STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, AURORA LOAN SERVICES LLC, as Master Servicer, and CITIBANK, N.A., as Trustee TRUST AGREEMENT Dated as of October 1, 2006 LEHMAN XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-17
EXECUTION
COPY
STRUCTURED
ASSET SECURITIES CORPORATION,
as
Depositor,
AURORA
LOAN SERVICES LLC,
as
Master
Servicer,
and
CITIBANK,
N.A.,
as
Trustee
___________________________
Dated
as
of October 1, 2006
___________________________
XXXXXX
XS
TRUST
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES
2006-17
TABLE
OF
CONTENTS
|
Page
|
|
|
ARTICLE
I DEFINITIONS
|
21
|
|
Section
1.01. Definitions.
|
21
|
|
Section
1.02. Calculations Respecting Mortgage Loans.
|
75
|
|
Section
1.03. Calculations Respecting Accrued Interest.
|
75
|
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
75
|
|
Section
2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
75
|
|
Section
2.02. Acceptance of Trust Fund by Trustee: Review of Documentation
for
Trust Fund.
|
79
|
|
Section
2.03. Representations and Warranties of the Depositor.
|
81
|
|
Section
2.04. Discovery of Breach.
|
83
|
|
Section
2.05. Repurchase, Purchase or Substitution of Mortgage
Loans.
|
83
|
|
Section
2.06. Grant Clause.
|
85
|
|
ARTICLE
III THE CERTIFICATES
|
86
|
|
Section
3.01. The Certificates.
|
86
|
|
Section
3.02. Registration.
|
87
|
|
Section
3.03. Transfer and Exchange of Certificates.
|
87
|
|
Section
3.04. Cancellation of Certificates.
|
91
|
|
Section
3.05. Replacement of Certificates.
|
91
|
|
Section
3.06. Persons Deemed Owners.
|
92
|
|
Section
3.07. Temporary Certificates.
|
92
|
|
Section
3.08. Appointment of Paying Agent.
|
92
|
|
Section
3.09. Book-Entry Certificates.
|
93
|
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
94
|
|
Section
4.01. Collection Account.
|
94
|
|
Section
4.02. Application of Funds in the Collection Account.
|
96
|
|
Section
4.03. Reports to Certificateholders.
|
98
|
|
Section
4.04. Certificate Account.
|
103
|
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
104
|
|
Section
5.01. Distributions Generally.
|
104
|
|
Section
5.02. Distributions from the Certificate Account.
|
105
|
|
Section
5.03. Allocation of Losses.
|
123
|
|
Section
5.04. Advances by Master Servicer, Servicers and Trustee.
|
125
|
|
Section
5.05. Compensating Interest Payments.
|
126
|
|
Section
5.06. Basis Risk Reserve Funds.
|
126
|
|
Section
5.07. The Certificate Insurance Policy.
|
127
|
|
Section
5.08. Supplemental Interest Trust.
|
130
|
|
Section
5.09. Rights of Swap Counterparty.
|
131
|
|
Section
5.10. Termination Receipts.
|
131
|
|
Section
5.11. Class X Account.
|
132
|
i
|
ARTICLE
VI CONCERNING THE TRUSTEE EVENTS OF DEFAULT
|
133
|
|
Section
6.01. Duties of Trustee.
|
133
|
|
Section
6.02. Certain Matters Affecting the Trustee.
|
136
|
|
Section
6.03. Trustee Not Liable for Certificates.
|
138
|
|
Section
6.04. Trustee May Own Certificates.
|
138
|
|
Section
6.05. Eligibility Requirements for Trustee.
|
138
|
|
Section
6.06. Resignation and Removal of Trustee.
|
139
|
|
Section
6.07. Successor Trustee.
|
140
|
|
Section
6.08. Merger or Consolidation of Trustee.
|
140
|
|
Section
6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian.
|
141
|
|
Section
6.10. Authenticating Agents.
|
142
|
|
Section
6.11. Indemnification of Trustee.
|
143
|
|
Section
6.12. Fees and Expenses of Trustee and Custodians.
|
144
|
|
Section
6.13. Collection of Monies.
|
144
|
|
Section
6.14. Events of Default; Trustee To Act; Appointment of
Successor.
|
145
|
|
Section
6.15. Additional Remedies of Trustee Upon Event of
Default.
|
149
|
|
Section
6.16. Waiver of Defaults.
|
149
|
|
Section
6.17. Notification to Holders.
|
150
|
|
Section
6.18. Directions by Certificateholders and Duties of Trustee
During Event
of Default.
|
150
|
|
Section
6.19. Action Upon Certain Failures of the Master Servicer and
Upon Event
of Default.
|
150
|
|
Section
6.20. Preparation of Tax Returns and Reports to the
Commission.
|
150
|
|
Section
6.21. Compliance with Regulation AB.
|
158
|
|
ARTICLE
VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST
FUND
|
158
|
|
Section
7.01. Purchase of Mortgage Loans; Termination of a Mortgage Pool
or the
Trust Fund Upon Purchase or Liquidation of Mortgage Loans; Purchase
of the
Pooling REMIC 1 Regular Interests or the Pooling REMIC 2 Regular
Interests.
|
158
|
|
Section
7.02. Procedure Upon Termination of Trust Fund or Purchase of
Pooling
REMIC 1 Regular Interests or Pooling REMIC 2 Regular
Interests.
|
162
|
|
Section
7.03. Additional Requirements for any Trust Fund Termination
Event or
Purchase of the Pooling REMIC 1 Regular Interests or the Pooling
REMIC 2
Regular Interests.
|
164
|
|
Section
7.04. Optional Purchase Right of NIMS Insurer.
|
165
|
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
165
|
|
Section
8.01. Limitation on Rights of Holders.
|
165
|
|
Section
8.02. Access to List of Holders.
|
166
|
|
Section
8.03. Acts of Holders of Certificates.
|
166
|
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY
THE MASTER SERVICER
|
167
|
|
Section
9.01. Duties of the Master Servicer.
|
167
|
ii
|
Section
9.02. Master Servicer Fidelity Bond and Master Servicer Errors
and
Omissions Insurance Policy.
|
168
|
|
Section
9.03. Master Servicer’s Financial Statements and Related
Information.
|
168
|
|
Section
9.04. Power to Act; Procedures.
|
169
|
|
Section
9.05. Enforcement of Servicer’s and Master Servicer’s
Obligations.
|
171
|
|
Section
9.06. Collection of Taxes, Assessments and Similar Items.
|
172
|
|
Section
9.07. Termination of Servicing Agreements; Successor
Servicers.
|
172
|
|
Section
9.08. Master Servicer Liable for Enforcement.
|
173
|
|
Section
9.09. No Contractual Relationship Between Any Servicer and Trustee
or
Depositor.
|
174
|
|
Section
9.10. Assumption of Servicing Agreement by Trustee.
|
174
|
|
Section
9.11. Due-on-Sale Clauses; Assumption Agreements;
Easements.
|
174
|
|
Section
9.12. Release of Mortgage Files.
|
175
|
|
Section
9.13. Documents, Records and Funds in Possession of Master Servicer
To Be
Held for Trustee.
|
176
|
|
Section
9.14. Representations and Warranties of the Master
Servicer.
|
177
|
|
Section
9.15. Opinion.
|
180
|
|
Section
9.16. Standard Hazard and Flood Insurance Policies.
|
180
|
|
Section
9.17. Presentment of Claims and Collection of Proceeds.
|
180
|
|
Section
9.18. Maintenance of the Primary Mortgage Insurance
Policies.
|
181
|
|
Section
9.19. Trustee To Retain Possession of Certain Insurance Policies
and
Documents.
|
181
|
|
Section
9.20. Realization Upon Defaulted Mortgage Loans.
|
182
|
|
Section
9.21. Compensation to the Master Servicer.
|
182
|
|
Section
9.22. REO Property.
|
183
|
|
Section
9.23. [Reserved]
|
183
|
|
Section
9.24. Reports to the Trustee.
|
183
|
|
Section
9.25. Assessment of Compliance and Attestation Reports.
|
184
|
|
Section
9.26. Annual Statement of Compliance with Applicable Servicing
Criteria.
|
185
|
|
Section
9.27. Merger or Consolidation.
|
186
|
|
Section
9.28. Resignation of Master Servicer.
|
186
|
|
Section
9.29. Assignment or Delegation of Duties by the Master
Servicer.
|
187
|
|
Section
9.30. Limitation on Liability of the Master Servicer and
Others.
|
187
|
|
Section
9.31. Indemnification; Third-Party Claims.
|
188
|
|
ARTICLE
X REMIC ADMINISTRATION
|
189
|
|
Section
10.01. REMIC Administration.
[TO BE REVIEWED BY MN TAX COUNSEL]
|
189
|
|
Section
10.02. Prohibited Transactions and Activities.
|
192
|
|
Section
10.03. Indemnification with Respect to Certain Taxes and Loss
of REMIC
Status.
|
193
|
|
Section
10.04. REO Property.
|
193
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
194
|
|
Section
11.01. Binding Nature of Agreement; Assignment.
|
194
|
|
Section
11.02. Entire Agreement.
|
194
|
|
Section
11.03. Amendment.
|
194
|
iii
|
Section
11.04. Voting Rights.
|
196
|
|
Section
11.05. Provision of Information.
|
196
|
|
Section
11.06. Governing Law.
|
197
|
|
Section
11.07. Notices.
|
197
|
|
Section
11.08. Severability of Provisions.
|
197
|
|
Section
11.09. Indulgences; No Waivers.
|
198
|
|
Section
11.10. Headings Not To Affect Interpretation.
|
198
|
|
Section
11.11. Benefits of Agreement.
|
198
|
|
Section
11.12. Special Notices to the Rating Agencies and the Certificate
Insurer.
|
198
|
|
Section
11.13. Conflicts.
|
199
|
|
Section
11.14. Counterparts.
|
199
|
|
Section
11.15. Transfer of Servicing.
|
199
|
|
Section
11.16. Matters Relating to the Certificate Insurance
Policy.
|
201
|
iv
ATTACHMENTS
|
Exhibit
A
|
Forms
of Certificates
|
|
|
Exhibit
B-1
|
Form
of Initial Certification
|
|
|
Exhibit
B-2
|
Form
of Interim Certification
|
|
|
Exhibit
B-3
|
Form
of Final Certification
|
|
|
Exhibit
B-4
|
Form
of Endorsement
|
|
|
Exhibit
C
|
Request
for Release of Documents and Receipt
|
|
|
Exhibit
D-l
|
Form
of Residual Certificate Transfer Affidavit (Transferee)
|
|
|
Exhibit
D-2
|
Form
of Residual Certificate Transfer Affidavit (Transferor)
|
|
|
Exhibit
E
|
Servicing
Agreement for Aurora Loan Services LLC
|
|
|
Exhibit
F
|
Form
of Rule 144A Transfer Certificate
|
|
|
Exhibit
G
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
|
|
Exhibit
H
|
Form
of ERISA Transfer Affidavit
|
|
|
Exhibit
I
|
[Reserved]
|
|
|
Exhibit
J
|
[Reserved]
|
|
|
Exhibit
K
|
Custodial
Agreements for LaSalle Bank National Association, U.S. Bank National
Association, Xxxxx Fargo Bank, N.A. and Deutsche Bank National Trust
Company
|
|
|
Exhibit
L
|
[Reserved]
|
|
|
Exhibit
M
|
Form
of Back-up Certification to be Provided by the Trustee to the Depositor
|
|
|
Exhibit
N-1
|
Swap
Agreement
|
|
|
Exhibit
N-2
|
Group
1 Cap Agreement
|
|
|
Exhibit
O
|
Servicing
Criteria to be Addressed in Report on Assessment of
Compliance
|
|
|
Exhibit
P
|
Transaction
Parties
|
|
|
Exhibit
Q
|
Form
of Insurance Agreement
|
|
|
Exhibit
R
|
Form
of Certificate Guaranty Insurance Policy relating to the Class WF-3-1,
Class WF-4-1 and Class WF-6-1 Certificates
|
|
|
Schedule
A
|
Mortgage
Loan Schedule (by Mortgage Pool)
|
v
This
TRUST AGREEMENT (“Trust Agreement”), dated as of October 1, 2006 (the
“Agreement”), is by and among STRUCTURED ASSET SECURITIES CORPORATION, a
Delaware corporation, as depositor (the “Depositor”), AURORA LOAN SERVICES LLC,
as master servicer (the “Master Servicer”), and CITIBANK, N.A., a national
banking association, as trustee (the “Trustee”).
PRELIMINARY
STATEMENT
The
Depositor has acquired the Mortgage Loans from the Seller, and at the Closing
Date is the owner of the Mortgage Loans and the other property being conveyed
by
it to the Trustee hereunder for inclusion in the Trust Fund. On the Closing
Date, the Depositor will acquire the Certificates from the Trust Fund as
consideration for its transfer to the Trust Fund of the Mortgage Loans and
the
other property constituting the Trust Fund. The Depositor has duly authorized
the execution and delivery of this Agreement to provide for the conveyance
to
the Trustee of the Mortgage Loans and the other property constituting the Trust
Fund. All covenants and agreements made by the Seller in the Mortgage Loan
Sale
Agreement and by the Depositor, the Master Servicer and the Trustee herein
with
respect to the Mortgage Loans and the other property constituting the Trust
Fund
are for the benefit of the Holders from time to time of the Certificates and
the
Certificate Insurer, and to the extent provided herein, the Swap Counterparty.
The Depositor, the Trustee and the Master Servicer are entering into this
Agreement, and the Trustee is accepting the Trust Fund created hereby, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
As
provided herein, the Trustee shall elect that the Trust Fund (exclusive of
(i)
the Pool 1 Basis Risk Reserve Fund, (ii) the Pool 2 Basis Risk Reserve Fund,
(iii) the Swap Agreement, (iv) the Supplemental Interest Trust, (v) the Group
1
Cap Agreement, (vi) the obligation to pay Class I Shortfalls, (vii) the rights
to receive (and the obligation to pay) Basis Risk Shortfalls and Unpaid Basis
Risk Shortfalls, and (viii) the Class X Account (collectively, the “Excluded
Trust Assets”) be treated for federal income tax purposes as comprising seven
real estate mortgage investment conduits (each, a “REMIC”) in two tiered
structures. Specifically, Pooling REMIC 1, Lower-Tier REMIC 1, Middle-Tier
REMIC
1, and Upper-Tier REMIC 1 shall relate to Pool 1 and Pooling REMIC 2, Lower-Tier
REMIC 2, and Upper-Tier REMIC 2 shall relate to Pool 2.
Pooling
REMIC 1 shall hold the assets of the Trust Fund related to Pool 1, other than
any Excluded Trust Assets, and shall issue several uncertificated interests
and
shall also issue the Class LT-R-1 Certificate, which is hereby designated as
the
sole residual interest in Pooling REMIC 1. Each uncertificated interest in
Pooling REMIC 1 is hereby designated as a REMIC regular interest.
Lower-Tier
REMIC 1 shall hold the uncertificated interests issued by Pooling REMIC 1 and
shall issue several uncertificated interests. Each such interest, other than
the
LT1-R Interest, is hereby designated as a REMIC regular interest. The LT1-R
Interest is hereby designated as the sole residual interest in Lower-Tier REMIC
1.
Middle-Tier
REMIC 1 shall hold the uncertificated interests issued by Lower-Tier REMIC
1,
other than the LT1-R Interest, and shall issue several uncertificated interests.
Each such interest, other than the Class MT1-R Interest, is hereby designated
as
a REMIC regular interest. The Class MT1-R Interest is hereby designated as
the
sole residual interest in Middle-Tier REMIC 1.
Upper-Tier
REMIC 1 shall hold the uncertificated interests issued by Middle-Tier REMIC
1,
other than the Class MT1-R Interest. Each of the Offered Certificates related
to
Pool 1 represent ownership of regular interests in Upper-Tier REMIC 1. Each
of
the Offered Certificates related to Pool 1 (other than the Class 1-AIO
Certificate) also represents (i) the right to receive Basis Risk Shortfalls
or
Unpaid Basis Risk Shortfalls and (ii) the obligation to pay Class I Shortfalls.
For federal income tax purposes, the Class 1-X Certificates represent ownership
of regular interests in Upper-Tier REMIC 1 and also represent the obligation
to
make payments in respect of Basis Risk Shortfalls or Unpaid Basis Risk
Shortfalls to the Offered Certificates related to Pool 1 to the extent payable
from Pool 1 Monthly Excess Cashflow. The Class C-X and Class S-X Certificates
shall not represent an interest in any REMIC formed hereby. The Class 1-P
Certificates represent ownership of regular interests in Upper-Tier REMIC 1.
The
Class R-1 Certificate represents ownership of the sole class of residual
interest in Upper-Tier REMIC 1 as well as ownership of the LT1-R and Class
MT1-R
Interests.
Pooling
REMIC 2 shall hold the assets of the Trust Fund related to Pool 2, other than
any Excluded Trust Assets, and shall issue several uncertificated interests
and
shall also issue the Class LT-R-2 Certificate, which is hereby designated as
the
sole residual interest in Pooling REMIC 2. Each uncertificated interest in
Pooling REMIC 2 is hereby designated as a REMIC regular interest.
Lower-Tier
REMIC 2 shall hold the uncertificated interests issued by Pooling REMIC 2 and
shall issue several uncertificated interests. Each such interest, other than
the
LT2-R Interest, is hereby designated as a REMIC regular interest. The LT2-R
Interest is hereby designated as the sole residual interest in Lower-Tier REMIC
2.
Upper-Tier
REMIC 2 shall hold the uncertificated interests issued by Lower-Tier REMIC
2,
other than the Class LT2-R Interest. Each of the Offered Certificates related
to
Pool 2 represent ownership of regular interests in Upper-Tier REMIC 2. Each
of
the Offered Certificates related to Pool 2 also represent the right to receive
Basis Risk Shortfalls or Unpaid Basis Risk Shortfalls. For federal income tax
purposes, the Class 2-X Certificates represent ownership of regular interests
in
Upper-Tier REMIC 2 and also represent the obligation to make payments in respect
of Basis Risk Shortfalls or Unpaid Basis Risk Shortfalls to the Offered
Certificates related to Pool 2 to the extent payable from Pool 2 Monthly Excess
Cashflow. The Class 2-P Certificates represent ownership of regular interests
in
Upper-Tier REMIC 2. The Class R-2 Certificate represents ownership of the sole
class of residual interest in Upper-Tier REMIC 2 as well as ownership of the
LT1-R Interest.
Pooling
REMIC 1
Pooling
REMIC 1 shall issue one uncertificated interest in respect of each Pool 1
Mortgage Loan held by the Trust on the Closing Date, each of which is hereby
designated as a regular interest in Pooling REMIC 1 (the “Pooling REMIC 1
Regular Interests”). Pooling REMIC 1 shall also issue the Class LT-R-1
Certificate, which shall represent the sole class of residual interest in
Pooling REMIC 1. Each Pooling REMIC 1 Regular Interest shall have an initial
principal balance equal to the Scheduled Principal Balance of the Mortgage
Loan
to which it relates and shall bear interest at a per annum rate equal to the
Net
Mortgage Rate of such Mortgage Loan. In the event a Qualified Substitute
Mortgage Loan is substituted for such Mortgage Loan (the “Original Mortgage
Loan”), no amount of interest payable on such Qualified Mortgage Loan shall be
distributed on such Pooling REMIC 1 Regular Interest at a rate in excess of
the
Net Mortgage Rate of the Original Mortgage Loan.
2
On
each
Distribution Date, the Trustee shall first pay or charge as an expense of
Pooling REMIC 1 all expenses of the Trust Fund related to Pool 1 (other than
any
expenses with respect to the Swap Agreement) that are deducted in computing
the
Interest Remittance Amount for such Distribution Date.
On
each
Distribution Date the Trustee shall distribute the aggregate Interest Remittance
Amount (net of expenses described in the preceding paragraph) with respect
to
each of the Lower-Tier Interests in Pooling REMIC 1 based on the above-described
interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount among the Pooling REMIC 1 Regular Interests in accordance
with
the amount of the Principal Remittance Amount attributable to the Mortgage
Loan
corresponding to each such Pooling REMIC 1 Regular Interest. All losses on
the
Mortgage Loans shall be allocated among the Pooling REMIC 1 Regular Interest
in
the same manner that principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums related
to Pool 1 collected during the preceding Prepayment Period, in the case of
Principal Prepayments in full, or during the related Collection Period, in
the
case of Principal Prepayments in part, to the Pooling REMIC 1 Regular Interest
corresponding to the Mortgage Loan with respect to which such amounts were
received.
Lower-Tier
REMIC 1
The
following table sets forth (or describes) the designation, interest rate, and
initial principal balance for each interest in Lower-Tier REMIC 1, each of
which, other than the LT1-R Lower-Tier Interest) is hereby designated as a
regular interest in Lower-Tier REMIC 1 (the “Lower-Tier REMIC 1 Regular
Interests):
|
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
LT1-A
|
$
|
34,404,465.96
|
(1)
|
||||
|
LT1-F1
|
$
|
16,588,664.00
|
(2)
|
||||
|
LT1-V1
|
$
|
16,588,664.00
|
(3)
|
||||
|
LT1-F2
|
$
|
16,001,277.00
|
(2)
|
||||
|
LT1-V2
|
$
|
16,001,277.00
|
(3)
|
||||
|
LT1-F3
|
$
|
15,434,674.00
|
(2)
|
||||
|
LT1-V3
|
$
|
15,434,674.00
|
(3)
|
||||
|
LT1-F4
|
$
|
15,013,471.50
|
(2)
|
||||
3
|
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
LT1-V4
|
$
|
15,013,471.50
|
(3)
|
||||
|
LT1-F5
|
$
|
14,356,481.00
|
(2)
|
||||
|
LT1-V5
|
$
|
14,356,481.00
|
(3)
|
||||
|
LT1-F6
|
$
|
14,079,624.50
|
(2)
|
||||
|
LT1-V6
|
$
|
14,079,624.50
|
(3)
|
||||
|
LT1-F7
|
$
|
13,349,495.00
|
(2)
|
||||
|
LT1-V7
|
$
|
13,349,495.00
|
(3)
|
||||
|
LT1-F8
|
$
|
12,949,306.00
|
(2)
|
||||
|
LT1-V8
|
$
|
12,949,306.00
|
(3)
|
||||
|
LT1-F9
|
$
|
12,418,063.00
|
(2)
|
||||
|
LT1-V9
|
$
|
12,418,063.00
|
(3)
|
||||
|
LT1-F10
|
$
|
12,046,974.50
|
(2)
|
||||
|
LT1-V10
|
$
|
12,046,974.50
|
(3)
|
||||
|
LT1-F11
|
$
|
35,725,324.50
|
(2)
|
||||
|
LT1-V11
|
$
|
35,725,324.50
|
(3)
|
||||
|
LT1-F12
|
$
|
12,448,243.50
|
(2)
|
||||
|
LT1-V12
|
$
|
12,448,243.50
|
(3)
|
||||
|
LT1-F13
|
$
|
11,835,946.00
|
(2)
|
||||
|
LT1-V13
|
$
|
11,835,946.00
|
(3)
|
||||
|
LT1-F14
|
$
|
11,129,462.50
|
(2)
|
||||
|
LT1-V14
|
$
|
11,129,462.50
|
(3)
|
||||
|
LT1-F15
|
$
|
10,721,146.00
|
(2)
|
||||
|
LT1-V15
|
$
|
10,721,146.00
|
(3)
|
||||
|
LT1-F16
|
$
|
10,215,131.50
|
(2)
|
||||
|
LT1-V16
|
$
|
10,215,131.50
|
(3)
|
||||
|
LT1-F17
|
$
|
9,787,700.00
|
(2)
|
||||
|
LT1-V17
|
$
|
9,787,700.00
|
(3)
|
||||
|
LT1-F18
|
$
|
9,378,142.50
|
(2)
|
||||
|
LT1-V18
|
$
|
9,378,142.50
|
(3)
|
||||
|
LT1-F19
|
$
|
8,985,712.00
|
(2)
|
||||
|
LT1-V19
|
$
|
8,985,712.00
|
(3)
|
||||
|
LT1-F20
|
$
|
8,609,693.00
|
(2)
|
||||
|
LT1-V20
|
$
|
8,609,693.00
|
(3)
|
||||
|
LT1-F21
|
$
|
8,249,398.50
|
(2)
|
||||
|
LT1-V21
|
$
|
8,249,398.50
|
(3)
|
||||
|
LT1-F22
|
$
|
9,935,138.50
|
(2)
|
||||
|
LT1-V22
|
$
|
9,935,138.50
|
(3)
|
||||
|
LT1-F23
|
$
|
34,929,496.00
|
(2)
|
||||
|
LT1-V23
|
$
|
34,929,496.00
|
(3)
|
||||
|
LT1-F24
|
$
|
7,021,245.50
|
(2)
|
||||
|
LT1-V24
|
$
|
7,021,245.50
|
(3)
|
||||
|
LT1-F25
|
$
|
6,678,758.50
|
(2)
|
||||
|
LT1-V25
|
$
|
6,678,758.50
|
(3)
|
||||
|
LT1-F26
|
$
|
6,352,969.50
|
(2)
|
||||
4
|
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
LT1-V26
|
$
|
6,352,969.50
|
(3)
|
||||
|
LT1-F27
|
$
|
6,043,065.00
|
(2)
|
||||
|
LT1-V27
|
$
|
6,043,065.00
|
(3)
|
||||
|
LT1-F28
|
$
|
5,748,269.50
|
(2)
|
||||
|
LT1-V28
|
$
|
5,748,269.50
|
(3)
|
||||
|
LT1-F29
|
$
|
5,467,848.50
|
(2)
|
||||
|
LT1-V29
|
$
|
5,467,848.50
|
(3)
|
||||
|
LT1-F30
|
$
|
5,201,100.50
|
(2)
|
||||
|
LT1-V30
|
$
|
5,201,100.50
|
(3)
|
||||
|
LT1-F31
|
$
|
5,357,465.00
|
(2)
|
||||
|
LT1-V31
|
$
|
5,357,465.00
|
(3)
|
||||
|
LT1-F32
|
$
|
4,931,514.50
|
(2)
|
||||
|
LT1-V32
|
$
|
4,931,514.50
|
(3)
|
||||
|
LT1-F33
|
$
|
4,546,977.00
|
(2)
|
||||
|
LT1-V33
|
$
|
4,546,977.00
|
(3)
|
||||
|
LT1-F34
|
$
|
21,370,747.00
|
(2)
|
||||
|
LT1-V34
|
$
|
21,370,747.00
|
(3)
|
||||
|
LT1-F35
|
$
|
4,222,382.00
|
(2)
|
||||
|
LT1-V35
|
$
|
4,222,382.00
|
(3)
|
||||
|
LT1-F36
|
$
|
2,975,477.50
|
(2)
|
||||
|
LT1-V36
|
$
|
2,975,477.50
|
(3)
|
||||
|
LT1-F37
|
$
|
2,830,240.50
|
(2)
|
||||
|
LT1-V37
|
$
|
2,830,240.50
|
(3)
|
||||
|
LT1-F38
|
$
|
2,692,088.00
|
(2)
|
||||
|
LT1-V38
|
$
|
2,692,088.00
|
(3)
|
||||
|
LT1-F39
|
$
|
2,560,676.00
|
(2)
|
||||
|
LT1-V39
|
$
|
2,560,676.00
|
(3)
|
||||
|
LT1-F40
|
$
|
2,435,674.50
|
(2)
|
||||
|
LT1-V40
|
$
|
2,435,674.50
|
(3)
|
||||
|
LT1-F41
|
$
|
2,316,771.50
|
(2)
|
||||
|
LT1-V41
|
$
|
2,316,771.50
|
(3)
|
||||
|
LT1-F42
|
$
|
2,203,669.50
|
(2)
|
||||
|
LT1-V42
|
$
|
2,203,669.50
|
(3)
|
||||
|
LT1-F43
|
$
|
2,096,085.50
|
(2)
|
||||
|
LT1-V43
|
$
|
2,096,085.50
|
(3)
|
||||
|
LT1-F44
|
$
|
2,014,865.50
|
(2)
|
||||
|
LT1-V44
|
$
|
2,014,865.50
|
(3)
|
||||
|
LT1-F45
|
$
|
1,895,351.50
|
(2)
|
||||
|
LT1-V45
|
$
|
1,895,351.50
|
(3)
|
||||
|
LT1-F46
|
$
|
1,802,812.00
|
(2)
|
||||
|
LT1-V46
|
$
|
1,802,812.00
|
(3)
|
||||
|
LT1-F47
|
$
|
1,714,788.00
|
(2)
|
||||
|
LT1-V47
|
$
|
1,714,788.00
|
(3)
|
||||
|
LT1-F48
|
$
|
1,631,059.50
|
(2)
|
||||
5
|
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
LT1-V48
|
$
|
1,631,059.50
|
(3)
|
||||
|
LT1-F49
|
$
|
1,551,416.50
|
(2)
|
||||
|
LT1-V49
|
$
|
1,551,416.50
|
(3)
|
||||
|
LT1-F50
|
$
|
1,475,659.50
|
(2)
|
||||
|
LT1-V50
|
$
|
1,475,659.50
|
(3)
|
||||
|
LT1-F51
|
$
|
1,403,600.50
|
(2)
|
||||
|
LT1-V51
|
$
|
1,403,600.50
|
(3)
|
||||
|
LT1-F52
|
$
|
1,335,057.00
|
(2)
|
||||
|
LT1-V52
|
$
|
1,335,057.00
|
(3)
|
||||
|
LT1-F53
|
$
|
1,269,858.50
|
(2)
|
||||
|
LT1-V53
|
$
|
1,269,858.50
|
(3)
|
||||
|
LT1-F54
|
$
|
1,422,879.00
|
(2)
|
||||
|
LT1-V54
|
$
|
1,422,879.00
|
(3)
|
||||
|
LT1-F55
|
$
|
1,241,675.00
|
(2)
|
||||
|
LT1-V55
|
$
|
1,241,675.00
|
(3)
|
||||
|
LT1-F56
|
$
|
2,777,745.50
|
(2)
|
||||
|
LT1-V56
|
$
|
2,777,745.50
|
(3)
|
||||
|
LT1-F57
|
$
|
2,487,670.50
|
(2)
|
||||
|
LT1-V57
|
$
|
2,487,670.50
|
(3)
|
||||
|
LT1-F58
|
$
|
8,568,564.00
|
(2)
|
||||
|
LT1-V58
|
$
|
8,568,564.00
|
(3)
|
||||
|
LT1-F59
|
$
|
8,213,690.50
|
(2)
|
||||
|
LT1-V59
|
$
|
8,213,690.50
|
(3)
|
||||
|
LT1-AIO
|
(4)
|
(4)
|
|||||
|
LT1-R
|
(5)
|
(5)
|
|||||
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for the LT1-A Interest shall be the Net WAC Rate for Pool 1, computed
by
reducing the Net Mortgage Rate on each Fixed Rate Mortgage Loan in
Pool 1
by 0.60% (the “Pool 1 REMIC Net WAC Rate”).
