquent (exclusive of Mortgage Loans in foreclosure) (1) 31 to 60
days, (2) 61 to 90 days and (3) 91 or more days, (B) in foreclosure
and delinquent (1) 31 to 60 days, (2) 61 to 90 days and (3) 91 or more
days, and (C) in bankruptcy (determined in accordance with the OTS
method), in each case as of the close of business on the last day of
the calendar month preceding such Distribution Date, in the aggregate
and with respect to the Group 1 Mortgage Loans, the Group 2 Mortgage
Loans and the Group 3 Mortgage Loans;
(12) with respect to any Mortgage Loan that became an REO Property during
the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Determination Date;
(13) whether a Stepdown Trigger Event has occurred and is in effect;
(14) the total number and principal balance of any REO Properties as of the
close of business on the related Determination Date, in the aggregate;
(15) any Floating Rate Certificate Carryover paid and all Floating Rate
Certificate Carryover remaining on each class of the Certificates on
such Distribution Date;
(16) the number and amount of Prepayment Charges and the amount of late
payment fees received during the related Prepayment Period in the
aggregate;
(17) as of each Distribution Date, the amount, if any, received pursuant to
each Corridor Contract and the amount thereof to be paid to each class
of Certificates;
(18) as of each Distribution Date, the amount of any Cap Payments paid or
received by the Supplemental Interest Trust pursuant to the Cap
Contract;
(19) as of each Distribution Date, the amount of any Net Swap Payments or
Swap Termination Payments paid or received by the Supplemental
Interest Trust pursuant to the Swap Agreement and the amount of any
Defaulted Swap Termination Payments paid by the Supplemental Interest
Trust;
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(20) the number of Mortgage Loans with respect to which (i) a reduction in
the Mortgage Rate has occurred or (ii) the related borrower's
obligation to repay interest on a monthly basis has been suspended or
reduced pursuant to the Relief Act or similar state legislation; and
the amount of interest not required to be paid with respect to any
such Mortgage Loans during the related Due Period as a result of such
reductions in the aggregate and with respect to the Group 1 Mortgage
Loans, the Group 2 Mortgage Loans and the Group 3 Mortgage Loans;
(21) the amounts distributed as interest in respect of the portion of each
class of Certificates that represents a regular or residual interest
in a REMIC and the amount of distributions on each class of
certificates not treated as distributions on a regular or residual
interest in a REMIC;
(22) the aggregate amount of all Advances with respect to the Mortgage
Loans recovered during the related Due Period:
(23) the allocation to each Class of Certificates of any Realized Losses
during the related Due Period:
(24) with respect to each Class of Certificates, the amount of any
Prepayment Interest Shortfalls on such Distribution Date; and
(25) information regarding any pool asset changes (other than in connection
with a pool asset converting into cash in accordance with its terms),
such as additions or removals in connection with pool asset
substitutions and repurchases (and purchase rates, if applicable).
The Securities Administrator may make available each month, to any
interested party, the monthly statement via the Securities Administrator's
website. The Securities Administrator will also make available on its website
any reports on Form 10-D, 10-K and 8-K that have been prepared and filed by the
Securities Administrator with respect to the Issuing Entity promptly after such
material is electronically filed with, or furnished to, the Securities and
Exchange Commission. The Securities Administrator's website will be located at
xxx.xxxxxxx.xxx, and assistance in using the website can be obtained by calling
the Securities Administrator's customer service desk at (000) 000-0000. Parties
that are unable to use the above distribution option are entitled to have a
paper copy mailed to them via first class mail by notifying the Securities
Administrator at the following address: Xxxxx Fargo Bank, N.A., 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Manager -- MLMI
2007-A2. The Securities Administrator will have the right to change the way such
reports are distributed in order to make such distributions more convenient
and/or more accessible, and the Securities Administrator will provide timely and
adequate notification to such parties regarding any such changes.
In addition, within a reasonable period of time after the end of each
calendar year, the Securities Administrator will, upon request, prepare and
deliver to each Holder of a Certificate of record during the previous calendar
year a statement containing information necessary to enable Holders of the
Certificates to prepare their tax returns. These statements will not have been
examined and reported upon by an independent public accountant.
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(b) By January 30 of each year beginning in 2008, if so requested in
writing, the Securities Administrator will furnish such report to each Holder of
the Certificates of record at any time during the prior calendar year as to the
aggregate of amounts reported pursuant to subclauses (a)(ii) and (a)(v) above
with respect to the Certificates, plus information with respect to the amount of
servicing compensation and such other customary information as the Securities
Administrator may determine to be necessary and/or to be required by the
Internal Revenue Service or by a federal or state law or rules or regulations to
enable such Holders to prepare their tax returns for such calendar year. Such
obligations shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Securities
Administrator pursuant to the requirements of the Code.
(c) The Securities Administrator may satisfy the requirements of this
Section 6.05 via a single Monthly Statement, provided that such Monthly
Statement adequately addresses all of the content and delivery requirements
contained in this Section 6.05.
Section 6.04 Monthly Advances. If the Monthly Payment on a Mortgage Loan
that was due on a related Due Date and is delinquent other than as a result of
application of the Relief Act and for which the related Servicer was required to
make an advance pursuant to the related Servicing Agreement exceeds the amount
deposited in the Master Servicer Collection Account that will be used for a
Monthly Advance with respect to such Mortgage Loan, the Master Servicer will
deposit in the Master Servicer Collection Account not later than the
Distribution Account Deposit Date immediately preceding the related Distribution
Date an amount equal to such deficiency, net of the Servicing Fee for such
Mortgage Loan, except to the extent the Master Servicer determines any such
Monthly Advance to be nonrecoverable from Liquidation Proceeds, Insurance
Proceeds or future payments on the Mortgage Loan for which such Monthly Advance
was made. If the Master Servicer has not deposited the amount described above as
of the related Distribution Account Deposit Date, the Trustee will, subject to
applicable law and its determination of recoverability, deposit in the Master
Servicer Collection Account not later than the related Distribution Date, an
amount equal to the remaining deficiency as of the Distribution Account Deposit
Date. Subject to the foregoing, the Master Servicer shall continue to make such
Monthly Advances through the date that the related Servicer is required to do so
under its Servicing Agreement. If applicable, on the Distribution Account
Deposit Date, the Master Servicer shall present an Officer's Certificate to the
Securities Administrator (i) stating that the Master Servicer elects not to make
a Monthly Advance in a stated amount and (ii) detailing the reason it deems the
advance to be nonrecoverable.
Section 6.05 Compensating Interest Payments. The Master Servicer shall
deposit in the Master Servicer Collection Account not later than each
Distribution Account Deposit Date an amount equal to the aggregate amounts
required to be paid by the Servicers under the Servicing Agreements with respect
to subclause (a) of the definition of Prepayment Interest Shortfall with respect
to the Mortgage Loans for the related Distribution Date, and not so paid by the
related Servicers (such amount, the "Compensating Interest Payment"). The Master
Servicer shall not be entitled to any reimbursement of any Compensating Interest
Payment; provided, however, the aggregate compensating interest payments made by
the Master Servicer shall not exceed the Master Servicing Compensation.
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ARTICLE VII
THE MASTER SERVICER AND THE DEPOSITOR
Section 7.01 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. The Depositor shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Depositor.
Section 7.02 Merger or Consolidation of the Master Servicer.
(a) Each of the Master Servicer and the Depositor 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 or the Depositor 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 7.03 Indemnification from the Master Servicer and the Depositor.
(a) 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.
(b) The Depositor will indemnify any Indemnified Person for any loss,
liability or expense of any Indemnified Person not otherwise referred to in
Subsection (a) above.
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Section 7.04 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 7.03:
(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.
(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 Servicers, the Custodian and any director,
officer, employee or agent of the Master Servicer, the Servicers 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, an applicable Servicing Agreement or the Certificates (except to the
extent that the Master Servicer or the Custodian, as the case may be, is
indemnified by another party thereunder), 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, the Servicers' 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 4.03. Nothing in this Subsection
7.04(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 Subsection 3.01(a).
(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
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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
any Servicer, except as otherwise expressly provided herein.
Section 7.05 Master Servicer Not to Resign. Except as provided in Section
7.07, 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 MLML 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 8.02 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 Master Servicer is terminated as master servicer,
the Securities Administrator shall likewise be removed as securities
administrator.
Section 7.06 Successor Master Servicer. In connection with the appointment
of any successor Master Servicer or the assumption of the duties of the Master
Servicer, MLML or the Trustee may make such arrangements for the compensation of
such successor master servicer out of payments on the Mortgage Loans as MLML 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.
Notwithstanding anything herein to the contrary, in no event shall the
Trustee be liable for any Servicing Fee or Master Servicing Compensation or for
any differential in the amount of the Servicing Fee or Master Servicing
Compensation 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 7.07 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
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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.
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) and
only with respect to the defaulting Master Servicer:
(i) The Master Servicer fails to cause to be deposited in the
Distribution Account any amount so required to be deposited pursuant to
this Agreement, and such failure continues unremedied for a period of three
Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master
Servicer; or
(ii) The Master Servicer fails to observe or perform in any material
respect any other material covenants and agreements set forth in this
Agreement to be performed by it, which covenants and agreements materially
affect the rights of Certificateholders, and such failure continues
unremedied for a period of 60 days after the date on which written notice
of such failure, properly requiring the same to be remedied, shall have
been given to the Master Servicer by the Trustee or to the Master Servicer
and the Trustee by the Holders of Certificates evidencing Percentage
Interests aggregating not less than 25% of the Trust Fund; or
(iii) There is entered against the Master Servicer a decree or order
by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order is unstayed and in
effect for a period of 60 consecutive days, or an involuntary case is
commenced against the Master Servicer under any applicable insolvency or
reorganization statute and the petition is not dismissed within 60 days
after the commencement of the case; or
(iv) The Master Servicer consents to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating
to the Master Servicer or substantially all
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of its property; or the Master Servicer admits in writing its inability to
pay its debts generally as they become due, files a petition to take
advantage of any applicable insolvency or reorganization statute, makes an
assignment for the benefit of its creditors, or voluntarily suspends
payment of its obligations;
(v) The Master Servicer assigns or delegates its duties or rights
under this Agreement in contravention of the provisions permitting such
assignment or delegation under Sections 7.05 or 7.07; or
(vi) Any failure by the Master Servicer to deliver any annual
statement of compliance, Assessment of Compliance or Accountant's
Attestation when and as required under Section 3.16 or Section 3.17.
In each and every such case, so long as such Event of Default with respect to
the Master Servicer shall not have been remedied, either the Trustee or the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Class Certificate Balance of the Certificates, by notice in
writing to the Master Servicer (and to the Trustee if given by such
Certificateholders), with a copy to the Rating Agencies, and with the consent of
the Sponsor, may terminate all of the rights and obligations (but not the
liabilities) of the Master Servicer under this Agreement and in and to the
Mortgage Loans and/or the REO Property serviced by the Master Servicer and the
proceeds thereof. Upon the receipt by the Master Servicer of the written notice,
all authority and power of the Master Servicer under this Agreement, whether
with respect to the Certificates, the Mortgage Loans, REO Property or under any
other related agreements (but only to the extent that such other agreements
relate to the Mortgage Loans or related REO Property) shall, subject to Section
8.02, automatically and without further action pass to and be vested in the
Trustee pursuant to this Section 8.01; and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the Master
Servicer as attorney-in-fact or otherwise, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's rights and
obligations hereunder, including, without limitation, the transfer to the
Trustee of (i) the property and amounts which are then or should be part of the
Issuing Entity or which thereafter become part of the Issuing Entity; and (ii)
originals or copies of all documents of the Master Servicer reasonably requested
by the Trustee to enable it to assume the Master Servicer's duties thereunder.
In addition to any other amounts which are then, or, notwithstanding the
termination of its activities under this Agreement, may become payable to the
Master Servicer under this Agreement, the Master Servicer shall be entitled to
receive, out of any amount received on account of a Mortgage Loan or related REO
Property, that portion of such payments which it would have received as
reimbursement under this Agreement if notice of termination had not been given.
The termination of the rights and obligations of the Master Servicer shall not
affect any obligations incurred by the Master Servicer prior to such
termination.
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Section 8.02 Trustee to Act; Appointment of Successor.
(a) Upon the receipt by the Master Servicer of a notice of termination
pursuant to Section 8.01 or an Opinion of Independent Counsel pursuant to
Section 7.05 to the effect that the Master Servicer is legally unable to act or
to delegate its duties to a Person which is legally able to act, the Trustee
shall automatically become the successor in all respects to the Master Servicer
in its capacity under this Agreement and the transactions set forth or provided
for herein and shall thereafter be subject to all the responsibilities, duties,
liabilities and limitations on liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof; provided, however, that MLML shall
have the right to either (a) immediately assume the duties of the Master
Servicer or (b) select a successor master servicer; provided further, however,
that the Trustee shall have no obligation whatsoever with respect to any
liability (other than advances deemed recoverable and not previously made)
incurred by the Master Servicer at or prior to the time of termination. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans which the Master Servicer would have been entitled to retain
if the Master Servicer had continued to act hereunder, except for those amounts
due the Master Servicer as reimbursement permitted under this Agreement for
advances previously made or expenses previously incurred. Notwithstanding the
above, or anything herein to the contrary, the Trustee, if it becomes Master
Servicer, shall have no responsibility or obligation (i) to repurchase or
substitute any Mortgage Loan, (ii) for any representation or warranty of the
Master Servicer hereunder, and (iii) for any act or omission of either a
predecessor or successor Master Servicer other than the Trustee. The Trustee may
conduct any activity required of it as Master Servicer hereunder through an
Affiliate or through an agent. Neither the Trustee (as successor Master
Servicer) nor any other successor Master Servicer shall be deemed to be in
default hereunder due to any act or omission of a predecessor Master Servicer,
including but not limited to failure to timely deliver to the Trustee
distribution instructions, any funds required to be deposited to the Trust Fund,
or any breach of its duty to cooperate with a transfer of master servicing.
Neither the Trustee nor any other successor Master Servicer shall be deemed to
be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof or any failure to
perform, or any delay in performing, any duties or responsibilities hereunder,
in either case caused solely by the failure of the Master Servicer to deliver or
provide, or any delay in delivering or providing, any cash, information,
documents or records required to be provided to it by the Master Servicer.
Notwithstanding the above, the Trustee may, if it shall be unwilling so to act,
or shall, if it is legally unable so to act, appoint or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution which is a Xxxxxx Xxx- or Xxxxxxx Mac-approved servicer, and with
respect to a successor to the Master Servicer only, having a net worth of not
less than $10,000,000 and meeting such other standards for a successor Master
Servicer as are set forth in this Agreement, as the successor to the Master
Servicer hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the Master Servicer hereunder. Pending appointment of a
successor to the Master Servicer hereunder, the Trustee shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, in the event that the provisions of Section 7.06 shall
apply, no such compensation shall be in excess of that permitted the Trustee
under this Subsection 8.02(a), and that such successor shall undertake and
assume the obligations of the Trustee to pay compensation to any third Person
acting as an agent or independent contractor in the
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performance of master servicing responsibilities hereunder. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
(b) If the Trustee shall succeed to any duties of the Master Servicer
respecting the Mortgage Loans as provided herein, it shall do so in a separate
capacity and not in its capacity as Trustee and, accordingly, the provisions of
Article IX shall be inapplicable to the Trustee in its duties as the successor
to the Master Servicer in the servicing of the Mortgage Loans (although such
provisions shall continue to apply to the Trustee in its capacity as Trustee);
the provisions of Article VII, however, shall apply to it in its capacity as
successor master servicer.
Section 8.03 Notification to Certificateholders. Upon any termination or
appointment of a successor to the Master Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to the Rating Agencies.
Section 8.04 Waiver of Defaults. The Trustee shall transmit by mail to all
Certificateholders, within 60 days after the occurrence of any Event of Default
known to the Trustee, unless such Event of Default shall have been cured, notice
of each such Event of Default hereunder known to the Trustee. The Holders of
Certificates evidencing Percentage Interests aggregating not less than 51% of
the Class Certificate Balance of the Certificates may, on behalf of all
Certificateholders, waive any default by the Master Servicer in the performance
of its obligations hereunder and the consequences thereof, except a default in
the making of or the causing to be made any required distribution on the
Certificates. Upon any such waiver of a past default, such default shall be
deemed to cease to exist, and any Event of Default arising therefrom shall be
deemed to have been timely 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. The Trustee shall
give notice of any such waiver to the Rating Agencies.
Section 8.05 List of Certificateholders. Upon reasonable, prior written
request of three or more Certificateholders of record, for purposes of
communicating with other Certificateholders with respect to their rights under
this Agreement, the Trustee will afford such Certificateholders access during
business hours to the most recent list of Certificateholders held by the
Trustee.
ARTICLE IX
CONCERNING THE TRUSTEE AND
THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred, and the
Securities Administrator each undertake to perform such duties and only such
duties as are specifically set forth in this Agreement as duties of the Trustee
and the Securities Administrator, respectively. If an Event of
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Default has occurred and has not been cured or waived, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and
subject to Section 8.02(b) use the same degree of care and skill in their
exercise, as a prudent person would exercise under the circumstances in the
conduct of his own affairs.
(b) Upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments which are specifically required
to be furnished to the Trustee and the Securities Administrator pursuant to any
provision of this Agreement, the Trustee and the Securities Administrator,
respectively, shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that neither the Trustee nor the
Securities Administrator shall be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer; provided, further, that neither the
Trustee nor the Securities Administrator shall be responsible for the accuracy
or verification of any calculation provided to it pursuant to this Agreement. If
any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected and if the instrument is not
corrected to its satisfaction, the Trustee will provide notice thereof to the
Certificateholders and take such further action as directed by the
Certificateholders.
(c) On each Distribution Date, the Securities Administrator shall make
monthly distributions and the final distribution to the Certificateholders from
funds in the Distribution Account as provided in Sections 6.01 and 10.01 herein
based solely on the report of the Master Servicer or the Servicers.
(d) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee and the Securities Administrator
shall be determined solely by the express provisions of this Agreement,
neither the Trustee nor the Securities Administrator shall be liable except
for the performance of their respective duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee or the
Securities Administrator and, in the absence of bad faith on the part of
the Trustee or the Securities Administrator, respectively, the Trustee or
the Securities Administrator, respectively, may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee or the
Securities Administrator, respectively, and conforming to the requirements
of this Agreement;
(ii) Neither the Trustee nor the Securities Administrator shall be
liable in its individual capacity for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee or an
officer of the Securities Administrator, respectively, unless it shall be
proved that the Trustee or the Securities Administrator, respectively, was
negligent in ascertaining the pertinent facts;
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(iii) Neither the Trustee nor the Securities Administrator shall be
liable with respect to any action taken, suffered or omitted to be taken by
it in good faith in accordance with the directions of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 25%
of the Class Certificate Balance of the Certificates, if such action or
non-action relates to the time, method and place of conducting any
proceeding for any remedy available to the Trustee or the Securities
Administrator, respectively, or exercising any trust or other power
conferred upon the Trustee or the Securities Administrator, respectively,
under this Agreement;
(iv) The Trustee shall not be required to take notice or be deemed to
have notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee's Corporate Trust Office shall have
actual knowledge thereof. In the absence of such notice, the Trustee may
conclusively assume there is no such default or Event of Default;
(v) The Trustee shall not in any way be liable by reason of any
insufficiency in any Account held by or in the name of Trustee unless it is
determined by a court of competent jurisdiction that the Trustee's gross
negligence or willful misconduct was the primary cause of such
insufficiency (except to the extent that the Trustee is obligor and has
defaulted thereon);
(vi) Anything in this Agreement to the contrary notwithstanding, in no
event shall the Trustee or the Securities Administrator be liable for
special, indirect or consequential loss or damage 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; and
(vii) None of the Securities Administrator, the Depositor, the Master
Servicer, any Servicer or the Trustee shall be responsible for the acts or
omissions of the other, it being understood that this Agreement shall not
be construed to render them partners, joint venturers or agents of one
another.
Neither the Trustee nor the Securities Administrator shall be required to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee or the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer hereunder or under the Servicing Agreements,
except during such time, if any, as the Trustee shall be the successor to, and
be vested with the rights, duties, powers and privileges of, the Master Servicer
in accordance with the terms of this Agreement.
(e) All funds received by the Master Servicer and the Securities
Administrator and required to be deposited in the Master Servicer Collection
Account or Distribution Account pursuant to this Agreement will be promptly so
deposited by the Master Servicer and the Securities Administrator.
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(f) The Issuing Entity hereby authorizes and directs the Securities
Administrator to enter into the four Corridor Contracts on behalf of the Issuing
Entity and to perform the duties and obligations of the Issuing Entity under the
Corridor Contracts and any other agreement or instrument related thereto, in
each case in such form as the Depositor shall direct or shall approve in
writing, the execution and delivery of any such agreement by the Depositor to be
conclusive evidence of its approval thereof.
(g) Except for those actions that the Trustee or the Securities
Administrator is required to take hereunder, neither the Trustee nor the
Securities Administrator shall have any obligation or liability to take any
action or to refrain from taking any action hereunder in the absence of written
direction as provided hereunder.
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator. Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may rely and shall be
protected in acting or refraining from acting in reliance on any
resolution, certificate of a Depositor, Master Servicer or Servicer,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) The Trustee and the Securities Administrator may consult with
counsel and any advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection with respect to any action
taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement, other than its obligation to give notices pursuant to
this Agreement, or to institute, conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby. Nothing contained herein shall, however,
relieve the Trustee of the obligation, upon the occurrence of an Event of
Default of which a Responsible Officer of the Trustee's Corporate Trust
Office has actual knowledge (which has not been cured or waived), subject
to Section 8.02(b), to exercise such of the rights and powers vested in it
by this Agreement, and to use the same degree of care and skill in their
exercise, as a prudent person would exercise under the circumstances in the
conduct of his own affairs;
(iv) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default which may have
occurred, neither the Trustee nor the Securities Administrator shall be
liable in its individual capacity for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
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(v) Neither the Trustee nor the Securities Administrator shall be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates evidencing
Percentage Interests aggregating not less than 25% of the Class Certificate
Balance of the Certificates and provided that the payment within a
reasonable time to the Trustee or the Securities Administrator, as
applicable, of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Trustee or
the Securities Administrator, as applicable, reasonably assured to the
Trustee or the Securities Administrator, as applicable, 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 as a condition to taking any such action. The
reasonable expense of every such examination shall be paid by the
Certificateholders requesting the investigation;
(vi) The Trustee and the Securities Administrator may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or through Affiliates, agents or attorneys; provided, however,
that the Trustee may not appoint any agent to perform its custodial
functions with respect to the Mortgage Files or paying agent functions
under this Agreement without the express written consent of the Securities
Administrator, which consent will not be unreasonably withheld. Neither the
Trustee nor the Securities Administrator shall be liable or responsible for
the misconduct or negligence of any of the Trustee's or the Securities
Administrator's agents or attorneys or a custodian or paying agent
appointed hereunder by the Trustee or the Securities Administrator with due
care and, when required, with the consent of the Securities Administrator;
(vii) Should the Trustee or the Securities Administrator deem the
nature of any action required on its part, other than a payment or transfer
under Subsection 4.01(b) or Section 4.02, to be unclear, the Trustee or the
Securities Administrator, respectively, may require prior to such action
that it be provided by the Depositor with reasonable further instructions;
(viii) 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 neither the Trustee nor the Securities
Administrator shall be accountable for other than its negligence or willful
misconduct in the performance of any such act;
(ix) Neither the Trustee nor the Securities Administrator shall be
required to give any bond or surety with respect to the execution of the
trust created hereby or the powers granted hereunder, except as provided in
Subsection 9.07; and
(x) Neither the Trustee nor the Securities Administrator shall have
any duty to conduct any affirmative investigation as to the occurrence of
any condition requiring the repurchase of any Mortgage Loan by the Sponsor
pursuant to this Agreement or the Mortgage Loan Purchase Agreement, as
applicable, or the eligibility of any Mortgage Loan for purposes of this
Agreement.