|
|
(2)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower-Tier Interests shall be the lesser of (i)
the
REMIC Swap Rate for such Distribution Date, and (ii) the product
of (a)
the Pool 1 REMIC Net WAC Rate and (b)
2.
|
|
(3)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower-Tier Interests shall be the excess, if any,
of (i)
the product of (a) the Pool 1 REMIC Net WAC Rate and (b) 2, over
(ii) the
REMIC Swap Rate for such Distribution
Date.
|
|
(4)
|
The
LT1-AIO interest is an interest-only class and does not have a principal
balance. On each Distribution Date, the LT1-AIO interest shall accrue
interest at a per annum rate of 0.60% on a notional amount equal
to the
Class Notional Amount of the Class 1-AIO
Certificates.
|
|
(5)
|
The
LT1-R interest shall not have a principal amount and shall not bear
interest. The LT1-R interest is hereby designated as the sole class
of
residual interest in Lower-Tier REMIC
1.
|
6
On
each
Distribution Date, the Trustee shall distribute the aggregate Interest
Remittance Amount for Pool 1 (net of expenses described under Pooling REMIC
1)
with respect to each of the Lower-Tier Interests in Lower-Tier REMIC 1 based
on
the above-described interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount with respect to the Lower-Tier REMIC 1 Interests, first to
the
LT1-A Interest until its principal balance is reduced to zero, and then
sequentially, to the other Lower-Tier Interests in Lower-Tier REMIC 1 in
ascending order of their numerical designation, and, with respect to each pair
of Lower-Tier Interests having the same numerical designation, in equal amounts
to each such Lower-Tier Interest, until the principal balance of each is reduced
to zero. All losses on the Pool 1 Mortgage Loans shall be allocated among the
Lower-Tier Interests in Lower-Tier REMIC 1 in the same manner that principal
distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums related
to Pool 1 collected during the preceding Prepayment Period, in the case of
Principal Prepayments in full, or during the related Collection Period, in
the
case of Principal Prepayments in part, to the LT1-F59 and LT1-V59 Lower-Tier
Interests, respectively.
Middle-Tier
REMIC 1:
The
following table sets forth the designations, principal balances and interest
rates for each interest in Middle-Tier REMIC 1, each of which (other than the
Class MT1-R Interest) is hereby designated as a regular interest in Middle-Tier
REMIC 1 (the “Middle-Tier REMIC 1 Regular Interests”):
|
Middle-Tier
REMIC
1
Designation
|
Middle-Tier
REMIC 1
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of Certificate(s) or Components
|
|||||||
|
MT1-1A1
|
(1)
|
|
|
(3)
|
|
|
1-A1
|
|
||
|
MT1-1A2
|
|
|
(1)
|
|
|
(3)
|
|
|
1-A2
|
|
|
MT1-1A3
|
|
|
(1)
|
|
|
(3)
|
|
|
1-A3
|
|
|
MT1-1A4A
|
|
|
(1)
|
|
|
(3)
|
|
|
0-X0X
|
|
|
XX0-0X0X
|
|
|
(1)
|
|
|
(3)
|
|
|
1-A4B
|
|
|
MT1-1A5
|
|
|
(1)
|
|
|
(3)
|
|
|
1-A5
|
|
|
MT1-1M1
|
|
|
(1)
|
|
|
(3)
|
|
|
1-M1
|
|
|
MT1-1M2
|
|
|
(1)
|
|
|
(3)
|
|
|
1-M2
|
|
|
MT1-1M3
|
|
|
(1)
|
|
|
(3)
|
|
|
1-M3
|
|
|
MT1-1M4
|
|
|
(1)
|
|
|
(3)
|
|
|
1-M4
|
|
|
MT1-1M5
|
|
|
(1)
|
|
|
(3)
|
|
|
1-M5
|
|
|
MT1-1M6
|
|
|
(1)
|
|
|
(3)
|
|
|
1-M6
|
|
|
MT1-1M7
|
|
|
(1)
|
|
|
(3)
|
|
|
1-M7
|
|
|
MT1-1M8
|
|
|
(1)
|
|
|
(3)
|
|
|
1-M8
|
|
|
MT1-1M9
|
|
|
(1)
|
|
|
(3)
|
|
|
1-M9
|
|
|
MT1-Q
|
|
|
(1)
|
|
|
(4)
|
|
|
N/A
|
|
|
MT1-IO
|
|
|
(2)
|
|
|
(2)
|
|
|
N/A
|
|
|
MT1-AIO
|
|
|
(5)
|
|
|
(5)
|
|
|
|
|
|
MT1-R
|
|
|
(6)
|
|
|
(6)
|
|
|
R
|
|
7
___________________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Interests in Middle-Tier REMIC 1 is a per annum
rate
equal to the weighted average of the interest rates on the Lower-Tier
Interests in Lower-Tier REMIC 1 for such Distribution Date other
than any
interest-only Lower-Tier Interest, provided,
however, that
for any Distribution Date on which the Class MT1-IO Interest is entitled
to a portion of the interest accruals on a Lower-Tier Interest in
Lower-Tier REMIC 1 having an “F” in its class designation, as described in
footnote two below, such weighted average shall be computed by first
subjecting the rate on such Lower-Tier Interest in REMIC 1 to a cap
equal
to Swap LIBOR for such Distribution Date.
|
|
(2)
|
The
Class MT1-IO is an interest only class that does not have a principal
balance. For only those Distribution Dates listed in the first column
in
the table below, the Class MT1-IO shall be entitled to interest accrued
on
the Lower-Tier Interest in Lower-Tier REMIC 1 listed in second column
in
the table below at a per annum rate equal to the excess, if any,
of (i)
the interest rate for such Lower-Tier Interest in Lower-Tier REMIC
1 for
such Distribution Date over (ii) Swap LIBOR for such Distribution
Date.
|
|
Distribution
Dates
|
Lower-Tier
REMIC
1
Designation
|
|
|
2
|
LT1-F1
|
|
|
2-3
|
LT1-F2
|
|
|
2-4
|
LT1-F3
|
|
|
2-5
|
LT1-F4
|
|
|
2-6
|
LT1-F5
|
|
|
2-7
|
LT1-F6
|
|
|
2-8
|
LT1-F7
|
|
|
2-9
|
LT1-F8
|
|
|
2-10
|
LT1-F9
|
|
|
2-11
|
LT1-F10
|
|
|
2-12
|
LT1-F11
|
|
|
2-13
|
LT1-F12
|
|
|
2-14
|
LT1-F13
|
|
|
2-15
|
LT1-F14
|
|
|
2-16
|
LT1-F15
|
|
|
2-17
|
LT1-F16
|
|
|
2-18
|
LT1-F17
|
|
|
2-19
|
LT1-F18
|
|
|
2-20
|
LT1-F19
|
|
|
2-21
|
LT1-F20
|
|
|
2-22
|
LT1-F21
|
|
|
2-23
|
LT1-F22
|
|
|
2-24
|
LT1-F23
|
|
|
2-25
|
LT1-F24
|
|
|
2-26
|
LT1-F25
|
|
|
2-27
|
LT1-F26
|
|
|
2-28
|
LT1-F27
|
|
|
2-29
|
LT1-F28
|
|
|
2-30
|
LT1-F29
|
|
|
2-31
|
LT1-F30
|
|
|
2-32
|
LT1-F31
|
|
|
2-33
|
LT1-F32
|
8
|
Distribution
Dates
|
Lower-Tier
REMIC
1
Designation
|
|
|
2-34
|
LT1-F33
|
|
|
2-35
|
LT1-F34
|
|
|
2-36
|
LT1-F35
|
|
|
2-37
|
LT1-F36
|
|
|
2-38
|
LT1-F37
|
|
|
2-39
|
LT1-F38
|
|
|
2-40
|
LT1-F39
|
|
|
2-41
|
LT1-F40
|
|
|
2-42
|
LT1-F41
|
|
|
2-43
|
LT1-F42
|
|
|
2-44
|
LT1-F43
|
|
|
2-45
|
LT1-F44
|
|
|
2-46
|
LT1-F45
|
|
|
2-47
|
LT1-F46
|
|
|
2-48
|
LT1-F47
|
|
|
2-49
|
LT1-F48
|
|
|
2-50
|
LT1-F49
|
|
|
2-51
|
LT1-F50
|
|
|
2-52
|
LT1-F51
|
|
|
2-53
|
LT1-F52
|
|
|
2-54
|
LT1-F53
|
|
|
2-55
|
LT1-F54
|
|
|
2-56
|
LT1-F55
|
|
|
2-57
|
LT1-F56
|
|
|
2-58
|
LT1-F57
|
|
|
2-59
|
LT1-F58
|
|
|
2-60
|
LT1-F59
|
|
(3)
|
This
interest shall have an initial principal balance equal to one-half
of the
initial Class Principal Amount of its Corresponding Class of
Certificates.
|
|
(4)
|
This
interest shall have an initial principal balance equal to the excess
of
(i) the aggregate Pool Balance for Pool 1 as of the Cut-off Date,
over
(ii) the aggregate initial class principal amount of each other regular
interest in Middle-Tier REMIC 1.
|
|
(5)
|
On
each Distribution Date, the Class MT1-AIO interest shall be entitled
to
all distributions made with respect to the Class LT1-AIO
interest.
|
|
(6)
|
The
Class MT1-R interest is the sole class of residual interests in
Middle-Tier REMIC 1. It does not have an interest rate or a principal
balance.
|
On
each
Distribution Date, interest shall be distributed on the Lower-Tier Interests
in
Middle-Tier REMIC 1 based on the above-described interest rates,
provided,
however,
that
interest that accrues on the Class MT1-Q Interest shall be deferred in an amount
equal to one-half of the increase, if any, in the Overcollateralization Amount
for such Distribution Date. Any interest so deferred shall itself bear interest
at the interest rate for the Class MT1-Q Interest. An amount equal to the
interest so deferred shall be distributed as additional principal on the other
interests in Middle-Tier REMIC 1 having a principal balance in the manner
described under priority (a) below.
9
On
each
Distribution Date principal shall be distributed, and Realized Losses shall
be
allocated, among the interests in Middle-Tier REMIC 1 in the following order
of
priority:
(a) First,
to
the Class MT1-1A1, Class MT-1A2, Class MT-1A3, Class MT-1A4A, Class MT-1A4B,
Class MT1-1A5, Class MT1-M1, Class MT1-M2, Class MT1-M3, Class MT1-M4,
Class MT1-M5, Class MT1-M6, Class MT1-M7, Class MT1-M8 and Class MT1-M9
Interests until the principal balance of each such interest equals one-half
of
the Class Principal Amount of the Corresponding Class of Certificates
immediately after such Distribution Date; and
(b) Second,
to the Class MT1-Q Interests, any remaining amounts.
On
each
Distribution Date, the Trustee shall be deemed to have distributed the
Prepayment Premiums passed through with respect to the LT1-F59 and LT1-V59
Lower-Tier Interests in Lower-Tier REMIC 1 on such Distribution Date to the
Class MT1-Q Interest.
Pooling
REMIC 2
Pooling
REMIC 2 shall issue one uncertificated interest in respect of each Pool 2
Mortgage Loan held by the Trust on the Closing Date, each of which is hereby
designated as a regular interest in Pooling REMIC 2 (the “Pooling REMIC 2
Regular Interests”). Pooling REMIC 2 shall also issue the Class LT-R-2
Certificate, which shall represent the sole class of residual interest in
Pooling REMIC 2. Each Pooling REMIC 2 Regular Interest shall have an initial
principal balance equal to the Scheduled Principal Balance of the Mortgage
Loan
to which it relates and shall bear interest at a per annum rate equal to the
Net
Mortgage Rate of such Mortgage Loan. In the event a Qualified Substitute
Mortgage Loan is substituted for such Mortgage Loan (the “Original Mortgage
Loan”), no amount of interest payable on such Qualified Mortgage Loan shall be
distributed on such Pooling REMIC 2 Regular Interest at a rate in excess of
the
Net Mortgage Rate of the Original Mortgage Loan.
On
each
Distribution Date, the Trustee shall first pay or charge as an expense of
Pooling REMIC 2 all expenses of the Trust Fund that are deducted in computing
the Interest Remittance Amount for Pool 2 for such Distribution
Date.
On
each
Distribution Date the Trustee shall distribute the Interest Remittance Amount
for Pool 2 with respect to each of the Lower-Tier Interests in Pooling REMIC
2
based on the above-described interest rates.
On
each
Distribution Date, the Trustee shall distribute the Principal Remittance Amount
for Pool 2 among the Pooling REMIC 2 Regular Interests in accordance with the
amount of the Principal Remittance Amount attributable to the Mortgage Loan
corresponding to each such Pooling REMIC 2 Regular Interest. All losses on
the
Mortgage Loans shall be allocated among the Pooling REMIC 2 Regular Interest
in
the same manner that principal distributions are allocated.
10
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums with
respect to Pool 2 collected during the preceding Prepayment Period, in the
case
of Principal Prepayments in full, or during the related Collection Period,
in
the case of Principal Prepayments in part, to the Pooling REMIC 2 Regular
Interest corresponding to the Mortgage Loan with respect to which such amounts
were received.
Lower-Tier
REMIC 2
The
following table sets forth (or describes) the designation, interest rate, and
initial principal balance of each Lower-Tier Interest in Lower-Tier REMIC 2,
each of which, other than the LT2-R Lower Tier Interest) is hereby designated
as
a regular interest in Lower-Tier REMIC 2 (the “Lower-Tier REMIC 2 Regular
Interests”).
|
Designation
|
Interest
Rate
|
Initial
Principal
Amount
|
Corresponding
Class of Certificates
|
|||||||
|
XX-XX-1-1
|
(1)
|
|
|
(2)
|
|
|
WF-1-1
|
|
||
|
XX-XX-1-2
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-1-2
|
|
|
XX-XX-2
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-2
|
|
|
XX-XX-3-1
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-3-1
|
|
|
XX-XX-3-2
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-3-2
|
|
|
XX-XX-3-3
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-3-3
|
|
|
XX-XX-4-1
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-4-1
|
|
|
XX-XX-4-2
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-4-2
|
|
|
XX-XX-5
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-5
|
|
|
XX-XX-6-1
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-6-1
|
|
|
XX-XX-6-2
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-6-2
|
|
|
XX-XX-M1
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-M1
|
|
|
XX-XX-M2
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-M2
|
|
|
XX-XX-M3
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-M3
|
|
|
XX-XX-M4
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-M4
|
|
|
XX-XX-M5
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-M5
|
|
|
XX-XX-M6
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-M6
|
|
|
XX-XX-M7
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-M7
|
|
|
XX-XX-M8
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-M8
|
|
|
XX-XX-M9
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-M9
|
|
|
XX-XX-M10
|
|
|
(1)
|
|
|
(2)
|
|
|
WF-M10
|
|
|
LT2-Q
|
|
|
(1)
|
|
|
(3)
|
|
|
N/A
|
|
|
LT2-R
|
|
|
(4)
|
|
|
(4)
|
|
|
N/A
|
|
|
(1)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Lower-Tier Interests in Lower-Tier
REMIC
2 is a per annum rate equal to the weighted average of the Net Mortgage
Rates on the Mortgage Loans in Pool 2 as of the first day of the
related
Collection Period (not including for this purpose Mortgage Loans
in Pool 2
for which payments in full have been received and distributed in
the month
prior to that Distribution Date).
|
|
(2)
|
This
interest shall have an initial principal balance equal to one-half
of the
initial Class Principal Amount of its Corresponding Class of
Certificates.
|
11
|
(3)
|
This
interest shall have an initial principal balance equal to the excess
of
(i) the aggregate Pool Balance for Pool 2 as of the Cut-off Date,
over
(ii) the aggregate initial class principal amount of each other regular
interest in Lower-Tier REMIC 2.
|
|
(4)
|
The
LT2-R Interest
is
the sole Class of residual interest in Lower-Tier REMIC 2. It does
not
have an interest rate or a principal balance.
|
On
each
Distribution Date, the Trustee shall distribute the interest received from
Pooling REMIC 2 in respect of the Lower-Tier Interests in Lower-Tier REMIC
2
based on the above-described interest rates; provided,
however,
that
interest that accrues on the LT2-Q Interest shall be deferred to the extent
necessary to make the principal distributions described in paragraph (i) below
for such Distribution Date on the other classes of Lower-Tier Interests. Any
interest so deferred shall itself bear interest at the interest rate for the
LT2-Q Interest.
On
each
Distribution Date, the Trustee shall distribute the principal received from
Pooling REMIC 2 (together with an amount equal to the interest deferred on
the
LT2-Q Interest for such Distribution Date) in the following order of
priority:
|
(1)
|
First,
to the XX-XX-1-1, XX-XX-1-2, XX-XX-2, XX-XX-3-1, XX-XX-3-2, XX-XX-3-3,
XX-XX-4-1, XX-XX-4-2, XX-XX-5, XX-XX-6-1, XX-XX-6-2, XX-XX-M1, XX-XX-M2,
XX-XX-M3, XX-XX-M4, XX-XX-M5, XX-XX-M6, XX-XX-M7, XX-XX-M8, XX-XX-M9
and
XX-XX-M10 Interests until the principal balance of each such interest
equals 50% of the Class Principal Amount of the Corresponding Class
of
Certificates immediately after such Distribution
Date;
|
|
(2)
|
Second,
to the LT2-Q Interest, any remaining
amounts.
|
For
any
Distribution Date, after all distributions have been made, Realized Losses
for
Pool 2 shall be allocated among the interests in Lower-Tier REMIC 2 in the
order
of priority in which principal is distributed to such interests. Any Prepayment
Premiums with respect to Pool 2 received from Pooling REMIC 2 shall be
distributed in respect of the LT2-Q Interest.
The
Certificates
The
following table sets forth (or describes) the Class designation, Certificate
Interest Rate, initial Class Principal Amount (or Class Notional Amount) and
minimum denomination for each Class of Certificates comprising interests in
the
Trust Fund created hereunder.
12
|
Class
Designation
|
Interest
Rate
|
Initial
Class
Principal
Amount
or
Class Notional Amount ($)
|
Minimum
Denominations
|
|||||||
|
|
|
|
|
|||||||
|
Class
1-AIO
|
(1)
|
(1)
|
$
|
100,000
|
||||||
|
Class
1-A1
|
(2)
|
$
|
269,465,000
|
$
|
25,000
|
|||||
|
Class
1-A2
|
(3)
|
$
|
127,702,000
|
$
|
25,000
|
|||||
|
Class
1-A3
|
(4)
|
$
|
50,000,000
|
$
|
25,000
|
|||||
|
Class
1-A4A
|
(5)
|
$
|
346,214,000
|
$
|
25,000
|
|||||
|
Class
1-A4B
|
(6)
|
$
|
12,452,000
|
$
|
25,000
|
|||||
|
Class
1-A5
|
(7)
|
$
|
89,549,000
|
$
|
25,000
|
|||||
|
Class
WF-1-1
|
(17)
|
$
|
117,043,000
|
$
|
25,000
|
|||||
|
Class
WF-1-2
|
(18)
|
$
|
13,004,000
|
$
|
25,000
|
|||||
|
Class
WF-2
|
(19)
|
$
|
36,508,000
|
$
|
25,000
|
|||||
|
Class
WF-3-1
|
(20)
|
$
|
14,000,000
|
$
|
25,000
|
|||||
|
Class
WF-3-2
|
(21)
|
$
|
22,699,000
|
$
|
25,000
|
|||||
|
Class
WF-3-3
|
(22)
|
$
|
2,837,000
|
$
|
25,000
|
|||||
|
Class
WF-4-1
|
(23)
|
$
|
20,943,000
|
$
|
25,000
|
|||||
|
Class
WF-4-2
|
(24)
|
$
|
29,918,000
|
$
|
25,000
|
|||||
|
Class
WF-5
|
(25)
|
$
|
21,884,000
|
$
|
25,000
|
|||||
|
Class
WF-6-1
|
(26)
|
$
|
16,000,000
|
$
|
25,000
|
|||||
|
Class
WF-6-2
|
(27)
|
$
|
15,900,000
|
$
|
25,000
|
|||||
|
Class
1-M1
|
(8)
|
$
|
15,916,000
|
$
|
100,000
|
|||||
|
Class
1-M2
|
(9)
|
$
|
12,616,000
|
$
|
100,000
|
|||||
|
Class
1-M3
|
(10)
|
$
|
7,764,000
|
$
|
100,000
|
|||||
|
Class
1-M4
|
(11)
|
$
|
4,852,000
|
$
|
100,000
|
|||||
|
Class
1-M5
|
(12)
|
$
|
4,852,000
|
$
|
100,000
|
|||||
|
Class
1-M6
|
(13)
|
$
|
4,852,000
|
$
|
100,000
|
|||||
|
Class
1-M7
|
(14)
|
$
|
6,793,000
|
$
|
100,000
|
|||||
|
Class
1-M8
|
(15)
|
$
|
4,852,000
|
$
|
100,000
|
|||||
|
Class
1-M9
|
(16)
|
$
|
7,278,000
|
$
|
100,000
|
|||||
|
Class
WF-M1
|
(28)
|
$
|
6,387,000
|
$
|
100,000
|
|||||
|
Class
WF-M2
|
(29)
|
$
|
5,869,000
|
$
|
100,000
|
|||||
|
Class
WF-M3
|
(30)
|
$
|
3,452,000
|
$
|
100,000
|
|||||
|
Class
WF-M4
|
(31)
|
$
|
3,107,000
|
$
|
100,000
|
|||||
|
Class
WF-M5
|
(32)
|
$
|
2,589,000
|
$
|
100,000
|
|||||
|
Class
WF-M6
|
(33)
|
$
|
2,244,000
|
$
|
100,000
|
|||||
|
Class
WF-M7
|
(34)
|
$
|
2,071,000
|
$
|
100,000
|
|||||
|
Class
WF-M8
|
(35)
|
$
|
1,726,000
|
$
|
100,000
|
|||||
|
Class
WF-M9
|
(36)
|
$
|
1,726,000
|
$
|
100,000
|
|||||
|
Class
WF-M10
|
(37)
|
$
|
2,762,000
|
$
|
100,000
|
|||||
|
Class
1-P
|
(38)
|
(38)
|
(45)
|
|||||||
|
Class
2-P
|
(39)
|
(39)
|
(45)
|
|||||||
|
Class
1-X
|
(40)
|
(40)
|
(45)
|
|||||||
|
Class
2-X
|
(41)
|
(41)
|
(45)
|
|||||||
|
Class
C-X
|
(42)
|
(42)
|
(45)
|
|||||||
|
Class
S-X
|
(43)
|
(43)
|
(45)
|
|||||||
|
Class
R-1
|
(44)
|
(44)
|
(45)
|
|||||||
|
Class
R-2
|
(45)
|
(45)
|
(45)
|
|||||||
|
Class
LT-R-1
|
(46)
|
(46)
|
(45)
|
|||||||
|
Class
LT-R-2
|
(47)
|
(47)
|
(45)
|
|||||||
|
Class
C
|
(48)
|
(48)
|
(45)
|
|||||||
| (1) |
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class 1-AIO Certificates is the
per annum
rate equal to 0.600%.
The Class 1-AIO Certificates will be issued without a Certificate
Principal Amount and will accrue interest on the Class Notional
Amount of
the Class 1-AIO
Certificates.
|
13
|
(2)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-A1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.080% (the “1-A1 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 1 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 1 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class 1-A1 Certificates will be LIBOR plus 0.160%. For purposes
of the
REMIC Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii)
of the preceding sentence shall be deemed to be a reference to the
REMIC 1
Net Funds Cap. For any Distribution Date on which the Certificate
Interest
Rate for the Cass 1-A1 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-A1 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
|
(3)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-A2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.170% (the “1-A2 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 1 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 1 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class 1-A2 Certificates will be LIBOR plus 0.340%. For purposes
of the
REMIC Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii)
of the preceding sentence shall be deemed to be a reference to the
REMIC 1
Net Funds Cap. For any Distribution Date on which the Certificate
Interest
Rate for the Cass 1-A2 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-A2 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
|
(4)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-A3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.250% (the “1-A3 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 1 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 1 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class 1-A3 Certificates will be LIBOR plus 0.500%. For purposes
of the
REMIC Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii)
of the preceding sentence shall be deemed to be a reference to the
REMIC 1
Net Funds Cap. For any Distribution Date on which the Certificate
Interest
Rate for the Cass 1-A3 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-A3 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
|
(5)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-A4A Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.170% (the “1-A4A Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 1 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 1 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class 1-A4A Certificates will be LIBOR plus 0.340%. For purposes
of
the REMIC Provisions, the reference to “Pool 1 Net Funds Cap” in clause
(ii) of the preceding sentence shall be deemed to be a reference
to the
REMIC 1 Net Funds Cap. For any Distribution Date on which the Certificate
Interest Rate for the Cass 1-A4A Certificates is based on the Pool
1 Net
Funds Cap, the amount of interest that would have been payable on
such
Certificates if the REMIC 1 Net Funds Cap were substituted for the
Pool 1
Net Funds Cap over the amount actually payable thereon shall be treated
as
having been paid to the owners of the Class 1-A4A Certificates and
then
deposited by such owners into the Supplemental Interest Trust pursuant
to
Section 10.01(n) hereof.
|
14
|
(6)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-A4B Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.200% (the “1-A4B Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 1 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 1 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class 1-A4B Certificates will be LIBOR plus 0.400%. For purposes
of
the REMIC Provisions, the reference to “Pool 1 Net Funds Cap” in clause
(ii) of the preceding sentence shall be deemed to be a reference
to the
REMIC 1 Net Funds Cap. For any Distribution Date on which the Certificate
Interest Rate for the Cass 1-A4B Certificates is based on the Pool
1 Net
Funds Cap, the amount of interest that would have been payable on
such
Certificates if the REMIC 1 Net Funds Cap were substituted for the
Pool 1
Net Funds Cap over the amount actually payable thereon shall be treated
as
having been paid to the owners of the Class 1-A4B Certificates and
then
deposited by such owners into the Supplemental Interest Trust pursuant
to
Section 10.01(n) hereof.
|
|
(7)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-A5 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.270% (the “1-A5 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 1 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 1 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class 1-A5 Certificates will be LIBOR plus 0.540%. For purposes
of the
REMIC Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii)
of the preceding sentence shall be deemed to be a reference to the
REMIC 1
Net Funds Cap. For any Distribution Date on which the Certificate
Interest
Rate for the Cass 1-A5 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-A5 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
|
(8)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-M1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.300% (the “1-M1 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 1 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 1 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class 1-M1 Certificates will be LIBOR plus 0.450%. For purposes
of the
REMIC Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii)
of the preceding sentence shall be deemed to be a reference to the
REMIC 1
Net Funds Cap. For any Distribution Date on which the Certificate
Interest
Rate for the Cass 1-M1 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-M1 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
|
(9)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-M2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.320% (the “1-M2 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 1 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 1 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class 1-M2 Certificates will be LIBOR plus 0.480%. For purposes
of the
REMIC Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii)
of the preceding sentence shall be deemed to be a reference to the
REMIC 1
Net Funds Cap. For any Distribution Date on which the Certificate
Interest
Rate for the Cass 1-M2 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-M2 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
15
|
(10)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-M3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.340% (the “1-M3 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 1 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 1 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class 1-M3 Certificates will be LIBOR plus 0.510%. For purposes
of the
REMIC Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii)
of the preceding sentence shall be deemed to be a reference to the
REMIC 1
Net Funds Cap. For any Distribution Date on which the Certificate
Interest
Rate for the Cass 1-M3 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-M3 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
|
(11)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-M4 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.400% (the “1-M4 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 1 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 1 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class 1-M4 Certificates will be LIBOR plus 0.600%. For purposes
of the
REMIC Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii)
of the preceding sentence shall be deemed to be a reference to the
REMIC 1
Net Funds Cap. For any Distribution Date on which the Certificate
Interest
Rate for the Cass 1-M4 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-M4 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
|
(12)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-M5 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.420% (the “1-M5 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans in Pool 1 and related property are not purchased
pursuant to Section 7.01(b) on the Pool 1 Initial Optional Termination
Date, then with respect to each subsequent Distribution Date the
per annum
rate calculated pursuant to clause (i) above with respect to the
Class
1-M5 Certificates will be LIBOR plus 0.630%. For purposes of the
REMIC
Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii) of the
preceding sentence shall be deemed to be a reference to the REMIC
1 Net
Funds Cap. For any Distribution Date on which the Certificate Interest
Rate for the Cass 1-M5 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-M5 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
|
(13)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-M6 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.500% (the “1-M6 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans in Pool 1 and related property are not purchased
pursuant to Section 7.01(b) on the Pool 1 Initial Optional Termination
Date, then with respect to each subsequent Distribution Date the
per annum
rate calculated pursuant to clause (i) above with respect to the
Class
1-M6 Certificates will be LIBOR plus 0.750%. For purposes of the
REMIC
Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii) of the
preceding sentence shall be deemed to be a reference to the REMIC
1 Net
Funds Cap. For any Distribution Date on which the Certificate Interest
Rate for the Cass 1-M6 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-M6 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
16
|
(14)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-M7 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.150% (the “1-M7 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans in Pool 1 and related property are not purchased
pursuant to Section 7.01(b) on the Pool 1 Initial Optional Termination
Date, then with respect to each subsequent Distribution Date the
per annum
rate calculated pursuant to clause (i) above with respect to the
Class
1-M7 Certificates will be LIBOR plus 1.725%. For purposes of the
REMIC
Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii) of the
preceding sentence shall be deemed to be a reference to the REMIC
1 Net
Funds Cap. For any Distribution Date on which the Certificate Interest
Rate for the Cass 1-M7 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-M7 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
|
(15)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-M8 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.900% (the “1-M8 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans in Pool 1 and related property are not purchased
pursuant to Section 7.01(b) on the Pool 1 Initial Optional Termination
Date, then with respect to each subsequent Distribution Date the
per annum
rate calculated pursuant to clause (i) above with respect to the
Class
1-M8 Certificates will be LIBOR plus 2.850%. For purposes of the
REMIC
Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii) of the
preceding sentence shall be deemed to be a reference to the REMIC
1 Net
Funds Cap. For any Distribution Date on which the Certificate Interest
Rate for the Cass 1-M8 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-M8 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
|
(16)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-M9 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.900% (the “1-M9 Margin”) and
(ii) the Pool 1 Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans in Pool 1 and related property are not purchased
pursuant to Section 7.01(b) on the Pool 1 Initial Optional Termination
Date, then with respect to each subsequent Distribution Date the
per annum
rate calculated pursuant to clause (i) above with respect to the
Class
1-M9 Certificates will be LIBOR plus 2.850%. For purposes of the
REMIC
Provisions, the reference to “Pool 1 Net Funds Cap” in clause (ii) of the
preceding sentence shall be deemed to be a reference to the REMIC
1 Net
Funds Cap. For any Distribution Date on which the Certificate Interest
Rate for the Cass 1-M9 Certificates is based on the Pool 1 Net Funds
Cap,
the amount of interest that would have been payable on such Certificates
if the REMIC 1 Net Funds Cap were substituted for the Pool 1 Net
Funds Cap
over the amount actually payable thereon shall be treated as having
been
paid to the owners of the Class 1-M9 Certificates and then deposited
by
such owners into the Supplemental Interest Trust pursuant to Section
10.01(n) hereof.
|
|
(17)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-1-1 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.120% (the “WF-1-1 Margin”)
and (ii) the Pool 2 Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 2 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 2 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class WF-1-1 Certificates will be LIBOR plus
0.240%.
|
|
(18)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-1-2 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.140% (the “WF-1-2 Margin”)
and (ii) the Pool 2 Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 2 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 2 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class WF-1-2 Certificates will be LIBOR plus 0.280%.
|
17
|
(19)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-2 Certificates is the per
annum
rate equal to the lesser of (i) 5.510% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 2 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 2 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class WF-1-2 Certificates will be
6.010%.
|
|
(20)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-3-1 Certificates is the
per annum
rate equal to the lesser of (i) 5.440% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 2 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 2 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class WF-3-1 Certificates will be 5.940%.
|
|
(21)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-3-2 Certificates is the
per annum
rate equal to the lesser of (i) 5.550% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 2 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 2 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class WF-3-2 Certificates will be
6.050%.
|
|
(22)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-3-3 Certificates is the
per annum
rate equal to the lesser of (i) 5.850% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 2 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 2 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class WF-3-3 Certificates will be
6.350%.
|
|
(23)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-4-1 Certificates is the
per annum
rate equal to the lesser of (i) 5.730% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 2 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 2 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class WF-4-1 Certificates will be
6.230%.
|
|
(24)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-4-2 Certificates is the
per annum
rate equal to the lesser of (i) 5.790% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 2 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 2 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class WF-4-2 Certificates will be
6.290%.
|
|
(25)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-5 Certificates is the per
annum
rate equal to the lesser of (i) 5.950% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 2 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 2 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class WF-5 Certificates will be
6.450%.
|
|
(26)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-6-1 Certificates is the
per annum
rate equal to the lesser of (i) 5.520% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 2 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 2 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class WF-6-1 Certificates will be
6.020%.
|
18
|
(27)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-6-2 Certificates is the
per annum
rate equal to the lesser of (i) 5.580% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date;
provided,
that if the Mortgage Loans in Pool 2 and related property are not
purchased pursuant to Section 7.01(b) on the Pool 2 Initial Optional
Termination Date, then with respect to each subsequent Distribution
Date
the per annum rate calculated pursuant to clause (i) above with respect
to
the Class WF-6-2 Certificates will be 6.080%.
|
|
(28)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-M1 Certificates is the per
annum
rate equal to the lesser of (i) 6.090% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date.
|
|
(29)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-M2 Certificates is the per
annum
rate equal to the lesser of (i) 6.140% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date.
|
|
(30)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-M3 Certificates is the per
annum
rate equal to the lesser of (i) 6.190% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date.
|
|
(31)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-M4 Certificates is the per
annum
rate equal to the lesser of (i) 6.240% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date.
|
|
(32)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-M5 Certificates is the per
annum
rate equal to the lesser of (i) 6.290% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date.
|
|
(33)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-M6 Certificates is the per
annum
rate equal to the lesser of (i) 6.340% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date.
|
|
(34)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-M7 Certificates is the per
annum
rate equal to the lesser of (i) 6.750% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date.
|
|
(35)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-M8 Certificates is the per
annum
rate equal to the lesser of (i) 6.750% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date.
|
|
(36)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-M9 Certificates is the per
annum
rate equal to the lesser of (i) 6.750% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date.
|
|
(37)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class WF-M10 Certificates is the
per annum
rate equal to the lesser of (i) 6.750% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date.
|
|
(38)
|
The
Class 1-P Certificates will not bear interest at a stated rate. The
Class
1-P Certificates shall have a Class 1-P Principal Amount equal to
$100 and
shall be entitled to receive all Prepayment Premiums paid with respect
to
the Mortgage Loans in Pool 1 for which the Seller has retained the
servicing rights as provided in Section
5.02(f)(viii).
|
19
|
(39)
|
The
Class 2-P Certificates will not bear interest at a stated rate. The
Class
2-P Certificates shall have a Class 2-P Principal Amount equal to
$100 and
shall be entitled to receive all Prepayment Premiums paid with respect
to
the Mortgage Loans in Pool 2 for which the Seller has retained the
servicing rights as provided in Section
5.02(g)(viii).
|
|
(40)
|
The
Class 1-X Certificates shall have an initial principal balance of
$5,343,932.96 (initial overcollateralization of $5,344,032.96 minus
$100.00 allocated to the Class 1-P Certificates to create the $100
Class
1-P Principal Amount), but shall not accrue interest on that balance.
In
addition to the right to receive ultimately the initial principal
balance,
which right represents a regular interest Upper-Tier REMIC 1, the
Class
1-X Certificate shall also comprise a notional component, which represents
a regular interest in the Upper Tier REMIC 1. Such component has
a
notional balance that will at all times equal the aggregate of the
principal balances of the regular interests in Middle-Tier REMIC
1, and,
for each Distribution Date (and the related Accrual Period) this
notional
component shall bear interest at a per annum rate equal to the excess,
if
any, of (i) the difference between (a) the weighted average of the
interest rates on the regular interests in Middle-Tier REMIC 1 (other
than
any interest-only Interest) over (ii) the Adjusted Middle-Tier 1
WAC.
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|
(41)
|
The
Class 2-X Certificates shall have an initial principal balance of
$2,600,716 (initial overcollateralization of $2,600,816 minus $100.00
allocated to the Class 2-P Certificates to create the $100 Class
2-P
Principal Amount), but shall not accrue interest on that balance.
In
addition to the right to receive ultimately the initial principal
balance,
which right represents a regular interest Upper-Tier REMIC 2, the
Class
2-X Certificate shall also comprise a notional component, which represents
a regular interest in the Upper Tier REMIC 2. Such component has
a
notional balance that will at all times equal the aggregate of the
principal balances of the regular interests in Lower-Tier REMIC 2,
and,
for each Distribution Date (and the related Accrual Period) this
notional
component shall bear interest at a per annum rate equal to the excess,
if
any, of (i) the difference between (a) the weighted average of the
interest rates on the regular interests in Lower-Tier REMIC 2 over
(ii)
the Adjusted Lower-Tier 2 WAC.
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|
(42)
|
For
purposes of the REMIC Provisions, the Class C-X Certificate shall
represent beneficial ownership of the Group 1 Cap
Agreement.
|
|
(43)
|
The
Class S-X Certificates shall represent an interest-only regular interest
in Upper-Tier REMIC I, which shall be entitled to receive all
distributions in respect of the Class MT1-IO Interest in Middle-Tier
REMIC
1 (the “Class I” interest). In addition, for purposes of the REMIC
Provisions, the Class S-X Certificate shall represent beneficial
ownership
of the Supplemental Interest Trust Account, including the Swap
Agreement.
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|
(44)
|
The
Class R-1 Certificate will be issued without a Certificate Principal
Amount and will not bear interest at a stated rate. The Class R-1
Certificate represents ownership of the residual interest in Upper-Tier
REMIC 1, as well as ownership of the LT1-R Interest and the MT1-R
Interest.
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|
(45)
|
The
Class R-2 Certificate will be issued without a Certificate Principal
Amount and will not bear interest at a stated rate. The Class R-2
Certificate represents ownership of the residual interest in Upper-Tier
REMIC 2, as well as ownership of the LT2-R
Interest.
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|
(46)
|
The
Class LT-R-1 Certificate will be issued without a Class Principal
Amount
and will not bear interest at a stated rate. The Class LT-R-1 Certificate
represents ownership of the residual interest in Pooling REMIC 1.
The
Class LT-R-1 Certificate will be issued as a single Certificate evidencing
the entire Percentage Interest in such
Class.
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|
(47)
|
The
Class LT-R-2 Certificate will be issued without a Class Principal
Amount
and will not bear interest at a stated rate. The Class LT-R-2 Certificate
represents ownership of the residual interest in Pooling REMIC 2.
The
Class LT-R-2 Certificate will be issued as a single Certificate evidencing
the entire Percentage Interest in such
Class.
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20
|
(48)
|
The
Class C Certificates will be issued without a Certificate Principal
Amount
and will not bear interest at a stated rate. The Class C Certificates
shall be entitled to receive the Class C Distributable
Amount.
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|
(49)
|
The
Class 1-X, Class 2-X, Class C-X, Class S-X, Class 1-P and Class 2-P
Certificates will each be issued in minimum Percentage Interests
of
10.00%. The Class C, Class LT-R-1, Class LT-R-2, Class R-1 and Class
R-2
Certificate will each be issued as a single Certificate evidencing
the
entire Percentage Interest in each such
Class.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$1,315,770,849.
In
consideration of the mutual agreements herein contained, the Depositor, the
Seller, the Master Servicer and the Trustee hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
The
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
1-A1
Margin:
As
defined in footnote (2) of the Preliminary Statement under the caption “The
Certificates.”
1-A2
Margin:
As
defined in footnote (3) of the Preliminary Statement under the caption “The
Certificates.”
1-A3
Margin:
As
defined in footnote (4) of the Preliminary Statement under the caption “The
Certificates.”
1-A4A
Margin:
As
defined in footnote (5) of the Preliminary Statement under the caption “The
Certificates.”
1-A4B
Margin:
As
defined in footnote (6) of the Preliminary Statement under the caption “The
Certificates.”
1-A5
Margin:
As
defined in footnote (7) of the Preliminary Statement under the caption “The
Certificates.”
1-M1
Margin:
As
defined in footnote (8) of the Preliminary Statement under the caption “The
Certificates.”
1-M1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1 Stepdown Date and as
long as a Pool 1 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of (i) the aggregate
Class Principal Amount of the Group 1 Senior Certificates, after giving effect
to distributions on such Distribution Date and (ii) the Class Principal Amount
of the Class 1-M1 Certificates immediately prior to such Distribution Date
exceeds (y) the 1-M1 Target Amount.
21
1-M1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 87.40% and (ii) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 1 Overcollateralization Floor.
1-M2
Margin:
As
defined in footnote (9) of the Preliminary Statement under the caption “The
Certificates.”
1-M2
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1 Stepdown Date and as
long as a Pool 1 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of (i) the aggregate
Class Principal Amount of the Group 1 Senior Certificates and the Class 1-M1
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class 1-M2
Certificates immediately prior to such Distribution Date exceeds (y) the 1-M2
Target Amount.
1-M2
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 90.00% and (ii) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance for Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 1 Overcollateralization Floor.
1-M3
Margin:
As
defined in footnote (10) of the Preliminary Statement under the caption “The
Certificates.”
1-M3
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1 Stepdown Date and as
long as a Pool 1 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 1 Senior Certificates, Class 1-M1
Certificates and Class 1-M2 Certificates, in each case after giving effect
to
distributions on such Distribution Date and (ii) the Class Principal Amount
of
the Class 1-M3 Certificates immediately prior to such Distribution Date exceeds
(y) the 1-M3 Target Amount.
1-M3
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 91.60% and (ii) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 1 Overcollateralization Floor.
1-M4
Margin:
As
defined in footnote (11) of the Preliminary Statement under the caption “The
Certificates.”
22
1-M4
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1 Stepdown Date and as
long as a Pool 1 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 1 Senior Certificates, Class 1-M1
Certificates, Class 1-M2 Certificates and Class 1-M3 Certificates, in each
case
after giving effect to distributions on such Distribution Date and (ii) the
Class Principal Amount of the Class 1-M4 Certificates immediately prior to
such
Distribution Date exceeds (y) the 1-M4 Target Amount.
1-M4
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 92.60% and (ii) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 1 Overcollateralization Floor.
1-M5
Margin:
As
defined in footnote (12) of the Preliminary Statement under the caption “The
Certificates.”
1-M5
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1 Stepdown Date and as
long as a Pool 1 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 1 Senior Certificates, Class 1-M1
Certificates, Class 1-M2 Certificates, Class 1-M3 Certificates and Class 1-M4
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class 1-M5
Certificates immediately prior to such Distribution Date exceeds (y) the 1-M5
Target Amount.
1-M5
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 93.60% and (ii) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 1 Overcollateralization Floor.
1-M6
Margin:
As
defined in footnote (13) of the Preliminary Statement under the caption “The
Certificates.”
1-M6
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1 Stepdown Date and as
long as a Pool 1 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 1 Senior Certificates, Class 1-M1
Certificates, Class 1-M2 Certificates, Class 1-M3 Certificates, Class 1-M4
Certificates and Class 1-M5 Certificates, in each case after giving effect
to
distributions on such Distribution Date and (ii) the Class Principal Amount
of
the Class 1-M6 Certificates immediately prior to such Distribution Date exceeds
(y) the 1-M6 Target Amount.
1-M6
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 94.60% and (ii) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 1 Overcollateralization Floor.
23
1-M7
Margin:
As
defined in footnote (14) of the Preliminary Statement under the caption “The
Certificates.”
1-M7
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1 Stepdown Date and as
long as a Pool 1 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 1 Senior Certificates, Class 1-M1
Certificates, Class 1-M2 Certificates, Class 1-M3 Certificates, Class 1-M4
Certificates, Class 1-M5 Certificates and Class 1-M6 Certificates, in each
case
after giving effect to distributions on such Distribution Date and (ii) the
Class Principal Amount of the Class 1-M7 Certificates immediately prior to
such
Distribution Date exceeds (y) the 1-M7 Target Amount.
1-M7
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 96.00% and (ii) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 1 Overcollateralization Floor.
1-M8
Margin:
As
defined in footnote (15) of the Preliminary Statement under the caption “The
Certificates.”
1-M8
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1 Stepdown Date and as
long as a Pool 1 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 1 Senior Certificates, Class 1-M1
Certificates, Class 1-M2 Certificates, Class 1-M3 Certificates, Class 1-M4
Certificates, Class 1-M5 Certificates, Class 1-M6 Certificates and Class 1-M7
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class 1-M8
Certificates immediately prior to such Distribution Date exceeds (y) the 1-M8
Target Amount.
1-M8
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 97.00% and (ii) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 1 Overcollateralization Floor.
1-M9
Margin:
As
defined in footnote (16) of the Preliminary Statement under the caption “The
Certificates.”
1-M9
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1 Stepdown Date and as
long as a Pool 1 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 1 Senior Certificates, Class 1-M1
Certificates, Class 1-M2 Certificates, Class 1-M3 Certificates, Class 1-M4
Certificates, Class 1-M5 Certificates, Class 1-M6 Certificates, Class 1-M7
Certificates and Class 1-M8 Certificates, in each case after giving effect
to
distributions on such Distribution Date and (ii) the Class Principal Amount
of
the Class 1-M9 Certificates immediately prior to such Distribution Date exceeds
(y) the 1-M9 Target Amount.
24
1-M9
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 98.50% and (ii) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 1 Overcollateralization Floor.
10-K
Filing Deadline:
As
defined in Section 6.20(e)(i).
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that service
or
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 (as successor Master Servicer) or the Master
Servicer or (y) as provided in the applicable Servicing Agreement, to the extent
applicable to the related Servicer.
Accountant:
A
person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accrual
Period:
With
respect to any Distribution Date and the Group 1 Certificates, the Class WF-1-1
and Class WF-1-2 Certificates, the period beginning on the immediately preceding
Distribution Date (or on October 25, 2006 in the case of the first Accrual
Period in the case of the Group 1 Certificates, and October 31, 2006 in the
case
of the first Accrual Period in the case of the Class WF-1-1 and Class WF-1-2
Certificates) and ending on the day immediately preceding the related
Distribution Date. With respect to any Distribution Date and the Class 1-AIO
Certificates, Group 2 Certificates (other than the Class WF-1-1 and Class WF-1-2
Certificates), Class 1-X Certificates and Class 2-X Certificates and each
Lower-Tier Interest, the calendar month preceding the month of such Distribution
Date. The Class C-X and Class S-X Certificates will not be entitled to payments
of interest.
Act:
As
defined in Section 3.03(c).
Additional
Servicer:
Each
affiliate of each Servicer that Services any of the Mortgage Loans and each
Person who is not an affiliate of the any Servicer, who Services 10% or more
of
the Mortgage Loans.
Additional
Termination Event:
As
defined in the Swap Agreement.
Adjustable
Rate Mortgage Loans:
Mortgage
Loans
included in Pool 1 for which the related mortgage note provides for
adjustment of the applicable Mortgage Rate.