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(xi) Any permissive right of the Trustee hereunder shall not be
construed as a duty.
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates (other than the signature and countersignature of the Securities
Administrator on the Certificates) shall be taken as the statements of the
Depositor, and neither the Trustee nor the Securities Administrator shall have
any responsibility for their correctness. Neither the Trustee nor the Securities
Administrator makes any representation as to the validity or sufficiency of the
Certificates (other than the signature and countersignature of the Securities
Administrator on the Certificates) or of any Mortgage Loan except as expressly
provided in Sections 2.02 and 2.05 hereof; provided, however, that the foregoing
shall not relieve the Trustee or the Custodian of the obligation to review the
Mortgage Files pursuant to Sections 2.02 and 2.04. The Securities
Administrator's signature and countersignature (or countersignature of its
agent) on the Certificates shall be solely in its capacity as Securities
Administrator of the Trust Fund and shall not constitute the Certificates an
obligation of the Securities Administrator in any other capacity. Neither the
Trustee or the Securities Administrator shall be accountable for the use or
application by the Depositor of any of the Certificates or of the proceeds of
such Certificates, or for the use or application of any funds paid to the
Depositor with respect to the Mortgage Loans. Subject to the provisions of
Section 2.05, neither the Trustee nor the Securities Administrator shall be
responsible for the legality or validity of this Agreement or any document or
instrument relating to this Agreement, the validity of the execution of this
Agreement or of any supplement hereto or instrument of further assurance, or the
validity, priority, perfection or sufficiency of the security for the
Certificates issued hereunder or intended to be issued hereunder. Neither the
Trustee nor the Securities Administrator shall at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust Fund or its ability to
generate the payments to be distributed to Certificateholders, under this
Agreement. Neither the Trustee nor the Securities Administrator shall have any
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to record this Agreement.
Section 9.04 Trustee and Securities Administrator May Own Certificates. The
Trustee and the Securities Administrator in its individual capacity or in any
capacity other than as Trustee hereunder may become the owner or pledgee of any
Certificates with the same rights it would have if it were not Trustee or the
Securities Administrator, as applicable, and may otherwise deal with the parties
hereto.
Section 9.05 Trustee's and Securities Administrator's Fees and Expenses.
The fees and expenses of the Trustee and the Securities Administrator shall be
paid by the Master Servicer in accordance with a side letter agreement. In
addition, the Trustee and the Securities Administrator will be entitled to
recover from the Master Servicer Collection Account pursuant to Section 4.03(b)
all reasonable out-of-pocket expenses, disbursements and advances and the
expenses of the Trustee and the Securities Administrator, respectively, in
connection with any Event of Default, any breach of this Agreement or any claim
or legal action (including any pending or threatened claim or legal action)
incurred or made by the Trustee or the Securities
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Administrator, respectively, in the administration of the trusts hereunder
(including the reasonable compensation, expenses and disbursements of its
counsel) except any such expense, disbursement or advance as may arise from its
negligence or intentional misconduct or which is the responsibility of the
Certificateholders or the Trust Fund hereunder. If funds in the Master Servicer
Collection Account are insufficient therefor, the Trustee and the Securities
Administrator shall recover such expenses from the Depositor. Such compensation
and reimbursement obligation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust.
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator.
(a) The Trustee and any successor Trustee and the Securities Administrator
and any successor Securities Administrator shall during the entire duration of
this Agreement be a state bank or trust company or a national banking
association organized and doing business under the laws of such state or the
United States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus and undivided profits of at least
$40,000,000 or, in the case of a successor Trustee, $50,000,000, subject to
supervision or examination by federal or state authority and, in the case of the
Trustee, rated "BBB" or higher by S&P and "Aaa1" or higher by Xxxxx'x with
respect to their long-term rating and rated "BBB" or higher by S&P and "Baa1" or
higher by Xxxxx'x with respect to any outstanding long-term unsecured
unsubordinated debt, and, in the case of a successor Trustee or successor
Securities Administrator other than pursuant to Section 9.10, rated in one of
the two highest long-term debt categories of, or otherwise acceptable to, each
of the Rating Agencies. If the Trustee publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 9.06 the combined
capital and surplus of such corporation shall be deemed to be its total equity
capital (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 the provisions of
this Section 9.06, the Trustee or the Securities Administrator shall resign
immediately in the manner and with the effect specified in Section 9.08.
(b) In addition, the Securities Administrator (i) may not be an originator,
Master Servicer, Servicer, the Depositor or an affiliate of the Depositor unless
the Securities Administrator is in an institutional trust department of the
relevant entity, (ii) must be authorized to exercise corporate trust powers
under the laws of its jurisdiction of organization, and (iii) must be rated at
least "A" by S&P or "A" Xxxxx'x. If no successor Securities Administrator shall
have been appointed and shall have accepted appointment within 60 days after the
Securities Administrator ceases to be the Securities Administrator pursuant to
Section 9.08, then the Trustee shall either (i) perform the duties of the
Securities Administrator pursuant to this Agreement until such time as a new
Securities Administrator is appointed or (ii) petition a court of competent
jurisdiction to appoint a successor securities administrator. The Trustee shall
notify the Rating Agencies of any change of Securities Administrator.
Section 9.07 Insurance. The Securities Administrator, at its own expense,
shall at all times maintain and keep in full force and effect: (i) fidelity
insurance, (ii) theft of documents insurance and (iii) forgery insurance (which
may be collectively satisfied by a "Financial Institution Bond" and/or a
"Bankers' Blanket Bond"). All such insurance shall be in amounts,
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with standard coverage and subject to deductibles, as are customary for
insurance typically maintained by banks or their affiliates which act as
custodians for investor-owned mortgage pools. A certificate of an officer of the
Securities Administrator as to the Securities Administrator's compliance with
this Section 9.07 shall be furnished to any Certificateholder upon reasonable
written request.
Section 9.08 Resignation and Removal of the 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 and the Master Servicer, with a copy to the Rating Agencies. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor Trustee or successor Securities Administrator, as applicable, by
written instrument, in triplicate, one copy of which instrument shall be
delivered to each of the resigning Trustee or Securities Administrator, as
applicable, the successor Trustee or Securities Administrator, as applicable. If
no successor Trustee or Securities Administrator shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Trustee or
Securities Administrator. If the Securities Administrator and the Master
Servicer are the same entity, then at any time the Securities Administrator
resigns or is removed as Securities Administrator, the Master Servicer shall
likewise be terminated as Master Servicer.
(b) If at any time the Trustee or the Securities Administrator shall cease
to be eligible in accordance with the provisions of Section 9.06 and shall fail
to resign after written request therefor by the Depositor or if at any time the
Trustee or the Securities Administrator shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or the
Securities Administrator, as applicable, or 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 its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Depositor shall
promptly remove the Trustee, or shall be entitled to remove the Securities
Administrator, as applicable, and appoint a successor Trustee or Securities
Administrator, as applicable, by written instrument, in triplicate, one copy of
which instrument shall be delivered to each of the Trustee or Securities
Administrator, as applicable, so removed, the successor Trustee or Securities
Administrator, as applicable.
(c) The Holders of Certificates evidencing Percentage Interests aggregating
not less than 51% of the Trust Fund may at any time remove the Trustee or the
Securities Administrator and appoint a successor Trustee or Securities
Administrator by written instrument or instruments, in quadruplicate, signed by
such Holders or their attorneys-in-fact duly authorized, one complete set of
which instruments shall be delivered to the Depositor, the Trustee, the
Securities Administrator (if the Trustee is removed), the Trustee (if the
Securities Administrator is removed), and the Trustee or Securities
Administrator so removed and the successor so appointed.
(d) No resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor Trustee or Securities Administrator
pursuant to any of the provisions
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of this Section 9.08 shall become effective except upon appointment of and
acceptance of such appointment by the successor Trustee or Securities
Administrator as provided in Section 9.09.
Section 9.09 Successor Trustee and Successor Securities Administrator.
(a) Any successor Trustee or Securities Administrator appointed as provided
in Section 9.08 shall execute, acknowledge and deliver to the Depositor, the
Master Servicer and its predecessor Trustee or Securities Administrator an
instrument accepting such appointment hereunder. The resignation or removal of
the predecessor Trustee or Securities Administrator shall then become effective
and such successor Trustee or 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 herein. The predecessor
Trustee or Securities Administrator shall after payment of its outstanding fees
and expenses promptly deliver to the successor Trustee or Securities
Administrator, as applicable, all assets and records of the Trust held by it
hereunder, and the Depositor and the predecessor Trustee or Securities
Administrator, as applicable, shall execute and deliver such instruments and do
such other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor Trustee or Securities Administrator, as
applicable, all such rights, powers, duties and obligations.
(b) No successor Trustee or Securities Administrator shall accept
appointment as provided in this Section 9.09 unless at the time of such
acceptance such successor Trustee or Securities Administrator shall be eligible
under the provisions of Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee or Securities
Administrator as provided in this Section 9.09, the successor Trustee or
Securities Administrator shall mail notice of the succession of such Trustee or
Securities Administrator hereunder to all Certificateholders at their addresses
as shown in the Certificate Register and to the Rating Agencies. The Depositor
shall pay the cost of any mailing by the successor Trustee or Securities
Administrator.
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator. Any state bank or trust company or national banking association
into which the Trustee or the Securities Administrator may be merged or
converted or with which it may be consolidated or any state bank or trust
company or national banking association resulting from any merger, conversion or
consolidation to which the Trustee or the Securities Administrator,
respectively, shall be a party, or any state bank or trust company or national
banking association succeeding to all or substantially all of the corporate
trust business of the Trustee or the Securities Administrator, respectively,
shall be the successor of the Trustee or the Securities Administrator,
respectively, hereunder, provided such state bank or trust company or national
banking association shall be eligible under the provisions of Section 9.06. Such
succession shall be valid without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 9.11 Appointment of Co-Trustee or Separate Trustee.
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(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or property constituting the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee and the Depositor to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 9.11, such powers, duties, obligations, rights and trusts as the
Depositor and the Trustee may consider necessary or desirable.
(b) If the Depositor shall not have joined in such appointment within 15
days after the receipt by it of a written request so to do, the Trustee shall
have the power to make such appointment without the Depositor.
(c) No co-Master Servicer or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 9.06
hereunder and no notice to Certificateholders of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.08
hereof.
(d) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.11, all rights, powers, duties and obligations
conferred or imposed upon the Trustee and required to be conferred on such
co-trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. 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.
(f) To the extent not prohibited by law, any separate trustee or co-trustee
may, at any time, request the Trustee, its agent or attorney-in-fact, with full
power and authority, to do any lawful act under or with respect to this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
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(g) No Trustee under this Agreement shall be personally liable by reason of
any act or omission of another Trustee under this Agreement. The Depositor and
the Trustee acting jointly may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Section 9.12 Federal Information Returns and Reports to Certificateholders;
REMIC Administration.
(a) REMIC elections as set forth in the Preliminary Statement and this
Section 9.12 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 and
this Section 9.12.
(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, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and on
an accrual basis.
(d) 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 this Section.
(e) The Securities Administrator shall prepare and file, and the Trustee
shall sign, all of each REMIC's and the Trust Fund'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.
(f) 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
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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.
(g) 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 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 has received a REMIC Opinion (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 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 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.
(h) 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 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.
(i) The Securities Administrator shall prepare and file with the Internal
Revenue Service ("IRS"), on behalf of each REMIC created hereunder, 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
each Servicer to provide the Securities Administrator with such information as
is necessary for the Securities Administrator to prepare such reports.
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(j) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(k) The Securities Administrator shall not enter into any arrangement by
which any REMIC will receive a fee or other compensation for services.
(l) The Class 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) The Securities Administrator shall prepare or cause to be prepared on
behalf of the Trust Fund, based upon information calculated in accordance with
this Agreement pursuant to instructions given by the Depositor, the Trustee
shall sign, and the Securities Administrator shall file federal tax returns, all
in accordance with Section 9.12 hereof. The Securities Administrator shall
prepare and file, and the Trustee shall sign, such state income tax returns and
such other returns as may be required by applicable law relating to the Trust
Fund, and, if required by state law, 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.
(n) None of the Securities Administrator, the Trustee 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 Section 9.12.
(o) The parties intend that the portion of the Trust Fund consisting of the
right to receive the payments distributable to the Class P Certificates shall be
treated as a "grantor trust" under the Code, for the benefit of the holders of
the Class P Certificates, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the
Securities Administrator shall (i) furnish or cause to be furnished to the
holders of the Class P Certificates information regarding their allocable share
of the income with respect to such grantor trust and (ii) file or cause to be
filed with the Internal Revenue Service, and the Trustee shall sign, Form 1041
(together with any necessary attachments) and such other forms as may be
applicable.
(p) Notwithstanding any other provision of this Agreement, the Trustee and
the Securities Administrator shall comply with all federal withholding
requirements respecting payments to Certificateholders of interest or original
issue discount on the Mortgage Loans, that the Trustee or the Securities
Administrator reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee or the Securities Administrator withholds any amount from interest or
original issue
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discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Trustee or the Securities Administrator
shall, together with its monthly report to such Certificateholders, indicate
such amount withheld.
(q) The Trustee and the Securities Administrator agree to indemnify the
Trust Fund and the Depositor for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by the Trust
Fund, the Depositor or the Trustee, as a result of a breach of the Trustee's
covenants and the Securities Administrator's covenants, respectively, set forth
in this Section 9.12; provided, however, such liability and obligation to
indemnify in this paragraph shall not be joint and several and neither the
Trustee nor the Securities Administrator shall be liable or be obligated to
indemnify the Trust Fund for the failure by the other to perform any duty under
this Agreement or the breach by the other of any covenant in this Agreement.
(r) The Securities Administrator covenants and agrees that it shall act as
agent (and the Securities Administrator is hereby appointed to act as agent) of
the Tax Matters Person on behalf of each of the REMICs provided for herein and
that in such capacity it shall: (a) to the extent that they are under its
control conduct the affairs of each of the REMICs provided for herein at all
times that any Certificates are outstanding so as to maintain the status of each
of the REMICs provided for herein as a REMIC under the REMIC Provisions; (b) not
knowingly or intentionally take any action or omit to take any action that would
cause the termination of the REMIC status of any of the REMICs provided for
herein or result in the imposition of tax upon any such REMIC; (c) not knowingly
or intentionally take any action or omit to take any action that would cause the
termination of the grantor trust status under Subpart E, Part I of Subchapter J
of the Code of any of the grantor trusts provided for herein or result in the
imposition of tax upon any such grantor trust; and (d) as and when necessary and
appropriate, represent each of the REMICs provided for herein in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any of the REMICs provided for herein, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any of the REMICs provided for herein,
and otherwise act on behalf of each of the REMICs provided for herein in
relation to any tax matter involving any of such REMICs or any controversy
involving the Trust Fund.
(s) Each of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee agrees not to take or omit to take knowingly or
intentionally, any action or omit to take any action that would cause the
termination of the REMIC status of any of the REMICs provided for herein or
result in the imposition of a tax upon any of the REMICs provided for herein.
(t) [reserved].
(u) The SWAP REMIC shall consist of all of the assets of the Trust Fund,
other than (i) amounts distributable to the Class P Certificates, (ii) the
interests issued by the SWAP REMIC and the interests issued by the Lower Tier
REMIC, (iii) the grantor trusts described in Section 9.12 hereof, (iv) each
Corridor Contract and the Corridor Contract Account, (v) the Swap Agreement, the
Cap Contract and the Supplemental Interest Trust. The SWAP REMIC shall issue the
SWAP REMIC Regular Interests, which shall be designated as regular interests of
such REMIC, and shall issue the Class SWR Interest, which shall be designated as
the sole class
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of residual interest in the SWAP REMIC. Each of the SWAP REMIC Regular Interests
shall have the characteristics set forth in the Preliminary Statement and this
Section 9.12.
The Depositor hereby instructs and authorizes the Securities
Administrator to make an appropriate election to treat each of the Upper Tier
REMIC, the Lower Tier REMIC and the SWAP REMIC as a REMIC. The Trustee shall
sign the returns providing for such elections and such other tax or information
returns which are provided to it. This Agreement shall be construed so as to
carry out the intention of the parties that each of the Upper Tier REMIC, the
Lower Tier REMIC and the SWAP REMIC be treated as a REMIC at all times prior to
the date on which the Trust Fund is terminated.
(v) The Lower Tier REMIC shall consist of the SWAP REMIC Regular Interests.
The Lower Tier REMIC shall issue the Lower Tier REMIC Regular Interests, which
shall be designated as regular interests of such REMIC, and shall issue the
Class LTR Interest that shall be designated as the sole class of residual
interest in the Lower Tier REMIC. Each of the Lower Tier REMIC Regular Interests
shall have the characteristics set forth in its definition, the Preliminary
Statement and this Section 9.12.
The assets of the Upper Tier REMIC shall be the Lower Tier REMIC
Regular Interests. The REMIC Regular Interests shall be designated as the
regular interests in the Upper Tier REMIC and the Residual Interest shall be
designated as the sole class of residual interest in the Upper Tier REMIC. For
federal income tax purposes, the pass-through rate on each REMIC Regular
Interest (other than the Uncertificated Class C Interest and the Class UT-IO
Interest) and on the sole class of residual interest in the Upper Tier REMIC
shall be subject to a cap equal to the Upper Tier REMIC Net WAC Cap.
The beneficial ownership of the Class SWR Interest and the Class LTR
Interest and the Residual Interest shall be represented by the Class R
Certificate. The Class SWR Interest and the Class LTR Interest shall not have a
principal balance or bear interest.
(w) (i) It is intended that the rights of each Class of the Certificates
(other than the Class C and Class P Certificates) to receive payments in respect
of Excess Interest shall be treated as a right in interest rate cap agreements
written by the Class C Certificateholders in favor of the holders of each Class
of the Certificates (other than the Class C and Class P Certificates) and such
shall be accounted for as property held separate and apart from the regular
interests in the Upper Tier REMIC held by the holders of the Senior Certificates
(other than the Class R Certificate), Class M Certificates, Class B Certificates
and the residual interest in the Upper Tier REMIC held by the holder of the
Class R Certificate. For information reporting requirements, the rights of the
Certificates (other than the Class C and Class P Certificates) to receive
payments in respect of Excess Interest shall be assumed to have zero or a de
minimis value. This provision is intended to satisfy the requirements of
Treasury Regulations Section 1.860G-2(i) for the treatment of property rights
coupled with REMIC interests to be separately respected and shall be interpreted
consistently with such regulation. On each Distribution Date, to the extent that
any of the Certificates (other than the Class C and Class P Certificates)
receive payments in respect of Excess Interest, such amounts, to the extent not
derived from payments on the Corridor Contracts, the Cap Contract or the Swap
Agreement, will be treated as distributed by the Upper Tier REMIC to the Class C
Certificates pro rata in payment of the amounts specified
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in Section 6.01(h) and then paid to the relevant Class of Certificates pursuant
to the related interest rate cap agreement.
(ii) It is intended that the beneficial owners of the Certificates
(other than the Class P and Class C Certificates) shall be treated as having
entered into a notional principal contract with respect to the beneficial owners
of the Class C Certificates. Pursuant to each such notional principal contract,
all beneficial owners of each Class of Certificates (other than the Class P and
Class C Certificates) shall be treated as having agreed to pay, on each
Distribution Date, to the beneficial owners of the Class C Certificates an
aggregate amount equal to the excess, if any, of (i) the amount payable on such
Distribution Date on the Corresponding REMIC Regular Interest of such Class of
Certificates over (ii) the amount payable on such Class of Certificates on such
Distribution Date (such excess, a "Class Payment Shortfall"). A Class Payment
Shortfall shall be allocated to each Class of Certificates to the extent that
interest accrued on such Class for the related Accrual Period at the Certificate
Rate for a Class, computed by substituting "Upper Tier REMIC Net WAC Cap" for
the Available Funds Cap set forth in the definition thereof, exceeds the amount
of interest accrued on such Certificate at the Certificate Rate (without such
substitution) for the related Accrual Period, and a Class Payment Shortfall
payable from principal collections shall be allocated to the most subordinate
Class of Certificates with an outstanding principal balance to the extent of
such balance.
(x) The parties intend that the portion of the Trust Fund consisting of the
Uncertificated Class C Interest, the uncertificated Class UT-IO Interest, the
rights to receive payments deemed made by the Certificates (other than the Class
P and Class C Certificates) in respect of notional principal contracts described
in Section 9.12(w)(ii), the Corridor Contracts, the Corridor Contract Account,
the Supplemental Interest Trust which holds the Swap Agreement and the Cap
Contract, and the obligation of the holders of the Class C Certificates to pay
amounts in respect of Excess Interest to the holders of the Certificates (other
than the Class C and Class P Certificates) shall be treated as a "grantor trust"
under the Code, for the benefit of the holders of the Class C Certificates, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Securities Administrator shall (i) furnish or
cause to be furnished to the holders of the Class C Certificates information
regarding their allocable share, if any, of the income with respect to such
grantor trust, (ii) file or cause to be filed with the Internal Revenue Service
Form 1041 (together with any necessary attachments) and such other forms as may
be applicable and (iii) comply with such information reporting obligations with
respect to payments from such grantor trust to the holders of Certificates
(other than the Class P Certificates) as may be applicable under the Code.