Adjusted
Lower-Tier 2 WAC:
For any
Distribution Date (and the related Accrual Period), an amount equal to (i)
two,
multiplied by (ii) the weighted average of the interest rates for such
Distribution Date for each regular interest in Lower-Tier REMIC 2 (other than
any interest-only regular interest), weighted in proportion to their Class
Principal Amounts as of the beginning of the related Accrual Period and computed
by subjecting the rate on the Class LT2-Q Interest to a cap of 0.00% and by
subjecting the rate on each remaining regular interest to a cap that corresponds
to the Certificate Interest Rate for the Corresponding Class of Certificates,
provided,
however,
that
for each Class of Certificates for which interest is accrued on the basis of
a
360-day year and the actual number of days in the related Accrual Period, the
Certificate Interest Rate shall be multiplied by an amount equal to (a) the
actual number of days in the Accrual Period, divided by (b) 30.
25
Adjusted
Middle-Tier 1 WAC:
For any
Distribution Date (and the related Accrual Period), an amount equal to (i)
two,
multiplied by (ii) the weighted average of the interest rates for such
Distribution Date for each regular interest in Middle-Tier REMIC 1 (other than
any interest-only regular interest), weighted in proportion to their Class
Principal Amounts as of the beginning of the related Accrual Period and computed
by subjecting the rate on the Class MT1-Q Interest to a cap of 0.00% and by
subjecting the rate on each remaining regular interest to a cap that corresponds
to the Certificate Interest Rate for the Corresponding Class of Certificates
(determined by substituting the REMIC 1 Net Funds Cap for the applicable Net
Funds Cap), provided,
however,
that
for each Class of Certificates for which interest is accrued on the basis of
a
360-day year and the actual number of days in the related Accrual Period, the
Certificate Interest Rate shall be multiplied by an amount equal to (a) the
actual number of days in the Accrual Period, divided by (b) 30.
Advance:
An
advance of the aggregate of payments of principal and interest (net of the
applicable Servicing Fee) on one or more Mortgage Loans that were due on the
Due
Date in the related Collection Period and not received as of the close of
business on the related Determination Date, required to be made by the related
Servicer or by the Master Servicer on behalf of the related Servicer (or by
the
Trustee as successor Master Servicer) pursuant to Section 5.04.
Adverse
REMIC Event:
Either
(i) loss of status as a REMIC, within the meaning of Section 860D of the Code,
for any group of assets identified as a REMIC in the Preliminary Statement
to
this Agreement, or (ii) imposition of any tax, including the tax imposed under
Section 860F(a)(1) on prohibited transactions, and the tax imposed under Section
860G(d) on certain contributions to a REMIC, on any REMIC created hereunder
to
the extent such tax would be payable from assets held as part of the Trust
Fund.
Affected
Party:
As
defined in the Swap Agreement.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Aggregate
Certificate Insurance Premium:
As to
any Distribution Date, the sum of (a) the Certificate Insurance Premium for
such
Distribution Date and (b) the amount of any Certificate Insurance Premium that
was not distributed to the Certificate Insurer on any prior Distribution
Date.
26
Aggregate
Loan Balance:
As of
any date of determination, the aggregate of the Scheduled Principal Balances
of
all Mortgage Loans in Pool 1 and Pool 2.
Aggregate
Voting Interests:
The
aggregate of the Voting Interests of all the Certificates under this
Agreement.
Agreement:
This
Trust Agreement and all amendments and supplements hereto.
Anniversary
Year:
The
one-year period beginning on the Closing Date and ending on the first
anniversary thereof, and each subsequent one-year period beginning on the day
after the end of the preceding Anniversary Year and ending on the next
succeeding anniversary of the Closing Date.
Applied
Loss Amounts:
A Pool
1 Applied Loss Amount or Pool 2 Applied Loss Amount, as applicable.
Appraised
Value:
With
respect to any Mortgage Loan, the amount set forth in an appraisal made in
connection with the origination of such Mortgage Loan as the value of the
related Mortgaged Property.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument, in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Trustee, which assignment, notice of transfer or equivalent instrument may
be in
the form of one or more blanket assignments covering the Mortgage Loans secured
by Mortgaged Properties located in the same jurisdiction, if permitted by law;
provided,
however,
that
none of the Custodians nor the Trustee shall be responsible for determining
whether any such assignment is in recordable form.
Aurora:
Aurora
Loan Services LLC or its successors in interest.
Authenticating
Agent:
Any
authenticating agent appointed by the Trustee pursuant to Section
6.10.
Authorized
Officer:
Any
Person who may execute an Officer’s Certificate on behalf of the
Depositor.
Available
Basis Risk Amount:
For any
Distribution Date and the Group 1 Certificates, the lesser of:
(i) the
product of:
|
(a)
|
the
excess, if any of (1) the weighted average of the Interest Rates
on the
Group 1 Certificates computed without regard to the Pool 1 Net Funds
Cap,
weighted based on the relative Class Principal Amounts for each class
of
Group 1 Certificates, over (2) the Pool 1 Net Funds Cap;
and
|
27
|
(b)
|
the
Scheduled Notional Amount for such Distribution Date,
and
|
|
(c)
|
a
fraction, the numerator of which is the actual number of days in
the
Accrual Period and the denominator of which is 360,
and
|
(ii) the
amount on deposit in the Supplemental Interest Trust after all required
distributions have been made on such Distribution Date pursuant to Sections
5.02(h)(i) through (iv).
Back-Up
Certification:
As
defined in Section 6.20(e)(iii).
Balloon
Mortgage Loan:
Any
Mortgage Loan having an original term to maturity that is shorter than its
amortization schedule, and a final Scheduled Payment that is disproportionately
large in comparison to other Scheduled Payments
Balloon
Payment:
The
final Scheduled Payment in respect of a Balloon Mortgage Loan.
Bankruptcy:
As to
any Person, the making of an assignment for the benefit of creditors, the filing
of a voluntary petition in bankruptcy, adjudication as a bankrupt or insolvent,
the entry of an order for relief in a bankruptcy or insolvency proceeding,
the
seeking of reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief, or seeking, consenting to or acquiescing in
the
appointment of a trustee, receiver or liquidator, dissolution, or termination,
as the case may be, of such Person pursuant to the provisions of either the
Bankruptcy Code, or any other similar state laws.
Bankruptcy
Code:
The
United States Bankruptcy Code of 1986, as amended.
Basis
Risk Shortfall:
With
respect to any Distribution Date and any Class of Offered Certificates (other
than the 1-AIO Certificates), the amount by which the amount of interest
calculated at the Certificate Interest Rate applicable to such Class for such
date, determined without regard to the applicable Net Funds Cap for such date,
exceeds the amount of interest calculated at the applicable Net Funds
Cap.
Benefit
Plan Opinion:
An
Opinion of Counsel satisfactory to the Trustee to the effect that any proposed
transfer will not (i) cause the assets of the Trust Fund to be regarded as
“plan
assets” for purposes of the Plan Asset Regulations or (ii) give rise to any
fiduciary duty on the part of the Depositor or the Trustee.
Book-Entry
Certificates:
Beneficial interests in Certificates designated as “Book-Entry Certificates” in
this Agreement, ownership and transfers of which shall be evidenced or made
through book entries by a Clearing Agency as described in Section 3.09;
provided, that after the occurrence of a condition whereupon book-entry
registration and transfer are no longer permitted and Definitive Certificates
are to be issued to Certificate Owners, such Book-Entry Certificates shall
no
longer be “Book-Entry Certificates.” As of the Closing Date, each Class of
Offered Certificates constitutes Book-Entry Certificates.
Bulk
PMI Policy:
Any of
the (A)(i) the MGIC Mortgage Guaranty Select Master Policy for Multiple Loan
Transactions No. 05-02-04-4681 and the MGIC Letter Agreement dated October
31,
2006 and (ii) Commitment Certificates covering $110,237,717.20 aggregate
principal balance of insurable Mortgage Loans and (B) PMI Mortgage Master Policy
No. 00000-0000-0, Bulk No. 2006-0908, subject to the terms and conditions of
PMI
Mortgage’s Bulk Primary First Lien Master Policy UW 2510.00 (09/00) and the PMI
Letter Agreement dated October 31, 2006, covering $84,816,036.00 aggregate
principal balance of insurable Mortgage Loans.
28
Business
Day:
Any day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in the States of Colorado, Illinois or New York or the city in which either
the
Corporate Trust Office of the Trustee or the principal executive office of
the
Certificate Insurer is located are closed, or (iii) with respect to any Servicer
Remittance Date or any Servicer reporting date, a day on which banking
institutions in the States specified in the definition of “Business Day” in the
related Servicing Agreement, are authorized or obligated by law or executive
order to be closed.
Cap
Counterparty:
In the
case of the Group 1 Cap Agreement, Xxxxxx Brothers Special Financing
Inc.
Carryforward
Interest:
With
respect to any Distribution Date and any Class of Certificates (other than
the
Class C, Class 1-X, Class 2-X, Class C-X, Class S-X, Class 1-P, Class 2-P,
Class
R-1, Class R-2, Class LT-R-1 and Class LT-R-2 Certificates), the sum of (i)
the
amount, if any, by which (x) the sum of (A) Current Interest for such Class
for
the immediately preceding Distribution Date and (B) any unpaid Carryforward
Interest for such Class from previous Distribution Dates exceeds (y) the amount
distributed in respect of interest on such Class on such immediately preceding
Distribution Date, and (ii) interest on such amount for the related Accrual
Period at the applicable Certificate Interest Rate.
Certificate:
Any one
of the certificates signed and countersigned by the Trustee in substantially
the
forms attached hereto as Exhibit A.
Certificate
Account:
The
account maintained by the Trustee in accordance with the provisions of Section
4.04.
Certificate
Insurance Policy:
The
certificate guaranty insurance policy to be issued by the Certificate Insurer
including any endorsements thereto, with respect to Class WF-3-1, Class WF-4-1
and Class WF-6-1 Certificates.
Certificate
Insurance Premium:
With
respect to any Distribution Date and with respect to the Certificate Insurance
Policy, an amount equal to 1/12th the product of (a) the Class Principal Amount
of each of the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates as
of
such Distribution Date (prior to giving effect to any distribution thereon
on
such Distribution Date) and (b) the applicable Premium Percentage.
Certificate
Insurer:
MBIA
Insurance Corporation, or any successors in interest thereto, as issuer of
the
Certificate Insurance Policy.
Certificate
Insurer Default:
The
occurrence and continuance of any of the following events:
29
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(a)
|
the
Certificate Insurer shall have failed to make a payment required
to be
made under the Certificate Insurance Policy in accordance with its
terms;
|
|
(b)
|
the
Certificate Insurer shall have (i) filed a petition or commenced
a case or
proceeding under any provision or chapter of the United States Bankruptcy
Code or any other similar federal or state law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization, (ii) made
a
general assignment for the benefit of its creditors, or (iii) had
an order
for relief entered against it under the United States Bankruptcy
Code or
any other similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization that is final and
nonappealable; or
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|
(c)
|
a
court of competent jurisdiction, the Office of the Commissioner of
Insurance of the State of New York or other competent regulatory
authority
shall have entered a final and nonappealable order, judgment or decree
(i)
appointing a custodian, trustee, agent or receiver for the Certificate
Insurer or for all or any material portion of its property or (ii)
authorizing the taking of possession by a custodian, trustee, agent
or
receiver of the Certificate Insurer (or the taking of possession
of all or
any material portion of the property of the Certificate
Insurer).
|
Certificate
Interest Rate:
With
respect to each Class of Certificates and any Distribution Date, the applicable
per annum rate set forth or described in the Preliminary Statement
hereto.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the owner of such
Book-Entry Certificate, as reflected on the books of the Clearing Agency, or
on
the books of a Person maintaining an account with such Clearing Agency (directly
or as an indirect participant, in accordance with the rules of such Clearing
Agency).
Certificate
Principal Amount:
With
respect to any Certificate (other than the Class 1-AIO, Class C, Class 1-X,
Class 2-X, Class C-X, Class S-X, Class R-1, Class R-2, Class LT-R-1 and Class
LT-R-2 Certificates) and any Distribution Date, the initial Certificate
Principal Amount thereof on the Closing Date, less the amount of all principal
distributions previously distributed with respect to such Certificate prior
to
such Distribution Date, and, (i) in the case of the Group 1 Certificates, as
reduced by any Pool 1 Applied Loss Amount previously allocated thereto and
(ii)
in the case of the Group 2 Certificates, as reduced by any Pool 2 Applied Loss
Amount previously allocated thereto; provided,
however,
that on
each Distribution Date on which a related Subsequent Recovery is distributed,
the Certificate Principal Amount of any Group 1 Certificate whose Certificate
Principal Amount has previously been reduced by application of Pool 1 Applied
Loss Amounts and the Certificate Principal Amount of any Group 2 Certificate
whose Certificate Principal Amount has previously been reduced by application
of
Pool 2 Applied Loss Amounts, as applicable, will be increased, in order of
seniority, by an amount (to be applied pro
rata
to all
Certificates of such Class) equal to the lesser of (1) any Deferred Amount
for
each such Class immediately prior to such date and (2) in the case of holders
of
the Group 1 Certificates and Group 2 Certificates, the total amount of any
Subsequent Recovery from the related Mortgage Pool distributed on such
Distribution Date after application (for this purpose) to any more senior
Classes of such Certificates. The Class C, Class 1-X, Class 2-X, Class C-X,
Class S-X, Class R-1 and Class R-2 Certificates are issued without Certificate
Principal Amounts. The Class 1-P Certificates are issued with an initial Class
1-P Principal Amount of $100.00 and the Class 2-P Certificates are issued with
an initial Class 2-P Principal Amount of $100.00.
30
Certificate
Register
and
Certificate
Registrar:
The
register maintained and the registrar appointed pursuant to Section
3.02.
Certificateholder:
The
meaning provided in the definition of “Holder.”
Certifying
Party:
As
defined in Section 6.20(e)(iii).
Class:
All
Certificates and, in the case of each of Lower-Tier REMIC 1, Middle-Tier REMIC
1
and Lower-Tier REMIC 2, all Lower Tier Interests bearing the same Class
designation.
Class
1-P Certificate:
An
interest in Upper-Tier REMIC 1, as described in footnote (38) to the table
entitled “The Certificates” in the Preliminary Statement, which interest shall
be evidenced by the rights of the holders of the Class 1-P Certificates to
receive Prepayment Premiums with respect to Pool 1 Mortgage Loans.
Class
1-P Principal Amount:
As of
the Closing Date, $100.00.
Class
1-X Distributable Amount:
On any
Distribution Date, the amount of interest that has accrued on the notional
balance of the Class 1-X Certificates (as described in the Preliminary Statement
in footnote (40) under the caption “The Certificates,” but that has not been
distributed prior to such date. In addition, such amount shall include the
Class
1-X Principal Amount to the extent such amount has not been distributed on
an
earlier Distribution Date as part of the Pool 1 Overcollateralization Release
Amount.
Class
1-X Notional Balance:
With
respect to any Distribution Date (and the related Accrual Period) the aggregate
of the Class Principal Amount of the interests in Middle-Tier REMIC 1, as
described in the Preliminary Statement.
Class
1-X Principal Amount:
As of
the Closing Date, $5,343,932.96.
Class
2-P Certificate:
An
interest in Upper-Tier REMIC 2, as described in footnote (39) to the table
entitled “The Certificates” in the Preliminary Statement, which interest shall
be evidenced by the rights of the holders of the Class 2-P Certificates to
receive Prepayment Premiums with respect to Pool 2 Mortgage Loans.
Class
2-P Principal Amount:
As of
the Closing Date, $100.00.
Class
2-X Distributable Amount:
On any
Distribution Date, the amount of interest that has accrued on the notional
balance of the Class 2-X Certificates (as described in the Preliminary Statement
in footnote (41) under the caption “The Certificates,” but that has not been
distributed prior to such date. In addition, such amount shall include the
Class
2-X Principal Amount to the extent such amount has not been distributed on
an
earlier Distribution Date as part of the Pool 2 Overcollateralization Release
Amount.
31
Class
2-X Notional Balance:
With
respect to any Distribution Date (and the related Accrual Period) the aggregate
of the Class Principal Amount of the interests in Lower-Tier REMIC 2, as
described in the Preliminary Statement.
Class
2-X Principal Amount:
As of
the Closing Date, $2,600,716.
Class
C Distributable Amount:
For
each Distribution Date (1) on and prior to the Class X Account Termination
Date,
an amount equal to the lesser of (a) aggregate
investment earnings on the Class X Account for the related Collection Period
and
(b) the amount on deposit in the Class X Account on such Distribution Date,
and
(2) on the Class X Account Termination Date, an amount equal to the entire
amount remaining on deposit in the Class X Account, after making the payments
set forth in clause (1) hereto.
Class
C Mortgage Loan:
Any
Mortgage Loan which has become a Liquidated Mortgage Loan on or prior to the
Collection Period ending in November 2009.
Class
I Shortfalls:
As
defined in Section 10.01(l) hereof. For purposes of clarity, the Class I
Shortfall for any Distribution Date shall equal the amount payable to the Swap
Counterparty on such Distribution Date in excess of the amount payable on the
Class I interest in the Upper Tier REMIC 1 on such Distribution Date, all as
further provided in Section 10.01(l) hereof.
Class
LT-R-1 Certificates:
Each
Class LT-R-1 Certificate execution by the Trustee, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed hereto
as Exhibit A and evidencing the residual interest in Pooling REMIC
1.
Class
LT-R-2 Certificates:
Each
Class LT-R-2 Certificate execution by the Trustee, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed hereto
as Exhibit A and evidencing the residual interest in Pooling REMIC
2.
Class
Notional Amount:
For the
Class 1-AIO Certificates and any Distribution Date, the Class Notional Amount
of
the Class 1-AIO Certificates will be equal to aggregate Scheduled Principal
Balance of the Fixed Rate Mortgage Loans in Pool 1 as of the first day of the
related Collection Period.
Class
Principal Amount:
With
respect to each Class of Certificates other than the Class 1-AIO, Class C,
Class
1-P, Class 2-P, Class R-1, Class R-2, Class LT-R-1, Class LT-R-2, Class 1-X,
Class 2-X, Class C-X and Class S-X Certificates, the aggregate of the
Certificate Principal Amounts (or related Percentage Interest therein
aggregating to 100%) of all Certificates of such Class at the date of
determination. With respect to the Class 1-P Certificates and Class 2-P
Certificates, the Class 1-P Principal Amount and Class 2-P Principal Amount,
respectively. With respect to the Class C, Class R-1, Class R-2, Class LT-R-1,
Class LT-R-2, Class 1-X, Class 2-X, Class C-X and Class S-X Certificates,
zero.
32
Class
R-1 Certificate:
The
Class R-1 Certificate executed by the Trustee, and authenticated and delivered
by the Certificate Registrar, substantially in the form annexed hereto as
Exhibit A and evidencing the ownership of the sole class of residual interest
in
Upper-Tier REMIC 1 as well as ownership of the Class LT1-R Interest in
Lower-Tier REMIC 1 and the Class MT1-R Interest in Middle-Tier REMIC
1.
Class
R-2 Certificate:
The
Class R-2 Certificate executed by the Trustee, and authenticated and delivered
by the Certificate Registrar, substantially in the form annexed hereto as
Exhibit A and evidencing the ownership of the sole class of residual interest
in
Upper-Tier REMIC 2 as well as ownership of the Class LT2-R Interest in
Lower-Tier REMIC 2.
Class
WF-6 Percentage:
For
any
Distribution Date will be equal to the lesser of (i) 100% and (ii) the
percentage obtained by dividing (x) the aggregate Class Principal Amounts of
the
Class WF-6-1 and Class WF-6-2 Certificates immediately prior to such date by
(y)
the aggregate Class Principal Amount of the Group 2 Senior Certificates
immediately prior to such date.
Class
WF-6 Priority Amount:
For any
Distribution Date an amount equal to the least of (i) the aggregate Class
Principal Amounts of the Class WF-6-1 and Class WF-6-2 Certificates immediately
prior to such Distribution Date, (ii) the product of (x) the Pool 2 Senior
Principal Distribution Amount and (y) the Class WF-6 Percentage and (z) the
Class WF-6 Shift Percentage and (iii) the Pool 2 Senior Principal Distribution
Amount; provided, however, that if prior to such Distribution Date the aggregate
Class Principal Amount of the Group 2 Senior Certificates (other than the Class
WF-6-1 and Class WF-6-2 Certificates) has been reduced to zero, the Class WF-6
Priority Amount will equal 100% of the Pool 2 Senior Principal Distribution
Amount.
Class
WF-6 Shift Percentage:
For any
Distribution Date occurring prior to the 37th Distribution Date (i.e., November
2009) will be 0%; for the 37th through 60th Distribution Dates, 45%; for the
61st through 72nd Distribution Dates, 80%; for the 73rd through 84th
Distribution Dates, 100%; and thereafter, 300%.
Class
X
Account:
An
account established as part of the Trust
Fund
pursuant to Section 5.11 of this Agreement but which is not an asset of any
of
the REMICs for the benefit of the Class 1-X, Class 2-X and Class C
Certificates.
Class
X Account Termination Date:
The
Distribution Date in November 2009.
Clearing
Agency Participant:
A
broker, dealer, bank, other financial institution or other Person for whom
from
time to time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act. As of the Closing Date, the Clearing Agency shall be The
Depository Trust Company.
Clearstream:
Clearstream Banking, S.A., Luxembourg, and any successor thereto.
Closing
Date:
October
31, 2006.
33
Code:
The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
Collection
Account:
A
separate account established and maintained by the Master Servicer pursuant
to
Section 4.01.
Collection
Period:
With
respect to any Distribution Date, the period commencing on the second day of
the
month immediately preceding the month in which such Distribution Date occurs
and
ending on the first day of the month in which such Distribution Date
occurs.
Commission:
The
United States Securities and Exchange Commission.
Compensating
Interest Payment:
With
respect to any Distribution Date and prepayments in full or in part, an amount
equal the aggregate amount of any Prepayment Interest Shortfalls required to
be
paid by the Servicers with respect to such Distribution Date. The Master
Servicer shall not be responsible to make any Compensating Interest
Payment.
Component:
Not
applicable.
Component
Interest Rate:
Not
applicable.
Component
Principal Amount:
Not
applicable.
Conventional
Loan:
A
Mortgage Loan that is not insured by the United States Federal Housing
Administration or guaranteed by the United States Department of Veterans
Affairs.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
Cooperative
Loan Documents:
As to
any Cooperative Loan, (i) the Cooperative Shares, together with a stock power
in
blank; (ii) the original executed Security Agreement and the assignment of
the
Security Agreement endorsed in blank; (iii) the original executed Proprietary
Lease and the assignment of the Proprietary Lease endorsed in blank; (iv) the
original executed Recognition Agreement and the assignment of the Recognition
Agreement (or a blanket assignment of all Recognition Agreements) endorsed
in
blank; (v) the executed UCC-1 financing statement with evidence of recording
thereon, which has been filed in all places required to perfect the security
interest in the Cooperative Shares and the Proprietary Lease; and (vi) executed
UCC-3 financing statements (or copies thereof) or other appropriate UCC
financing statements required by state law, evidencing a complete and unbroken
line from the mortgagee to the Trustee with evidence of recording thereon (or
in
a form suitable for recordation).
Cooperative
Loan:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
34
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
Cooperative
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Unit:
A
single-family dwelling located in a Cooperative Property.
Corporate
Trust Office:
The
principal corporate trust office of the Trustee (a) at which Certificates may
be
presented for transfer and exchange and for presentment and surrender for the
final distributions thereon is located at Citibank, N.A., 000 Xxxx Xxxxxx,
00xx
xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: 15th
Floor
Window and (b) for all other purposes, Citibank, N.A., 000 Xxxxxxxxx Xxxxxx,
00xx
xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Agency and Trust Xxxxxx XS Trust Series
2006-17, or such other address that the Trustee may designate from time to
time
by notice to the Certificateholders, the Depositor, the Certificate Insurer
and
the Master Servicer.
Corresponding
Class:
The
Class of Certificates that corresponds to a class of interests in Middle-Tier
REMIC 1 or Lower-Tier REMIC 2, as applicable, and as described in the
Preliminary Statement.
Credit
Score:
With
respect to any Mortgage Loan, a numerical assessment of default risk with
respect to the Mortgagor under such Mortgage Loan, determined on the basis
of a
methodology developed by Fair, Xxxxx & Co., Inc.
Current
Interest:
With
respect to any Offered Certificate and any Distribution Date, the aggregate
amount of interest accrued at the applicable Certificate Interest Rate during
the related Accrual Period on the Class Principal Amount or Class Notional
Amount thereof immediately prior to such Distribution Date.
Custodial
Account:
Any
custodial account (other than an Escrow Account) established and maintained
by a
Servicer pursuant to a Servicing Agreement.
Custodial
Agreement:
Each
custodial agreement attached as Exhibit K hereto, and any custodial agreement
subsequently executed by the Trustee and acknowledged by the Master Servicer
substantially in the form thereof.
Custodian:
Each
custodian appointed by the Trustee pursuant to a Custodial Agreement and any
successor thereto. The initial Custodians are Deutsche Bank National Trust
Company, LaSalle Bank National Association, U.S. Bank National Association
and
Xxxxx Fargo Bank, N.A.
Cut-off
Date:
With
respect to all Mortgage Loans, October 1, 2006.
Cut-off
Date Balance:
With
respect to the Mortgage Loans in the Trust Fund on the Closing Date, the
aggregate Scheduled Principal Balance of such Mortgage Loans as of the Cut-off
Date.
35
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction of the Scheduled Payment that the
related Mortgagor is obligated to pay on any Due Date as a result of, or in
connection with, any proceeding under Bankruptcy law or any similar
proceeding.
Defaulting
Party:
As
defined in the Swap Agreement.
Deferred
Amount:
With
respect to any Distribution Date and each Group 1 Certificate, the aggregate
Pool 1 Applied Loss Amounts previously applied in reduction of the Certificate
Principal Amount thereof, less (i) any amounts previously reimbursed in respect
thereof and (ii) the amount by which the Certificate Principal Amount of such
Group 1 Certificate has been increased due to Subsequent Recoveries. With
respect to any Distribution Date and each Group 2 Certificate, the aggregate
Pool 2 Applied Loss Amounts previously applied in reduction of the Certificate
Principal Amount thereof, less (i) any amounts previously reimbursed in respect
thereof and (ii) the amount by which the Certificate Principal Amount of such
Group 2 Certificate has been increased due to Subsequent Recoveries
;
provided,
further, that any Pool 2 Applied Loss Amounts allocated to the Class WF-3-1,
Class WF-4-1 or Class WF-6-1 Certificates will not be Deferred Amounts to the
extent they are paid by the Certificate Insurer as part of Guaranteed
Distributions.
Deficiency
Amount:
With
respect to the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates and
any
Distribution Date, the excess, if any, of Guaranteed Distributions over the
aggregate amount available to be distributed to the Class WF-3-1, Class WF-4-1
and Class WF-6-1 Certificateholders on such Distribution Date in accordance
with
the provisions of Section 5.02 hereof.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
under Bankruptcy law or any similar proceeding.
Definitive
Certificate:
A
Certificate of any Class issued in definitive, fully registered, certificated
form.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Fund pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans are
substituted therefor.
Delinquent:
For
reporting purposes, a Mortgage Loan is “delinquent” when any payment
contractually due thereon has not been made by the close of business on the
Due
Date therefor. Such Mortgage Loan is “30 days Delinquent” if such payment has
not been received by the close of business on the corresponding day of the
month
immediately succeeding the month in which such payment was first due, or, if
there is no such corresponding day (e.g.,
as
when a
30-day month follows a 31-day month in which a payment was due on the 31st
day
of such month), then on the last day of such immediately succeeding month.
Similarly for “60 days Delinquent” and the second immediately succeeding month
and “90 days Delinquent” and the third immediately succeeding
month.
36
Depositor:
Structured Asset Securities Corporation, a Delaware corporation, having its
principal place of business in New York, or its successors in
interest.
Determination
Date:
With
respect to each Distribution Date, the 18th day of the month in which such
Distribution Date occurs, or, if such 18th day is not a Business Day, the next
succeeding Business Day.
Disqualified
Organization:
A
“disqualified organization” as defined in Section 860E(e)(5) of the
Code.
Distressed
Mortgage Loan:
Any
Mortgage Loan that at the date of determination is Delinquent in payment for
a
period of more than 90 days or more without giving effect to any grace period
permitted by the relevant Mortgage Note or for which the applicable Servicer
has
accepted a deed in lieu of foreclosure.
Distribution
Date:
The
25th day of each month or, if such 25th day is not a Business Day, the next
succeeding Business Day, commencing in November 2006.
Distribution
Date Statement:
As
defined in Section 4.03(a) hereof.
Due
Date:
With
respect to any Mortgage Loan, the date on which a Scheduled Payment is due
under
the related Mortgage Note.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies or
(ii) an account or accounts the deposits in which are insured by the FDIC to
the
limits established by such corporation, provided that any such deposits not
so
insured shall be maintained in an account at a depository institution or trust
company whose commercial paper or other short term debt obligations (or, in
the
case of a depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other short term debt
or deposit obligations of such holding company or depository institution, as
the
case may be) have been rated by each Rating Agency in its highest short-term
rating category, or (iii) a segregated trust account or accounts (which shall
be
a “special deposit account”) maintained with the Trustee or any other federal or
state chartered depository institution or trust company, acting in its fiduciary
capacity, in a manner acceptable to the Trustee and the Rating Agencies.
Eligible Accounts may bear interest.
Eligible
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest 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 (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
37
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
Xxxxxx Xxx, Xxxxxx Xxx or Xxxxxxx Mac with any registered broker/dealer subject
to Securities Investors’ Protection Corporation jurisdiction or any commercial
bank insured by the FDIC, if such broker/dealer or bank has an uninsured,
unsecured and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest long-term credit rating categories of each Rating Agency;
provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the Pool Balance and the aggregate principal
amount of all Eligible Investments in the Certificate Account; provided,
further,
that
such securities will not be Eligible Investments if they are published as being
under review with negative implications from any Rating Agency;
(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 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment (including those managed or
advised by the Trustee or any Affiliate thereof), (A) rated in the highest
rating category by each Rating Agency or (B) that would not adversely affect
the
then current rating assigned by each Rating Agency of any of the Certificates
(in the case of the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates,
determined without regard to the Certificate Insurance Policy) or the NIM
Securities. Such investments in this subsection (viii) may include money market
mutual funds or common trust funds, including any fund for which Citibank,
N.A.,
in its capacity other than as Trustee, the Master Servicer or an Affiliate
thereof serves as an investment advisor, administrator, shareholder, servicing
agent, and/or custodian or subcustodian, notwithstanding that (x) Citibank,
N.A., the Trustee, the Master Servicer or any Affiliate thereof charges and
collects fees and expenses from such funds for services rendered,
(y) Citibank, N.A., the Trustee, the Master Servicer, or any Affiliate
thereof charges and collects fees and expenses for services rendered pursuant
to
this Agreement, and (z) services performed for such funds and pursuant to
this Agreement may converge at any time. Citibank, N.A. or an Affiliate thereof
is hereby authorized to charge and collect from the Trustee such fees as are
collected from all investors in such funds for services rendered to such funds
(but not to exceed investment earnings thereon);
38
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations, provided that any such investment will be a “permitted investment”
within the meaning of Section 860G(a)(5) of the Code.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
ERISA-Restricted
Certificate:
Any
Class C, Class 1-P, Class 2-P, Class R-1, Class R-2, Class LT-R-1, Class LT-R-2,
Class 1-X, Class 2-X, Class C-X and Class S-X Certificate and any Certificate
with a rating below the lowest applicable rating permitted under the
Underwriter’s Exemption.
ERISA-Restricted
Swap Certificate:
Any
Group 1 Certificate.
Errors
and Omission Insurance Policy:
The
errors or omission insurance policy required to be obtained by each Servicer
satisfying the requirements of the related Servicing Agreement.
Escrow
Account:
Any
account established and maintained by each Servicer pursuant to the related
Servicing Agreement.
Euroclear:
Euroclear Bank, S.A./N.V., as operator of the Euroclear System.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 6.14(a).
39
Exchange
Act:
The
Securities and Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
Exchange
Act Signing Party:
Either
the Depositor or the Master Servicer, to be determined by mutual agreement
between such parties.
Excluded
Trust Assets:
As
defined in the Preliminary Statement.
Xxxxxx
Xxx:
Xxxxxx
Xxx, f/k/a the Federal National Mortgage Association, a federally chartered
and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
Fidelity
Bond:
The
fidelity bond required to be obtained by each Servicer satisfying the
requirements of the related Servicing Agreement.
Final
Scheduled Distribution Date:
With
respect to each Class of Group 1 Certificates, the Distribution Date in August
2046. With respect to each Class of Group 2 Certificates, the Distribution
Date
in November 2036.
Financial
Intermediary:
A
broker, dealer, bank or other financial institution or other Person that clears
through or maintains a custodial relationship with a Clearing Agency
Participant.
Fixed
Rate Mortgage Loans:
Mortgage Loans bearing a fixed rate of interest.
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
Xxxxxxx
Mac:
Xxxxxxx
Mac, f/k/a the Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the
Emergency Home Finance Act of 1970, as amended, or any successor
thereto.
Xxxxxx
Mae
or
GNMA:
Xxxxxx
Xxx, f/k/a the Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
Group
1 Cap Agreement:
The Cap
Agreement dated as of October 31, 2006, entered into between the Trustee on
behalf of the Trust Fund (for the benefit of the Group 1 Certificateholders)
and the Cap Counterparty, which agreement provides for the monthly payment
specified therein, to the Trustee (for the benefit of the Group 1 Certificateholders)
commencing with the Distribution Date in November 2007 and terminating in (but
including the Distribution Date in) October 2011, by the Cap Counterparty,
but
subject to the conditions set forth therein, including the 1992 ISDA Master
Swap
Agreement (Multi-Currency Cross Border), together with the confirmation and
schedules relating thereto, in the form of Exhibit N-2 hereto.
40
Group
1 Certificates:
Collectively, the Group 1 Senior Certificates and the Group 1 Subordinate
Certificates.
Group
1 Senior Certificates:
Collectively, the Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4A, Class 1-A4B
and Class 1-A5 Certificates.
Group
1 Senior Priority:
The
priority of distributions on the Group 1 Senior Certificates described in
Section 5.02(d)(i)(B).
Group
1 Subordinate Certificates:
Collectively, the Class 1-M1, Class 1-M2, Class 1-M3, Class 1-M4, Class 1-M5,
Class 1-M6, Class 1-M7, Class 1-M8 and Class 1-M9 Certificates.
Group
1 Subordinate Priority:
To the
Class 1-M1, Class 1-M2, Class 1-M3, Class 1-M4, Class 1-M5, Class 1-M6, Class
1-M7, Class 1-M8 and Class 1-M9 Certificates, sequentially, in that
order.
Group
2 Certificates:
Collectively, the Group 2 Senior Certificates and the Group 2 Subordinate
Certificates.
Group
2 Senior Certificates:
The
Class WF-1-1, WF-1-2, WF-2, WF-3-1, WF-3-2, WF-3-3, WF-4-1, WF-4-2, WF-5, WF-6-1
and WF-6-2 Certificates.
Group
2 Senior Priority:
The
priority of distributions on the Group 2 Senior Certificates described in
Section 5.02(e)(i)(A).
Group
2 Subordinate Certificates:
Collectively, the Class WF-M1, Class WF-M2, Class WF-M3, Class WF-M4, Class
WF-M5, Class WF-M6, Class WF-M7, Class WF-M8, Class WF-M9 and Class WF-M10
Certificates.
Group
2 Subordinate Priority:
To the
Class WF-M1, Class WF-M2, Class WF-M3, Class WF-M4, Class WF-M5 and Class WF-M6,
Class WF-M7, Class WF-M8, Class WF-M9 and Class WF-M10 Certificates,
sequentially, in that order.
Guaranteed
Distributions:
With
respect to the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates,
(a) for any Distribution Date, the sum of (i) the related Current Interest
for the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates for such
Distribution Date, but excluding therefrom any Net Prepayment Interest
Shortfalls and any Relief Act Reductions allocable to the Class Class WF-3-1,
Class WF-4-1 or Class WF-6-1 Certificates on such Distribution Date, and (ii)
the amount of any Pool 2 Applied Loss Amounts allocated to the Class WF-3-1,
Class WF-4-1 and Class WF-6-1 Certificates on such Distribution Date, and (b)
for the Final Scheduled Distribution Date, the respective Class Principal
Amounts of the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates to
the
extent unpaid on the Final Scheduled Distribution Date (after giving effect
to
all distributions to be made on such date).
Holder
or
Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except that, solely for the purposes of taking any action or giving
any consent pursuant to this Agreement, any Certificate registered in the name
of the Depositor, the Trustee, the Master Servicer, any Servicer, the Cap
Counterparty or any Affiliate thereof shall be deemed not to be outstanding
in
determining whether the requisite percentage necessary to effect any such
consent has been obtained, except that, in determining whether the Trustee
shall
be protected in relying upon any such consent, only Certificates which a
Responsible Officer of the Trustee knows to be so owned shall be disregarded.
The Trustee may request and conclusively rely on certifications by the
Depositor, the Master Servicer, the Cap Counterparty or the applicable Servicer,
in determining whether any Certificates are registered to an Affiliate of the
Depositor, the Master Servicer, the Cap Counterparty or any Servicer,
respectively. After a Section 7.01(d) Purchase Event, except in the case of
the
Class LT-R-1 and Class LT-R-2 Certificates, Sections 3.03, 3.04, 3.05, 3.06,
3.07, 3.09, 5.02(b) through (h) and 11.03 (a) and (b) herein, all references
in
this Agreement to “Holder” or “Certificateholder” shall be deemed to be
references to the LTURI-holder, as recorded on the books of the Certificate
Registrar, as holder of the Pooling REMIC 1 Regular Interests (in the case
of a
Section 7.01(d) Purchase Event with respect to the Pooling REMIC 1 Regular
Interests) and the Pooling REMIC 2 Regular Interests (in the case of a Section
7.01(d) Purchase Event with respect to the Pooling REMIC 2 Regular
Interests).
41
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with
respect to any other Person, a Person who (a) is in fact independent of another
specified Person and any Affiliate of such other Person, (b) does not have
any
material direct financial interest in such other Person or any Affiliate of
such
other Person, and (c) is not connected with such other Person or any Affiliate
of such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions.
Initial
LIBOR Rate:
5.32%
per annum.
Insurance
Agreement:
The
insurance agreement dated as of October 1, 2006 among the Depositor, the Seller,
the Trustee and the Certificate Insurer.
Insurance
Fee Rate:
With
respect to each Mortgage Loan insured by an Insurance Policy paid for by the
lender or a Bulk PMI Policy, the per annum rate specified in the Mortgage Loan
Schedule.
Insurance
Policy:
Any
Primary Mortgage Insurance Policy, any standard hazard insurance policy, flood
insurance policy, earthquake insurance policy or title insurance policy relating
to the Mortgage Loans or the Mortgaged Properties, to be in effect as of the
Closing Date or thereafter during the term of this Agreement.
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy, other than amounts (i) to cover
expenses incurred by or on behalf of any Servicer or Master Servicer in
connection with procuring such proceeds, (ii) to be applied to restoration
or
repair of the related Mortgaged Property or (iii) required to be paid over
to
the Mortgagor pursuant to law or the related Mortgage Note.
42
Insured
Payments:
(i)
With respect to any Distribution Date, any Deficiency Amount and (ii) any
Preference Amount.
Interest-Only
Certificates:
The
Class 1-AIO Certificates.
Interest
Remittance Amount:
With
respect to any Mortgage Pool and Distribution Date, (a) the sum of (1) all
interest collected (other than in connection with Payaheads and Prepayment
Premiums) or advanced in respect of Scheduled Payments in such Mortgage Pool
during the related Collection Period by the Servicers, the Master Servicer,
or
the Trustee (solely acting in its capacity as successor Master Servicer),
minus
(x) the
Servicing Fee with respect to the Mortgage Loans, (y) previously unreimbursed
Advances and other amounts due to the Servicers, the Master Servicer or the
Trustee (solely acting in its capacity as successor Master Servicer) to the
extent allocable to interest and the allocable portion of previously
unreimbursed Servicing Advances with respect to the Mortgage Loans and (z)
in
the case of Pool 2, any insurance premiums on any Bulk PMI Policy, (2) any
Compensating Interest Payments with respect to the Mortgage Loans in such
Mortgage Pool with respect to the related Prepayment Period (or in the case
of
Mortgage Loans serviced by Aurora, the relevant Collection Period), (3) the
portion of any Purchase Price, as applicable, or Substitution Amount paid with
respect the Mortgage Loans in such Mortgage Pool during the related Prepayment
Period (or in the case of Mortgage Loans serviced by Aurora, the relevant
Collection Period) allocable to interest, and (4) all Net Liquidation
Proceeds, Insurance Proceeds and any other recoveries collected with respect
to
the Mortgage Loans during the related Prepayment Period (or in the case of
Mortgage Loans serviced by Aurora, the relevant Collection Period), to the
extent allocable to interest, as reduced by (b) other costs, expenses or
liabilities reimbursable to the Trustee, the Master Servicer, each Servicer
the
extent provided in this Agreement and each Servicing Agreement, and the
Custodian pursuant to the Custodial Agreement; provided,
however,
that in
the case of the Trustee, such reimbursable amounts may not exceed $500,000
during any Anniversary Year up to and including the Anniversary Year in which
the Stepdown Date occurs and $200,000 during any Anniversary Year thereafter
(the “Applicable Maximum Reimbursement Amount”). In the event that the Trustee
incurs reimbursable amounts in excess of the Applicable Maximum Reimbursement
Amount in any Anniversary Year, it may obtain reimbursement for such amounts
in
subsequent Anniversary Years, but in no event shall more than the Applicable
Maximum Reimbursement Amount in aggregate be reimbursed to the Trustee per
Anniversary Year. Notwithstanding the foregoing, costs and expenses incurred
by
the Trustee pursuant to Section 6.14(a) in connection with any transfer of
servicing shall be excluded in determining the Applicable Maximum Reimbursement
Amount limitation on reimbursable amounts per Anniversary Year. For
the
avoidance of doubt, in the case of Pool 1, (i) the Interest Remittance Amount
available on each Swap Payment Date for distributions to the Supplemental
Interest Trust Account shall be equal to the Interest Remittance Amount on
the
related Distribution Date and (ii) the Interest Remittance Amount for each
Distribution Date shall be calculated without regard to any distributions to
the
Supplemental Interest Trust Account on the related Swap Payment Date.
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notices of transfer or
equivalent instrument.
43
Item
1122 Responsible Party:
With
respect to the criteria to be addressed under Item 1122 of Regulation AB, the
attesting party as indicated in the table attached hereto at Exhibit
O.
Latest
Possible Maturity Date:
With
regard to the Group 1 Certificates, the Distribution Date occurring in August
2046. With regard to the Group 2 Certificates, the Distribution Date in November
2036.
LBH:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
LIBOR:
With
respect to the first Accrual Period, the Initial LIBOR Rate. With respect to
each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Trustee on the basis of the
“Interest Settlement Rate” set by the British Bankers’ Association (the “BBA”)
for one-month United States dollar deposits, as such rates appear on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination
Date.
If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Trustee will obtain such
rate from Reuters’ “page LIBOR 01” or Bloomberg’s page “BBAM.” If such rate is
not published for such LIBOR Determination Date, LIBOR for such date will be
the
most recently published Interest Settlement Rate. In the event that the BBA
no
longer sets an Interest Settlement Rate, the Trustee will designate an
alternative index that has performed, or that the Trustee expects to perform,
in
a manner substantially similar to the BBA’s Interest Settlement Rate. The
Trustee will select a particular index as the alternative index only if it
receives an Opinion of Counsel (a copy of which shall be furnished to any NIMS
Insurer), which opinion shall be an expense reimbursed from the Certificate
Account pursuant to Section 4.04, that the selection of such index will not
cause any of the REMICs to lose their classification as REMICs for federal
income tax purposes.
The
establishment of LIBOR by the Trustee and the Trustee’s subsequent calculation
of the Certificate Interest Rate applicable to the LIBOR Certificates for the
relevant Accrual Period, in the absence of manifest error, will be final and
binding.
LIBOR
Business Day:
Any day
on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
LIBOR
Certificate:
Any
Group 1 Certificate and, the Class WF-1-1 and Class WF-1-2
Certificates.
LIBOR
Determination Date:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period for any LIBOR Certificates.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the Master Servicer or the applicable
Servicer has determined that all amounts that it expects to recover on behalf
of
the Trust Fund from or on account of such Mortgage Loan have been
recovered.
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or a Servicer in connection
with the liquidation of any defaulted Mortgage Loan and are not recoverable
under the applicable Primary Mortgage Insurance Policy, if any, including,
without limitation, foreclosure and rehabilitation expenses, legal expenses
and
unreimbursed amounts, if any, expended pursuant to Sections 9.06, 9.16 or
9.22.
44
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale, payment in full, discounted payoff, condemnation proceeds,
Insurance Proceeds, or otherwise, or the sale of the related Mortgaged Property
if the Mortgaged Property is acquired in satisfaction of the Mortgage Loan
by
foreclosure or deed in lieu of foreclosure, including any amounts remaining
in
the related Escrow Account.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination, or such other date as is specified, to the
Original Value thereof.
Lower-Tier
Interest:
As
described in the Preliminary Statement.
Lower-Tier
REMIC:
Any of
Pooling REMIC 1, Pooling REMIC 2, Lower-Tier REMIC 1 or Lower-Tier REMIC
2.
Lower-Tier
REMIC 1:
As
described in the Preliminary Statement.
Lower-Tier
REMIC 2:
As
described in the Preliminary Statement.
LTURI-holder:
The
holder of the Pooling REMIC 1 Regular Interests and/or the Pooling REMIC 2
Regular Interests, as the case may be, which upon the occurrence of a Section
7.01(d) Purchase Event, shall be the Master Servicer or its designee, including
any trustee in its capacity as a trustee in any privately placed
securitization.
Master
Servicer:
Aurora
Loan Services LLC, or any successor in interest, or if any successor master
servicer shall be appointed as herein provided, then such successor master
servicer.
Master
Servicer Remittance Date:
With
respect to each Distribution Date, the Business Day immediately preceding such
Distribution Date.
Master
Servicing Fee:
As to
any Distribution Date, an amount equal to one-twelfth the product of (a) the
Master Servicing Fee Rate and (b) the outstanding principal balance of each
Mortgage Loan.
Master
Servicing Fee Rate:
0.00%
per annum.
MGIC:
Mortgage Guaranty Insurance Corporation, or any successor in
interest.
MGIC
Letter Agreement:
With
respect to the Bulk PMI Policy with MGIC, the Terms Letter for MGIC Mortgage
Insurance Coverage covering approximately $110,237,717.20 in principal balance
of insurance mortgage loans dated as of October 31, 2006, among Xxxxxx Brothers
Inc., MGIC, the Trustee and the Master Servicer.
45
Material
Defect:
As
defined in Section 2.02(c) hereof.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as nominee for the holder
from
time to time of the Mortgage Note.
Middle-Tier
REMIC 1:
As
described in the Preliminary Statement.
Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor in interest.
Mortgage:
A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note, together with improvements
thereto.
Mortgage
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular Mortgage
Loan required to be delivered to the Trustee pursuant to this
Agreement.
Mortgage
Loan:
A
Mortgage and the related notes or other evidences of indebtedness secured by
each such Mortgage conveyed, transferred, sold, assigned to or deposited with
the Trustee pursuant to Section 2.01 or Section 2.05, including without
limitation, each Mortgage Loan listed on the Mortgage Loan Schedule, as amended
from time to time.
Mortgage
Loan Sale Agreement:
The
mortgage loan sale and assignment agreement dated as of October 1, 2006 for
the
sale of the Mortgage Loans by the Seller to the Depositor.
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust Fund.
Such
schedule shall set forth, among other things, the following information with
respect to each Mortgage Loan: (i) the Mortgage Loan identifying number; (ii)
the Mortgagor’s name; (iii) the street address of the Mortgaged Property
including the city, state and zip code; (iv) the original principal amount
of
the Mortgage Loan; (v) the Mortgage Rate at origination; (vi) the monthly
payment of principal and interest at origination; (vii) the Seller of such
Mortgage Loan to the Depositor; (viii) the Servicer servicing such Mortgage
Loan
and the applicable Servicing Fee Rate; (ix) whether such Mortgage Loan is
covered by a Bulk PMI Policy and the provider thereof; (x) with respect to
any
Mortgage Loan with a lender paid Insurance Policy or Bulk PMI Policy, the
related Insurance Fee Rate; (xi) the applicable Prepayment Premium, if any,
and
the method of calculation, (xii) the Custodian with respect to the Mortgage
File
related to such Mortgage Loan and (xiii) the Mortgage Pool into which the
Mortgage Loan has been deposited. The
Depositor shall be responsible for providing the Trustee and the Master Servicer
with all amendments to the Mortgage Loan Schedule.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
under a Mortgage Loan.
46
Mortgage
Rate:
As to
any Mortgage Loan, the per annum rate at which interest accrues on such Mortgage
Loan, determined under in the related Mortgage Note as reduced by any Relief
Act
Reductions.
Mortgaged
Property:
Either
of (x) the fee simple interest in real property, together with improvements
thereto including any exterior improvements to be completed within 120 days
of
disbursement of the related Mortgage Loan proceeds, or (y) in the case of a
Cooperative Loan, the related Cooperative Shares and Proprietary Lease, securing
the indebtedness of the Mortgagor under the related Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Funds Cap:
The
Pool 1 Net Funds Cap or the Pool 2 Net Funds Cap, as the context
requires.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the related Liquidation Proceeds net
of
(i) unreimbursed expenses and (ii) any unreimbursed Advances, if any, received
and retained in connection with the liquidation of such Mortgage
Loan.
Net
Mortgage Rate:
With
respect to any Mortgage Loan, the Mortgage Rate thereof reduced by (i) the
Servicing Fee Rate for such Mortgage Loan, and (ii) the Insurance Fee Rate,
if
applicable.
Net
Prepayment Interest Shortfall:
With
respect to any Master Servicer Remittance Date, the excess, if any, of any
Prepayment Interest Shortfalls with respect to the Mortgage Loans for such
date
over (i) any Prepayment Interest Excess with respect to the Mortgage Loans
for such date and (ii) any amounts paid with respect to such shortfalls by
the Servicers pursuant to the Servicing Agreements.
Net
Swap Payment:
With
respect to each Swap Payment Date, the net payment required to be made pursuant
to the terms of the Swap Agreement, which net payment shall not take into
account any Swap Termination Payment, and any unpaid amounts due on previous
Swap Payment Dates and accrued interest thereon as provided in the Swap
Agreement, as calculated by the Swap Counterparty and furnished to the
Trustee.
Net
WAC Rate:
With
respect to any Distribution Date (and the related Accrual Period) and any Pool,
a per annum rate equal to the weighted average of the Net Mortgage Rates of
the
Mortgage Loans in the related Pool as of the first day of the related Collection
Period (not including for this purpose Mortgage Loans for which prepayments
in
full have been received and distributed in the month prior to that Distribution
Date).
NIM
Redemption Amount:
As
defined in Section 7.01(b).
NIM
Securities:
Any net
interest margin securities issued subsequent to the Closing Date by an owner
trust or other special purpose entity, the principal assets of such trust or
other entity including the Class 1-X, Class 2-X, Class C-X, Class S-X, Class
1-P
and Class 2-P Certificates and the payments received thereon, as provided
herein, which principal assets back such securities.
47
NIMS
Agreement:
Any
agreement pursuant to which any NIM Securities are issued.
NIMS
Insurer:
One or
more insurers issuing financial guaranty insurance policies in connection with
the issuance of NIM Securities.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Non-permitted
Foreign Holder:
As
defined in Section 3.03(f).
Non-U.S.
Person:
Any
person other than a “United States person” within the meaning of Section
7701(a)(30) of the Code.
Notice
of Nonpayment.
The
notice to be delivered to the Certificate Insurer with respect to any
Distribution Date pursuant to Section 5.07(a), which shall be in the form
attached to the Certificate Insurance Policy.
Notional
Amount:
For
each Notional Certificate as of any Distribution Date, the Certificate’s
Percentage Interest of the applicable Class Notional Amount for the
date.