(y) The parties intend that amounts paid to the Swap Counterparty under the
Swap Agreement shall be deemed for federal income tax purposes to be paid by the
Class C Certificates first, out of funds deemed received in respect of the Class
UT-IO Interest, second, out of funds deemed received in respect of the
Uncertificated Class C Interest and third, out of funds deemed received in
respect of notional principal contracts described in Section 9.12(w)(ii), and
the provisions hereof shall be interpreted consistently with this intention. On
each Distribution Date, to the extent that amounts paid to the Swap Counterparty
are deemed paid out of funds received in respect of the Uncertificated Class C
Interest, such amounts will be treated as distributed by the Upper Tier REMIC to
the Class C Certificates pro rata in payment of the
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amounts specified in Section 6.01(h) and then paid to the Swap Counterparty
pursuant to the Swap Agreement.
The Supplemental Interest Trust shall be an "outside reserve fund" for
federal income tax purposes and not an asset of any REMIC. Furthermore, the
Holders of the Class C Certificates shall be the beneficial owners of the
Supplemental Interest Trust for all federal income tax purposes, and shall be
taxable on all income earned thereon.
(z) All payments of principal and interest at the Net Mortgage Rate on each
of the Mortgage Loans (other than amounts distributable to the Class P
Certificates) received by the SWAP REMIC with respect to the Mortgage Loans
shall be paid to the SWAP REMIC Regular Interests until the principal balance of
all such interests have been reduced to zero and any losses allocated to such
interests have been reimbursed. Any available funds remaining in the SWAP REMIC
on a Distribution Date after distributions to the SWAP REMIC Regular Interests
shall be distributed to the Class R Certificates on account of the Class SWR
Interest. On each Distribution Date, the Securities Administrator shall
distribute the aggregate Interest Funds (net of expenses (other than any Net
Swap Payment or Swap Termination Payment required to be made to the Swap
Counterparty) and payments to the Class P Certificates) with respect to each of
the SWAP REMIC Regular Interests based on the interest rates for each such SWAP
REMIC Regular Interest. On each Distribution Date, the Securities Administrator
shall distribute the aggregate Principal Funds with respect to the Group 1
Mortgage Loans first to the Class 1-SW1 Interest until its principal balance is
reduced to zero and then sequentially to each of the other SWAP REMIC Regular
Interests beginning with designation "1" in ascending order of their numerical
class designation, in equal amounts to each such class in such numerical
designation, until the principal balance of each such class is reduced to zero.
All losses with respect to the Group 1 Mortgage Loans shall be allocated among
the SWAP REMIC Regular Interests beginning with the designation "1" in the same
manner that principal distributions are allocated. On each Distribution Date,
the Securities Administrator shall distribute the aggregate Principal Funds with
respect to the Group 2 Mortgage Loans first to the Class 2-SW2 Interest until
its principal balance is reduced to zero and then sequentially to each of the
other SWAP REMIC Regular Interests beginning with designation "2" in ascending
order of their numerical class designation, in equal amounts to each such class
in such numerical designation, until the principal balance of each such class is
reduced to zero. All losses with respect to the Group 2 Mortgage Loans shall be
allocated among the SWAP REMIC Regular Interests beginning with the designation
"2" in the same manner that principal distributions are allocated. On each
Distribution Date, the Securities Administrator shall distribute the aggregate
Principal Funds with respect to the Group 3 Mortgage Loans first to the Class
3-SW3 Interest until its principal balance is reduced to zero and then
sequentially to each of the other SWAP REMIC Regular Interests beginning with
designation "3" in ascending order of their numerical class designation, in
equal amounts to each such class in such numerical designation, until the
principal balance of each such class is reduced to zero. All losses with respect
to the Group 3 Mortgage Loans shall be allocated among the SWAP REMIC Regular
Interests beginning with the designation "3" in the same manner that principal
distributions are allocated. Subsequent Recoveries with respect to the Group 1,
Group 2 and Group 3 Mortgage Loans shall be allocated in the reverse fashion
from the manner in which losses are allocated.
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All payments received by the Lower Tier REMIC with respect to the SWAP
REMIC Regular Interests shall be paid to the Lower Tier REMIC Regular Interests
until the principal balance of all such interests have been reduced to zero and
any losses allocated to such interests have been reimbursed. Any excess amounts
shall be distributed to the Class LTR Interest. On each Distribution Date,
payments and losses shall be allocated among the Lower Tier REMIC Regular
Interests so that (i) each of the Lower Tier REMIC I Marker Interests shall have
a principal balance equal to 25% of the principal balance of the Corresponding
Certificates, (ii) the Class LTIX Interest has a principal balance equal to the
excess of (x) 50% of the remaining principal balance of the Mortgage Loans over
(y) the aggregate principal balance of the Lower Tier REMIC I Marker Interests
(if necessary to reflect an increase in overcollateralization, accrued and
unpaid interest on the Class LTIX interest may be added to its principal amount
to achieve this result) and (iii) the aggregate principal amount of the Class
LTII1A Interest, Class LTII1B Interest, Class LTII2A Interest, Class LTII2B
Interest, Class LTII3A Interest, Class LTII3B Interest and Class LTIIX Interest
shall equal 50% of the remaining principal balance of the Mortgage Loans.
Distributions and losses allocated to the Lower Tier REMIC Regular Interests
described in clause (iii) of the preceding sentence will be allocated among such
Lower Tier REMIC Regular Interests in the following manner: (x) such
distributions shall be deemed made to such Lower Tier REMIC Regular Interests
first, so as to keep the principal balance of the each such Lower Tier REMIC
Regular Interest with "B" at the end of its designation equal to 0.05% of the
aggregate scheduled principal balance of the Mortgage Loans in the related Loan
Group and second, to such Lower Tier REMIC Regular Interests with "A" at the end
of its designation so that the uncertificated principal balance of each such
Lower Tier REMIC Regular Interest is equal to 0.05% of the excess of (I) the
aggregate scheduled principal balance of the Mortgage Loans in the related Loan
Group over (II) the aggregate principal balance of the Group 1 Certificates, in
the case of the Class LTII1A Interest, the Group 2 Certificates, in the case of
the Class LTII2A Interest or the Group 3 Certificates, in the case of the Class
LTII3A Interest (except that if 0.05% of any such excess is greater than the
principal amount of the related Lower Tier REMIC II Marker Interest with "A" at
the end of its designation, the least amount of principal shall be distributed
to each Lower Tier REMIC II Marker Interest with "A" at the end of its
designation such that the Lower Tier REMIC Subordinated Balance Ratio is
maintained) and finally, any remaining distributions of principal to the Class
LTIIX Interest and (y) such losses shall be allocated among the Lower Tier REMIC
Regular Interests described in clause (iii) of the preceding sentence first, so
as to keep the principal balance of the each such Lower Tier REMIC Regular
Interest with "B" at the end of its designation equal to 0.05% of the aggregate
scheduled principal balance of the Mortgage Loans in the related Loan Group;
second, to such Lower Tier REMIC Regular Interests with "A" at the end of its
designation so that the uncertificated principal balance of each such Lower Tier
REMIC Regular Interest is equal to 0.05% of the excess of (I) the aggregate
scheduled principal balance of the Mortgage Loans in the related Loan Group over
(II) the aggregate principal balance of the Group 1 Certificates, in the case of
the Class LTII1A Interest, the Group 2 Certificates, in the case of the Class
LTII2A Interest or the Group 3 Certificates, in the case of the Class LTII3A
Interest (except that if 0.05% of any such excess is greater than the principal
amount of the related Lower Tier REMIC II Marker Interest with "A" at the end of
its designation, the least amount of losses shall be allocated to each Lower
REMIC II Marker Interest with "A" at the end of its designation such that the
Lower Tier REMIC Subordinated Balance Ratio is maintained) and finally, any
remaining losses to the Class LTIIX Interest.
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Notwithstanding the preceding two sentences, however, losses not allocated to
any Class of Certificates will not be allocated to any Lower Tier REMIC Regular
Interests. All computations with respect to the Lower Tier REMIC Regular
Interests shall be taken out to ten decimal places.
Any available funds remaining in the Lower Tier REMIC on a
Distribution Date after distributions to the Lower Tier REMIC Regular Interests
shall be distributed to the Class R Certificates in respect of the Class LTR
Interest.
If on any Distribution Date the Class Certificate Balance of any Class
of Certificates is increased pursuant to the last sentence of the definition of
"Class Certificate Balance", then there shall be an equivalent increase in the
principal amounts of the Lower Tier REMIC Regular Interests, with such increase
allocated (before the making of distributions and the allocation of losses on
the Lower Tier REMIC Regular Interests on such Distribution Date) among the
Lower Tier REMIC Regular Interests so that, to the greatest extent possible, (i)
each of the Lower Tier REMIC I Marker Interests has a principal balance equal to
25% of the principal balance of the Corresponding Certificates, (ii) the Class
LTIX Interest has a principal balance equal to the excess of (x) 50% of the
remaining principal balance of the Mortgage Loans over (y) the aggregate
principal balance of the Lower Tier REMIC I Marker Interests and (iii) the
aggregate principal amount of the Lower Tier REMIC II Marker Interests and the
Class LTIIX Interest shall equal 50% of the remaining principal balance of the
Mortgage Loans. Allocations in connection with clause (iii) shall be made so
that, to the greatest extent possible, (a) the principal balance of each Lower
Tier REMIC II Marker Interest with "B" at the end of its designation equals
0.05% of the aggregate scheduled principal balance of the Mortgage Loans in
related Loan Group, (b) the principal balance of each Lower Tier REMIC II Marker
Interest with "A" at the end of its designation equals 0.05% of the excess of
(x) the aggregate scheduled principal balance of the Mortgage Loans in related
Loan Group over (y) the aggregate principal balance of the Group 1 Certificates
in the case of the Class LTII1A Interest, the Group 2 Certificates in the case
of the Class LTII2A Interest or the Group 3 Certificates in the case of the
Class LTII3A Interest and (c) any remaining allocations are made to the Class
LTIIX Interest.
For purposes of this Section 9.12, (i) the Class LTII1A Interest and
Class LTII1B Interest shall be related to Loan Group 1, (ii) the Class LTII2A
Interest and Class LTII2B Interest shall be related to Loan Group 2, and (iii)
the Class LTII3A Interest and Class LTII3B Interest shall be related to Loan
Group 3.
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ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Repurchase of all Mortgage
Loans.
(a) Subject to Section 10.03, the obligations and responsibilities of the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
created hereby with respect to that portion of the Trust Fund relating to the
Certificates shall terminate upon the earlier of (a) an Optional Termination and
(b) the later of (i) the maturity or other liquidation of the last Mortgage Loan
remaining in the Trust Fund (or any Monthly Advance with respect thereto) and
the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) 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 and
(ii) the Latest Possible Maturity Date.
(b) On or before the Determination Date following the Initial Optional
Termination Date, the Securities Administrator shall attempt to terminate that
portion of the Trust Fund relating to the Certificates by conducting an auction
of all of the Mortgage Loans and REO Properties via a solicitation of bids from
at least three (3) bidders, each of which shall be a nationally recognized
participant in mortgage finance (the "Auction"). The Depositor and the
Securities Administrator agree to work in good faith to develop bid procedures
in advance of the Initial Optional Termination Date to govern the operation of
the Auction. The Securities Administrator shall be entitled to retain an
investment banking firm and/or other agents in connection with the Auction, the
cost of which shall be included in the Optional Termination Price (unless an
Optional Termination does not occur in which case such costs shall be an expense
of the Issuing Entity). The Securities Administrator shall accept the highest
bid received at the Auction; provided that the amount of such bid equals or
exceeds the Optional Termination Price. The Securities Administrator shall
determine the Optional Termination Price based upon information provided by (i)
the Master Servicer with respect to the amounts described in clauses (A) and (B)
of the definition of "Optional Termination Price" (other than Securities
Administrator's expenses) and (ii) the Depositor with respect to the information
described in clause (C) of the definition of "Optional Termination Price." The
Securities Administrator may conclusively rely upon the information provided to
it in accordance with the immediately preceding sentence and shall not have any
liability for the failure of any party to provide such information.
Notwithstanding anything herein to the contrary, only an amount equal to the
Optional Termination Price, reduced by the portion thereof consisting of the sum
of (x) any Swap Termination Payment and (y) the amount of any unpaid Net Swap
Payments and any other amounts owed to the Swap Counterparty that would not
otherwise be funded by the Optional Termination Price but for clause (E) of the
definition of "Optional Termination Price" (such portion, the "Swap Optional
Termination Payment"), shall be made available for distribution to the
Certificates. The Swap Optional Termination Payment shall be withdrawn by the
Securities Administrator from the Certificate Account and remitted to the
Supplemental Interest Trust for payment to the Swap Counterparty. The Swap
Optional Termination Payment shall not be part of any REMIC and shall not be
paid into any account which is part of any REMIC.
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If an Optional Termination does not occur as a result of the Auction's
failure to achieve the Optional Termination Price, the Master Servicer may, on
any Distribution Date following such Auction, at its option, terminate that
portion of the Trust Fund relating to the Certificates by purchasing all of the
Mortgage Loans and REO Properties at a price equal to the Optional Termination
Price. In connection with such termination, the Optional Termination Price shall
be delivered to the Securities Administrator no later than the Business Day
immediately preceding the related Distribution Date. Notwithstanding anything to
the contrary herein, the Optional Termination Amount paid to the Securities
Administrator by the winning bidder at the Auction or by the Master Servicer
shall be deposited by the Securities Administrator directly into the
Distribution Account immediately upon receipt. Upon any termination as a result
of an Auction, the Securities Administrator shall, out of the Optional
Termination Amount deposited into the Distribution Account, (x) pay the
Securities Administrator its costs and expenses necessary to conduct the Auction
and any other unreimbursed amounts owing to it and (y) pay to the Master
Servicer or Servicer, the aggregate amount of any unreimbursed out-of-pocket
costs and expenses owed to the Master Servicer or Servicer and any unpaid or
unreimbursed Servicing Fees, Monthly Advances and Servicing Advances.
(c) Notwithstanding anything to the contrary in clause (b) above, in the
event that the Securities Administrator and the Trustee receive the written
opinion of a nationally recognized participant in mortgage finance acceptable to
the Sponsor that the Mortgage Loans and REO Properties to be included in the
Auction will not be saleable at a price sufficient to achieve the Optional
Termination Price, the Securities Administrator need not conduct the Auction. In
such event, the Master Servicer shall have the option to purchase the Mortgage
Loans and REO Properties at the Optional Termination Price as of the Initial
Optional Termination Date.
Section 10.02 Final Distribution on the Certificates.
If on any Determination Date, (i) the Securities Administrator determines
that there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund relating to the Mortgage Loans other than the funds in the Master
Servicer Collection Account, the Securities Administrator shall send a final
distribution notice promptly to each Certificateholder or (ii) the Securities
Administrator determines that a Class of Certificates shall be retired after a
final distribution on such Class, the Securities Administrator shall notify the
Certificateholders within seven (7) Business Days after such Determination Date
that the final distribution in retirement of such Class of Certificates is
scheduled to be made on the immediately following Distribution Date. Any final
distribution made pursuant to the immediately preceding sentence will be made
only upon presentation and surrender of the Certificates at the office of the
Securities Administrator.
Notice of any partial termination of the Issuing Entity, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Securities Administrator by letter to Certificateholders mailed no later
than the last calendar day of the month immediately preceding the month of such
final distribution (or with respect to an Auction, mailed no later than one
Business Day following completion of such Auction). Any such notice shall
specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at the
office therein designated, (b) the location of the
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office or agency at which such presentation and surrender must be made, and (c)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Securities Administrator will
give such notice to the Swap Counterparty and to each Rating Agency at the time
such notice is given to Certificateholders.
In the event such notice is given, the Master Servicer shall cause all
funds in the Master Servicer Collection Account to be deposited in the
Distribution Account on the Business Day prior to the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon receipt of written notice of such final deposit with respect
to the Issuing Entity and the receipt by the Trustee, or its Custodian, of a
Request for Release therefor, the Trustee, or its Custodian, shall promptly
release to the Securities Administrator or the Master Servicer, as applicable,
the Mortgage Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to Certificateholders of each Class
the amounts allocable to such Certificates held in the Distribution Account in
the order and priority set forth in Section 6.01 hereof on the final
Distribution Date and in proportion to their respective Percentage Interests.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date 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 six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that remain a part of the Issuing Entity. If within one
year after the second notice all Certificates shall not have been surrendered
for cancellation, the Class R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Issuing Entity that remain subject
hereto. Upon payment to the Class R Certificateholders of such funds and assets,
the Securities Administrator shall have no further duties or obligations with
respect thereto.
Section 10.03 Additional Termination Requirements.
(a) In the event the Securities Administrator or the Master Servicer
exercises its purchase option as provided in Section 10.01, that portion of the
Trust Fund relating to the Mortgage Loans shall be terminated in accordance with
the following additional requirements, unless the Securities Administrator shall
have been furnished with an Opinion of Counsel to the effect that the failure of
the Issuing Entity to comply with the requirements of this Section will not (i)
result in the imposition of taxes on "prohibited transactions" of the Issuing
Entity as defined in Section 860F of the Code or (ii) cause any REMIC
constituting part of the Issuing Entity to fail to qualify as a REMIC at any
time that any Certificates are outstanding:
(i) Within 90 days prior to the final Distribution Date, the
Securities Administrator shall adopt and sign a plan of complete
liquidation of the Issuing Entity as
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provided to it by the terminating purchaser, meeting the requirements of a
"qualified liquidation" under Section 860F of the Code and any regulations
thereunder; and
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Securities
Administrator shall sell all of the assets of the Issuing Entity for cash
pursuant to the terms of the plan of complete liquidation.
(b) By their acceptance of Certificates, the Holders thereof hereby agree
to appoint the Securities Administrator as their attorney in fact to: (i) adopt
such a plan of complete liquidation (and the Certificateholders hereby appoint
the Securities Administrator as their attorney in fact to sign such plan) as
appropriate and (ii) to take such other action in connection therewith as may be
reasonably required to carry out such plan of complete liquidation all in
accordance with the terms hereof.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Intent of Parties. The parties intend that each REMIC shall
be treated as a REMIC for federal income tax purposes and that the provisions of
this Agreement should be construed in furtherance of this intent.
Section 11.02 Amendment.
(a) This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator and the Trustee, and without the
consent of any of the Certificateholders to:
(i) to cure any ambiguity or correct any mistake,
(ii) to correct, modify or supplement any provision herein which
may be inconsistent with any other provision herein,
(iii) to add any other provisions with respect to matters or
questions arising under this Agreement, or
(iv) to modify, alter, amend, add to or rescind any of the terms
or provisions contained in this Agreement; provided, however, that, in the
case of clauses (iii) and (iv), such amendment will not, as evidenced by an
Opinion of Counsel addressed to the Securities Administrator to such
effect, adversely affect in any material respect the interests of any
Certificateholder; provided, further, however, that such amendment will be
deemed to not adversely affect in any material respect the interest of any
Holder if the Person requesting such amendment obtains a letter from each
Rating Agency stating that such amendment will not result in a reduction or
withdrawal of its rating of any Class of the Certificates, it being
understood and agreed that any such letter in and of itself will
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not represent a determination as to the materiality of any such amendment
and will represent a determination only as to the credit issues affecting
any such rating.
The Securities Administrator shall not enter into any amendment to this
Agreement that could have a materially adverse effect on the Cap Contract
Counterparty or the Swap Counterparty without first obtaining the prior written
consent of the Cap Contract Counterparty or Swap Counterparty, respectively.
Notwithstanding the foregoing, without the consent of the
Certificateholders, the Depositor, the Master Servicer, the Securities
Administrator and the Trustee may at any time and from time to time amend this
Agreement to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or appropriate to maintain the qualification of any of the
REMICs provided for herein as REMICs under the Code or to avoid or minimize the
risk of the imposition of any tax on the Issuing Entity or any of the REMICs
provided for herein pursuant to the Code that would be a claim against the
Issuing Entity at any time prior to the final redemption of the Certificates,
provided that the Trustee and the Securities Administrator shall have been
provided an Opinion of Counsel addressed to the Trustee and the Securities
Administrator, which opinion shall be an expense of the party requesting such
amendment but in any case shall not be an expense of the Trustee and the
Securities Administrator, to the effect that such action is necessary or
appropriate to maintain such qualification or to avoid or minimize the risk of
the imposition of such a tax.
(b) The Securities Administrator shall not enter into any amendment to this
Agreement that could have a materially adverse effect on the Cap Contract
Counterparty or the Swap Counterparty without first obtaining the prior written
consent of the Cap Contract Counterparty or Swap Counterparty, respectively.
(c) This Agreement may also be amended from time to time by the Master
Servicer, the Depositor, the Securities Administrator and the Trustee, and the
Assignment Agreements may also be amended from time to time by the Master
Servicer and the Trustee, with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 51% of the Class
Certificate Balance of the Certificates or of the applicable Class or Classes,
if such amendment affects only such Class or Classes, 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
Certificateholders; provided, however, that no such amendment shall (i) reduce
in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Regular Certificate
without the consent of the Holder of such Regular Certificate, or (ii) reduce
the aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all
Certificates then outstanding. Notwithstanding any contrary provision of this
Agreement, the Trustee shall not consent to any amendment to this Agreement
unless it shall have first received an Opinion of Counsel addressed to the
Trustee, which opinion shall be an expense of the party requesting such
amendment but in any case shall not be an expense of the Trustee, to the effect
that such amendment is permitted hereunder and will not cause the imposition of
any tax on the Issuing Entity, any of the REMICs provided for herein or the
Certificateholders or cause any of the REMICs provided for herein to fail to
qualify as a REMIC at any time that any Certificates are outstanding.
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(d) Promptly after the execution of any such amendment, the Securities
Administrator shall furnish a copy of such amendment or written notification of
the substance of such amendment to each Certificateholder, with a copy to the
Rating Agencies.
(e) In the case of an amendment under Subsection 11.02(c) above, it shall
not be necessary for the Certificateholders to approve the particular form of
such an amendment. Rather, it shall be sufficient if the Certificateholders
approve the substance of the amendment. The manner of obtaining such consents
and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
(f) Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Agreement and
will not adversely affect the status of any REMIC created hereunder. 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 11.03 Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. The Depositor
shall effect such recordation, at the expense of the Issuing Entity upon the
request in writing of a Certificateholder, but only if such direction is
accompanied by an Opinion of Counsel (provided at the expense of the
Certificateholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the Certificateholders
or is required by law.
Section 11.04 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not terminate
this Agreement or the Issuing Entity, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Issuing Entity, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as expressly provided in this Agreement, no Certificateholders
shall have any right to vote or in any manner otherwise control 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 establish the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholders 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.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon, under or with respect to this Agreement against the Depositor, the
Securities Administrator, the Master
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Servicer or any successor to any such parties unless (i) such Certificateholder
previously shall have given to the Trustee a written notice of a continuing
default, as herein provided, (ii) the Holders of Certificates evidencing
Percentage Interests aggregating not less than 51% of the Trust Fund shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs and
expenses and liabilities to be incurred therein or thereby, and (iii) the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding.