Notional
Certificate:
The
Class 1-AIO Certificates.
Offered
Certificates:
Collectively, the Group 1 Certificates, the Group 2 Certificates and the Class
1-AIO Certificates.
Offered
Subordinate Certificates:
The
Group 1 Subordinate Certificates and the Group 2 Subordinate
Certificates.
Offering
Document:
The
Prospectus.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of a Person,
and
in each case delivered to the Trustee.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Trustee, and who may be in-house or outside counsel to the Depositor, the Master
Servicer or the Trustee but which must be Independent outside counsel with
respect to any such opinion of counsel concerning the transfer of any Residual
Certificate or concerning certain matters with respect to the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or the taxation,
or the federal income tax status, of each REMIC.
Original
Loan-to-Value Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination, or such other date as is specified, to the
Original Value of the related Mortgage Property.
Original
Value:
The
lesser of (a) the Appraised Value of a Mortgaged Property at the time the
related Mortgage Loan was originated and (b) if the Mortgage Loan was made
to
finance the acquisition of the related Mortgaged Property, the purchase price
paid for the Mortgaged Property by the Mortgagor at the time the related
Mortgage Loan was originated.
48
Payahead:
With
respect to any Mortgage Loan and any Due Date therefor, any Scheduled Payment
received by the applicable Servicer during any Collection Period in addition
to
the Scheduled Payment due on such Due Date, intended by the related Mortgagor
to
be applied on a subsequent Due Date or Due Dates.
Paying
Agent:
Any
paying agent appointed pursuant to Section 3.08.
PCAOB:
The
Public Company Accounting Oversight Board.
Percentage
Interest:
With
respect to any Certificate, its percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the same
Class as such Certificate. With respect to any Certificate other than the Class
C, Class 1-X, Class 2-X, Class C-X, Class S-X, Class 1-P, Class 2-P, Class
R-1,
Class R-2, Class LT-R-1 and Class LT-R-2 Certificates, the Percentage Interest
evidenced thereby shall equal the initial Certificate Principal Amount thereof
divided by the initial Class Principal Amount of all Certificates of the same
Class. With respect to the Class 1-AIO Certificates, the Percentage Interest
evidenced thereby shall equal the initial Notional Amount thereof divided by
the
initial Class Notional Amount thereof. With respect to the Class C, Class 1-X,
Class 2-X, Class C-X, Class S-X, Class 1-P, Class 2-P, Class R-1, Class R-2,
Class LT-R-1 and Class LT-R-2 Certificates, the Percentage Interest evidenced
thereby shall be as specified on the face thereof, or otherwise be equal to
100%.
Permitted
Servicing Amendment:
Any
amendment to any Servicing Agreement pursuant to Section 11.03(a)(iii) hereunder
in connection with any servicing transfer or transfer of any servicing
rights.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan:
An
employee benefit plan or other retirement arrangement which is subject to
Section 406 of ERISA and/or Section 4975 of the Code or any entity whose
underlying assets include such plan’s or arrangement’s assets by reason of their
investment in the entity.
Plan
Asset Regulations:
The
Department of Labor regulations set forth in 29 C.F.R. 2510.3-101.
PMI:
PMI
Mortgage Insurance Co. and its successors in interest.
PMI
Insurance Premium:
With
respect to each Distribution Date and each Pool 2 Mortgage Loan covered by
a
Bulk PMI Policy or other lender-paid Primary Mortgage Insurance Policy, the
product of (a) one-twelfth of the applicable Insurance Fee Rate and (b) the
Scheduled Principal Balance of such Mortgage Loan as of the first day of the
related Collection Period.
49
PMI
Letter Agreement:
With
respect to the Bulk PMI Policy with PMI Mortgage, the Terms Letter for PMI
Mortgage Insurance Coverage dated as of October 31, 2006, among LBH, PMI
Mortgage and the Trustee.
Policy
Payments Account:
The
separate Eligible Account created and maintained by the Trustee pursuant to
Section 5.07(b) in the name of the Trustee for the benefit of the Class WF-3-1,
Class WF-4-1 and Class WF-6-1 Certificateholders and designated, “Citibank,
N.A., as trustee for the holders of Xxxxxx XS Trust 2006-17 Mortgage
Pass-Through Certificates, Series 2006-17.”
Funds
in
the Policy Payments Account shall be held in trust for the benefit of the Class
WF-3-1, Class WF-4-1 and Class WF-6-1 Certificateholders for the uses and
purposes set forth in this Agreement.
Pool
1
or
Pool
1
Mortgage Loans:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 1.
Pool
1
Applied Loss Amounts:
With
respect to any Distribution Date, after giving effect to all Realized Losses
incurred with respect to the Mortgage Loans in Pool 1 during the related
Collection Period and distributions of principal on such Distribution Date,
the
amount by which the aggregate Class Principal Amount of the Group 1 Certificates
and Class 1-P Certificates exceeds the Pool Balance of Pool 1 for such
Distribution Date.
Pool
1
Basis Risk Payment:
With
respect to any Distribution Date, an amount equal to (A) the sum of (i) any
Basis Risk Shortfall for the Group 1 Certificates for such Distribution Date,
(ii) any Unpaid Basis Risk Shortfall for the Group 1 Certificates from previous
Distribution Dates and (iii) any Pool 1 Required Reserve Fund Amount for such
Distribution Date less (B) (i) the amount of Available Basis Risk Amounts paid
pursuant to Section 5.02(h)(v) on such Distribution Date, (ii) the amount of
any
Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls paid pursuant to Section
5.02(h)(vii), and (iii) any amounts received under the Group 1 Cap Agreement
and
paid to the Group 1 Certificates pursuant to Section 5.02(f)(iv)(A).
Pool
1
Basis
Risk Reserve Fund:
A fund
created as part of the Trust
Fund
pursuant to Section 5.06 of this Agreement but which is not an asset of any
of
the REMICs for the benefit of the Group 1 Certificates.
Pool
1
Cumulative Loss Trigger Event:
With
respect to any Distribution Date, a Pool 1 Cumulative Loss Trigger Event shall
occur if the fraction, expressed as a percentage, obtained by dividing (x)
the
aggregate amount of cumulative Realized Losses incurred on the Pool 1 Mortgage
Loans from the Cut-off Date through the last day of the related Collection
Period by (y) the Cut-off Date Balance of the Pool 1 Mortgage Loans, exceeds
the
applicable percentages described below with respect to such Distribution
Date:
50
|
Distribution
Date
|
Loss
Percentage
|
|
|
November
2008 through October 2009
|
0.30%
for the first month plus
an
additional 1/12th
of
0.40% for each month thereafter
|
|
|
November
2009 through October 2010
|
0.70%
for the first month plus
an
additional 1/12th
of
0.55% for each month thereafter
|
|
|
November
2010 through October 2011
|
1.25%
for the first month plus
an
additional 1/12th
of
0.50% for each month thereafter
|
|
|
November
2011 through October 2012
|
1.75%
for the first month plus
an
additional 1/12th
of
0.30% for each month thereafter
|
|
|
November
2012 through October 2013
|
2.05%
for the first month plus
an
additional 1/12th
of
0.05% for each month thereafter
|
|
|
November
2013 and thereafter
|
2.10%
|
Pool
1
Cut-off Date Balance:
With
respect to the Pool 1 Mortgage Loans in the Trust Fund on the Closing Date,
the
aggregate Scheduled Principal Balance of such Pool 1 Mortgage Loans as of the
Cut-off Date.
Pool
1
Delinquency Event:
With
respect to any Distribution Date, a Pool 1 Delinquency Event shall occur if
the
Pool 1 Rolling Three Month Delinquency Rate as of the last day of the
immediately preceding month equals or exceeds 43.00% of the Pool 1 Senior
Enhancement Percentage for such Distribution Date.
Pool
1
Delinquency Rate:
With
respect to any calendar month, the fraction, expressed as a percentage, the
numerator of which is the aggregate outstanding principal balance of all Pool
1
Mortgage Loans which are 60 days Delinquent or more (including all foreclosures,
bankruptcies and REO Properties) as of the close of business on the last day
of
such month, and the denominator of which is the Pool Balance of Pool 1 as of
the
close of business on the last day of such month.
Pool
1
Initial Optional Termination Date:
The
Distribution Date occurring in the month following the month in which the Pool
Balance of Pool 1 initially declines to less than 10.00% of the Pool 1 Cut-off
Date Balance.
Pool
1
Monthly Excess Cashflow:
For any
Distribution Date, an amount equal to the sum of (i) the Pool 1 Monthly Excess
Interest for such Distribution Date, (ii) the Pool 1 Overcollateralization
Release Amount for such Distribution Date and (iii) any remaining Principal
Distribution Amount for Pool 1 for such Distribution Date, after applying the
principal payment priority set forth in Sections 5.02(d)(i)(A) through (C)
or
Section 5.02(d)(ii).
51
Pool
1
Monthly Excess Interest:
With
respect to any Distribution Date, the amount of any Interest Remittance Amount
for Pool 1 remaining after application pursuant to clauses (i) through (iii)
of
Section 5.02(b) on such date.
Pool
1
Net Excess Spread:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is equal to the product of (i) the amount, if any, by which
(a) the Interest Remittance Amount for Pool 1 for such Distribution Date exceeds
(b) the Current Interest payable with respect to the Group 1 Certificates and
the Class 1-AIO Certificatesfor such Distribution Date and (ii) twelve, and
the
denominator of which is the Pool Balance of Pool 1 for such Distribution
Date.
Pool
1
Net Funds Cap:
For
each Distribution Date and the Group 1 Certificates, an annual rate equal to
a
fraction, expressed as a percentage, the numerator of which is the product
of
(1) the excess, if any, of (i) the Pool 1 Optimal Interest Remittance Amount
for
such Distribution Date over (ii) the sum of (a) any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment and (b) any interest required
to
be paid to the Class 1-AIO Certificates for such Distribution Date and (2)
12,
and (b) the denominator of which is the Pool Balance for Pool 1 as of the first
day of the related Collection Period (not including for this purpose Mortgage
Loans for which prepayments in full have been received and distributed in the
month prior to that Distribution Date) multiplied by a fraction, the numerator
of which is 30 and the denominator of which is the actual number of days in
the
Accrual Period related to such Distribution Date.
Pool
1
Optimal Interest Remittance Amount:
For
each Distribution Date, the product of (A) (x) the weighted average of the
Net
Mortgage Rates for the Pool 1 Mortgage Loans as of the first day of the related
Collection Period divided by (y) 12 and (B) the Pool Balance of Pool 1 as of
the
first day of the related Collection Period (not including for this purpose
Mortgage Loans in Pool 1 for which prepayments in full have been received and
distributed in the month prior to that Distribution Date).
Pool
1
Overcollateralization Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the Pool
Balance of Pool 1 for such Distribution Date determined as of the last day
of
the related Collection Period exceeds (y) the aggregate Class Principal Amount
of the Group 1 Certificates, in each case after giving effect to distributions
on such Distribution Date.
Pool
1
Overcollateralization Deficiency:
With
respect to any Distribution Date, the amount, if any, by which (x) the Pool
1
Targeted Overcollateralization Amount for such Distribution Date exceeds (y)
the
Pool 1 Overcollateralization Amount for such Distribution Date, calculated
for
this purpose after giving effect to the reduction on such Distribution Date
of
the aggregate Certificate Principal Amount of the Group 1 Certificates resulting
from the distribution of the Principal Distribution Amount for Pool 1 on such
Distribution Date, but prior to allocation of any Pool 1 Applied Loss Amount
on
such Distribution Date to the Group 1 Certificates.
Pool
1
Overcollateralization Floor:
An
amount equal to 0.35% of the Pool 1 Cut-off Date Balance.
52
Pool
1
Overcollateralization Release Amount:
With
respect to any Distribution Date, the lesser of (x) the Principal Remittance
Amount for Pool 1 for such Distribution Date and (y) the amount, if any, by
which (1) the Pool 1 Overcollateralization Amount for such Distribution Date
(calculated for this purpose on the basis of the assumption that 100% of the
Principal Remittance Amount for Pool 1 for such date is applied on such
Distribution Date in reduction of the aggregate Certificate Principal Amount
of
the Group 1 Certificates) exceeds (2) the Pool 1 Targeted Overcollateralization
Amount for such Distribution Date.
Pool
1
Purchase Price:
A price
equal to the sum of (i) 100% of the unpaid principal balance of each Mortgage
Loan in Pool 1 on the day of such purchase plus
interest
accrued thereon at the applicable Mortgage Rate to the Due Date in the Due
Period immediately preceding the related Distribution Date, (ii) the amount
of
any costs and damages incurred by the Trust Fund as a result of any violation
of
any applicable federal, state or local predatory- or abusive-lending law arising
from or in connection with the origination of such Mortgage Loan in Pool 1,
(iii) the amount of any unreimbursed Servicing Advances and amounts owed to
the
Trustee hereunder with respect to such Mortgage Loans in Pool 1, (iv) the fair
market value of any REO Property and any other property held by the Trust Fund
with respect to such Mortgage Loans in Pool 1, such fair market value to be
determined by an appraiser or appraisers mutually agreed upon by the Master
Servicer and the Trustee (reduced, in the case of REO Property, by (1)
reasonably anticipated disposition costs and (2) any amount by which the fair
market value as so reduced exceeds the outstanding principal balance of the
related Mortgage Loan) plus interest accrued thereon at the applicable Net
Mortgage Rate to the date of such purchase and (v) any Swap Termination Payment
payable to the Swap Counterparty as a result of a termination pursuant to
Section 7.01.
Pool
1
Required Reserve Fund Amount:
With
respect to any Distribution Date on which the Pool 1 Net Excess Spread is less
than 0.25%, the amount, if any by which (a) the product of 1.00% and the
aggregate Class
Principal Amount of the Group 1 Certificates immediately prior to such
Distribution Date
exceeds
(b) the amount on deposit in the Pool 1 Basis Risk Reserve Fund immediately
prior to such date. With respect to any Distribution Date on which the Pool
1
Net Excess Spread is equal to or greater than 0.25%, the amount, if any, by
which $1,000 exceeds the amount on deposit in the Pool 1 Basis Risk Reserve
Fund
immediately prior to such date; provided,
however,
that on
any Distribution Date on which the Class Principal Amounts of each Class of
Group 1 Certificates
has
been
reduced to zero, the Pool 1 Required Reserve Fund Amount shall be
zero.
Pool
1
Rolling Three Month Delinquency Rate:
With
respect to any Distribution Date, the Rolling Three Month Deliquency Rate for
Pool 1.
Pool
1
Senior Enhancement Percentage:
With
respect to any Distribution Date and Pool 1, the fraction, expressed as a
percentage, the numerator of which is the sum of (x) the aggregate Class
Principal Amount of the Group 1 Subordinate Certificates and (y) the Pool 1
Overcollateralization Amount (which amount, for purposes of this definition
only, shall not be less than zero and assuming for purposes of this definition
that the Principal Distribution Amount for Pool 1 has been distributed on such
Distribution Date and no Pool 1 Trigger Event has occurred) and the denominator
of which is the Pool Balance of Pool 1 for such Distribution Date, in each
case
after giving effect to distributions on such Distribution Date.
53
Pool
1
Senior Principal Distribution Amount:
With
respect to any Distribution Date and Pool 1 (a) prior to the Pool 1
Stepdown Date or if a Pool 1 Trigger Event is
in
effect with
respect to such Distribution Date, an amount equal to 100% of the Principal
Distribution Amount for Pool 1 and (b) on or after the Pool 1 Stepdown Date
and as long as a Pool 1 Trigger Event is
not in
effect with
respect to such Distribution Date, the amount, if any, by which (x) the
aggregate Class Principal Amount of the Group 1 Senior Certificates immediately
prior to such Distribution Date exceeds (y) the Pool 1 Senior Target
Amount.
Pool
1
Senior Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 84.12% and (ii) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 1 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 1 Overcollateralization Floor.
Pool
1
Stepdown Date:
The
earlier of (x) the first Distribution Date following the Distribution Date
on
which the Class Principal Amounts of the Group 1 Senior Certificates have each
been reduced to zero or (y) the later to occur of (1) the Distribution Date
in
November 2009 and (2) the first Distribution Date on which the Pool 1 Senior
Enhancement Percentage (calculated for this purpose after giving effect to
payments or other recoveries in respect of the Pool 1 Mortgage Loans during
the
related Collection Period, but before giving effect to distributions on any
related Certificate on such Distribution Date) is greater than or equal to
15.88%.
Pool
1
Target Amount:
With
respect to any Distribution Date, an amount equal to the Pool Balance for Pool
1
for such Distribution Date minus
the Pool
1 Targeted Overcollateralization Amount for such Distribution Date.
Pool
1
Targeted Overcollateralization Amount:
With
respect to any Distribution Date (x) prior to the Pool 1 Stepdown Date an amount
equal to approximately $7,278,758
(i.e.,
0.75%
of the
Pool 1 Cut-Off Date Balance) and (y) for any Distribution Date on or after
the
Pool 1 Stepdown Date, the greater of (1) the lesser of (a) $7,278,758
and
(b)
the product of 1.50%
of the
Pool Balance of Pool 1 as of the last day of the Collection Period and (2)
the
Pool 1 Overcollateralization Floor; provided, however, for any Distribution
Date
on or after the Pool 1 Stepdown Date and for which a Pool 1 Trigger Event is
in
effect, the Pool 1 Targeted Overcollateralization Amount will be equal to the
Pool 1 Targeted Overcollateralization Amount in effect for the immediately
preceding Distribution Date.
Pool
1
Termination Event:
As
defined in Section 7.01(a).
Pool
1
Trigger Event:
With
respect to any Distribution Date, means that either a Pool 1 Delinquency Event
or a Pool 1 Cumulative Loss Trigger Event is in effect for such Distribution
Date.
Pool
2
or
Pool
2
Mortgage Loans:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 2.
Pool
2
Applied Loss Amounts:
With
respect to any Distribution Date, after giving effect to all Realized Losses
incurred with respect to the Mortgage Loans in Pool 2 during the related
Collection Period and distributions of principal on such Distribution Date,
the
amount by which the aggregate Class Principal Amount of the Group 2 Certificates
and Class 2-P Certificates exceeds the Pool Balance of Pool 2 for such
Distribution Date.
54
Pool
2
Basis Risk Payment:
With
respect to any Distribution Date, an amount equal to (A) the sum of (i) any
Basis Risk Shortfall for the Group 2 Certificates for such Distribution Date,
(ii) any Unpaid Basis Risk Shortfall for the Group 2 Certificates from previous
Distribution Dates and (iii) any Pool 2 Required Reserve Fund Amount for such
Distribution Date.
Pool
2
Basis
Risk Reserve Fund:
A fund
created as part of the Trust
Fund
pursuant to Section 5.06 of this Agreement but which is not an asset of any
of
the REMICs for the benefit of the Group 2 Certificates.
Pool
2
Cumulative Loss Trigger Event:
With
respect to any Distribution Date, a Pool 2 Cumulative Loss Trigger Event shall
occur if the fraction, expressed as a percentage, obtained by dividing (x)
the
aggregate amount of cumulative Realized Losses incurred on the Pool 2 Mortgage
Loans from the Cut-off Date through the last day of the related Collection
Period by (y) the Cut-off Date Balance of the Pool 2 Mortgage Loans, exceeds
the
applicable percentages described below with respect to such Distribution
Date:
|
Distribution
Date
|
Loss
Percentage
|
|
|
November
2008 through October 2009
|
0.35%
for the first month plus
an
additional 1/12th
of
0.55%
for each month thereafter
|
|
|
November
2009 through October 2010
|
0.90%
for the first month plus
an
additional 1/12th
of
0.70%
for each month thereafter
|
|
|
November
2010 through October 2011
|
1.60%
for the first month plus
an
additional 1/12th
of
0.70%
for each month thereafter
|
|
|
November
2011 through October 2012
|
2.30%
for the first month plus
an
additional 1/12th
of
0.40%
for each month thereafter
|
|
|
November
2012 through October 2013
|
2.70%
for the first month plus
an
additional 1/12th
of
0.05%
for each month thereafter
|
|
|
November
2013 and thereafter
|
2.75%
|
55
Pool
2
Cut-off Date Balance:
With
respect to the Pool 2 Mortgage Loans in the Trust Fund on the Closing Date,
the
aggregate Scheduled Principal Balance of such Pool 2 Mortgage Loans as of the
Cut-off Date.
Pool
2
Delinquency Event:
With
respect to any Distribution Date, a Pool 2 Delinquency Event shall occur if
the
Pool 2 Rolling Three Month Delinquency Rate as of the last day of the
immediately preceding month equals or exceeds 34.83%
of the
Pool 2 Senior Enhancement Percentage for such Distribution Date.
Pool
2
Delinquency Rate:
With
respect to any calendar month, the fraction, expressed as a percentage, the
numerator of which is the aggregate outstanding principal balance of all Pool
2
Mortgage Loans which are 60 days Delinquent or more (including all foreclosures,
bankruptcies and REO Properties) as of the close of business on the last day
of
such month, and the denominator of which is the Pool Balance of Pool 2 as of
the
close of business on the last day of such month.
Pool
2
Initial Optional Termination Date:
The
Distribution Date occurring in the month following the month in which the Pool
Balance of Pool 2 initially declines to less than 10.00% of the Pool 2 Cut-off
Date Balance.
Pool
2
Monthly Excess Cashflow:
For any
Distribution Date, an amount equal to the sum of (i) the Pool 2 Monthly Excess
Interest for such Distribution Date, (ii) the Pool 2 Overcollateralization
Release Amount for such Distribution Date and (iii) any remaining Principal
Distribution Amount for Pool 2 for such Distribution Date, after applying the
principal payment priority set forth in Sections 5.02(e)(i)(A) through (C)
or
Section 5.02(e)(ii), as applicable.
Pool
2
Monthly Excess Interest:
With
respect to any Distribution Date, the amount of any Interest Remittance Amount
for Pool 2 remaining after application pursuant to clauses (i) through (iv)
of
Section 5.02(c) on such date.
Pool
2
Net Excess Spread:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is equal to the product of (i) the amount, if any, by which
(a) the Interest Remittance Amount for Pool 2 for such Distribution Date exceeds
(b) the Current Interest payable with respect to the Group 2 Certificates for
such Distribution Date and (ii) twelve, and the denominator of which is the
Pool
Balance of Pool 2 for such Distribution Date.
Pool
2
Net Funds Cap:
For
each Distribution Date and the Group 2 Certificates, an annual rate equal
to a fraction, expressed as a percentage, (a) the numerator of which is the
product of (1) the excess of (x) the Pool 2 Optimal Interest
Remittance Amount for such Distribution Date over (y) the Certificate Insurance
Premium due to the Certificate Insurer for such date and (2) 12, and (b)
the denominator of which is the Pool Balance for Pool 2 as of the first day
of the related Collection Period (not including for this purpose Mortgage Loans
for which prepayments in full have been received and distributed in the month
prior to that Distribution Date) , multiplied, in the case of the Class WF-1-1
and Class WF-1-2 Certificates, by a fraction, the numerator of which is 30
and
the denominator of which is the actual number of days in the Accrual Period
related to such Distribution Date.
56
Pool
2
Optimal Interest Remittance Amount:
For
each Distribution Date, the product of (A) (x) the weighted average of the
Net
Mortgage Rates for the Pool 2 Mortgage Loans as of the first day of the related
Collection Period divided by (y) 12 and (B) the Pool Balance of Pool 2 as of
the
first day of the related Collection Period (not including for this purpose
Mortgage Loans in Pool 2 for which prepayments in full have been received and
distributed in the month prior to that Distribution Date).
Pool
2
Overcollateralization Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the Pool
Balance of Pool 2 for such Distribution Date determined as of the last day
of
the related Collection Period exceeds (y) the aggregate Class Principal Amount
of the Group 2 Certificates, in each case after giving effect to distributions
on such Distribution Date.
Pool
2
Overcollateralization Deficiency:
With
respect to any Distribution Date, the amount, if any, by which (x) the Pool
2
Targeted Overcollateralization Amount for such Distribution Date exceeds (y)
the
Pool 2 Overcollateralization Amount for such Distribution Date, calculated
for
this purpose after giving effect to the reduction on such Distribution Date
of
the aggregate Certificate Principal Amount of the Group 2 Certificates resulting
from the distribution of the Principal Distribution Amount for Pool 2 on such
Distribution Date, but prior to allocation of any Pool 2 Applied Loss Amount
on
such Distribution Date to the Group 2 Certificates.
Pool
2
Overcollateralization Floor:
An
amount equal to 0.35% of the Pool 2 Cut-off Date Balance.
Pool
2
Overcollateralization Release Amount:
With
respect to any Distribution Date, the lesser of (x) the Principal Remittance
Amount for Pool 2 for such Distribution Date and (y) the amount, if any, by
which (1) the Pool 2 Overcollateralization Amount for such Distribution Date
(calculated for this purpose on the basis of the assumption that 100% of the
Principal Remittance Amount for Pool 2 for such date is applied on such
Distribution Date in reduction of the aggregate Certificate Principal Amount
of
the Group 2 Certificates) exceeds (2) the Pool 2 Targeted Overcollateralization
Amount for such Distribution Date.
Pool
2
Purchase Price:
A price
equal to the sum of (i) 100% of the unpaid principal balance of each Mortgage
Loan in Pool 2 on the day of such purchase plus
interest
accrued thereon at the applicable Mortgage Rate to the Due Date in the Due
Period immediately preceding the related Distribution Date, (ii) the amount
of
any costs and damages incurred by the Trust Fund as a result of any violation
of
any applicable federal, state or local predatory- or abusive lending law arising
from or in connection with the originiation of such Mortgage Loan in Pool 2,
(iii) the amount of any unreimbursed Servicing Advances and amounts owed to
the
Trustee hereunder with respect to such Mortgage Loans in Pool 2, (iv) the fair
market value of any REO Property and any other property held by the Trust Fund
with respect to such Mortgage Loans in Pool 2, such fair market value to be
determined by an appraiser or appraisers mutually agreed upon by the Master
Servicer and the Trustee (reduced, in the case of REO Property, by (1)
reasonably anticipated disposition costs and (2) any amount by which the fair
market value as so reduced exceeds the outstanding principal balance of the
related Mortgage Loan) plus interest accrued thereon at the applicable Net
Mortgage Rate to the date of such purchase and (v) any Reimbursement Amount
due
to the Certificate Insurer under the Insurance Agreement.