(d) No one or more Certificateholders shall have any right by virtue of any
provision of this Agreement to affect the rights of any other Certificateholders
or to obtain or seek to obtain priority or preference over any other such
Certificateholder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.04, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.05 Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is expressly required, to the
Depositor. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee and the Depositor, if made in the manner
provided in this Section 11.05.
(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 a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
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 (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 5.02 made on a Regular Certificate presented in
accordance with Section 5.04) shall be proved by the Certificate Register, and
neither the Trustee, the Securities Administrator, the Depositor, the Master
Servicer nor any successor to any such parties shall be affected by any notice
to the contrary.
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(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action of the holder of any Regular Certificate shall bind every future
holder of the same Regular Certificate and the holder of every Regular
Certificate issued upon the registration of transfer or exchange thereof, if
applicable, or in lieu thereof with respect to anything done, omitted or
suffered to be done by the Trustee, the Securities Administrator, the Depositor,
the Master Servicer or any successor to any such party in reliance thereon,
whether or not notation of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Percentage Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Trustee, the Securities Administrator, the Depositor, the Master
Servicer or any Affiliate thereof shall be disregarded, except as otherwise
provided in Section 11.02(c) and except that, in determining whether the
Securities Administrator or the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Certificates which a Responsible Officer of the Trustee knows to be so owned
shall be so disregarded. Certificates which have been pledged in good faith to
the Trustee, the Securities Administrator, the Depositor, the Master Servicer or
any Affiliate thereof may be regarded as outstanding if the pledgor establishes
to the satisfaction of the Securities Administrator the pledgor's right to act
with respect to such Certificates and that the pledgor is not an Affiliate of
the Trustee, the Securities Administrator, the Depositor, or the Master
Servicer, as the case may be.
Section 11.06 Governing Law. THIS AGREEMENT AND THE CERTIFICATES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAWS RULES AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.07 Notices. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at (including delivery by
facsimile) or mailed by registered mail, return receipt requested, postage
prepaid, or by recognized overnight courier, to (i) in the case of the
Depositor, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Vice
President-Servicing, telecopier number: (000) 000-0000, or to such other address
as may hereafter be furnished to the other parties hereto in writing; (ii) in
the case of the Trustee, at its Corporate Trust Office, or such other address as
may hereafter be furnished to the other parties hereto in writing; (iii) in the
case of the Master Servicer or Securities Administrator, Xxxxx Fargo Bank, N.A.,
X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Service Manager MANA
Series 2007-A2, or, in the case of overnight deliveries, 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Client Service Manager MANA
Series 2007-A2, facsimile no.: (000) 000-0000, or such other address as may
hereafter be furnished to the other parties hereto in writing; (iv) in the case
of the Custodian, Xxxxx Fargo Bank, N.A., 0000 00xx Xxxxxx Xxxxxxxxx, XX 0031,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: MANA Series 2007-A2; or such other
address as may hereafter be furnished to the other parties hereto in writing;
(v) in the case of the Rating Agencies, Xxxxx'x Investors Service, Inc., 00
Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Standard & Poor's, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; or (vi) in the case of the Cap Contract Counterparty, The Royal Bank of
Scotland plc, 000 Xxxxxxxxxxx, Xxxxxx XX0X 0XX, Attention:
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Legal Department--Derivatives Documentation, telephone no. (000) 000-0000,
facsimile no. (000) 000-0000, with a copy to Greenwich Capital Markets, Inc.,
000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Legal Department -
Derivatives Documentation. Any notice delivered to the Depositor, the Trustee,
the Securities Administrator or the Master Servicer under this Agreement shall
be effective only upon receipt. Any notice required or permitted to be mailed to
a Certificateholder, unless otherwise provided herein, shall be given by
first-class mail, postage prepaid, at the address of such Certificateholder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given when mailed, whether or not the Certificateholder receives such notice.
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 severed 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 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 11.10 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.11 Counterparts. This Agreement may be executed in two or more
counterparts each of which when so executed and delivered shall be an original
but all of which together shall constitute one and the same instrument.
Section 11.12 Notice to Rating Agencies. The article and section headings
herein are for convenience of reference only, and shall not limited or otherwise
affect the meaning hereof. The Trustee shall promptly provide notice to each
Rating Agency with respect to each of the following of which it has actual
knowledge:
1. Any material change or amendment to this Agreement or the Servicing
Agreements;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Trustee, the Master Servicer or
the Securities Administrator;
4. The repurchase or substitution of Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Master Servicer Collection Account or
the Distribution Account.
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Section 11.13 Third Party Rights. The Cap Contract Counterparty and Swap
Counterparty shall be deemed third party beneficiaries of this Agreement
regarding provisions related to payments owed to the Cap Contract Counterparty
or Swap Counterparty, respectively, so long as any of the Corridor Contracts,
the Cap Contract or the Swap Agreement, as applicable, remain in effect. The
Custodian shall be deemed a third party beneficiary of this Agreement regarding
provisions related to indemnifying the Custodian so long as the Custodian
remains custodian under the Custodial Agreement.
ARTICLE XII
PROHIBITED TRANSACTIONS
Section 12.01 [Reserved].
Section 12.02 Prohibited Transactions and Activities. Neither the Depositor
nor the Securities Administrator shall sell, dispose of, or substitute for any
of the Mortgage Loans, except in a disposition pursuant to (i) the foreclosure
of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund, (iii) the termination
of each REMIC pursuant to Article X of this Agreement, (iv) a substitution
pursuant to Article II of this Agreement or (v) a repurchase of Mortgage Loans
pursuant to Article II of this Agreement, nor acquire any assets for any REMIC,
nor sell or dispose of any investments in the Distribution Account for gain, nor
accept any contributions to 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 encumbrance of the assets transferred or
assigned to the Trust Fund (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.
-172-
Section 12.03 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 Securities Administrator of
its duties and obligations set forth herein, the Securities Administrator shall
indemnify the Certificateholders of the related Residual Certificate against any
and all losses, claims, damages, liabilities or expenses ("Losses") resulting
from such negligence; provided, however, that the Securities Administrator shall
not be liable for any such Losses attributable to the action or inaction of the
Depositor or the Holder of the Residual Certificate, nor for any such Losses
resulting from misinformation provided by any of the foregoing parties on which
the Securities Administrator has relied. Notwithstanding the foregoing, however,
in no event shall the Trustee or the Securities Administrator have any liability
(1) for any action or omission that is taken in accordance with and in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement or the Mortgage Loan Purchase Agreement, (2) for any
Losses other than arising out of malfeasance, willful misconduct or negligent
performance by the Securities Administrator 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 12.04 REO Property.
(a) Notwithstanding any other provision of this Agreement, the Securities
Administrator shall not, except to the extent provided in this Agreement for
which the Securities Administrator is obligated to perform, knowingly permit any
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 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 Depositor shall cause each Servicer (to the extent provided in the
applicable Servicing Agreement) to make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the Depositor shall,
or shall cause the Servicer (to the extent provided in this Agreement) to,
dispose of any REO Property within three years of its acquisition by the Issuing
Entity unless the Depositor or such 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 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 Depositor, 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 Depositor or the
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Servicer, acting on behalf of the Issuing Entity hereunder, is unable to sell
the REO Property within 33 months after its acquisition by the Issuing Entity or
if such an extension, has been received and the Depositor or the Servicer is
unable to sell the REO Property within the period ending three months before the
close of the Extended Period, the Depositor shall cause the 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.
-174-
IN WITNESS WHEREOF, the Depositor, the Trustee, the Master Servicer and the
Securities Administrator have caused their names to be signed hereto by their
respective officers thereunto 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
By:
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
X-0-0
XXXXXXX X-0
FORM OF CLASS A AND CLASS M CERTIFICATES
[INTENTIONALLY OMITTED]
X-0-0
XXXXXXX X-0
FORM OF CLASS B CERTIFICATES
[INTENTIONALLY OMITTED]
X-0-0
XXXXXXX X-0
FORM OF CLASS R CERTIFICATE
[INTENTIONALLY OMITTED]
X-0-0
XXXXXXX X-0
FORM OF CLASS P CERTIFICATE
[INTENTIONALLY OMITTED]
X-0-0
XXXXXXX X-0
FORM OF CLASS C CERTIFICATE
[INTENTIONALLY OMITTED]
A-5-1
EXHIBIT B
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
X-0-0
XXXXXXX X
[XXXXXXXX]
X-0
XXXXXXX X
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx Xxxxxxxxx 00000
Attn: ______________________
Re: Custodial Agreement, dated as of March 30, 2007 among HSBC Bank USA,
National Association, Xxxxxxx Xxxxx Mortgage Investors, Inc. and Xxxxx
Fargo Bank, N.A.
In connection with the administration of the Mortgage Loans held by you as
Custodian for the Owner pursuant to the above-captioned Custodial Agreement, we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number: _______________
Mortgagor Name, Address & Zip Code: _______________
Reason for Requesting Documents (check one):
_______________ 1. Mortgage Paid in full
_______________ 2. Foreclosure
_______________ 3. Substitution
_______________ 4. Other Liquidation (Repurchases, etc.)
_______________ 5. Nonliquidation Reason: _______________________
By:
-----------------------------------
(authorized signer)
Issuer:
--------------------------------
Address:
-------------------------------
-------------------------------
Date:
----------------------------------
D-1
Custodian
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
Please acknowledge the execution of the above request by your signature and date
below:
------------------------------------- ------------------------------
Signature Date
Documents returned to Custodian:
------------------------------------- ------------------------------
Custodian Date
D-2
EXHIBIT E-1
FORM OF TRANSFEREE'S LETTER
[DATE]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - Xxxxxxx Xxxxx Alternative Note Asset
Trust, Series 2007-A2
Ladies and Gentlemen:
We propose to purchase Xxxxxxx Xxxxx Alternative Note Asset Trust, Series
2007-A2 Mortgage Pass-Through Certificates, Class R, described in the Prospectus
Supplement, dated March 28, 2007, and the Prospectus, dated March 22, 2007.
Capitalized terms used but not defined herein shall have the meanings assigned
to them in the Pooling and Servicing Agreement, dated March 1, 2007 relating to
this issuance of the Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-A2
Mortgage Pass-Through Certificates (the "Pooling and servicing Agreement").
1. We certify that (a) we are not a disqualified organization and (b) we are not
purchasing such Class R Certificate on behalf of a disqualified organization;
for this purpose the term "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 (except any entity treated as other than an instrumentality of the
foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code of
1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code. We
understand that any breach by us of this certification may cause us to be liable
for an excise tax imposed upon transfers to disqualified organizations.
2. We certify that (a) we have historically paid our debts as they became due,
(b) we intend, and believe that we will be able, to continue to pay our debts as
they become due in the future, (c) we understand that, as beneficial owner of
the Class R Certificate, we may incur tax liabilities in excess of any cash
flows generated by the Class R Certificate, and (d) we intend to pay any taxes
associated with holding the Class R Certificate as they become due and (e) we
will not cause income from the Class R Certificate to be attributable to a
foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of ours or another U.S. taxpayer.
E-1-1
3. We acknowledge that we will be the beneficial owner of the Class R
Certificate and:(1)
________ The Class R Certificate will be registered in our name.
________ The Class R Certificate will be held in the name of our
nominee, _________________, which is not a disqualified
organization.
4. We certify that we are 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 Code or a plan subject to federal, state, local,
non-U.S. or other law substantively similar to the foregoing provisions of ERISA
or the Code (each, a "Plan"), and are not directly or indirectly acquiring the
Class R Certificate on behalf of or with any assets of a Plan.
5. We certify that (i) we are a U.S. person or (ii) we will hold the Class R
Certificate in connection with the conduct of a trade or business within the
United States and have furnished the transferor and the Securities Administrator
with a duly completed and effective Internal Revenue Service Form W-8ECI or
successor form at the time and in the manner required by the Code; for this
purpose the term "U.S. person" means a citizen or resident of the United States,
a corporation, or partnership (unless, in the case of a partnership, Treasury
regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any State thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of the source of its income, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more such U.S. persons have the authority to control all
substantial decisions of the trust (or, to the extent provided in applicable
Treasury regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons. We agree that any breach by us
of this certification shall render the transfer of any interest in the Class R
Certificate to us absolutely null and void and shall cause no rights in the
Class R Certificate to vest in us.
6. We agree that in the event that at some future time we wish to transfer any
interest in the Class R Certificate, we will transfer such interest in the Class
R Certificate only (a) to a transferee that (i) is not a disqualified
organization and is not purchasing such interest in the Class R Certificate on
behalf of a disqualified organization, (ii) is a U.S. person or will hold the
Class R Certificate in connection with the conduct of a trade or business within
the United States and will furnish us and the Securities Administrator with a
duly completed and effective Internal Revenue Service Form W-8ECI or successor
form at the time and in the manner required by the Code and (iii) has delivered
to the Securities Administrator a letter in the form of this letter (including
the affidavit appended hereto) and, we will provide the Securities Administrator
a written statement substantially in the form of Exhibit E-2 to the Pooling and
Servicing Agreement.
7. We hereby designate _______________________ as our fiduciary to act as the
tax matters person for each of the REMICs provided for in the Pooling and
Servicing Agreement in which the Class R Certificate represents the residual
interest.
----------
(1) Check appropriate box and if necessary fill in the name of the Transferee's
nominee.
E-1-2
Very truly yours,
[Purchaser]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted as of __________ __, 200__
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
E-1-3
APPENDIX A
Affidavit pursuant to (i) Section
860E(e)(4) of the Internal Revenue Code
of 1986, as amended, and (ii) certain
provisions of the Pooling and Servicing
Agreement
Under penalties of perjury, the undersigned declares that the following is true:
1. He or she is an officer of _________________________ (the
"Investor"),
2. the Investor's Employer Identification number is __________,
3. the Investor is not a "disqualified organization" (as defined
below), has no plan or intention of becoming a disqualified
organization, and is not acquiring any of its interest in the
Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-A2
Mortgage Pass-Through Certificates, Class R Certificate on behalf
of a disqualified organization or any other entity,
4. unless Xxxxxxx Xxxxx Mortgage Investors, Inc. ("MLMI") has
consented to the transfer to the Investor, the Investor is a
"U.S. person" (as defined below),
5. that no purpose of the transfer is to avoid or impede the
assessment or collection of tax,
6. the Investor has historically paid its debts as they became due,
7. the Investor intends, and believes that it will be able, to
continue to pay its debts as they become due in the future,
8. the Investor understands that, as beneficial owner of the Class R
Certificate, it may incur tax liabilities in excess of any cash
flows generated by the Class R Certificate,
9. the Investor intends to pay any taxes associated with holding the
Class R Certificate as they become due,
10. the Investor consents to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by MLMI (upon
advice of counsel) to constitute a reasonable arrangement to
ensure that the Class R Certificate will not be owned directly or
indirectly by a disqualified organization, and
11. IF BRACKETED, THE FOLLOWING CERTIFICATIONS ARE INAPPLICABLE [the
transfer is not a direct or indirect transfer of the Class R
Certificate to a foreign permanent establishment or fixed base
(within the meaning of an applicable income tax treaty) of the
Investor, and as to each of the residual interests represented by
the Class R Certificate, the present value of the anticipated tax
liabilities associated with holding such residual interest does
not exceed the sum of:
E-1-4
A. the present value of any consideration given to the Investor
to acquire such residual interest;
B. the present value of the expected future distributions on
such residual interest; and
C. the present value of the anticipated tax savings associated
with holding such residual interest as the related REMIC
generates losses.
For purposes of this declaration, (i) the Investor is assumed to pay tax at
a rate equal to the highest rate of tax specified in Section 11(b)(1) of
the Code, but the tax rate specified in Section 55(b)(1)(B) of the Code may
be used in lieu of the highest rate specified in Section 11(b)(1) of the
Code if the Investor has been subject to the alternative minimum tax under
Section 55 of the Code in the preceding two years and will compute its
taxable income in the current taxable year using the alternative minimum
tax rate, and (ii) present values are computed using a discount rate equal
to the Federal short-term rate prescribed by Section 1274(d) of the Code
for the month of the transfer and the compounding period used by the
Investor;]
[(11) (A) at the time of the transfer, and at the close of each of the
Investor's two fiscal years preceding the Investor's fiscal year of
transfer, the Investor's gross assets for financial reporting purposes
exceed $100 million and its net assets for financial reporting
purposes exceed $10 million; and
(B) the Investor is an eligible corporation as defined in Treasury
regulations Section 1.860E-1(c)(6)(i) and has agreed in writing that
any subsequent transfer of the Class R Certificate will be to another
eligible corporation in a transaction that satisfies Treasury
regulation Sections 1.860E-1(c)(4)(i), 1.860E-1(c)(4)(ii),
1.860E-1(c)(4)(iii) and 1.860E-1(c)(5) and such transfer will not be a
direct or indirect transfer to a foreign permanent establishment
(within the meaning of an applicable income tax treaty) of a domestic
corporation.
For purposes of this declaration, the gross and net assets of the Investor do
not include any obligation of any related person as defined in Treasury
regulation Section 1.860E-1(c)(6)(ii) or any other asset if a principal purpose
for holding or acquiring the other asset is to permit the Investor to make this
declaration or to satisfy the requirements of Treasury regulation Section
1.860E-1(c)(5)(i).]
(12) The Investor will not cause income from the Class R Certificate to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Investor or another U.S.
taxpayer.
E-1-5
For purpose of this affidavit, the term "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 (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code and the term
"U.S. Person" means a citizen or resident of the United States, a corporation or
partnership (unless, in the case of a partnership, Treasury regulations are
adopted that provide otherwise) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to Unites States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust, and one or
more such U.S. Persons have the authority to control all substantial decisions
of such trust, (or, to the extent provided in applicable Treasury regulations,
certain trusts in existence on August 20, 1996 which are eligible to elect to be
treated as U.S. Persons).
E-1-6
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its behalf, pursuant to authority of its Board of Directors, by its
_____________ this ___ day of ______________, 20__.
[INVESTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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 to me 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
_____________________________________
COUNTY OF
___________________________
STATE OF
____________________________
My commission expires the _____ day of __________ 20__.
E-1-7
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE
[DATE]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Services - Xxxxxxx Xxxxx Alternative Note Asset
Trust, Series 2007-A2
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-A2
_______________________ (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
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 the
Class R Certificate referred to in the attached affidavit. 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,
[Transferor]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-2-1
EXHIBIT F-1
FORM OF TRANSFEROR REPRESENTATION LETTER
______________, 200___
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-A2
Mortgage Pass-Through Certificates, Class [_____]
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________ (the
"Purchaser") of $_________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Class _____ (the "Certificates"), issued pursuant to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of March 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"), and HSBC Bank USA, National Association, as
trustee (the "Trustee"). The Seller hereby certifies, represents and warrants
to, and covenants with, the Depositor and the Securities Administrator that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act in any
manner set forth in the foregoing sentence with respect to any Certificate. The
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing Agreement.
F-1-1
Very truly yours,
----------------------------------------
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-1-2
EXHIBIT F-2
FORM OF INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
__________, 200__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-A2
Mortgage Pass-Through Certificates, Class [_____]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (The "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
institutional "accredited investor," as defined in Regulation D under the Act,
and have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) solely in the case of an ERISA
Restricted Certificate, we (i) are not an employee benefit plan or arrangement
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 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 are not directly or indirectly acquiring
this Certificate for, on behalf of or with any assets of any such Plan, (ii) if
the Certificate has been the subject of an ERISA-Qualifying Underwriting, are an
insurance company that is acquiring the Certificate with assets of 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
(iii) solely in the case of a Definitive Certificate, shall deliver herewith an
Opinion of Counsel satisfactory to the Securities Administrator, and upon which
the Securities Administrator shall be entitled to rely, to the effect that the
acquisition and holding of this certificate by the transferee will not result in
a nonexempt prohibited transaction under ERISA or the Code, or a violation of
Similar Law, and will not subject the Depositor, the Master Servicer, the
Securities Administrator or the Trustee to any obligation in addition to those
undertaken by such entities in the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be an expense of the Depositor, the Master
Servicer, the Securities Administrator or the Trustee, (e) we are acquiring the
Certificates for investment for our own account and not with a
F-2-1
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this Certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) The purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) The purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Authorized Officer
F-2-2
EXHIBIT F-3
FORM OF RULE 144A LETTER
____________, 2006
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-A2
Mortgage Pass-Through Certificates, Class [_____]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (The "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) solely in the case of an ERISA Restricted
Certificate, we (i) are not an employee benefit plan or arrangement 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 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 are not directly or indirectly acquiring this
Certificate for, on behalf of or with any assets of any such Plan, (ii) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, are an
insurance company that is acquiring the Certificate with assets of 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
(iii) solely in the case of a Definitive Certificate, shall deliver herewith an
Opinion of Counsel satisfactory to the Securities Administrator, and upon which
the Securities Administrator shall be entitled to rely, to the effect that the
acquisition and holding of this certificate by the transferee will not result in
a nonexempt prohibited transaction under ERISA or the Code, or a violation of
Similar Law, and will not subject the Depositor, the Master Servicer, the
Securities Administrator or the Trustee to any obligation in addition to those
undertaken by such entities in the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be an expense of the Depositor, the Master
Servicer, the Securities Administrator or the Trustee, (e) we have not, nor has
anyone acting on our behalf offered, transferred, pledged, sold or otherwise
disposed of the Certificates, any interest in the Certificates or any other
similar
F-3-1
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Act or that would
render the disposition of the Certificates a violation of Section 5 of the Act
or require registration pursuant thereto, nor will act, nor has authorized or
will authorize any person to act, in such manner with respect to the
Certificates, (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Act ("Rule 144A") and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex 2,
(g) we are aware that the sale to us is being made in reliance on Rule 144A, and
(h) we are acquiring the Certificates for our own account or for resale pursuant
to Rule 144A and further, understand that such Certificates may be resold,
pledged or transferred only (A) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (B)
pursuant to another exemption from registration under the Act.
Very truly yours,
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Print Name of Transferee
By:
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Authorized Officer
F-3-2
ANNEX I TO EXHIBIT F-3
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, The Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) The Buyer owned and/or
invested on a discretionary basis $___________(1) in securities (except for the
1 excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) The Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, The business
of which is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten
----------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
F-3-3
by insurance companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, territory or the
District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor registered under
the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, The Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
The securities may be valued at market. Further, in determining such aggregate
amount, The Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
F-3-4
6. Until the date of purchase of the Rule 144A Securities, The Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, The Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, The Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
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Print Name of Buyer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
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F-3-5
ANNEX II TO EXHIBIT F-3
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief Financial Officer
or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, The Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) The Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, The Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, The cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, The securities may be valued at market.
___ The Buyer owned $ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $ in securities (other than the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
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5. The Buyer is familiar with Rule 144A and understands that the parties listed
in the Rule 144A Transferee Certificate to which this certification relates are
relying and will continue to rely on the statements made herein because one or
more sales to the Buyer will be in reliance on Rule 144A. In addition, The Buyer
will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, The undersigned will notify
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, The Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
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Print Name of Buyer or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Buyer
Date:
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F-3-7
EXHIBIT G
FORM OF CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to
time, the "Agreement"), dated as of March 30, 2007, by and among HSBC BANK USA,
NATIONAL ASSOCIATION, as trustee (including its successors under the Pooling and
Servicing Agreement defined below, the "Trustee"), XXXXXXX XXXXX MORTGAGE
INVESTORS, INC., as company (together with any successor in interest, the
"Company"), XXXXX FARGO BANK, N.A., as securities administrator and master
servicer (together with any successor in interest or successor under the Pooling
and Servicing Agreement referred to below, the "Master Servicer") and XXXXX
FARGO BANK, N.A., as custodian (together with any successor in interest or any
successor appointed hereunder, the "Custodian").
WITNESSETH THAT:
WHEREAS, the Company, the Master Servicer and the Trustee have entered
into a Pooling and Servicing Agreement, dated as of March 1, 2007, relating to
the issuance of Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-A2
Mortgage Pass-Through Certificates, (as amended and supplemented from time to
time, the "Pooling and Servicing Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee for
the purposes of receiving and holding certain documents and other instruments
delivered by the Company or the Master Servicer under the Pooling and Servicing
Agreement and the Servicers under their respective Servicing Agreements, all
upon the terms and conditions and subject to the limitations hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Company, the
Master Servicer and the Custodian hereby agree as follows:
G-1
DEFINITIONS
Capitalized terms used in this Agreement and not defined herein shall
have the meanings assigned in the Pooling and Servicing Agreement, unless
otherwise required by the context herein.
G-2
CUSTODY OF MORTGAGE DOCUMENTS
1. Custodian to Act as Agent: Acceptance of Mortgage Files, Attestations and
Assessments of Compliance.
a. The Custodian, as the duly appointed agent of the Trustee for
these purposes, acknowledges (subject to any exceptions noted in
the Initial Certification referred to in Section 2.3(a)) receipt
of the Mortgage Files relating to the Mortgage Loans identified
on the schedule attached hereto (the "Mortgage Files") and
declares that it holds and will hold such Mortgage Files as agent
for the Trustee, in trust, for the use and benefit of all present
and future Certificateholders.
b. On or before March 1st of each calendar year, beginning with
March 1, 2008, the Custodian shall, at its own expense, cause a
firm of independent public accountants (who may also render other
services to Custodian), that is a member of the American
Institute of Certified Public Accountants, to furnish to the
Company and the Master Servicer a report to the effect that such
firm attests to, and reports on, the assessment made by such
asserting party pursuant to Section 2.01(c) below, which report
shall be made in accordance with standards for attestation
engagements issued or adopted by the Public Company Accounting
Oversight Board.
c. On or before March 1st of each calendar year, beginning with
March 1, 2008, the Custodian shall deliver to the Company and the
Master Servicer a report regarding its assessment of compliance
with the servicing criteria identified in Exhibit Three attached
hereto, as of and for the period ending the end of the fiscal
year ending no later than December 31 of the year prior to the
year of delivery of the report, with respect to asset-backed
security transactions taken as a whole in which the Custodian is
performing any of the servicing criteria specified in Exhibit
Three and that are backed by the same asset type backing such
asset-backed securities. Each such report shall include (a) a
statement of the party's responsibility for assessing compliance
with the servicing criteria applicable to such party, (b) a
statement that such party used the criteria identified in Item
1122(d) of Regulation AB (Section 229.1122(d)) to assess the
compliance with the applicable servicing criteria, (c) disclosure
of any material instance of noncompliance identified by such
party, and (d) a statement that a registered public accounting
firm has issued an attestation report on such party's assessment
of compliance with the applicable servicing criteria, which
report shall be delivered by the Custodian as provided in this
Section 2.01(c). However, the Custodian's obligation to provide a
report on assessment of compliance or an attestation with respect
to itself and with respect to any Subcontractor shall be
suspended in any year in which the Issuing Entity's reporting
obligations under the Exchange Act are suspended.
d. The Custodian has not and shall not engage any Subcontractor
which is "participating in the servicing function" within the
meaning of Item 1122 of
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Regulation AB, unless such Subcontractor agrees to provide in any
year in which a Form 10-K will be filed by the Trust., no later
than March 1st of such year, an assessment and a statement of
registered public accounting firm certifying its compliance with
the applicable servicing criteria in Item 1122(d) of Regulation
AB as of and for the period ending the end of the fiscal year
ending no later than December 31 of the year prior to the year of
delivery of the report. "Subcontractor" as used herein means any
vendor, subcontractor or other Person that is not responsible for
the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of the
Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to the
Mortgage Loans under the direction or authority of the Custodian.
e. The Custodian agrees to indemnify the Company, the Master
Servicer, the Trust Fund and each of their respective directors,
officers, employees and agents and hold each of them harmless
from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon the engagement of
any Subcontractor in violation of Section 2.01(d) or any failure
by the Custodian to deliver any information, report,
certification, accountants' letter or other material when and as
required under this Agreement, including any report under
Sections 2.01(b) or 2.01(c).
2. Reserved.
3. Review of Mortgage Files.
a. On or prior to the Closing Date, the Custodian agrees, for the
benefit of Certificateholders, to review, in accordance with the
provisions of Section 2.02 of the Pooling and Servicing
Agreement, each such document, and shall deliver to the Trustee
an Initial Certification in the form annexed hereto as Exhibit
One evidencing receipt (subject to any exceptions noted therein)
of a Mortgage File for each of the Mortgage Loans listed on the
Schedule attached hereto (the "Mortgage Loan Schedule") and
certifying that all such documents have been executed and
received and that such documents relate to the Mortgage Loans
identified on the Mortgage Loan Schedule, except for any
exceptions listed on Schedule A attached to such Initial
Certification. The Custodian shall be under no duty or obligation
to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are
genuine, enforceable, or appropriate for the represented purpose
or that they have actually been recorded or that they are other
than what they purport to be on their face.
b. Not later than 180 days after the Closing Date, the Custodian
shall review the Mortgage Files as provided in Section 2.02 of
the Pooling and Servicing Agreement and deliver to the Trustee a
Final Certification in the form annexed hereto as Exhibit Two
evidencing the completeness of the Mortgage Files (subject to any
exceptions noted therein).
G-4
c. In reviewing the Mortgage Files as provided herein and in the
Pooling and Servicing Agreement, the Custodian shall make no
representation as to and shall not be responsible to verify (i)
the validity, legality, enforceability, due authorization,
recordability, sufficiency or genuineness of any of the documents
included in any Mortgage File or (ii) the collectibility,
insurability, effectiveness or suitability of any of the
documents in any Mortgage File.
d. Upon receipt of written request from the Trustee, the Custodian
shall as soon as practicable supply the Trustee with a list of
all of the documents relating to the Mortgage Loans then
contained in the Mortgage Files.
4. Notification of Breaches of Representations and Warranties. Upon discovery
by the Custodian of a breach of any representation or warranty made by the
Company as set forth in the Pooling and Servicing Agreement with respect to
a Mortgage Loan relating to a Mortgage File, the Custodian shall give
prompt written notice to the Company, the related Servicer and the Trustee.
5. Custodian to Cooperate: Release of Mortgage Files. Upon receipt of written
notice from the Master Servicer that the Mortgage Loan Seller has
repurchased a Mortgage Loan pursuant to Article II of the Pooling and
Servicing Agreement, and that the purchase price therefor has been
deposited in the Master Servicer Collection Account or the Distribution
Account, then the Custodian agrees to promptly release to the Mortgage Loan
Seller the related Mortgage File.
a. Upon the Custodian's receipt of a request for release (a "Request
for Release") substantially in the form of Exhibit D to the
Pooling and Servicing Agreement signed by a Servicing Officer of
the related Servicer stating that it has received payment in full
of a Mortgage Loan or that payment in full will be escrowed in a
manner customary for such purposes, the Custodian agrees
promptly, but no lesser than three (3) Business Days, to release
to such Servicer the related Mortgage File. The Company shall
deliver to the Custodian and the Custodian agrees to accept the
Mortgage Note and other documents constituting the Mortgage File
with respect to any Substitute Mortgage Loan.
b. From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose,
collection under any Primary Mortgage Insurance Policy, the
related Servicer shall deliver promptly to the Custodian a
Request for Release signed by a Servicing Officer requesting that
possession of all of the Mortgage File be released to such
Servicer and certifying as to the reason for such release and
that such release will not invalidate any insurance coverage
provided in respect of the Mortgage Loan under any of the
Insurance Policies. Upon receipt of the foregoing, the Custodian
shall deliver the Mortgage File to such Servicer. The related
Servicer shall cause each Mortgage File or any document therein
so released to be returned to the Custodian when the need
therefore by such Servicer no longer exists, unless (i) the
Mortgage Loan has been liquidated and the Liquidation Proceeds
relating to the Mortgage Loan have been deposited in the Master
Servicer Collection Account or the Distribution
G-5
Account or (ii) the Mortgage File or such document has been
delivered to an attorney, or to a public trustee or other public
official as required by law, for purposes of initiating or
pursuing legal action or other proceedings for the foreclosure of
the Mortgaged Property either judicially or non-judicially, and
the related Servicer has delivered to the Custodian a certificate
of a Servicing Officer certifying as to the name and address of
the Person to which such Mortgage File or such document was
delivered and the purpose or purposes of such delivery.
c. At any time that a Servicer is required to deliver to the
Custodian a Request for Release, such Servicer shall deliver two
copies of the Request for Release if delivered in hard copy or
such Servicer may furnish such Request for Release electronically
to the Custodian, in which event the Servicing Officer
transmitting the same shall be deemed to have signed the Request
for Release. In connection with any Request for Release of a
Mortgage File because of a repurchase of a Mortgage Loan, the
related Servicer shall send to the Trustee an assignment of
mortgage, without recourse, representation or warranty from the
Trustee to the Mortgage Loan Seller and the related Mortgage Note
which shall be endorsed without recourse, representation or
warranty by the Trustee and the Trustee shall forward such
documents to the Mortgage Loan Seller. In connection with any
Request for Release of a Mortgage File because of the payment in
full of a Mortgage Loan, the related Servicer shall send to the
Trustee a certificate of satisfaction or other similar instrument
to be executed by or on behalf of the Trustee and returned to
such Servicer.
6. Assumption Agreements. In the event that any assumption agreement or
substitution of liability agreement is entered into with respect to any
Mortgage Loan subject to this Agreement in accordance with the terms and
provisions of the Pooling and Servicing Agreement, the Master Servicer, to
the extent provided in the related Servicing Agreement, shall cause the
related Servicer to notify the Custodian that such assumption or
substitution agreement has been completed by forwarding to the Custodian
the original of such assumption or substitution agreement, which shall be
added to the related Mortgage File and, for all purposes, shall be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting parts thereof.
G-6
CONCERNING THE CUSTODIAN
1. Custodian a Bailee and Agent of the Trustee. With respect to each Mortgage
Note, Mortgage and other documents constituting each Mortgage File which
are delivered to the Custodian, the Custodian is exclusively the bailee and
agent of the Trustee and has no instructions to hold any Mortgage Note or
Mortgage for the benefit of any person other than the Trustee and the
Certificateholders and undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement. Except upon
compliance with the provisions of Section 2.5 of this Agreement, no
Mortgage Note, Mortgage or Mortgage File shall be delivered by the
Custodian to the Company, the Servicer or the Master Servicer or otherwise
released from the possession of the Custodian.
2. Reserved.
3. Custodian May Own Certificates. The Custodian in its individual or any
other capacity may become the owner or pledgee of Certificates with the
same rights it would have if it were not Custodian.
4. Master Servicer to Pay Custodian's Fees and Expenses. The Master Servicer
covenants and agrees to pay to the Custodian from time to time, and the
Custodian shall be entitled to, reasonable compensation for all services
rendered by it in the exercise and performance of any of the powers and
duties hereunder of the Custodian, and the Master Servicer will pay or
reimburse the Custodian upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Custodian in accordance
with any of the provisions of this Agreement (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ), except any such expense, disbursement
or advance as may arise from its negligence or bad faith or to the extent
that such cost or expense is indemnified by the Company pursuant to the
Pooling and Servicing Agreement.
5. Custodian May Resign; Trustee May Remove Custodian. The Custodian may
resign from the obligations and duties hereby imposed upon it as such
obligations and duties relate to its acting as Custodian of the Mortgage
Loans. Upon receiving such notice of resignation, the Trustee shall either
take custody of the Mortgage Files itself and give prompt notice thereof to
the Company, the Master Servicer and the Custodian, or promptly appoint a
successor Custodian by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Custodian and one copy to
the successor Custodian. If the Trustee shall not have taken custody of the
Mortgage Files and no successor Custodian shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
a. The Trustee may remove the Custodian at any time with the consent
of the Master Servicer. In such event, the Trustee shall appoint,
or petition a court of competent jurisdiction to appoint, a
successor Custodian hereunder. Any successor Custodian shall be a
depository institution subject to supervision or examination by
federal or state authority, shall be able to satisfy the other
requirements
G-7
contained in Section 3.7 and shall be unaffiliated with the
Servicer or the Company.
b. Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this
Section 3.5 shall become effective upon acceptance of appointment
by the successor Custodian. The Trustee shall give prompt notice
to the Company and the Master Servicer of the appointment of any
successor Custodian. No successor Custodian shall be appointed by
the Trustee without the prior approval of the Company and the
Master Servicer.
6. Merger or Consolidation of Custodian. Any Person into which the Custodian
may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Custodian shall be a party, or any Person succeeding to the business of the
Custodian, shall be the successor of the Custodian 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.
7. Representations of the Custodian. The Custodian hereby represents that it
is a depository institution subject to supervision or examination by a
federal or state authority, has a combined capital and surplus of at least
$15,000,000 and is qualified to do business in the jurisdictions in which
it will hold any Mortgage File.
G-8
MISCELLANEOUS PROVISIONS
1. Notices. All notices, requests, consents, demands and other communications
required under this Agreement or pursuant to any other instrument or
document delivered hereunder shall be in writing and, unless otherwise
specifically provided, may be delivered personally, by telegram or telex,
or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless
changed by the particular party whose address is stated herein by similar
notice in writing), in which case the notice will be deemed delivered when
received.
2. Amendments. No modification or amendment of or supplement to this Agreement
shall be valid or effective unless the same is in writing and signed by all
parties hereto, and neither the Company, the Master Servicer nor the
Trustee shall enter into any amendment hereof except as permitted by the
Pooling and Servicing Agreement. The Trustee shall give prompt notice to
the Custodian of any amendment or supplement to the Pooling and Servicing
Agreement and furnish the Custodian with written copies thereof.
3. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
4. Recordation of Agreement. To the extent permitted by applicable law, this
Agreement is subject to recordation in all appropriate public offices for
real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Company and at the
Trust's expense on direction by the Trustee, but only upon direction
accompanied by an Opinion of Counsel (which shall be at the expense of the
party requesting such recordation and in no event at the expense of the
Trustee) reasonably satisfactory to the Company to the effect that the
failure to effect such recordation is likely to materially and adversely
affect the interests of the Certificateholders.
a. For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
5. 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.
G-9
6. Third-Party Beneficiary. The parties hereto agree that Wilshire Credit
Corporation shall receive the benefit of the provisions of this Agreement
as an intended third party beneficiary.
G-10
IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
Address: HSBC BANK USA, NATIONAL ASSOCIATION, as
Trustee
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: XXXXX FARGO BANK, N.A.,
as Master Servicer
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
By:
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Address: XXXXX FARGO BANK, N.A.,
as Custodian
0000 00xx Xxxxxx Xxxxxxxxx, XX 0031
Xxxxxxxxxxx, XX 00000
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: WILSHIRE CREDIT CORPORATION,
as Servicer
00000 XX Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000 By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-11
EXHIBIT ONE
FORM OF CUSTODIAN INITIAL CERTIFICATION
___________, 200__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Pooling and Servicing Agreement, dated as of March 1, 2007, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator, and HSBC
Bank USA, National Association, as trustee, Mortgage Pass-Through
Certificates, Series 2007-A2
Ladies and Gentlemen:
Attached is the Custodian's preliminary exception report delivered in
accordance with Section 2.02 of the referenced Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) the existence of
any assumption, modification, written assurance, or substitution agreement, with
respect to any Mortgage File if no such documents appear in the Mortgage File
delivered to the Custodian.
XXXXX FARGO BANK, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-12
EXHIBIT TWO
FORM OF CUSTODIAN FINAL CERTIFICATION
____________, 2006
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ____________________
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Pooling and Servicing Agreement, dated as of March 1, 2007, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator and HSBC
Bank USA, National Association, as trustee,
Mortgage Pass-Through Certificates, Series 2007-A2
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as noted on
the Schedule of Exceptions attached hereto, for each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attachment hereto), it has received a complete Mortgage File which includes
the documents required to be included in the Mortgage File as set forth in the
Pooling and Servicing Agreement.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any documents contained in any Mortgage File for any of the
Mortgage Loans listed on the Mortgage Loan Schedule to the Pooling and Servicing
Agreement, (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan or (iii) whether any Mortgage File should include any
flood insurance policy, any rider, addends, surety or guaranty agreement, power
of attorney, buy down agreement, assumption agreement, modification agreement,
written assurance or substitution agreement.
G-13
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
XXXXX FARGO BANK, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
G-14
EXHIBIT THREE
FORM OF CERTIFICATION REGARDING SERVICING CRITERIA TO BE
ADDRESSED IN REPORT ON ASSESSMENT COMPLIANCE
The assessment of compliance to be delivered by Xxxxx Fargo Bank
shall address, at a minimum, the criteria identified below as
"Applicable Servicing Criteria":
SERVICING CRITERIA APPLICABLE
-------------------------------------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ------------------------------------------------------------------------------------- ------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other triggers
and events of default in accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies and
procedures are instituted to monitor the third party's performance and compliance
with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer for the
mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in the amount
of coverage required by and otherwise in accordance with the terms of the transaction
agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank accounts
and related bank clearing accounts no more than two business days following receipt,
or such other number of days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor are
made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or accounts
established as a form of overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository institution as
set forth in the transaction agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign financial institution means
a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of
the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities
related bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate; (B) prepared within
30 calendar days after the bank statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed and approved by someone other
than the person who prepared the reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days specified in the
transaction agreements.
G-15
SERVICING CRITERIA APPLICABLE
-------------------------------------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ------------------------------------------------------------------------------------- ------------
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are maintained
in accordance with the transaction agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance with timeframes and other
terms set forth in the transaction agreements; (B) provide information calculated in
accordance with the terms specified in the transaction agreements; (C) are filed with
the Commission as required by its rules and regulations; and (D) agree with
investors' or the trustee's records as to the total unpaid principal balance and
number of mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the
Servicer's investor records, or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled checks,
or other form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the transaction X
agreements or related mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the transaction X
agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed and
approved in accordance with any conditions or requirements in the transaction
agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the
related mortgage loan documents are posted to the Servicer's obligor records
maintained no more than two business days after receipt, or such other number of days
specified in the transaction agreements, and allocated to principal, interest or
other items (e.g., escrow) in accordance with the related mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's records
with respect to an obligor's unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements and related pool asset
documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds
in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated,
conducted and concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a mortgage
loan is delinquent in accordance with the transaction agreements. Such records are
maintained on at least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities in monitoring delinquent
mortgage loans including, for example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan documents.
G-16
SERVICING CRITERIA APPLICABLE
-------------------------------------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ------------------------------------------------------------------------------------- ------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the obligor's mortgage loan documents, on at
least an annual basis, or such other period specified in the transaction agreements;
(B) interest on such funds is paid, or credited, to obligors in accordance with
applicable mortgage loan documents and state laws; and (C) such funds are returned to
the obligor within 30 calendar days of full repayment of the related mortgage loans,
or such other number of days specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are made on
or before the related penalty or expiration dates, as indicated on the appropriate
bills or notices for such payments, provided that such support has been received by
the servicer at least 30 calendar days prior to these dates, or such other number of
days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf of an
obligor are paid from the servicer's funds and not charged to the obligor, unless the
late payment was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business days to the
obligor's records maintained by the servicer, or such other number of days specified
in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in
accordance with the transaction agreements.
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.
G-17
EXHIBIT H-1
CLASS A-1 ONE-MONTH LIBOR CORRIDOR TABLE (1)
BEGINNING ENDING NOTIONAL 1ML STRIKE 1ML STRIKE
PERIOD ACCRUAL ACCRUAL (2) BALANCE ($) LOWER COLLAR (%) UPPER COLLAR (%)
------ --------- ----------- ----------- ---------------- ----------------
1 03/30/07 04/25/07 180,475,000 7.476 10.290
2 04/25/07 05/25/07 174,570,577 6.451 10.290
3 05/25/07 06/25/07 168,844,614 6.236 10.290
4 06/25/07 07/25/07 163,293,030 6.451 10.290
5 07/25/07 08/25/07 157,910,561 6.237 10.290
6 08/25/07 09/25/07 152,692,098 6.237 10.290
(1) With respect to any Distribution Date, if One-Month LIBOR (as determined by
the Cap Contract Counterparty and subject to a cap equal to 10.290%)
exceeds the Lower Collar, the Issuing Entity will receive payments pursuant
to the Class A-1 Corridor Contract.
(2) The accrual period is the period from and including the date in the column
headed "Beginning Accrual" to, but excluding, the date in the column headed
"Ending Accrual."
X-0-0
XXXXXXX X-0
CLASS A-2 ONE-MONTH LIBOR CORRIDOR TABLE (1)
BEGINNING ENDING NOTIONAL 1ML STRIKE 1ML STRIKE
PERIOD ACCRUAL ACCRUAL (2) BALANCE ($) LOWER COLLAR (%) UPPER COLLAR (%)
------ --------- ----------- ----------- ---------------- ----------------
1 03/30/07 04/25/07 183,585,000 7.304 10.290
2 04/25/07 05/25/07 177,536,981 6.307 10.290
3 05/25/07 06/25/07 171,672,908 6.097 10.290
4 06/25/07 07/25/07 165,988,369 6.307 10.290
5 07/25/07 08/25/07 160,477,921 6.097 10.290
6 08/25/07 09/25/07 155,136,284 6.097 10.290
(1) With respect to any Distribution Date, if One-Month LIBOR (as determined by
the Cap Contract Counterparty and subject to a cap equal to 10.290%)
exceeds the Lower Collar, the Issuing Entity will receive payments pursuant
to the Class A-2 Corridor Contract.