57
Pool
2
Required Reserve Fund Amount:
With
respect to any Distribution Date on which the Pool 2 Net Excess Spread is less
than 0.25%, the amount, if any by which (a) the product of 1.00% and the
aggregate Class
Principal Amount of the Group 2 Certificates immediately prior to such
Distribution Date
exceeds
(b) the amount on deposit in the Pool 2 Basis Risk Reserve Fund immediately
prior to such date. With respect to any Distribution Date on which the Pool
2
Net Excess Spread is equal to or greater than 0.25%, the amount, if any, by
which $1,000 exceeds the amount on deposit in the Pool 2 Basis Risk Reserve
Fund
immediately prior to such date; provided,
however,
that on
any Distribution Date on which the Class Principal Amounts of each Class of
Group 2 Certificates
has
been
reduced to zero, the Pool 2 Required Reserve Fund Amount shall be
zero.
Pool
2
Rolling Three Month Delinquency Rate:
With
respect to any Distribution Date, the Rolling Three Month Deliquency Rate for
Pool 2.
Pool
2
Senior Enhancement Percentage:
With
respect to any Distribution Date and Pool 2, the fraction, expressed as a
percentage, the numerator of which is the sum of (x) the aggregate Class
Principal Amount of the Group 2 Subordinate Certificates and (y) the Pool 2
Overcollateralization Amount (which amount, for purposes of this definition
only, shall not be less than zero and assuming for purposes of this definition
that the Principal Distribution Amount for Pool 2 has been distributed on such
Distribution Date and no Pool 2 Trigger Event has occurred) and the denominator
of which is the Pool Balance of Pool 2 for such Distribution Date, in each
case
after giving effect to distributions on such Distribution Date.
Pool
2
Senior Principal Distribution Amount:
With
respect to any Distribution Date and Pool 2 (a) prior to the Pool 2
Stepdown Date or if a Pool 2 Trigger Event is
in
effect with
respect to such Distribution Date, an amount equal to 100% of the Principal
Distribution Amount for Pool 2 and (b) on or after the Pool 2 Stepdown Date
and as long as a Pool 2 Trigger Event is
not in
effect with
respect to such Distribution Date, the amount, if any, by which (x) the
aggregate Class Principal Amount of the Group 2 Senior Certificates immediately
prior to such Distribution Date exceeds (y) the Pool 2 Senior Target
Amount.
Pool
2
Senior Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 79.90% and (ii) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 2 Overcollateralization Floor.
Pool
2
Stepdown Date:
The
earlier of (x) the first Distribution Date following the Distribution Date
on
which the Class Principal Amounts of the Group 2 Senior Certificates have each
been reduced to zero and all amounts due to the Cerficiate Insurer have been
paid in full or (y) the later to occur of (1) the Distribution Date in November
2009 and (2) the first Distribution Date on which the Pool 2 Senior Enhancement
Percentage (calculated for this purpose after giving effect to payments or
other
recoveries in respect of the Pool 2 Mortgage Loans during the related Collection
Period, but before giving effect to distributions on any related Certificate
on
such Distribution Date) is greater than or equal to 20.10%.
58
Pool
2
Target Amount:
With
respect to any Distribution Date, an amount equal to the Pool Balance for Pool
2
for such Distribution Date minus
the Pool
2 Targeted Overcollateralization Amount for such Distribution Date.
Pool
2
Targeted Overcollateralization Amount:
With
respect to any Distribution Date (x) prior to the Pool 2 Stepdown Date an amount
equal to approximately $2,762,159
(i.e.,
0.80%
of the
Pool 2 Cut-Off Date Balance) and (y) for any Distribution Date on or after
the
Pool 2 Stepdown Date, the greater of (1) the lesser of (a) $2,762,159
and (b)
the product of 1.60%
of the
Pool Balance of Pool 2 as of the last day of the Collection Period and (2)
the
Pool 2 Overcollateralization Floor; provided, however, for any Distribution
Date
on or after the Pool 2 Stepdown Date and for which a Pool 2 Trigger Event is
in
effect, the Pool 2 Targeted Overcollateralization Amount will be equal to the
Pool 2 Targeted Overcollateralization Amount in effect for the immediately
preceding Distribution Date.
Pool
2
Termination Event:
As
defined in Section 7.01(a).
Pool
2
Trigger Event:
With
respect to any Distribution Date, means that either a Pool 2 Delinquency Event
or a Pool 2 Cumulative Loss Trigger Event is in effect for such Distribution
Date.
Pool
Balance:
With
respect to each Mortgage Pool, the aggregate of the Scheduled Principal Balances
of all Mortgage Loans in such Mortgage Pool at the date of
determination.
Pooling
REMIC 1 Regular Interests:
Lower-Tier Interests in Pooling REMIC 1, as described in the Preliminary
statement.
Pooling
REMIC 2 Regular Interests:
Lower-Tier Interests in Pooling REMIC 2, as described in the Preliminary
statement.
Pooling
REMIC Regular Interests:
Either
the Pooling REMIC 1 Regular Interests or the Pooling REMIC 2 Regular Interests,
as applicable.
Preference
Amount:
With
respect to any amount previously distributed to a holder of a Class WF-3-1,
Class WF-4-1 or Class WF-6-1 Certificate, any amount on such Certificate that
is
recoverable and sought to be recovered as a voidable preference by a trustee
in
bankruptcy pursuant to the United States Bankruptcy Code (11 U.S.C.), as amended
from time to time, in accordance with a final nonappealable order of a court
having competent jurisdiction.
Premium
Percentage:
The
applicable premium rate applicable under the Certificate Insurance Policy with
respect to any Distribution Date, will equal (x) 0.06% per annum for the Class
WF-3-1 and Class WF-4-1 Certificates and (y) 0.065% per annum for the Class
WF-6-1 Certificates, as further defined in the Insurance Agreement.
Prepayment
Interest Excess:
With
respect to any Distribution Date and any Mortgage Loan for which Aurora is
the
primary servicer, any Principal Prepayment in full received on the Mortgage
Loans from the first day through the sixteenth day of the month during which
such Distribution Date occurs, all amounts paid in respect of interest at the
applicable Net Mortgage Rate on such Principal Prepayment.
59
Prepayment
Interest Shortfall:
With
respect to any Distribution Date and (x) any Principal Prepayment in full (with
respect to those Mortgage Loans serviced by Servicers other than Aurora) and
(y)
any Principal Prepayment in full with respect to those Mortgage Loans serviced
by Aurora if such Principal Prepayment is received on or after the seventeenth
day of the month immediately preceding the month of such Distribution Date,
but
on or before the last day of the month immediately preceding the month of such
Distribution Date, the difference between (i) one full month’s interest at the
applicable Net Mortgage Rate (after giving effect to any applicable Relief
Act
Reduction) on the outstanding principal balance of such Mortgage Loan
immediately prior to such prepayment and (ii) the amount of interest actually
received with respect to such Mortgage Loan in connection with such Principal
Prepayment.
Prepayment
Period:
With
respect to those Mortgage Loans serviced by Servicers other than Aurora and
any
Distribution Date and any Principal Prepayment, whether in part or in full
(including any liquidation), the calendar month immediately preceding the month
in which such Distribution Date occurs. With respect to any Distribution Date
and a Principal Prepayment in full (including any liquidation) with respect
to
those Mortgage Loans serviced by Aurora, the period from the seventeenth day
of
the month immediately preceding the month of such Distribution Date to the
sixteenth day of the month of such Distribution Date (except in the case of
the
November 2006 Distribution Date, for which the related Prepayment Period will
be
the period from October 1, 2006 through November 16, 2006). With respect to
those Mortgage Loans serviced by Aurora, any Distribution Date and any Principal
Prepayment in part, the calendar month immediately preceding the month in which
such Distribution Date occurs.
Prepayment
Premiums:
Any
prepayment fees and penalties to be paid by the Mortgagor on a Mortgage Loan
with respect to which the Seller owns the servicing rights, as indicated in
the
Mortgage Loan Schedule. Prepayment Premiums shall not be included in the
Principal Remittance Amount or the Interest Remittance Amount with respect
to
any Pool.
Primary
Mortgage Insurance Policy:
Any
mortgage guaranty insurance, if any, on an individual Mortgage Loan, including
any Bulk PMI Policy, as evidenced by a policy or certificate, whether such
policy is obtained by the originator, the lender, the borrower or the Seller
on
behalf of the Trust Fund.
Principal
Distribution Amount:
With
respect to any Distribution Date and Pool 1, an amount equal to the Principal
Remittance Amount for such date for such Mortgage Pool minus
the
Pool
1 Overcollateralization Release Amount, if any, for such Distribution Date.
With
respect to any Distribution Date and Pool 2, an amount equal to the Principal
Remittance Amount for such date for such Mortgage Pool minus
the
Pool
2 Overcollateralization Release Amount, if any, for such Distribution Date.
Principal
Prepayment:
Any
Mortgagor payment of principal or other recovery of principal on a Mortgage
Loan
that is recognized as having been received or recovered in advance of its
scheduled Due Date and applied to reduce the principal balance of the Mortgage
Loan in accordance with the terms of the Mortgage Note or the Servicing
Agreement.
60
Principal
Remittance Amount:
With
respect to any Distribution Date and each Mortgage Pool, (a) the sum of (i)
all
principal collected (other than in connection with Payaheads) or advanced in
respect of Scheduled Payments on the Mortgage Loans during the related
Collection Period whether by a Servicer, the Master Servicer or the Trustee,
solely in its capacity as successor Master Servicer (less unreimbursed Advances
due to the Master Servicer, any Servicer, or the Trustee, in its capacity as
successor master servicer, with respect to the related Mortgage Loans, to the
extent allocable to principal and any unreimbursed Servicing Advances), (ii)
all
Principal Prepayments in full or in part received during the related Prepayment
Period with respect to the Mortgage Loans in such Mortgage Pool (or in the
case
of Mortgage Loans serviced by Aurora, the related Collection Period), (iii)
the
outstanding principal balance of each Mortgage Loan in such Mortgage Pool that
was repurchased by the Seller or the related Transferor during the related
Prepayment Period (or in the case of Mortgage Loans serviced by Aurora, the
related Collection Period), or the NIMS Insurer (in the case of certain Mortgage
Loans 90 days or more delinquent), (iv) the portion of any Substitution Amount
paid with respect to any Deleted Mortgage Loan in such Mortgage Pool during
the
related Prepayment Period (or in the case of Mortgage Loans serviced by Aurora,
the related Collection Period) allocable to principal, and (v) all Net
Liquidation Proceeds, Insurance Proceeds, any Subsequent Recovery and other
recoveries collected with respect to the Mortgage Loans in such Mortgage Pool
during the related Prepayment Period (or in the case of Mortgage Loans serviced
by Aurora, the related Collection Period), to the extent allocable to principal,
as reduced by (b) to the extent not reimbursed from the Interest Remittance
Amount, other
costs, expenses or liabilities reimbursable to the Trustee, the Master Servicer
and each Servicer to the extent provided in this Agreement and each Servicing
Agreement, and to the Custodian pursuant to the Custodial Agreement;
provided,
however,
in the
case of the Trustee such reimbursement may not exceed the Applicable Maximum
Reimbursement Amount. In the event the Trustee incurs reimbursable amounts
in
excess of the Applicable Maximum Reimbursement Amount, it may seek reimbursement
for such amounts in subsequent Anniversary Years, but in no event shall more
than the Applicable Maximum Reimbursement Amount be reimbursed to the Trustee
per Anniversary Year. Notwithstanding the foregoing, costs and expenses incurred
by the Trustee pursuant to Section 6.14(a) in connection with any transfer
of
servicing shall be excluded in determining the Applicable Maximum Reimbursement
Amount limitation on reimbursable amounts per Anniversary Year. For the
avoidance of doubt, in the case of Pool 1, (i) the Principal Remittance Amount
available on each Swap Payment Date for distributions to the Supplemental
Interest Trust Account shall be equal to the Principal Remittance Amount on
the
related Distribution Date and (ii) the Principal Remittance Amount for each
Distribution Date shall be calculated without regard to any distributions to
the
Supplemental Interest Trust Account on the related Swap Payment
Date.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
61
Prospectus:
The
prospectus supplement dated October 30, 2006 together with the accompanying
prospectus dated September 13, 2006, relating to the Offered
Certificates.
Purchase
Price:
With
respect to the purchase of a Mortgage Loan or related REO Property pursuant
to
Section 2.05 of this Agreement, an amount equal to the sum of (a) 100% of the
unpaid principal balance of such Mortgage Loan, (b) accrued interest thereon
at
the applicable Mortgage Rate, from the date as to which interest was last paid
to (but not including) the Due Date in the Collection Period immediately
preceding the related Distribution Date; (c) any unreimbursed Servicing Advances
with respect to such Mortgage Loan; (d) any costs and damages incurred by the
Trust Fund with respect to such Mortgage Loan in connection with any violation
of any federal, state or local predatory or abusive lending laws or other
similar laws; (e) the fair market value of all other property being purchased
(reduced,
in the case of REO Property, by (1) reasonably anticipated disposition
costs and (2) any amount by which the fair market value as so reduced exceeds
the outstanding principal balance of the related Mortgage Loan); and (f) any
unpaid Reimbursement Amounts due to the Certificate Insurer with respect to
such
Mortgage Loan. The
Master Servicer, each Servicer (or the Trustee, in its capacity as successor
Master Servicer, if applicable) shall be reimbursed from the Purchase Price
for
any Mortgage Loan or related REO Property for any Advances made or other amounts
advanced with respect to such Mortgage Loan or related REO Property that are
reimbursable to the Master Servicer or such Servicer under this Agreement or
the
Servicing Agreement (or to the Trustee hereunder in its capacity as successor
Master Servicer), together with any accrued and unpaid compensation due to
the
Master Servicer, any Servicer or the Trustee hereunder or
thereunder.
QIB:
As
defined in Section 3.03(c).
QIB-Restricted
Certificate:
Any
Class C Certificate.
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account or the Certificate Account and insuring a
minimum, fixed or floating rate of return on investments of such funds, which
contract or surety bond shall:
(i) be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(ii) provide
that the Trustee may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other
Person;
(iii) provide
that if at any time the then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the
Certificates (which in the case of the Class WF-3-1, Class WF-4-1 and Clss
WF-6-1 Certificates shall be determined without regard to the Certificate
Insurance Policy) or the NIM Securities, the Trustee shall terminate such
contract without penalty and be entitled to the return of all funds previously
invested thereunder, together with accrued interest thereon at the interest
rate
provided under such contract to the date of delivery of such funds to the
Trustee;
62
(iv) provide
that the Trustee’s interest therein shall be transferable to any successor
trustee hereunder; and
(v) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account or the Certificate Account, as the case may be, not
later than the Business Day prior to any Distribution Date.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the related Mortgaged Properties are located, duly authorized and licensed
in
such states to transact the insurance business related to this transaction
and
to write the insurance provided in connection therewith and whose claims paying
ability is rated by each Rating Agency in its highest rating category or whose
selection as an insurer will not adversely affect the rating of the Certificates
(which in the case of the Class WF-3-1, Class WF-4-1 and Clss WF-6-1
Certificates shall be determined without regard to the Certificate Insurance
Policy).
Qualifying
Substitute Mortgage Loan:
In the
case of a Mortgage Loan substituted for a Deleted Mortgage Loan pursuant to
the
terms of this Agreement, a Mortgage Loan that, on the date of such substitution,
(i) has an outstanding Scheduled Principal Balance (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate Scheduled Principal Balance), after application of all Scheduled
Payments due during or prior to the month of substitution, not in excess of,
and
not more than 5% less than, the outstanding Scheduled Principal Balance of
the
Deleted Mortgage Loan as of the Due Date in the calendar month during which
the
substitution occurs, (ii) has a Mortgage Rate not less than the Mortgage Rate
on
the Deleted Mortgage Loan, (iii) in the case of any Adjustable Rate Mortgage
Loans, has a maximum Mortgage Rate not less than the maximum Mortgage Rate
on
the Deleted Mortgage Loan, (iv) in the case of any Adjustable Rate Mortgage
Loans, has a minimum Mortgage Rate not less than the minimum Mortgage Rate
of
the Deleted Mortgage Loan, (v) in the case of any Adjustable Rate Mortgage
Loans, has a gross margin equal to or greater than the gross margin of the
Deleted Mortgage Loan, (vi) is not a Cooperative Loan unless the related Deleted
Mortgage Loan was a Cooperative Loan, (vii) in the case of any Adjustable Rate
Mortgage Loans, has a next adjustment date not later than the next adjustment
date on the Deleted Mortgage Loan, (viii) has the same Due Date as the Deleted
Mortgage Loan, (ix) has a remaining stated term to maturity not greater than
(and not more than one year less than) that of the Deleted Mortgage Loan,
provided,
that in
no case shall such substitute Mortgage Loan have a maturity date later than
the
Final Scheduled Maturity Date, (x) is current as of the date of substitution,
(xi) has a Loan-to-Value Ratio as of the date of substitution equal to or lower
than the Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date,
(xii)
has been underwritten by any Transferor in accordance with the same underwriting
criteria and guidelines as the Deleted Mortgage Loan, (xiii) has a risk grading
determined by the Seller at least equal to the risk grading assigned on the
Deleted Mortgage Loan, (xiv) is secured by the same property type as the Deleted
Mortgage Loan, (xv) conforms to each representation and warranty applicable
to
the Deleted Mortgage Loan made in the related Mortgage Loan Sale and Assignment
Agreement, (xvi) has the same or higher lien position as the Deleted Mortgage
Loan, (xvii) is covered by a Primary Mortgage Insurance Policy if the Deleted
Mortgage Loan was so covered and (xviii) contains provisions covering the
payment of Prepayment Premium by the Mortgagor for early prepayment of the
Mortgage Loan at least as favorable as the Deleted Mortgage Loan. In the event
that one or more mortgage loans are substituted for one or more Deleted Mortgage
Loans, the amounts described in clause (i) hereof shall be determined on the
basis of aggregate Scheduled Principal Balances, the Mortgage Rates described
in
clause (ii) hereof shall be determined on the basis of weighted average Mortgage
Rates, the risk gradings described in clause (xiii) hereof shall be satisfied
as
to each such mortgage loan, the terms described in clause (ix) hereof shall
be
determined on the basis of weighted average remaining term to maturity
(provided,
that the
stated maturity date of any Qualified Substitute Mortgage Loan shall not be
later than the Final Scheduled Distribution Date), the Loan-to-Value Ratios
described in clause (xi) hereof shall be satisfied as to each such mortgage
loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (xv) hereof must be satisfied
as to each Qualified Substitute Mortgage Loan or in the aggregate, as the case
may be.
63
Rating
Agency:
Each of
Xxxxx’x and S&P.
Realized
Loss:
With
respect to each Liquidated Mortgage Loan, an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of liquidation,
minus
(ii)
Liquidation Proceeds received, to the extent allocable to principal, net of
amounts that are reimbursable therefrom to the Master Servicer or any Servicer
with respect to such Mortgage Loan (other than Advances of principal) including
expenses of liquidation. In determining whether a Realized Loss is a Realized
Loss of principal, Liquidation Proceeds shall be allocated, first, to payment
of
expenses related to such Liquidated Mortgage Loan, then to accrued unpaid
interest and finally to reduce the principal balance of the Mortgage
Loan.
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
Record
Date:
With
respect to the LIBOR Certificates, and any Distribution Date, the close of
business on the Business Day immediately preceding such Distribution Date.
With
respect to the Group 2 Certificates and the Class 1-AIO, Class C, Class 1-P,
Class 2-P, Class 1-X, Class 2-X, Class C-X, Class S-X, Class LT-R-1, Class
LT-R-2, Class R-1 and Class R-2 Certificates and any Class of Definitive
Certificates and any Distribution Date, the last Business Day of the month
immediately preceding the month in which the Distribution Date occurs (or,
in
the case of the first Distribution Date, the Closing Date).
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Regulation
S Global Security:
Not
applicable.
64
Regulation
S:
Not
applicable.
Reimbursement
Amounts:
Any
unreimbursed Insured Payments made by the Certificate Insurer, plus
all
other amounts due to the Certificate Insurer under the Insurance Agreement
except, however, for any amounts the Seller or the Depositor have reimbursed
to
the Certificate Insurer pursuant to section 3.05 of the Insurance Agreement,
together with interest thereon at the rate specified in the Insurance Agreement;
provided,
however,
if
written notice of any Reimbursement Amount is received after four Business
Days
prior to the related Distribution Date, then such Reimbursement Amount shall
be
payable on the next succeeding Distribution Date.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit O attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Trustee, each Custodian or each Servicer, the term “Relevant
Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria
applicable to such parties.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of interest collectible thereon as a result of application of the Relief
Act, any amount by which interest collectible on such Mortgage Loan for the
Due
Date in the related Due Period is less than interest accrued thereon for the
applicable one-month period at the Mortgage Rate without giving effect to such
reduction.
Relief
Act:
The
Servicemembers Civil Relief Act, as amended, and any similar state law or
regulation.
REMIC:
Each
pool of assets in the Trust Fund designated as a REMIC pursuant to Section
10.01(a) hereof.
REMIC
1 Net Funds Cap:
For any
Distribution Date (and the related Accrual Period) and any Class of
Certificates, an amount equal to (i) the weighted average of the interest rates
on the regular interests in Middle-Tier REMIC 1 (other than any interest-only
Interests), weighted in proportion to their Class Principal Amounts as of the
beginning of the related Accrual Period, multiplied by (ii) the quotient of
(a)
30 divided by (b) the actual number of days in the Accrual Period.
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
Swap Rate:
For
each Distribution Date (and the related Accrual Period), a per annum rate equal
to the product of: (i) the “Rate of Payment (%)” under the Swap Agreement for
such Distribution Date, as set forth in Annex D to the Prospectus Supplement,
(ii) 2, and (iii) the quotient of (a) the actual number of days in the related
Accrual Period divided by (b) 30.
65
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan or
otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Reportable
Event:
As
defined in Section 6.20(f)(i).
Reporting
Servicer:
As
defined in Section 6.20(e)(i).
Residual
Certificates:
The
Class LT-R-1, Class LT-R-2, Class R-1 and Class R-2 Certificates.
Responsible
Officer:
When
used with respect to the Trustee, any Vice President, Assistant Vice President,
the Secretary, any assistant secretary, or any officer, working in its Corporate
Trust Office and having responsibility for the administration of this Agreement,
and any other officer to whom a matter arising under this Agreement may be
referred.
Restricted
Certificate:
Any
Class 1-P, Class 2-P, Class 1-X, Class 2-X, Class C-X, Class S-X, Class LT-R-1,
Class LT-R-2, Class R-1 or Class R-2 Certificate.
Restricted
Global Security:
Not
Applicable.
Rolling
Three Month Delinquency Rate:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
equal
to the average of the Delinquency Rates for each of the three (or one and two,
in the case of the first and second Distribution Dates, respectively)
immediately preceding calendar months.
Rules:
As
defined in Section 6.20(c).
S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor in interest.
Scheduled
Notional Amount:
For
each Distribution Date and the Swap Agreement, the amount set forth in Exhibit
N-1. The initial Scheduled Notional Amount will be approximately $936,096,567.
Scheduled
Payment:
Each
scheduled payment of principal and interest (or of interest only, if applicable)
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service Reduction
or as a result of any related Deficient Valuation (in each case, excluding
all
amounts of principal and interest that were due on or before the Cut-off Date
whenever received) and, in the case of an REO Property, an amount equivalent
to
the Scheduled Payment that would have been due on the related Mortgage Loan
if
such Mortgage Loan had remained in existence.
Scheduled
Principal Balance:
With
respect to (i) any Mortgage Loan as of any Distribution Date, the principal
balance of such Mortgage Loan at the close of business on the Cut-off Date
after
giving effect to principal payments due on or before the Cut-off Date, whether
or not received, less an amount equal to principal payments due after the
Cut-off Date, and on or before the Due Date in the related Collection Period,
whether or not received from the Mortgagor or advanced by any Servicer or the
Master Servicer, and all amounts received thereon which are allocable to
unscheduled principal payments (including Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and condemnation proceeds, in each case to the
extent identified and applied prior to or during the related Prepayment Period)
and (ii) any REO Property as of any Distribution Date, the Scheduled Principal
Balance of the related Mortgage Loan on the Due Date immediately preceding
the
date of acquisition of such REO Property by or on behalf of the Trustee (reduced
by any amount applied as a reduction of principal on the Mortgage Loan). With
respect to any Mortgage Loan and the Cut-off Date, as specified in the Mortgage
Loan Schedule. The Scheduled Principal Balance of a Liquidated Mortgage Loan
shall be zero.
66
Section
7.01(d) Purchase Event:
Any of
(i) the purchase of all the Pooling REMIC 1 Regular Interests, (ii) the purchase
of all of the Pooling REMIC 2 Regular Interests or (iii) the purchase of the
Pooling REMIC 1 Regular Interests and the Pooling REMIC 2 Regular
Interests.
Securities
Act:
The
Securities
Act of 1933, as amended
Security
Agreement:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
Seller:
Xxxxxx
Brothers Holdings Inc. or any successor in interest thereto.
Servicer:
Any
Servicer that has entered into any of the Servicing Agreements attached as
Exhibit E hereto, or any successor in interest.
Servicer
Remittance Date:
The day
in each calendar month on which each Servicer is required to remit payments
to
the Collection Account, as specified in the related Servicing Agreement, which
is the 18th
day of
each calendar month (or, if such 18th
day is
not a Business Day, the next succeeding Business Day).
Service(s)(ing):
In
accordance with Regulation AB, the act of managing or collecting payments on
the
Mortgage Loans or any other assets of the Trust Fund by an entity that meets
the
definition of “servicer’ set forth in Item 1101 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
Servicing
Advances:
Expenditures incurred by the related Servicer in connection with the liquidation
or foreclosure of a Mortgage Loan which are eligible for reimbursement under
the
Servicing Agreement.
Servicing
Agreement:
Each
servicing agreement or reconstituted servicing agreement entered into between
a
Servicer and the Seller dated as of October 1, 2006, attached hereto in Exhibit
E, and any other servicing agreement entered into between a successor servicer
and the Seller or the Trustee pursuant to the terms hereof.