(2) The accrual period is the period from and including the date in the column
headed "Beginning Accrual" to, but excluding, the date in the column headed
"Ending Accrual."
X-0-0
XXXXXXX X-0
CLASS A-3 ONE-MONTH LIBOR CORRIDOR TABLE (1)
BEGINNING ENDING NOTIONAL 1ML STRIKE 1ML STRIKE
PERIOD ACCRUAL ACCRUAL (2) BALANCE ($) LOWER COLLAR (%) UPPER COLLAR (%)
------ --------- ----------- ----------- ---------------- ----------------
1 03/30/07 04/25/07 465,266,000 7.410 10.311
2 04/25/07 05/25/07 449,969,009 6.397 10.311
3 05/25/07 06/25/07 435,136,107 6.185 10.311
4 06/25/07 07/25/07 420,756,632 6.397 10.311
5 07/25/07 08/25/07 406,816,852 6.185 10.311
6 08/25/07 09/25/07 393,303,449 6.185 10.311
(1) With respect to any Distribution Date, if One-Month LIBOR (as determined by
the Cap Contract Counterparty and subject to a cap equal to 10.311%)
exceeds the Lower Collar, the Issuing Entity will receive payments pursuant
to the Class A-3 Corridor Contract.
(2) The accrual period is the period from and including the date in the column
headed "Beginning Accrual" to, but excluding, the date in the column headed
"Ending Accrual."
X-0-0
XXXXXXX X-0
XXXXXXXXXXX CERTIFICATES ONE-MONTH LIBOR CORRIDOR TABLE (1)
BEGINNING ENDING NOTIONAL 1ML STRIKE 1ML STRIKE
PERIOD ACCRUAL ACCRUAL (2) BALANCE ($) LOWER COLLAR (%) UPPER COLLAR (%)
------ --------- ----------- ----------- ---------------- ----------------
1 03/30/07 04/25/07 44,061,000 7.086 9.986
2 04/25/07 05/25/07 44,061,000 6.074 9.986
3 05/25/07 06/25/07 44,061,000 5.861 9.986
4 06/25/07 07/25/07 44,061,000 6.074 9.986
5 07/25/07 08/25/07 44,061,000 5.861 9.986
6 08/25/07 09/25/07 44,061,000 5.861 9.986
(1) With respect to any Distribution Date, if One-Month LIBOR (as determined by
the Cap Contract Counterparty and subject to a cap equal to 9.986%) exceeds
the Lower Collar, the Issuing Entity will receive payments pursuant to the
Subordinate Certificates Corridor Contract.
(2) The accrual period is the period from and including the date in the column
headed "Beginning Accrual" to, but excluding, the date in the column headed
"Ending Accrual."
H-4-1
EXHIBIT I-1
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
CITIMORTGAGE, INC.
[INTENTIONALLY OMITTED]
I-1-1
EXHIBIT I-2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
COUNTRYWIDE HOME LOANS SERVICING LP
[INTENTIONALLY OMITTED]
I-2-1
EXHIBIT I-3
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
GREENPOINT MORTGAGE FUNDING, INC.
SEE EXHIBIT 99.2
I-3-1
EXHIBIT I-4
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
NATIONAL CITY MORTGAGE CO.
SEE EXHIBIT 99.5
I-4-1
EXHIBIT I-5
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
PHH MORTGAGE CORPORATION
[INTENTIONALLY OMITTED]
I-5-1
EXHIBIT I-6
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
RESIDENTIAL FUNDING COMPANY, LLC
[INTENTIONALLY OMITTED]
I-6-1
EXHIBIT I-7
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
XXXXX FARGO BANK, N.A.
[INTENTIONALLY OMITTED]
I-7-1
EXHIBIT I-8
RECONSTITUTED SERVICING AGREEMENT
WILSHIRE CREDIT CORPORATION
SEE EXHIBIT 99.8
I-8-1
EXHIBIT J-1
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
SEE EXHIBIT 99.1
J-1
EXHIBIT K
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 IT 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 MARCH 1,
2007, AMONG XXXXXXX XXXXX MORTGAGE INVESTORS, INC., AS DEPOSITOR, XXXXX FARGO
BANK, N.A., AS MASTER SERVICER AND SECURITIES ADMINISTRATOR, AND HSBC BANK USA,
NATIONAL ASSOCIATION, AS TRUSTEE.
SECURITIES MASTER
REG AB REFERENCE SERVICING CRITERIA ADMINISTRATOR SERVICER
---------------- -------------------------------------------------------- ------------- --------
GENERAL SERVICING CONSIDERATIONS
1122(D)(1)(I) Policies and procedures are instituted to monitor any X X
performance or other triggers and events of default in
accordance with the transaction agreements.
1122(D)(1)(II) If any material servicing activities are outsourced to X X
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 transaction agreements to N/A N/A
maintain a back-up servicer for the Pool Assets are
maintained.
1122(D)(1)(IV) A fidelity bond and errors and omissions policy is in X
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 deposited into the X X
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.
1122(D)(2)(II) Disbursements made via wire transfer on behalf of an X X
obligor or to an investor are made only by authorized
personnel.
1122(D)(2)(III) Advances of funds or guarantees regarding collections, X
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 transaction, such as cash X X
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.
K-1
SECURITIES MASTER
REG AB REFERENCE SERVICING CRITERIA ADMINISTRATOR SERVICER
---------------- -------------------------------------------------------- ------------- --------
1122(D)(2)(V) Each custodial account is maintained at a federally X X
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 so as to prevent
unauthorized access.
1122(D)(2)(VII) Reconciliations are prepared on a monthly basis for all X X
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank
statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed
and approved by someone other than the person who
prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling
items are resolved within 90 calendar days of their
original identification, or such other number of days
specified in the transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(D)(3)(I) Reports to investors, including those to be filed with X X
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 allocated and remitted in X X
accordance with timeframes, distribution priority and
other terms set forth in the transaction agreements.
1122(D)(3)(III) Disbursements made to an investor are posted within two X X
business days to the Servicer's investor records, or
such other number of days specified in the transaction
agreements.
1122(D)(3)(IV) Amounts remitted to investors per the investor reports X X
agree with cancelled checks, or other form of payment,
or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(D)(4)(I) Collateral or security on pool assets is maintained as
required by the transaction agreements or related pool
asset documents.
1122(D)(4)(II) Pool assets and related documents are safeguarded as
required by the transaction agreements
1122(D)(4)(III) Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance with
any conditions or requirements in the transaction
agreements.
K-2
SECURITIES MASTER
REG AB REFERENCE SERVICING CRITERIA ADMINISTRATOR SERVICER
---------------- -------------------------------------------------------- ------------- --------
1122(D)(4)(IV) Payments on pool assets, including any payoffs, made in
accordance with the related pool asset documents are
posted to the Servicer's obligor records maintained no
more than two business days after receipt, or such other
number of days specified in the transaction agreements,
and allocated to principal, interest or other items
(e.g., escrow) in accordance with the related pool asset
documents.
1122(D)(4)(V) The Servicer's records regarding the pool assets agree
with the Servicer's records with respect to an obligor's
unpaid principal balance.
1122(D)(4)(VI) Changes with respect to the terms or status of an
obligor's pool assets (e.g., loan modifications or
re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements
and related pool asset documents.
1122(D)(4)(VII) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by the
transaction agreements.
1122(D)(4)(VIII) Records documenting collection efforts are maintained
during the period a pool asset is delinquent in
accordance with the transaction agreements. Such records
are maintained on at least a monthly basis, or such
other period specified in the transaction agreements,
and describe the entity's activities in monitoring
delinquent pool assets including, for example, phone
calls, letters and payment rescheduling plans in cases
where delinquency is deemed temporary (e.g., illness or
unemployment).
1122(D)(4)(IX) Adjustments to interest rates or rates of return for
pool assets with variable rates are computed based on
the related pool asset documents.
1122(D)(4)(X) Regarding any funds held in trust for an obligor (such
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's pool asset documents, on
at least an annual basis, or such other period specified
in the transaction agreements; (B) interest on such
funds is paid, or credited, to obligors in accordance
with applicable pool asset documents and state laws; and
(C) such funds are returned to the obligor within 30
calendar days of full repayment of the related pool
assets, or such other number of days specified in the
transaction agreements.
1122(D)(4)(XI) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at
least 30 calendar days prior to these dates, or such
other number of days specified in the transaction
agreements.
1122(D)(4)(XII) Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid from
the Servicer's funds and not charged to the obligor,
unless the late payment was due to the obligor's error
or omission.
K-3
SECURITIES MASTER
REG AB REFERENCE SERVICING CRITERIA ADMINISTRATOR SERVICER
---------------- -------------------------------------------------------- ------------- --------
1122(D)(4)(XIII) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of days
specified in the transaction agreements.
1122(D)(4)(XIV) Delinquencies, charge-offs and uncollectible accounts X
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.
K-4
EXHIBIT L
FORM OF XXXXXXXX-XXXXX CERTIFICATION
[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, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-A2
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 Alternative Note Asset Trust, Series 2007-A2 (the "Exchange Act
periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports, taken as a whole,
do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act periodic reports;
4. [I am responsible for reviewing the activities performed by 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.
L-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]
L-2
EXHIBIT M
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 Alternative Note Asset Trust, Series 2007-A2
[_______], the [_______] of [_______] (the "Company") hereby certifies to the
Depositor, the Master Servicer and the Securities Administrator, and each of
their officers, directors and affiliates that:
(1) I have reviewed [the servicer compliance statement of the Company provided
in accordance with Item 1123 of Regulation AB (the "Compliance Statement"),] the
report on assessment of the Company'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 Company during 200[ ] that were delivered
by the Company to any of the Depositor, the Master Servicer and the Trustee
pursuant to the Agreement (collectively, the "Company Servicing Information");
(2) Based on my knowledge, the Company 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 Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information required to
be provided by the Company 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 Company has fulfilled its obligations under the
Agreement in all material respects; and
M-1
(5) [The Compliance Statement required to be delivered by the Company pursuant
to the Agreement, and] [The] [the] Servicing Assessment and Attestation Report
required to be provided by the Company and [by any Subservicer 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 March 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") and
HSBC Bank USA, National Association, as trustee (the "Trustee").
[_______]
as [_______]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
M-2
(RBS LOGO)
The Royal Bank of Scotland
EXHIBIT N-1
FORM OF CLASS A-1 CORRIDOR CONTRACT
Date: March 30, 2007
To: Xxxxx Fargo Bank, N.A., not individually, but solely as
securities administrator (the "SECURITIES ADMINISTRATOR")
for the Issuing Entity with respect to the Xxxxxxx Xxxxx
Alternative Note Asset Trust, Series 2007-A2
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Client Manager - MANA 2007-A2
Fax: (000) 000-0000
Phone: (000) 000-0000
To: Xxxxxxx Xxxxx Mortgage Lending, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X'Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
From: The Royal Bank of Scotland plc
c/o RBS Financial Markets
Xxxxx 0, 000 Xxxxxxxxxxx
Xxxxxx XX0X 3UR
Attn: Swaps Administration
Tel: 00 000 000 0000
Fax: 00 000 000 0000
Copy To: 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Legal Department - Derivatives Documentation
Tel.: 000-000-0000/32
Fax: 000-000-0000/34
Our Reference No.: IRG16228554.2A/2B
Re: Interest Rate Corridor Transaction
N-1-1
Ladies and Gentlemen:
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between Royal Bank of Scotland plc ("Party A") and
Xxxxx Fargo Bank, N.A., not individually, but solely as Securities Administrator
for the Issuing Entity (the "Issuing Entity") created under the Pooling and
Servicing Agreement ("Party B") on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions") as published by the International Swaps and Derivatives
Association, Inc. are incorporated by reference herein. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
For the purpose of this Confirmation, all references in the Definitions or the
Agreement to a "Swap Transaction" shall be deemed to be references to this
Transaction.
1. This Confirmation supplements, forms part of, and is subject to, ISDA
Master Agreement and Schedule dated as of March 30, 2007 (as the same may
be amended or supplemented from time to time, the "Agreement"), between
Party A and Party B. All provisions contained in the Agreement shall govern
this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation Period, the
lesser of (i) the amount set forth on Schedule
A attached hereto and (ii) the aggregate
Certificate Balance of the Class A-1
Certificates and the Class R Certificates
(together, the "Certificates") as of the first
day of such Calculation Period (the "Relevant
Balance").
The Securities Administrator shall make
available each month on its website a statement
containing the Relevant Balance at least five
(5) Business Days prior to the related Floating
Rate Payer Payment Date, and Party A shall be
entitled to rely conclusively upon such
statement. The Securities Administrator's
internet website is located at
xxxx://xxx.xxxxxxx.xxx and assistance in using
the website can be obtained by calling
000-000-0000.
Any payment by Party A to Party B in excess of
the amount due under this Transaction on any
Floating Rate Payer Payment Date (as a result
of the Notional Amount for the related
Calculation Period being other than the amount
set forth in Schedule A
N-1-2
hereto for such Calculation Period) shall be
returned by Party B to Party A as soon as Party
B becomes aware of such overpayment. Other than
the return of such overpayment, neither Party B
nor Party A shall incur any penalty or
liability hereunder with respect to such
overpayment.
Trade Date: March 27, 2007
Effective Date: Xxxxx 00, 0000
Xxxxxxxxxxx Date: September 25, 2007, subject to adjustment in
accordance with the Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment
Date: March 30, 2007
Fixed Amount: [__________]
Floating Amounts:
Floating Rate Payer: Party A
Cap Rate: For each Floating Payer Period End Date the
percentage set forth in Schedule A as the Cap
Rate for such Floating Rate Payer Period End
Date.
Floating Rate Payer The 25th day of each month, commencing April
Period End Dates: 25, 2007, through and including the Termination
Date, subject to adjustment in accordance with
the Business Day Convention.
Floating Rate Payer Early Payment shall be applicable. The Floating
Payment Dates: Rate Payer Payment Dates shall be one (1)
Business Day prior to each Floating Rate Payer
Period End Date.
Floating Rate Option: USD-LIBOR-BBA, provided, however, that if the
Floating Rate Option for any Calculation Period
is greater than 10.290%, then the Floating Rate
Option for such
N-1-3
Calculation Period shall be deemed to be
10.290%
Designated Maturity: 1 month
Spread: None
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable:
Calculation Agent: Party A
Business Days: New York
Business Day Convention Modified Following
3. Account Details:
Account Details for Party A:
For the account of The Royal Bank of Scotland
Financial Markets Fixed Income and Interest Rate
Derivative Operations, London SWIFT XXXXXX0XXXX
with JPMorgan Chase Bank, New York XXXXXX00
ABA # 000000000
Account Number 400930153
Account Details for Party B:
Xxxxx Fargo Bank, N.A.
San Francisco, California
ABA#: 000-000-000
Account#: 0000000000
Account Name: SAS Clearing
FFC#: 53135103; Corridor Contract Account
Ref: MANA 2007-A2
4. Offices:
The Office of Party A for this Transaction is London, England.
N-1-4
The Office of Party B for this Transaction is Columbia, MD.
5. It is expressly understood and agreed by the parties hereto that (i) this
Confirmation is executed and delivered by Xxxxx Fargo Bank, N.A., not
individually or personally but solely as Securities Administrator of the
Issuing Entity, in the exercise of the powers and authority conferred and
vested in it under the Pooling and Servicing Agreement, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuing Entity is made and intended not as personal representations,
undertakings and agreements by Xxxxx Fargo Bank, N.A. but is made and
intended for the purpose of binding only the Issuing Entity, (iii) nothing
herein contained shall be construed as creating any liability on the part
of Xxxxx Fargo Bank, N.A., individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto and (iv) under no
circumstances shall Xxxxx Fargo Bank, N.A. be personally liable for the
payment of any indebtedness or expenses of the Issuing Entity or be
personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Party B under
this Confirmation or any other related documents.
6. Agency Role of Greenwich Capital Markets, Inc. This Transaction has been
entered into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A under this
Transaction.
7. MLML Shall Not Benefit. The parties hereto agree and acknowledge that
amounts paid hereunder are not intended to benefit the holder of any class
of certificates rated by any rating agency if such holder is Xxxxxxx Xxxxx
Mortgage Lending, Inc. ("MLML") or any of its affiliates. If MLML or any of
its affiliates receives any such amounts, it will promptly remit (or, if
such amounts are received by an affiliate of MLML, MLML hereby agrees that
it will cause such affiliate to promptly remit) such amounts to the
Securities Administrator (as defined in the Pooling and Servicing
Agreement), whereupon the Securities Administrator (as defined in the
Pooling and Servicing Agreement) will promptly remit such amounts to the
Cap Provider.
8. In the event that the transaction to which the Pooling and Servicing
Agreement relates does not occur, and the Xxxxxxx Xxxxx Alternative Note
Asset Trust, Series 2007-A2 is not formed, Party A and MLML agree that MLML
shall become Party B under this Confirmation.
[Signature Page Immediately Follows]
N-1-5
Please promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
The Royal Bank of Scotland plc
Attention: Derivatives Documentation
Fax: 0000 000 0000 / 6486 Phone: 0000 000 0000
For and on behalf of For and on behalf of
THE ROYAL BANK OF SCOTLAND PLC XXXXX FARGO BANK, N.A., NOT
BY: GREENWICH CAPITAL MARKETS, INC., INDIVIDUALLY, BUT SOLELY AS SECURITIES
ITS AGENT ADMINISTRATOR FOR THE ISSUING ENTITY
WITH RESPECT TO THE XXXXXXX XXXXX
ALTERNATIVE NOTE ASSET TRUST, SERIES
2007-A2
------------------------------------- ----------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
For and on behalf of
XXXXXXX XXXXX MORTGAGE LENDING INC.
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
N-1-6
SCHEDULE A
All dates subject to adjustment in accordance with the Modified Following
Business Day Convention.
From and To but Notional
including: excluding: Amount (USD): Cap Rate:
---------- ---------- ------------- ---------
3/30/2007 4/25/2007 180,475,000 7.476
4/25/2007 5/25/2007 174,570,577 6.451
5/25/2007 6/25/2007 168,844,614 6.236
6/25/2007 7/25/2007 163,293,030 6.451
7/25/2007 8/25/2007 157,910,561 6.237
8/25/2007 9/25/2007 152,692,098 6.237
N-1-7
(RBS LOGO)
The Royal Bank of Scotland
FORM N-2
FORM OF CLASS A-2 CORRIDOR CONTRACT
Date: March 30, 2007
To: Xxxxx Fargo Bank, N.A., not individually, but solely as
securities administrator (the "SECURITIES ADMINISTRATOR") for
the Issuing Entity with respect to the Xxxxxxx Xxxxx
Alternative Note Asset Trust, Series 2007-A2
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Client Manager - MANA 2007-A2
Fax: (000) 000-0000
Phone: (000) 000-0000
To: Xxxxxxx Xxxxx Mortgage Lending, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X'Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
From: The Royal Bank of Scotland plc
c/o RBS Financial Markets
Xxxxx 0, 000 Xxxxxxxxxxx
Xxxxxx XX0X 3UR
Attn: Swaps Administration
Tel: 00 000 000 0000
Fax: 00 000 000 0000
Copy To: 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Legal Department - Derivatives Documentation
Tel.: 000-000-0000/32
Fax: 000-000-0000/34
Our Reference No.: IRG16228563.2A/2B
Re: Interest Rate Corridor Transaction
N-2-1
Ladies and Gentlemen:
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between Royal Bank of Scotland plc ("Party A") and
Xxxxx Fargo Bank, N.A., not individually, but solely as Securities Administrator
for the Issuing Entity (the "Issuing Entity") created under the Pooling and
Servicing Agreement ("Party B") on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions") as published by the International Swaps and Derivatives
Association, Inc. are incorporated by reference herein. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
For the purpose of this Confirmation, all references in the Definitions or the
Agreement to a "Swap Transaction" shall be deemed to be references to this
Transaction.
1. This Confirmation supplements, forms part of, and is subject to, ISDA
Master Agreement and Schedule dated as of March 30, 2007 (as the same may
be amended or supplemented from time to time, the "Agreement"), between
Party A and Party B. All provisions contained in the Agreement shall govern
this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation Period, the
lesser of (i) the amount set forth on Schedule
A attached hereto and (ii) the aggregate
Certificate Balance of the Class A-2A
Certificates and the Class A-2B Certificates
(together, the "Certificates") as of the first
day of such Calculation Period (the "Relevant
Balance").
The Securities Administrator shall make
available each month on its website a statement
containing the Relevant Balance at least five
(5) Business Days prior to the related Floating
Rate Payer Payment Date, and Party A shall be
entitled to rely conclusively upon such
statement. The Securities Administrator's
internet website is located at
xxxx://xxx.xxxxxxx.xxx and assistance in using
the website can be obtained by calling
000-000-0000.
Any payment by Party A to Party B in excess of
the amount due under this Transaction on any
Floating Rate Payer Payment Date (as a result
of the Notional Amount for the related
Calculation Period
N-2-2
being other than the amount set forth in
Schedule A hereto for such Calculation Period)
shall be returned by Party B to Party A as soon
as Party B becomes aware of such overpayment.
Other than the return of such overpayment,
neither Party B nor Party A shall incur any
penalty or liability hereunder with respect to
such overpayment.
Trade Date: March 27, 2007
Effective Date: Xxxxx 00, 0000
Xxxxxxxxxxx Date: September 25, 2007, subject to adjustment in
accordance with the Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment March 30, 2007
Date:
Fixed Amount: [__________]
Floating Amounts:
Floating Rate Payer: Party A
Cap Rate: For each Floating Payer Period End Date the
percentage set forth in Schedule A as the Cap
Rate for such Floating Rate Payer Period End
Date.
Floating Rate Payer Period The 25th day of each month, commencing April
End Dates: 25, 2007, through and including the Termination
Date, subject to adjustment in accordance with
the Business Day Convention.
Floating Rate Payer Payment Early Payment shall be applicable. The Floating
Dates: Rate Payer Payment Dates shall be one (1)
Business Day prior to each Floating Rate Payer
Period End Date.
Floating Rate Option: USD-LIBOR-BBA, provided, however, that if the
Floating Rate Option for any Calculation Period
is greater
N-2-3
than 10.290%, then the Floating Rate Option for
such Calculation Period shall be deemed to be
10.290%
Designated Maturity: 1 month
Spread: None
Floating Rate Day Count
Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable:
Calculation Agent: Party A
Business Days: New York
Business Day Convention Modified Following
3. Account Details:
Account Details for Party A:
For the account of The Royal Bank of Scotland
Financial Markets Fixed Income and Interest Rate
Derivative Operations, London SWIFT XXXXXX0XXXX
with JPMorgan Chase Bank, New York XXXXXX00
ABA # 000000000
Account Number 400930153
Account Details for Party B:
Xxxxx Fargo Bank, N.A.
San Francisco, California
ABA#: 000-000-000
Account#: 0000000000
Account Name: SAS Clearing
FFC#: 53135103; Corridor Contract Account
Ref: MANA 2007-A2
4. Offices:
N-2-4
The Office of Party A for this Transaction is London, England.
The Office of Party B for this Transaction is Columbia, MD.
5. It is expressly understood and agreed by the parties hereto that (i) this
Confirmation is executed and delivered by Xxxxx Fargo Bank, N.A., not
individually or personally but solely as Securities Administrator of the
Issuing Entity, in the exercise of the powers and authority conferred and
vested in it under the Pooling and Servicing Agreement, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuing Entity is made and intended not as personal representations,
undertakings and agreements by Xxxxx Fargo Bank, N.A. but is made and
intended for the purpose of binding only the Issuing Entity, (iii) nothing
herein contained shall be construed as creating any liability on the part
of Xxxxx Fargo Bank, N.A., individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto and (iv) under no
circumstances shall Xxxxx Fargo Bank, N.A. be personally liable for the
payment of any indebtedness or expenses of the Issuing Entity or be
personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Party B under
this Confirmation or any other related documents.
6. Agency Role of Greenwich Capital Markets, Inc. This Transaction has been
entered into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A under this
Transaction.
7. MLML Shall Not Benefit. The parties hereto agree and acknowledge that
amounts paid hereunder are not intended to benefit the holder of any class
of certificates rated by any rating agency if such holder is Xxxxxxx Xxxxx
Mortgage Lending, Inc. ("MLML") or any of its affiliates. If MLML or any of
its affiliates receives any such amounts, it will promptly remit (or, if
such amounts are received by an affiliate of MLML, MLML hereby agrees that
it will cause such affiliate to promptly remit) such amounts to the
Securities Administrator (as defined in the Pooling and Servicing
Agreement), whereupon the Securities Administrator (as defined in the
Pooling and Servicing Agreement) will promptly remit such amounts to the
Cap Provider.
8. In the event that the transaction to which the Pooling and Servicing
Agreement relates does not occur, and the Xxxxxxx Xxxxx Alternative Note
Asset Trust, Series 2007-A2 is not formed, Party A and MLML agree that MLML
shall become Party B under this Confirmation.
[Signature Page Immediately Follows]
N-2-5
Please promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
The Royal Bank of Scotland plc
Attention: Derivatives Documentation
Fax: 0000 000 0000 / 6486 Phone: 0000 000 0000
For and on behalf of For and on behalf of
THE ROYAL BANK OF SCOTLAND PLC XXXXX FARGO BANK, N.A., NOT
BY: GREENWICH CAPITAL MARKETS, INC., INDIVIDUALLY, BUT SOLELY AS SECURITIES
ITS AGENT ADMINISTRATOR FOR THE ISSUING ENTITY
WITH RESPECT TO THE XXXXXXX XXXXX
ALTERNATIVE NOTE ASSET TRUST, SERIES
2007-A2
------------------------------------- ----------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------ ---------------------------------
For and on behalf of
XXXXXXX XXXXX MORTGAGE LENDING INC.
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
N-2-6
SCHEDULE A
All dates subject to adjustment in accordance with the Modified Following
Business Day Convention.
From and To but Notional Cap
including: excluding: Amount (USD): Rate:
---------- ---------- ------------- -----
3/30/2007 4/25/2007 183,585,000 7.304
4/25/2007 5/25/2007 177,536,981 6.307
5/25/2007 6/25/2007 171,672,908 6.097
6/25/2007 7/25/2007 165,988,369 6.307
7/25/2007 8/25/2007 160,477,921 6.097
8/25/2007 9/25/2007 155,136,284 6.097
N-2-7
(RBS LOGO)
The Royal Bank of Scotland
EXHIBIT N-3
FORM OF CLASS A-3 CORRIDOR CONTRACT
Date: March 30, 2007
To: Xxxxx Fargo Bank, N.A., not individually, but solely as
securities administrator (the "SECURITIES ADMINISTRATOR") for
the Issuing Entity with respect to the Xxxxxxx Xxxxx
Alternative Note Asset Trust, Series 2007-A2
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Client Manager - MANA 2007-A2
Fax: (000) 000-0000
Phone: (000) 000-0000
To: Xxxxxxx Xxxxx Mortgage Lending, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X'Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
From: The Royal Bank of Scotland plc
c/o RBS Financial Markets
Xxxxx 0, 000 Xxxxxxxxxxx
Xxxxxx XX0X 3UR
Attn: Swaps Administration
Tel: 00 000 000 0000
Fax: 00 000 000 0000
Copy To: 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Legal Department - Derivatives Documentation
Tel.: 000-000-0000/32
Fax: 000-000-0000/34
Our Reference No.: IRG16228566.2A/2B
Re: Interest Rate Corridor Transaction
N-3-1
Ladies and Gentlemen:
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between Royal Bank of Scotland plc ("Party A") and
Xxxxx Fargo Bank, N.A., not individually, but solely as Securities Administrator
for the Issuing Entity (the "Issuing Entity") created under the Pooling and
Servicing Agreement ("Party B") on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions") as published by the International Swaps and Derivatives
Association, Inc. are incorporated by reference herein. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
For the purpose of this Confirmation, all references in the Definitions or the
Agreement to a "Swap Transaction" shall be deemed to be references to this
Transaction.
1. This Confirmation supplements, forms part of, and is subject to, ISDA
Master Agreement and Schedule dated as of March 30, 2007 (as the same may
be amended or supplemented from time to time, the "Agreement"), between
Party A and Party B. All provisions contained in the Agreement shall govern
this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation Period, the
lesser of (i) the amount set forth on Schedule
A attached hereto and (ii) the aggregate
Certificate Balance of the Class A-3
Certificates (the "Certificates") as of the
first day of such Calculation Period (the
"Relevant Balance").
The Securities Administrator shall make
available each month on its website a statement
containing the Relevant Balance at least five
(5) Business Days prior to the related Floating
Rate Payer Payment Date, and Party A shall be
entitled to rely conclusively upon such
statement. The Securities Administrator's
internet website is located at
xxxx://xxx.xxxxxxx.xxx and assistance in using
the website can be obtained by calling
000-000-0000.
Any payment by Party A to Party B in excess of
the amount due under this Transaction on any
Floating Rate Payer Payment Date (as a result
of the
N-3-2
Notional Amount for the related Calculation
Period being other than the amount set forth in
Schedule A hereto for such Calculation Period)
shall be returned by Party B to Party A as soon
as Party B becomes aware of such overpayment.
Other than the return of such overpayment,
neither Party B nor Party A shall incur any
penalty or liability hereunder with respect to
such overpayment.
Trade Date: March 27, 2007
Effective Date: Xxxxx 00, 0000
Xxxxxxxxxxx Date: September 25, 2007, subject to adjustment in
accordance with the Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment March 30, 2007
Date:
Fixed Amount: [__________]
Floating Amounts:
Floating Rate Payer: Party A
Cap Rate: For each Floating Payer Period End Date the
percentage set forth in Schedule A as the Cap
Rate for such Floating Rate Payer Period End
Date.
Floating Rate Payer Period The 25th day of each month, commencing April
End Dates: 25, 2007, through and including the Termination
Date, subject to adjustment in accordance with
the Business Day Convention.
Floating Rate Payer Payment Early Payment shall be applicable. The Floating
Dates: Rate Payer Payment Dates shall be one (1)
Business Day prior to each Floating Rate Payer
Period End Date.
N-3-3
Floating Rate Option: USD-LIBOR-BBA, provided, however, that if the
Floating Rate Option for any Calculation Period
is greater than 10.311%, then the Floating Rate
Option for such Calculation Period shall be
deemed to be 10.311%
Designated Maturity: 1 month
Spread: None
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable:
Calculation Agent: Party A
Business Days: New York
Business Day Convention Modified Following
3. Account Details:
Account Details for Party A:
For the account of The Royal Bank of Scotland
Financial Markets Fixed Income and Interest Rate
Derivative Operations, London SWIFT XXXXXX0XXXX
with JPMorgan Chase Bank, New York XXXXXX00
ABA # 000000000
Account Number 400930153
Account Details for Party B:
Xxxxx Fargo Bank, N.A.
San Francisco, California
ABA#: 000-000-000
Account#: 0000000000
Account Name: SAS Clearing
FFC#: 53135103; Corridor Contract Account
Ref: MANA 2007-A2
N-3-4
4. Offices:
The Office of Party A for this Transaction is London, England.
The Office of Party B for this Transaction is Columbia, MD.
5. It is expressly understood and agreed by the parties hereto that (i) this
Confirmation is executed and delivered by Xxxxx Fargo Bank, N.A., not
individually or personally but solely as Securities Administrator of the
Issuing Entity, in the exercise of the powers and authority conferred and
vested in it under the Pooling and Servicing Agreement, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuing Entity is made and intended not as personal representations,
undertakings and agreements by Xxxxx Fargo Bank, N.A. but is made and
intended for the purpose of binding only the Issuing Entity, (iii) nothing
herein contained shall be construed as creating any liability on the part
of Xxxxx Fargo Bank, N.A., individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto and (iv) under no
circumstances shall Xxxxx Fargo Bank, N.A. be personally liable for the
payment of any indebtedness or expenses of the Issuing Entity or be
personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Party B under
this Confirmation or any other related documents.
6. Agency Role of Greenwich Capital Markets, Inc. This Transaction has been
entered into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A under this
Transaction.
7. MLML Shall Not Benefit. The parties hereto agree and acknowledge that
amounts paid hereunder are not intended to benefit the holder of any class
of certificates rated by any rating agency if such holder is Xxxxxxx Xxxxx
Mortgage Lending, Inc. ("MLML") or any of its affiliates. If MLML or any of
its affiliates receives any such amounts, it will promptly remit (or, if
such amounts are received by an affiliate of MLML, MLML hereby agrees that
it will cause such affiliate to promptly remit) such amounts to the
Securities Administrator (as defined in the Pooling and Servicing
Agreement), whereupon the Securities Administrator (as defined in the
Pooling and Servicing Agreement) will promptly remit such amounts to the
Cap Provider.
8. In the event that the transaction to which the Pooling and Servicing
Agreement relates does not occur, and the Xxxxxxx Xxxxx Alternative Note
Asset Trust, Series 2007-A2 is not formed, Party A and MLML agree that MLML
shall become Party B under this Confirmation.
[Signature Page Immediately Follows]
N-3-5
Please promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
The Royal Bank of Scotland plc
Attention: Derivatives Documentation
Fax: 0000 000 0000 / 6486 Phone: 0000 000 0000
For and on behalf of For and on behalf of
THE ROYAL BANK OF SCOTLAND PLC XXXXX FARGO BANK, N.A., NOT
BY: GREENWICH CAPITAL MARKETS, INC., INDIVIDUALLY, BUT SOLELY AS SECURITIES
ITS AGENT ADMINISTRATOR FOR THE ISSUING ENTITY
WITH RESPECT TO THE XXXXXXX XXXXX
ALTERNATIVE NOTE ASSET TRUST, SERIES
2007-A2
------------------------------------- ----------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
For and on behalf of
XXXXXXX XXXXX MORTGAGE LENDING INC.
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
N-3-6
SCHEDULE A
All dates subject to adjustment in accordance with the Modified Following
Business Day Convention.
From and To but Notional Cap
including: excluding: Amount (USD): Rate:
---------- ---------- ------------- -----
3/30/2007 4/25/2007 465,266,000 7.410
4/25/2007 5/25/2007 449,969,009 6.397
5/25/2007 6/25/2007 435,136,107 6.185
6/25/2007 7/25/2007 420,756,632 6.397
7/25/2007 8/25/2007 406,816,852 6.185
8/25/2007 9/25/2007 393,303,449 6.185
N-3-7
(RBS LOGO)
The Royal Bank of Scotland
EXHIBIT N-4
FORM OF SUBORDINATE CERTIFICATE CORRIDOR CONTRACT
Date: March 30, 2007
To: Xxxxx Fargo Bank, N.A., not individually, but solely as
securities administrator (the "SECURITIES ADMINISTRATOR") for
the Issuing Entity with respect to the Xxxxxxx Xxxxx
Alternative Note Asset Trust, Series 2007-A2
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Client Manager - MANA 2007-A2
Fax: (000) 000-0000
Phone: (000) 000-0000
To: Xxxxxxx Xxxxx Mortgage Lending, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X'Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
From: The Royal Bank of Scotland plc
c/o RBS Financial Markets
Xxxxx 0, 000 Xxxxxxxxxxx
Xxxxxx XX0X 3UR
Attn: Swaps Administration
Tel: 00 000 000 0000
Fax: 00 000 000 0000
Copy To: 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Legal Department - Derivatives Documentation
Tel.: 000-000-0000/32
Fax: 000-000-0000/34
Our Reference No.: IRG16229031.2A/2B
Re: Interest Rate Corridor Transaction
N-4-1
Ladies and Gentlemen:
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between Royal Bank of Scotland plc ("Party A") and
Xxxxx Fargo Bank, N.A., not individually, but solely as Securities Administrator
for the Issuing Entity (the "Issuing Entity") created under the Pooling and
Servicing Agreement ("Party B") on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions") as published by the International Swaps and Derivatives
Association, Inc. are incorporated by reference herein. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
For the purpose of this Confirmation, all references in the Definitions or the
Agreement to a "Swap Transaction" shall be deemed to be references to this
Transaction.
1. This Confirmation supplements, forms part of, and is subject to, ISDA
Master Agreement and Schedule dated as of March 30, 2007 (as the same may
be amended or supplemented from time to time, the "Agreement"), between
Party A and Party B. All provisions contained in the Agreement shall govern
this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation Period,
the lesser of (i) the amount set forth
on Schedule A attached hereto and (ii)
the aggregate Certificate Balance of the
Class M Certificates and the Class B
Certificates (together, the
"Certificates") as of the first day of
such Calculation Period (the "Relevant
Balance").
The Securities Administrator shall make
available each month on its website a
statement containing the Relevant
Balance at least five (5) Business Days
prior to the related Floating Rate Payer
Payment Date, and Party A shall be
entitled to rely conclusively upon such
statement. The Securities
Administrator's internet website is
located at xxxx://xxx.xxxxxxx.xxx and
assistance in using the website can be
obtained by calling 000-000-0000.
Any payment by Party A to Party B in
excess of the amount due under this
Transaction on any Floating Rate Payer
Payment Date (as a result of the
Notional Amount for the related
Calculation Period being other than the
amount set forth in Schedule A hereto
for such Calculation Period) shall be
returned
N-4-2
by Party B to Party A as soon as Party B
becomes aware of such overpayment. Other
than the return of such overpayment,
neither Party B nor Party A shall incur
any penalty or liability hereunder with
respect to such overpayment.
Trade Date: March 27, 2007
Effective Date: Xxxxx 00, 0000
Xxxxxxxxxxx Date: September 25, 2007, subject to
adjustment in accordance with the
Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Date: March 30, 2007
Fixed Amount: [__________]
Floating Amounts:
Floating Rate Payer: Party A
Cap Rate: For each Floating Payer Period End Date
the percentage set forth in Schedule A
as the Cap Rate for such Floating Rate
Payer Period End Date.
Floating Rate Payer Period End The 25th day of each month, commencing
Dates: April 25, 2007, through and including
the Termination Date, subject to
adjustment in accordance with the
Business Day Convention.
Floating Rate Payer Payment Early Payment shall be applicable. The
Dates: Floating Rate Payer Payment Dates shall
be one (1) Business Day prior to each
Floating Rate Payer Period End Date.
Floating Rate Option: USD-LIBOR-BBA, provided, however, that
if the Floating Rate Option for any
Calculation Period is greater than
9.986%, then the Floating Rate Option
for such
N-4-3
Calculation Period shall be deemed to be
9.986%
Designated Maturity: 1 month
Spread: None
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable:
Calculation Agent: Party A
Business Days: New York
Business Day Convention Modified Following
3. Account Details:
Account Details for Party A:
For the account of The Royal Bank of Scotland
Financial Markets Fixed Income and Interest Rate
Derivative Operations, London SWIFT XXXXXX0XXXX
with JPMorgan Chase Bank, New York XXXXXX00
ABA # 000000000
Account Number 400930153
Account Details for Party B:
Xxxxx Fargo Bank, N.A.
San Francisco, California
ABA#: 000-000-000
Account#: 0000000000
Account Name: SAS Clearing
FFC#: 53135103; Corridor Contract Account
Ref: MANA 2007-A2
4. Offices:
The Office of Party A for this Transaction is London, England.
N-4-4
The Office of Party B for this Transaction is Columbia, MD.
5. It is expressly understood and agreed by the parties hereto that (i) this
Confirmation is executed and delivered by Xxxxx Fargo Bank, N.A., not
individually or personally but solely as Securities Administrator of the
Issuing Entity, in the exercise of the powers and authority conferred and
vested in it under the Pooling and Servicing Agreement, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuing Entity is made and intended not as personal representations,
undertakings and agreements by Xxxxx Fargo Bank, N.A. but is made and
intended for the purpose of binding only the Issuing Entity, (iii) nothing
herein contained shall be construed as creating any liability on the part
of Xxxxx Fargo Bank, N.A., individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto and (iv) under no
circumstances shall Xxxxx Fargo Bank, N.A. be personally liable for the
payment of any indebtedness or expenses of the Issuing Entity or be
personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Party B under
this Confirmation or any other related documents.
6. Agency Role of Greenwich Capital Markets, Inc. This Transaction has been
entered into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A under this
Transaction.
7. MLML Shall Not Benefit. The parties hereto agree and acknowledge that
amounts paid hereunder are not intended to benefit the holder of any class
of certificates rated by any rating agency if such holder is Xxxxxxx Xxxxx
Mortgage Lending, Inc. ("MLML") or any of its affiliates. If MLML or any of
its affiliates receives any such amounts, it will promptly remit (or, if
such amounts are received by an affiliate of MLML, MLML hereby agrees that
it will cause such affiliate to promptly remit) such amounts to the
Securities Administrator (as defined in the Pooling and Servicing
Agreement), whereupon the Securities Administrator (as defined in the
Pooling and Servicing Agreement) will promptly remit such amounts to the
Cap Provider.
8. In the event that the transaction to which the Pooling and Servicing
Agreement relates does not occur, and the Xxxxxxx Xxxxx Alternative Note
Asset Trust, Series 2007-A2 is not formed, Party A and MLML agree that MLML
shall become Party B under this Confirmation.
[Signature Page Immediately Follows]
N-4-5
Please promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
The Royal Bank of Scotland plc
Attention: Derivatives Documentation
Fax: 0000 000 0000 / 6486 Phone: 0000 000 0000
For and on behalf of For and on behalf of
THE ROYAL BANK OF SCOTLAND PLC XXXXX FARGO BANK, N.A., NOT
BY: GREENWICH CAPITAL MARKETS, INC., INDIVIDUALLY, BUT SOLELY AS SECURITIES
ITS AGENT ADMINISTRATOR FOR THE ISSUING ENTITY
WITH RESPECT TO THE XXXXXXX XXXXX
ALTERNATIVE NOTE ASSET TRUST, SERIES
2007-A2
------------------------------------- ----------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
For and on behalf of
XXXXXXX XXXXX MORTGAGE LENDING INC.
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
N-4-6
SCHEDULE A
All dates subject to adjustment in accordance with the Modified Following
Business Day Convention.
From and including: To but excluding: Notional Amount (USD): Cap Rate:
------------------- ----------------- ---------------------- ---------
3/30/2007 4/25/2007 44,061,000 7.086
4/25/2007 5/25/2007 44,061,000 6.074
5/25/2007 6/25/2007 44,061,000 5.861
6/25/2007 7/25/2007 44,061,000 6.074
7/25/2007 8/25/2007 44,061,000 5.861
8/25/2007 9/25/2007 44,061,000 5.861
N-4-7
EXHIBIT O
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 Alternative Note Asset Trust, Series 2007-A2
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section 3.18(b) of the Pooling and Servicing Agreement, dated
as of March 1, 2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor,
Xxxxx Fargo Bank, N.A., as master servicer and securities administrator and HSBC
Bank USA, National Association, as trustee, the undersigned, as [_____], hereby
notifies you that certain events have come to our attention that [will] [may]
need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to [_____],
phone number: [_____]; email address: [_____].
[NAME OF PARTY],
as [role]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
O-1
EXHIBIT P
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, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-A2 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 [related servicing
agreement] (the "Servicing Agreement") 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 related Servicing 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]
P-1
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
P-2
EXHIBIT Q-1
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 is NOT Depositor
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 the Servicer
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. Pricing information can be
omitted if securities were not registered.
Q-1-1
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
--------------------------------------------- --------------------------------
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 Event of Default
(after expiration of any grace period and
provision of any required notice)
ITEM 5: SUBMISSION OF MATTERS TO A VOTE OF Securities Administrator
SECURITY HOLDERS Trustee
Information from Item 4 of Part II of Form
10-Q
ITEM 6: SIGNIFICANT OBLIGORS OF POOL ASSETS Depositor
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 probable Depositor
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 Items.
Q-1-2
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
--------------------------------------------- --------------------------------
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 Regulation Depositor
S-K, such as material agreements
Q-1-3
EXHIBIT Q-2
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 Information* Depositor
* This information need only be reported
on the Form 10-K if updated information
is required pursuant to the Item.
REG AB ITEM 1114(B)(2): CREDIT ENHANCEMENT
PROVIDER FINANCIAL INFORMATION
- Determining applicable disclosure 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 probable Depositor
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, that is material to
Certificateholders, including any proceeding
known to be contemplated by
Q-2-1
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
--------------------------------------------- --------------------------------
governmental authorities:
- Issuing Entity (Trust Fund) Trustee, Master Servicer,
Securities Administrator and
Depositor
- Sponsor (Seller) Seller (if a party to the
Pooling and Servicing Agreement)
or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other than the Servicer
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 Depositor as to (a)
or Issuing Entity is an affiliate of the Sponsor/Seller as to (a)
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 Provider Depositor/Sponsor
- Any 1115 Derivate Counterparty Provider Depositor/Sponsor
- Any other 1101(d)(1) material party Depositor/Sponsor
Whether there are any "outside the ordinary Depositor as to (a)
course business arrangements" other than Sponsor/Seller as to (a)
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
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
Q-2-2
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
--------------------------------------------- --------------------------------
- Any 1114 Credit Enhancement Provider Depositor/Sponsor
- Any 1115 Derivate Counterparty Provider Depositor/Sponsor
- Any other 1101(d)(1) material party Depositor/Sponsor
Whether there are any specific relationships Depositor as to (a)
involving the transaction or the pool assets Sponsor/Seller as to (a)
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 Provider Depositor/Sponsor
- Any 1115 Derivate Counterparty Provider Depositor/Sponsor
- Any other 1101(d)(1) material party Depositor/Sponsor
Q-2-3
EXHIBIT Q-3
FORM 8-K DISCLOSURE INFORMATION
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
--------------------------------------------- --------------------------------
ITEM 1.01- ENTRY INTO A MATERIAL DEFINITIVE All parties
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 more Servicer
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
- Derivative Counterparty Depositor
Q-3-1
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
--------------------------------------------- --------------------------------
- Custodian Custodian
ITEM 2.04- TRIGGERING EVENTS THAT ACCELERATE Depositor
OR INCREASE A DIRECT FINANCIAL OBLIGATION OR Master Servicer
AN OBLIGATION UNDER AN OFF-BALANCE SHEET Securities Administrator
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 RIGHTS OF Securities Administrator
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 SECURITIES Master Servicer/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 or Servicer/Master
master servicer is also required. Servicer/Depositor
Reg AB disclosure about any new Trustee is Trustee
also required.
ITEM 6.03- CHANGE IN CREDIT ENHANCEMENT OR Depositor/Securities
EXTERNAL SUPPORT Administrator
Covers termination of any enhancement in
manner other than by its terms, the addition
of an enhancement, or a material change in
the
Q-3-2
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
--------------------------------------------- --------------------------------
enhancement provided. Applies to external
credit enhancements as well as derivatives.
Reg AB disclosure about any new enhancement Depositor
provider is also required.
ITEM 6.04- FAILURE TO MAKE A REQUIRED Securities Administrator
DISTRIBUTION Trustee
ITEM 6.05- SECURITIES ACT UPDATING DISCLOSURE Depositor
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 originators Depositor
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 EXHIBITS Responsible party for reporting/
disclosing the financial
statement or exhibit
Q-3-3
(RBS LOGO)
The Royal Bank of Scotland
EXHIBIT R
FORM OF SWAP AGREEMENT
Date: March 30, 2007
To: Xxxxx Fargo Bank, N.A., not individually, but solely as
supplemental interest trust trustee (the "SUPPLEMENTAL
INTEREST TRUST TRUSTEE") for the Supplemental Interest
Trust with respect to the Xxxxxxx Xxxxx Alternative Note
Asset Trust, Series 2007-A2
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Client Manager - MANA 2007-A2
Fax: (000) 000-0000
Phone: (000) 000-0000
To: Xxxxxxx Xxxxx Mortgage Lending, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X'Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
From: The Royal Bank of Scotland plc
c/o RBS Financial Markets
Xxxxx 0, 000 Xxxxxxxxxxx
Xxxxxx XX0X 3UR
Attn: Swaps Administration
Tel: 00 000 000 0000
Fax: 00 000 000 0000
Copy To: 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Legal Department - Derivatives Documentation
Tel.: 000-000-0000/32
Fax: 000-000-0000/34
Our Reference No.: D16228175
Re: Interest Rate Swap Transaction
R-1
Ladies and Gentlemen:
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between Royal Bank of Scotland plc ("Party A") and
Xxxxx Fargo Bank, N.A., not individually, but solely as supplemental interest
trust trustee for the supplemental interest trust (the "Supplemental Interest
Trust") created under the Pooling and Servicing Agreement ("Party B") on the
Trade Date specified below (the "Transaction"). This letter agreement
constitutes a "Confirmation" as referred to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions") as published by the International Swaps and Derivatives
Association, Inc. are incorporated by reference herein. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
For the purpose of this Confirmation, all references in the Definitions or the
Agreement to a "Swap Transaction" shall be deemed to be references to this
Transaction.
1. This Confirmation supplements, forms part of, and is subject to, ISDA
Master Agreement and Schedule dated as of March 30, 2007 (as the same may
be amended or supplemented from time to time, the "Agreement"), between
Party A and Party B. All provisions contained in the Agreement shall govern
this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation Period, the
amount set forth on Schedule A attached hereto.
Trade Date: March 27, 2007
Effective Date: September 25, 2007
Termination Date: March 25, 2012, subject to adjustment in
accordance with the Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Period End The 25th day of each month of each year
Dates: commencing October 25, 2007, through and
including the Termination Date, subject to No
Adjustment.
Fixed Rate Payer Payment Early Payment shall be applicable. The Fixed
Date: Rate Payer Payment Dates shall be one (1)
Business Day prior to each Fixed Rate Payer
Period End Date.
R-2
Fixed Rate: 5.00%
Fixed Rate Day Count 30/360
Fraction:
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer Period The 25th day of each month, commencing October
End Dates: 25, 2007, through and including the Termination
Date, subject to adjustment in accordance with
the Business Day Convention.
Floating Rate Payer Payment Early Payment shall be applicable. The Floating
Dates: Rate Payer Payment Dates shall be one (1)
Business Day prior to each Floating Rate Payer
Period End Date.
Floating Rate Option: USD-LIBOR-BBA.
Designated Maturity: 1 month
Spread: None
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable:
Additional Floating Amount: [__________]
Calculation Agent: Party A
Business Days: New York
Business Day Convention Modified Following
R-3
3. Account Details:
Account Details for Party A:
For the account of The Royal Bank of Scotland
Financial Markets Fixed Income and Interest Rate
Derivative Operations, London SWIFT XXXXXX0XXXX
with JPMorgan Chase Bank, New York XXXXXX00
ABA # 000000000
Account Number 400930153
Account Details for Party B:
(A): For the payment of the Additional Floating Amount only:
Deutsche Bank, New York, NY
ABA# 000000000
Acct# 00000000
Account Name Xxxxxxx Xxxxx Mortgage Lending
Deal Name: Mana 2007-A2
Reference: Xxxxx Xxx
(B): For all other payments:
Xxxxx Fargo Bank, N.A.
San Francisco, California
ABA#: 000-000-000
Account#: 0000000000
Account Name: SAS Clearing
FFC#: 53135101; Swap Contract Account
Ref: MANA 2007-A2
4. Offices:
The Office of Party A for this Transaction is London, England.
The Office of Party B for this Transaction is Columbia, MD.
5. It is expressly understood and agreed by the parties hereto that (i) this
Confirmation is executed and delivered by Xxxxx Fargo Bank, N.A., not
individually or personally but solely as supplemental interest trust
trustee of the Supplemental Interest Trust, in the exercise of the powers
and authority conferred and vested in it under the Pooling and Servicing
Agreement, (ii) each of the representations, undertakings and agreements
herein made on the part of the Supplemental Interest Trust is made and
intended not as personal representations, undertakings and agreements by
Xxxxx Fargo Bank, N.A. but is made and intended for the purpose of binding
only the Supplemental Interest Trust, (iii) nothing herein contained shall
be construed as creating any liability on the part of Xxxxx
R-4
Fargo Bank, N.A., individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any,
being expressly waived by the parties hereto and by any Person claiming by,
through or under the parties hereto and (iv) under no circumstances shall
Xxxxx Fargo Bank, N.A. be personally liable for the payment of any
indebtedness or expenses of the Supplemental Interest Trust or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by Party B under this Confirmation or any other
related documents.
6. Agency Role of Greenwich Capital Markets, Inc. This Transaction has been
entered into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A under this
Transaction.
7. MLML Shall Not Benefit. The parties hereto agree and acknowledge that
amounts paid hereunder are not intended to benefit the holder of any class
of certificates rated by any rating agency if such holder is Xxxxxxx Xxxxx
Mortgage Lending, Inc. ("MLML") or any of its affiliates. If MLML or any of
its affiliates receives any such amounts, it will promptly remit (or, if
such amounts are received by an affiliate of MLML, MLML hereby agrees that
it will cause such affiliate to promptly remit) such amounts to the
Securities Administrator (as defined in the Pooling and Servicing
Agreement), whereupon the Securities Administrator (as defined in the
Pooling and Servicing Agreement) will promptly remit such amounts to the
Cap Provider.
8. In the event that the transaction to which the Pooling and Servicing
Agreement relates does not occur, and the Xxxxxxx Xxxxx Alternative Note
Asset Trust, Series 2007-A2 is not formed, Party A and MLML agree that MLML
shall become Party B under this Confirmation.
[Signature Page Immediately Follows]
R-5
Please promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
The Royal Bank of Scotland plc
Attention: Derivatives Documentation
Fax: 0000 000 0000 / 6486 Phone: 0000 000 0000
For and on behalf of For and on behalf of
THE ROYAL BANK OF SCOTLAND PLC XXXXX FARGO BANK, N.A., NOT
BY: GREENWICH CAPITAL MARKETS, INC., INDIVIDUALLY, BUT SOLELY AS SUPPLEMENTAL
ITS AGENT INTEREST TRUST TRUSTEE FOR THE
SUPPLEMENTAL INTEREST TRUST WITH RESPECT
TO THE XXXXXXX XXXXX ALTERNATIVE NOTE
ASSET TRUST, SERIES 2007-A2
------------------------------------- ----------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
For and on behalf of
XXXXXXX XXXXX MORTGAGE LENDING INC.
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
R-6
SCHEDULE A
All dates subject to adjustment in accordance with the Modified Following
Business Day Convention.
From and including: To but excluding: Notional Amount (USD):
------------------- ----------------- ----------------------
09/25/2007 10/25/2007 716,646,519
10/25/2007 11/25/2007 685,104,372
11/25/2007 12/25/2007 652,424,276
12/25/2007 01/25/2008 619,845,941
01/25/2008 02/25/2008 588,540,434
02/25/2008 03/25/2008 558,770,566
03/25/2008 04/25/2008 530,521,240
04/25/2008 05/25/2008 503,713,270
05/25/2008 06/25/2008 478,273,813
06/25/2008 07/25/2008 454,135,540
07/25/2008 08/25/2008 431,363,438
08/25/2008 09/25/2008 409,787,808
09/25/2008 10/25/2008 389,435,030
10/25/2008 11/25/2008 368,484,717
11/25/2008 12/25/2008 346,601,059
12/25/2008 01/25/2009 326,983,150
01/25/2009 02/25/2009 308,937,620
02/25/2009 03/25/2009 292,266,156
03/25/2009 04/25/2009 276,605,512
04/25/2009 05/25/2009 261,786,504
05/25/2009 06/25/2009 247,783,933
06/25/2009 07/25/2009 234,525,375
07/25/2009 08/25/2009 221,701,642
08/25/2009 09/25/2009 209,850,253
09/25/2009 10/25/2009 197,606,892
10/25/2009 11/25/2009 183,635,318
11/25/2009 12/25/2009 165,430,189
12/25/2009 01/25/2010 144,915,929
01/25/2010 02/25/2010 133,426,905
02/25/2010 03/25/2010 121,123,742
03/25/2010 04/25/2010 113,635,707
04/25/2010 05/25/2010 113,635,707
05/25/2010 06/25/2010 107,003,050
06/25/2010 07/25/2010 100,733,222
07/25/2010 08/25/2010 94,814,912
08/25/2010 09/25/2010 89,227,050
09/25/2010 10/25/2010 83,918,732
10/25/2010 11/25/2010 78,940,429
11/25/2010 12/25/2010 74,244,901
R-7
12/25/2010 01/25/2011 69,676,154
01/25/2011 02/25/2011 65,546,804
02/25/2011 03/25/2011 61,637,809
03/25/2011 04/25/2011 57,942,827
04/25/2011 05/25/2011 54,476,962
05/25/2011 06/25/2011 51,111,445
06/25/2011 07/25/2011 48,056,469
07/25/2011 08/25/2011 45,167,994
08/25/2011 09/25/2011 42,370,752
09/25/2011 10/25/2011 39,090,967
10/25/2011 11/25/2011 33,304,446
11/25/2011 12/25/2011 16,934,057
12/25/2011 01/25/2012 5,059,459
01/25/2012 02/25/2012 930,658
02/25/2012 03/25/2012 571,589
R-8
(RBS LOGO)
The Royal Bank of Scotland
EXHIBIT S
FORM OF CAP CONTRACT
Date: March 30, 2007
To: Xxxxx Fargo Bank, N.A., not individually, but solely as
supplemental interest trust trustee (the "SUPPLEMENTAL
INTEREST TRUST TRUSTEE") for the Supplemental Interest
Trust with respect to the Xxxxxxx Xxxxx Alternative Note
Asset Trust, Series 2007-A2
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Client Manager - MANA 2007-A2
Fax: (000) 000-0000
Phone: (000) 000-0000
To: Xxxxxxx Xxxxx Mortgage Lending, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X'Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
From: The Royal Bank of Scotland plc
c/o RBS Financial Markets
Xxxxx 0, 000 Xxxxxxxxxxx
Xxxxxx XX0X 3UR
Attn: Swaps Administration
Tel: 00 000 000 0000
Fax: 00 000 000 0000
Copy To: 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Legal Department - Derivatives Documentation
Tel.: 000-000-0000/32
Fax: 000-000-0000/34
Our Reference No.: IRG16228178
Re: Interest Rate Cap Transaction
Ladies and Gentlemen:
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between Royal Bank of Scotland plc ("Party A") and
Xxxxx Fargo Bank, N.A., not individually, but solely as supplemental interest
trust trustee for the supplemental interest trust (the "Supplemental Interest
Trust") created under the Pooling and Servicing Agreement ("Party B") on the
Trade Date specified below (the "Transaction"). This letter agreement
constitutes a "Confirmation" as referred to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions") as published by the International Swaps and Derivatives
Association, Inc. are incorporated by reference herein. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
For the purpose of this Confirmation, all references in the Definitions or the
Agreement to a "Swap Transaction" shall be deemed to be references to this
Transaction.
1. This Confirmation supplements, forms part of, and is subject to, ISDA
Master Agreement and Schedule dated as of March 30, 2007 (as the same may
be amended or supplemented from time to time, the "Agreement"), between
Party A and Party B. All provisions contained in the Agreement shall govern
this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation Period, the
lesser of (i) the "Cap Notional Amount" set
forth on Schedule A attached hereto and (ii)
the excess, if any, of (a) the aggregate
Certificate Balance of the Offered Certificates
as of the first day of such Calculation Period
(the "Relevant Balance") over (b) the "Swap
Notional" set forth on Schedule A attached
hereto .
The Supplemental Interest Trust Trustee shall
make available each month on its website a
statement containing the Relevant Balance at
least five (5) Business Days prior to the
related Floating Rate Payer Payment Date, and
Party A shall be entitled to rely conclusively
upon such statement. The Supplemental Interest
Trust Trustee's internet website is located at
xxxx://xxx.xxxxxxx.xxx and assistance in using
the website can be obtained by calling
000-000-0000.
Any payment by Party A to Party B in excess of
the amount due under this Transaction on any
Floating Rate Payer Payment Date (as a result
of the Notional Amount for the related
Calculation Period
being other than the amount set forth in
Schedule A hereto for such Calculation Period)
shall be returned by Party B to Party A as soon
as Party B becomes aware of such overpayment.
Other than the return of such overpayment,
neither Party B nor Party A shall incur any
penalty or liability hereunder with respect to
such overpayment.
Trade Date: March 27, 2007
Effective Date: September 25, 2007
Termination Date: March 25, 2012, subject to adjustment in
accordance with the Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment March 30, 2007
Date:
Fixed Amount: [__________]
Floating Amounts:
Floating Rate Payer: Party A
Cap Rate: 6.00%
Floating Rate Payer Period The 25th day of each month, commencing October
End Dates: 25, 2007, through and including the Termination
Date, subject to adjustment in accordance with
the Business Day Convention.
Floating Rate Payer Payment Early Payment shall be applicable. The Floating
Dates: Rate Payer Payment Dates shall be one (1)
Business Day prior to each Floating Rate Payer
Period End Date.
Floating Rate Option: USD-LIBOR-BBA.
Designated Maturity: 1 month
Spread: None
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable:
Calculation Agent: Party A
Business Days: New York
Business Day Convention Modified Following
3. Account Details:
Account Details for Party A:
For the account of The Royal Bank of Scotland
Financial Markets Fixed Income and Interest Rate
Derivative Operations, London SWIFT XXXXXX0XXXX
with JPMorgan Chase Bank, New York XXXXXX00
ABA # 000000000
Account Number 400930153
Account Details for Party B:
Xxxxx Fargo Bank, N.A.
San Francisco, California
ABA#: 000-000-000
Account#: 0000000000
Account Name: SAS Clearing
FFC#: 53135102; Cap Contract Account
Ref: MANA 2007-A2
4. Offices:
The Office of Party A for this Transaction is London, England.
The Office of Party B for this Transaction is Columbia, MD.
5. It is expressly understood and agreed by the parties hereto that (i) this
Confirmation is executed and delivered by Xxxxx Fargo Bank, N.A., not
individually or personally but
solely as supplemental interest trust trustee of the Supplemental Interest
Trust, in the exercise of the powers and authority conferred and vested in
it under the Pooling and Servicing Agreement, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Supplemental Interest Trust is made and intended not as personal
representations, undertakings and agreements by Xxxxx Fargo Bank, N.A. but
is made and intended for the purpose of binding only the Supplemental
Interest Trust, (iii) nothing herein contained shall be construed as
creating any liability on the part of Xxxxx Fargo Bank, N.A., individually
or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties hereto and by any Person claiming by, through or under the parties
hereto and (iv) under no circumstances shall Xxxxx Fargo Bank, N.A. be
personally liable for the payment of any indebtedness or expenses of the
Supplemental Interest Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by
Party B under this Confirmation or any other related documents.
6. Agency Role of Greenwich Capital Markets, Inc. This Transaction has been
entered into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A under this
Transaction.
7. MLML Shall Not Benefit. The parties hereto agree and acknowledge that
amounts paid hereunder are not intended to benefit the holder of any class
of certificates rated by any rating agency if such holder is Xxxxxxx Xxxxx
Mortgage Lending, Inc. ("MLML") or any of its affiliates. If MLML or any of
its affiliates receives any such amounts, it will promptly remit (or, if
such amounts are received by an affiliate of MLML, MLML hereby agrees that
it will cause such affiliate to promptly remit) such amounts to the
Securities Administrator (as defined in the Pooling and Servicing
Agreement), whereupon the Securities Administrator (as defined in the
Pooling and Servicing Agreement) will promptly remit such amounts to the
Cap Provider.
8. In the event that the transaction to which the Pooling and Servicing
Agreement relates does not occur, and the Xxxxxxx Xxxxx Alternative Note
Asset Trust, Series 2007-A2 is not formed, Party A and MLML agree that MLML
shall become Party B under this Confirmation.
[Signature Page Immediately Follows]
Please promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
The Royal Bank of Scotland plc
Attention: Derivatives Documentation
Fax: 0000 000 0000 / 6486 Phone: 0000 000 0000
For and on behalf of For and on behalf of
THE ROYAL BANK OF SCOTLAND PLC XXXXX FARGO BANK, N.A., NOT
BY: GREENWICH CAPITAL MARKETS, INC., INDIVIDUALLY, BUT SOLELY AS SUPPLEMENTAL
ITS AGENT INTEREST TRUST TRUSTEE FOR THE
SUPPLEMENTAL INTEREST TRUST WITH RESPECT
TO THE XXXXXXX XXXXX ALTERNATIVE NOTE
ASSET TRUST, SERIES 2007-A2
------------------------------------- ----------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
For and on behalf of
XXXXXXX XXXXX MORTGAGE LENDING INC.
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
SCHEDULE A
All dates subject to adjustment in accordance with the Modified Following
Business Day Convention.
From and To but Cap Notional Swap Notional
including: excluding: Amount (USD): Amount (USD):
---------- ---------- ------------- -------------
9/25/2007 10/25/2007 33,323,506 716,646,519
10/25/2007 11/25/2007 39,873,648 685,104,372
11/25/2007 12/25/2007 46,509,366 652,424,276
12/25/2007 1/25/2008 52,888,455 619,845,941
1/25/2008 2/25/2008 58,702,362 588,540,434
2/25/2008 3/25/2008 63,906,562 558,770,566
3/25/2008 4/25/2008 68,529,134 530,521,240
4/25/2008 5/25/2008 72,612,900 503,713,270
5/25/2008 6/25/2008 76,197,571 478,273,813
6/25/2008 7/25/2008 79,319,991 454,135,540
7/25/2008 8/25/2008 81,990,719 431,363,438
8/25/2008 9/25/2008 84,312,404 409,787,808
9/25/2008 10/25/2008 86,209,959 389,435,030
10/25/2008 11/25/2008 88,217,191 368,484,717
11/25/2008 12/25/2008 90,405,978 346,601,059
12/25/2008 1/25/2009 91,774,756 326,983,150
1/25/2009 2/25/2009 92,778,849 308,937,620
2/25/2009 3/25/2009 93,305,097 292,266,156
3/25/2009 4/25/2009 93,595,470 276,605,512
4/25/2009 5/25/2009 93,657,339 261,786,504
5/25/2009 6/25/2009 93,489,030 247,783,933
6/25/2009 7/25/2009 93,145,788 234,525,375
7/25/2009 8/25/2009 92,912,735 221,701,642
8/25/2009 9/25/2009 92,258,237 209,850,253
9/25/2009 10/25/2009 92,048,268 197,606,892
10/25/2009 11/25/2009 92,762,304 183,635,318
11/25/2009 12/25/2009 96,941,386 165,430,189
12/25/2009 1/25/2010 103,566,190 144,915,929
1/25/2010 2/25/2010 102,401,509 133,426,905
2/25/2010 3/25/2010 103,215,142 121,123,742
3/25/2010 4/25/2010 100,497,640 113,635,707
4/25/2010 5/25/2010 96,710,713 113,635,707
5/25/2010 6/25/2010 94,365,854 107,003,050
6/25/2010 7/25/2010 92,042,239 100,733,222
7/25/2010 8/25/2010 89,733,371 94,814,912
8/25/2010 9/25/2010 87,443,619 89,227,050
9/25/2010 10/25/2010 85,208,210 83,918,732
10/25/2010 11/25/2010 82,878,382 78,940,429
11/25/2010 12/25/2010 80,466,849 74,244,901
12/25/2010 1/25/2011 78,218,786 69,676,154
1/25/2011 2/25/2011 75,839,221 65,546,804
2/25/2011 3/25/2011 73,528,478 61,637,809
3/25/2011 4/25/2011 71,265,730 57,942,827
4/25/2011 5/25/2011 69,021,912 54,476,962
5/25/2011 6/25/2011 66,914,611 51,111,445
6/25/2011 7/25/2011 64,740,978 48,056,469
7/25/2011 8/25/2011 62,624,245 45,167,994
8/25/2011 9/25/2011 60,550,517 42,370,752
9/25/2011 10/25/2011 58,522,500 39,090,967
10/25/2011 11/25/2011 57,728,759 33,304,446
11/25/2011 12/25/2011 65,956,745 16,934,057
12/25/2011 1/25/2012 70,434,551 5,059,459
1/25/2012 2/25/2012 69,337,877 930,658
2/25/2012 3/25/2012 65,860,704 571,589