67
Servicing
Fee:
As to
any Distribution Date and each Mortgage Loan, an amount equal to the product
of
(a) one-twelfth of the Servicing Fee Rate and (b) the outstanding principal
balance of such Mortgage Loan as of the first day of the related Collection
Period.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the rate specified in the related Servicing
Agreement.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than each Servicer, each
Custodian, the Master Servicer and the Trustee, that is participating in the
servicing function within the meaning of Regulation AB, unless such Person’s
activities relate only to 5% or less of the Mortgage Loans.
Sponsor:
Xxxxxx
Brothers Holdings Inc.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of the Mortgage Loans but performs one or
more discrete material servicing functions required to be performed under this
Agreement, any Servicing Agreement or any subservicing agreement, as identified
in Item 1122(d) of Regulation AB with respect to the Mortgage Loans under the
direction or authority of a Servicer, the Master Servicer, the Trustee or a
Custodian.
Subsequent
Recovery:
Any
amount recovered by a Servicer or the Master Servicer 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.
Subservicer:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer or Additional Servicer, and
(iii) is responsible for the performance (whether directly or through
subservicers or Subcontractors) of any material servicing functions required
to
be performed under this Agreement, any related Servicing Agreement or any
subservicing agreement that are identified in Item 1122(d) of Regulation
AB.
Substitution
Amount:
The
amount, if any, by which the Scheduled Principal Balance of a Deleted Mortgage
Loan exceeds the Scheduled Principal Balance of the related Qualifying
Substitute Mortgage Loan, or aggregate Scheduled Principal Balance, if
applicable, plus unpaid interest thereon, and any related unpaid Advances or
Servicing Advances or unpaid Servicing Fees, plus any costs and damages incurred
by the Trust Fund associated with violation of any federal, state or local
predatory or abusive lending laws.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 5.08 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Supplemental Interest Trust Account and the Class I interest
in
Upper-Tier REMIC 1 and the right to receive Class I Shortfalls.
68
Supplemental
Interest Trust Account:
The
account created pursuant to Section 5.08 of this Agreement.
Supplemental
Interest Trust Amount:
With
respect to each Distribution Date and the related Swap Payment Date, the sum
of
any Net Swap Payment and any Swap Termination Payment deposited into the
Supplemental Interest Trust Account.
Swap
Agreement:
The
interest rate swap agreement entered into by the Supplemental Interest Trust,
which agreement provides for, among other things, a Net Swap Payment to be
paid
pursuant to the conditions provided therein, together with any schedules,
confirmations or other agreements relating thereto, attached hereto as Exhibit
N-1.
Swap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Swap Agreement, and
any successor in interest or assigns. Initially, the Swap Counterparty shall
be
IXIS
Financial Products Inc.
Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of a Swap Default with
respect to which the Swap Counterparty is a Defaulting Party, a Termination
Event with respect to which the Swap Counterparty is the sole Affected Party
or
an Additional Termination Event with respect to which the Swap Counterparty
is
the sole Affected Party has occurred.
Swap
Default:
Any of
the circumstances constituting an “Event of Default” under the Swap
Agreement.
Swap
LIBOR:
With
respect to any Distribution Date and the related Swap Payment Date (and the
Accrual Period relating to such Distribution Date), the product of (i) the
Floating Rate Option (as defined in the Swap Agreement) for the related Swap
Payment Date, (ii) two, and (iii) the quotient of (a) the actual number of
days
in the Accrual Period for the LIBOR Certificates and (b) 30, as calculated
by
the Swap Counterparty and furnished to the Trustee.
Swap
Payment Date:
For so
long as the Swap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day prior to each Distribution Date.
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment required to be made by the Supplemental Interest Trust to the Swap
Counterparty, or by the Swap Counterparty to the Supplemental Interest Trust,
as
applicable, pursuant to the terms of the Swap Agreement, and any unpaid amounts
due on previous Swap Payment Dates and accrued interest thereon as provided
in
the Swap Agreement, as calculated by the Swap Counterparty and furnished to
the
Trustee.
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Telerate
Page 3750:
The
display currently so designated as “Page 3750” on the Moneyline Telerate Service
(or such other page selected by the Trustee as may replace Page 3750 on that
service for the purpose of displaying daily comparable rates on
prices).
Termination
Event:
As
defined in the Swap Agreement.
69
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Total
Distribution Amount:
With
respect to any Distribution Date and Pool 1, the sum of (i) the Interest
Remittance Amount for Pool 1 for such date; (ii) the Principal Remittance Amount
for Pool 1 for such date; and (iii) the Prepayment Premiums with respect to
Pool
1. With respect to any Distribution Date and Pool 2, the sum of (i) the Interest
Remittance Amount for Pool 2 for such date; (ii) the Principal Remittance Amount
for Pool 2 for such date; and (iii) the Prepayment Premiums with respect to
Pool
2.
Transfer
Agreements:
As
defined in the Mortgage Loan Sale Agreement.
Transferor:
Each
seller of Mortgage Loans to the Seller pursuant to the Transfer
Agreements.
Trust
Fund:
The
corpus of the Xxxxxx XS Trust 2006-17 created pursuant to this Agreement,
consisting of the Mortgage Loans, the assignment of the Depositor’s rights under
the Transfer Agreements, the Mortgage Loan Sale Agreement and each Servicing
Agreement, the Group 1 Cap Agreement and all amounts received from the Cap
Counterparty thereunder, such amounts as shall from time to time be held in
the
Pool 1 Basis Risk Reserve Fund and the Pool 2 Basis Risk Reserve Fund, the
Collection Account, Certificate Account, any Custodial Account and any Escrow
Account, the Insurance Policies, any REO Property and the other items referred
to in, and conveyed to the Trustee under, Section 2.01(a), including without
limitation, for the benefit of the Class WF-3-1, Class WF-4-1 and Class WF-6-1
Certificates only, the Certificate Insurance Policy and the Policy Payments
Account.
Trust
Fund Termination Event:
The
later to occur of the Pool 1 Termination Event or Pool 2 Termination
Event.
Trustee:
Citibank, N.A., a national banking association, not in its individual capacity,
but solely in its capacity as trustee for the benefit of the Certificateholders
under this Agreement or solely in its capacity as trustee of the Supplemental
Interest Trust, as applicable, 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.
UCC
or
Uniform Commercial Code:
The
Uniform Commercial Code as in effect in any applicable jurisdiction from time
to
time.
Underwriter:
Xxxxxx
Brothers Inc.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), as amended
(or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor.
Unpaid
Basis Risk Shortfall:
With
respect to any Distribution Date and any Class of Offered Certificates, other
than the Class 1-AIO Certificates, the aggregate of all Basis Risk Shortfalls
with respect to such Class remaining unpaid from previous Distribution Dates,
plus interest accrued thereon at the applicable Certificate Interest Rate
computed without regard to the applicable Net Funds Cap.
70
Upper-Tier
REMIC 1:
As
described in the Preliminary Statement.
Upper-Tier
REMIC 2:
As
described in the Preliminary Statement.
WF-M1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 2 Stepdown Date and as
long as a Pool 2 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of (i) the aggregate
Class Principal Amount of the Group 2 Senior Certificates, after giving effect
to distributions on such Distribution Date and (ii) the Class Principal Amount
of the Class WF-M1 Certificates immediately prior to such Distribution Date
exceeds (y) the WF-M1 Target Amount.
WF-M1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 83.60% and (ii) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 2 Overcollateralization Floor.
WF-M2
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 2 Stepdown Date and as
long as a Pool 2 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of (i) the aggregate
Class Principal Amount of the Group 2 Senior Certificates and Class WF-M1
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class WF-M2
Certificates immediately prior to such Distribution Date exceeds (y) the WF-M2
Target Amount.
WF-M2
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 87.00% and (ii) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 2 Overcollateralization Floor.
WF-M3
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 2 Stepdown Date and as
long as a Pool 2 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 2 Senior Certificates, Class WF-M1
Certificates and Class WF-M2 Certificates, in each case after giving effect
to
distributions on such Distribution Date and (ii) the Class Principal Amount
of
the Class WF-M3 Certificates immediately prior to such Distribution Date exceeds
(y) the WF-M3 Target Amount.
WF-M3
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 89.00% and (ii) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 2 Overcollateralization Floor.
71
WF-M4
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 2 Stepdown Date and as
long as a Pool 2 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 2 Senior Certificates, Class WF-M1
Certificates, Class WF-M2 Certificates and Class WF-M3 Certificates, in each
case after giving effect to distributions on such Distribution Date and (ii) the
Class Principal Amount of the Class WF-M4 Certificates immediately prior to
such
Distribution Date exceeds (y) the WF-M4 Target Amount.
WF-M4
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 90.80% and (ii) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 2 Overcollateralization Floor.
WF-M5
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 2 Stepdown Date and as
long as a Pool 2 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 2 Senior Certificates, Class WF-M1
Certificates, Class WF-M2 Certificates, Class WF-M3 Certificates and Class
WF-M4
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class WF-M5
Certificates immediately prior to such Distribution Date exceeds (y) the WF-M5
Target Amount.
WF-M5
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 92.30% and (ii) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 2 Overcollateralization Floor.
WF-M6
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 2 Stepdown Date and as
long as a Pool 2 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 2 Senior Certificates, Class WF-M1
Certificates, Class WF-M2 Certificates, Class WF-M3 Certificates, Class WF-M4
Certificates and Class WF-M5 Certificates, in each case after giving effect
to
distributions on such Distribution Date and (ii) the Class Principal Amount
of
the Class WF-M6 Certificates immediately prior to such Distribution Date exceeds
(y) the WF-M6 Target Amount.
WF-M6
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 93.60% and (ii) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 2 Overcollateralization Floor.
WF-M7
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 2 Stepdown Date and as
long as a Pool 2 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 2 Senior Certificates, Class WF-M1
Certificates, Class WF-M2 Certificates, Class WF-M3 Certificates, Class WF-M4
Certificates, Class WF-M5 and Class WF-M6 Certificates, in each case after
giving effect to distributions on such Distribution Date and (ii) the Class
Principal Amount of the Class WF-M7 Certificates immediately prior to such
Distribution Date exceeds (y) the WF-M7 Target Amount.
72
WF-M7
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 94.80% and (ii) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 2 Overcollateralization Floor.
WF-M8
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 2 Stepdown Date and as
long as a Pool 2 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 2 Senior Certificates, Class WF-M1
Certificates, Class WF-M2 Certificates, Class WF-M3 Certificates, Class WF-M4
Certificates, Class WF-M5, Class WF-M6 and Class WF-M7 Certificates, in each
case after giving effect to distributions on such Distribution Date and (ii)
the
Class Principal Amount of the Class WF-M8 Certificates immediately prior to
such
Distribution Date exceeds (y) the WF-M8 Target Amount.
WF-M8
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 95.80% and (ii) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 2 Overcollateralization Floor.
WF-M9
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 2 Stepdown Date and as
long as a Pool 2 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 2 Senior Certificates, Class WF-M1
Certificates, Class WF-M2 Certificates, Class WF-M3 Certificates, Class WF-M4
Certificates, Class WF-M5, Class WF-M6, Class WF-M7 and Class WF-M8
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class WF-M9
Certificates immediately prior to such Distribution Date exceeds (y) the WF-M9
Target Amount.
WF-M9
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 96.80% and (ii) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 2 Overcollateralization Floor.
WF-M10
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 2 Stepdown Date and as
long as a Pool 2 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the sum of the aggregate
Class Principal Amount of the Group 2 Senior Certificates, Class WF-M1
Certificates, Class WF-M2 Certificates, Class WF-M3 Certificates, Class WF-M4
Certificates, Class WF-M5, Class WF-M6, Class WF-M7, Class WF-M8 and Class
WF-M9
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class WF-M10
Certificates immediately prior to such Distribution Date exceeds (y) the WF-M10
Target Amount.
73
WF-M10
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 98.40% and (ii) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (1) the Pool Balance of Pool 2 for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(2)
the Pool 2 Overcollateralization Floor.
Voting
Interests:
The
portion of the voting rights of all the Certificates that is allocated to any
Certificate for purposes of the voting provisions of this Agreement. At all
times during the term of this Agreement, 93.00% of all Voting Interests shall
be
allocated to the Offered Certificates. Such Voting Interests shall be allocated
among the Offered Certificates (and among the Certificates within each such
Class) in proportion to their Class Principal Amounts (or Certificate Principal
Amounts). At all times during the term of this Agreement, 1% of all Voting
Interests shall be allocated to each of the Class 1-AIO, Class 1-P, Class 2-P,
Class R-1 and Class R-2 Certificates, while they remain outstanding. At all
times during the term of this Agreement, 0.33% of all Voting Interests shall
be
allocated to each of the Class 1-X, Class C-X and Class S-X Certificates, while
they remain outstanding. At all times during the term of this Agreement, 1%
of
all Voting Interests shall be allocated to the Class 2-X Certificates, while
they remain outstanding. Voting Interests shall be allocated among the other
Classes of Certificates (and among the Certificates within each such Class)
in
proportion to their Class Principal Amounts (or Certificate Principal Amounts)
or Percentage Interests. The Class C Certificates will not have any Voting
Interests. In the case of the purchase by the Master Servicer of the Pooling
REMIC 1 Regular Interests pursuant to a Section 7.01(d) Purchase Event, the
LTURI-holder shall be allocated 100% of the Voting Interests of the Group 1
Certificates, Class 1-P Certificates, Class 1-X Certificates, Class C-X
Certificates, Class S-X Certificates and Class R-1 Certificates and upon such
purchase any provision in this agreement which requires a vote by, a direction
or notice given by, an action taken by, a request in writing by or the consent
of any percentage of the Holders of any Class of such Certificates may be
exercised by the LTURI-holder. In the case of the purchase by the Master
Servicer of the Pooling REMIC 2 Regular Interests pursuant to a Section 7.01(d)
Purchase Event, the LTURI-holder shall be allocated 100% of the Voting Interests
of the Group 2 Certificates, Class 2-P Certificates, Class 2-X Certificates
and
Class R-2 Certificates and upon such purchase any provision in this agreement
which requires a vote by, a direction or notice given by, an action taken by,
a
request in writing by or the consent of any percentage of the Holders of any
Class of such Certificates may be exercised by the LTURI-holder. In the case
of
the purchase by the Master Servicer of the Pooling REMIC 1 Regular Interests
and
the Pooling REMIC 2 Regular Interests pursuant to a Section 7.01(d) Purchase
Event, the LTURI-holder shall be allocated 100% of the Voting Interests and
upon
such purchase any provision in this agreement which requires a vote by, a
direction or notice given by, an action taken by, a request in writing by or
the
consent of any percentage of the Holders of any Class of Certificates may be
exercised by the LTURI-holder. In the absence of a default by the Certificate
Insurer in the performance of its duties under the Certificate Insurance Policy,
the Certificate Insurer will be entitled to exercise all consent, voting or
related rights of the holders of the Class WF-3-1, Class WF-4-1 and Class WF-6-1
Certificates.
74
Section
1.02. Calculations Respecting Mortgage Loans.
Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan
in the Trust Fund shall be made based upon current information as to the terms
of the Mortgage Loans and reports of payments received from the Mortgagor on
such Mortgage Loans and payments to be made to the Trustee as supplied to the
Trustee by the Master Servicer. The Trustee shall not be required to recompute,
verify or recalculate the information supplied to it by the Master Servicer
or
any Servicer.
Section
1.03. Calculations Respecting Accrued Interest.
Accrued
interest, if any, on the LIBOR Certificates, shall be calculated based upon
a
360-day year and the actual number of days in each Accrual Period. Accrued
interest on the Group 2 Certificates (except the Class WF-1-1 and Class WF-1-2
Certificates), Class 1-AIO Certificates, Class 1-X Certificates, Class 2-X
Certificates and each Lower-Tier Interest shall be calculated based upon a
360-day year and twelve 30-day months.
ARTICLE
II
DECLARATION
OF TRUST;
ISSUANCE
OF CERTIFICATES
Section
2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
(a) Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, subject to Sections 2.02, 2.04, 2.05 and 2.06, in trust,
all
the right, title and interest of the Depositor in and to the Mortgage Loans.
Such conveyance includes, without limitation, the right to all payments of
principal and interest received on or with respect to the Mortgage Loans on
and
after the Cut-off Date (other than payments of principal and interest due on
or
before such date), and all such payments due after such date but received prior
to such date and intended by the related Mortgagors to be applied after such
date together with all of the Depositor’s right, title and interest in and to
the Collection Account, the Certificate Account and all amounts from time to
time credited to and the proceeds of the Certificate Account, any Custodial
Accounts, any Escrow Account established pursuant to Section 9.06, the Pool
1
Basis Risk Reserve Fund and the Pool 2 Basis Risk Reserve Fund established
pursuant to Section 5.06, the Class X Account established pursuant to Section
5.11 and all amounts from time to time credited to and the proceeds of each
such
account, any REO Property and the proceeds thereof, the Depositor’s rights under
any Insurance Policies related to the Mortgage Loans, the Depositor’s security
interest in any collateral pledged to secure the Mortgage Loans, including
the
Mortgaged Properties, and any proceeds of the foregoing, to have and to hold
(or
a Custodian on its behalf), in trust; and the Trustee declares that, subject
to
the review provided for in Section 2.02, it has received and shall hold the
Trust Fund, as trustee, in trust, for the benefit and use of the Holders (except
that the Certificate Insurance Policy and the Policy Payments Account shall
be
held in trust for the benefit of the Class WF-3-1, Class WF-4-1 and Class WF-6-1
Certificateholders) and for the purposes and subject to the terms and conditions
set forth in this Agreement, and, concurrently with such receipt, has caused
to
be executed, authenticated and delivered to or upon the order of the Depositor,
in exchange for the Trust Fund, Certificates in the authorized denominations
evidencing the entire ownership of the Trust Fund.
75
Concurrently
with the execution of this Agreement, the MGIC Letter Agreement and the PMI
Letter Agreement shall be delivered to the Trustee on behalf of the Issuing
Entity. In connection therewith, the Depositor hereby directs the Trustee
(solely in its capacity as such) and the Trustee is hereby authorized to execute
and deliver the MGIC Letter Agreement and the PMI Letter Agreement for the
benefit of the Certificateholders. The Seller, the Master Servicer, the
Depositor, the Servicers and the Certificateholders (by their acceptance of
such
Certificates) acknowledge and agree that the Trustee is executing and delivering
the MGIC Letter Agreement and the PMI Letter Agreement solely in its capacity
as
Trustee of the Trust Fund, and not in its individual capacity.
Concurrently
with the execution of this Agreement, the Swap Agreement shall be delivered
to
the Trustee. In connection therewith, the Depositor hereby authorizes and
directs the Trustee (solely in its capacity as trustee of the Supplemental
Interest Trust) to execute and deliver the Swap Agreement (on behalf of the
Supplemental Interest Trust), in trust for the benefit of the Group 1
Certificateholders. The Seller, the Master Servicer, the Depositor, the Servicer
and the Group 1 Certificateholders (by their acceptance of such Certificates)
acknowledge and agree that the Trustee is executing and delivering the Swap
Agreement solely in its capacity as trustee of the Supplemental Interest Trust,
and not in its individual capacity. The Depositor hereby authorizes and directs
the Trustee, in its capacity as trustee of the Supplemental Interest Trust,
to
represent in the Swap Agreement that it is not required by any applicable law
of
any relevant jurisdiction to make any deduction or withholding for or on account
of any tax from Net Swap Payment. The Trustee shall have no duty or
responsibility to enter into any other interest rate swap agreement upon the
expiration or termination of the Swap Agreement.
Concurrently
with the execution and delivery of this Agreement and the Group 1 Cap Agreement,
the Depositor does hereby assign to the Trustee all of its rights and interest
under the Mortgage Loan Sale Agreement, including all rights of the Seller
under
each related Servicing Agreement and each related Transfer Agreement (other
than
first payment date default or early payment date default rights against the
related Transferor) but, in each case, only to the extent assigned under the
Mortgage Loan Sale Agreement. The Trustee hereby accepts such assignment and
delegation, and shall be entitled to exercise all the rights of the Depositor
under the Mortgage Loan Sale Agreement as if, for such purpose, it were the
Depositor. The foregoing sale, transfer, assignment, set-over, deposit,
delegation and conveyance does not and is not intended to result in the creation
or assumption by the Trustee of any obligation of the Depositor, the Seller
or
any other Person in connection with the Mortgage Loans or any other agreement
or
instrument relating thereto except as specifically set forth therein. The
Depositor hereby confirms it directs the Trustee, solely in its capacity as
Trustee hereunder, to execute and deliver the Group 1 Cap Agreement, the Bulk
PMI Policies and the Insurance Agreement. The Trustee shall have no duty or
responsibility to enter into any other interest rate cap agreement upon the
expiration or termination of any such Group 1 Cap Agreement.
It
is
agreed and understood by the Depositor and the Trustee (and the Seller has
so
represented and recognized in the Mortgage Loan Sale Agreement) that it is
not
intended that any Mortgage Loan to be included in the Trust Fund be (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 in the
Indiana Home Loan Practices Act effective January 1, 2005.
76
(b) In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, or cause to be delivered to and deposited with, the
Trustee, and/or the applicable Custodian acting on the Trustee’s behalf, the
following documents or instruments with respect to each Mortgage Loan (each
a
“Mortgage File”) so transferred and assigned:
(i) with
respect to each Mortgage Loan, the original Mortgage Note endorsed without
recourse in proper form to the order of the Trustee, as shown on Exhibit B-4
hereto, or in blank (in each case, with all necessary intervening endorsements,
as applicable) or with respect to any lost Mortgage Note, a lost note affidavit
stating that the original Mortgage Note was lost, misplaced or destroyed,
together with a copy of the related Mortgage Note;
(ii) if
applicable, the original of any guarantee, security agreement or pledge
agreement executed in connection with the Mortgage Note, assigned to the
Trustee;
(iii) with
respect to any Mortgage Loan other than a Cooperative Loan, the original
recorded Mortgage with evidence of recording indicated thereon and the original
recorded power of attorney, with evidence of recording thereon. If, in
connection with any Mortgage Loan, the Depositor cannot deliver the Mortgage
or
power of attorney with evidence of recording thereon on or prior to the Closing
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage or power
of
attorney has been lost, the Depositor shall deliver or cause to be delivered
to
the Trustee (or the applicable Custodian), in the case of a delay due to
recording, a true copy of such Mortgage or power of attorney, pending delivery
of the original thereof, together with an Officer’s Certificate of the Depositor
certifying that the copy of such Mortgage or power of attorney delivered to
the
Trustee (or the applicable Custodian) is a true copy and that the original
of
such Mortgage or power of attorney has been forwarded to the public recording
office, or, in the case of a Mortgage or power of attorney that has been lost,
a
copy thereof (certified as provided for under the laws of the appropriate
jurisdiction) and a written Opinion of Counsel delivered to the Trustee and
the
Depositor that an original recorded Mortgage or power of attorney is not
required to enforce the Trustee’s interest in the Mortgage Loan;
(iv) the
original of each assumption, modification or substitution agreement, if any,
relating to the Mortgage Loans, or, as to any assumption, modification or
substitution agreement which cannot be delivered on or prior to the Closing
Date
because of a delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for recordation,
a
photocopy of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer’s Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or the applicable Custodian)
is
a true copy and that the original of such agreement has been forwarded to the
public recording office;
77
(v) with
respect to each Non-MERS Mortgage Loan, an original Assignment of Mortgage,
in
form and substance acceptable for recording. The related Mortgage shall be
assigned either (A) in blank, without recourse or (B) to “Citibank, N.A., as
Trustee of the Xxxxxx
XS
Trust
Mortgage
Pass-Through Certificates, Series 2006-17,” without recourse;
(vi) if
applicable, such original intervening assignments of the Mortgage, notice of
transfer or equivalent instrument (each, an “Intervening Assignment”), as may be
necessary to show a complete chain of assignment from the originator, or, in
the
case of an Intervening Assignment that has been lost, a written Opinion of
Counsel delivered to the Trustee that such original Intervening Assignment
is
not required to enforce the Trustee’s interest in the Mortgage
Loans;
(vii) with
respect to any Mortgage Loan other than a Cooperative Loan, the original
mortgagee title insurance policy or attorney’s opinion of title and abstract of
title, and, if applicable, the original Primary Mortgage Insurance Policy or
certificate;
(viii) the
original of any security agreement, chattel mortgage or equivalent instrument
executed in connection with the Mortgage or as to any security agreement,
chattel mortgage or their equivalent instrument that cannot be delivered on
or
prior to the Closing Date because of a delay caused by the public recording
office where such document has been delivered for recordation, a photocopy
of
such document, pending delivery of the original thereof, together with an
Officer’s Certificate of the Depositor certifying that the copy of such security
agreement, chattel mortgage or their equivalent instrument delivered to the
Trustee (or the applicable Custodian) is a true copy and that the original
of
such document has been forwarded to the public recording office;
(ix) with
respect to any manufactured housing contract, any related manufactured housing
sales contract, installment loan agreement or participation interest;
and
(x) with
respect to any Cooperative Loan, the Cooperative Loan Documents.
The
parties hereto acknowledge and agree that the form of endorsement attached
hereto as Exhibit B-4 is intended to effect the transfer to the Trustee, for
the
benefit of the Certificateholders, of the Mortgage Notes and the
Mortgages.
(c) (i) Assignments
of Mortgage with respect to each Non-MERS Mortgage Loan other than a Cooperative
Loan shall be recorded; provided,
however,
that
such Assignments need not be recorded if, on or prior to the Closing Date,
the
Depositor delivers, at its own expense, an Opinion of Counsel addressed to
the
Trustee (which must be Independent counsel) acceptable to the Trustee and the
Rating Agencies, to the effect that recording in such states is not required
to
protect the Trustee’s interest in the related Non-MERS Mortgage Loans;
provided,
further,
that
notwithstanding the delivery of any Opinion of Counsel, the Master Servicer
shall cause the applicable Servicer to submit each Assignment of Mortgage for
recording upon the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Mortgagor under the related Mortgage. Subject to the preceding
sentence, as soon as practicable after the Closing Date (but in no event more
than three months thereafter except to the extent delays are caused by the
applicable recording office), the Master Servicer, at the expense of the
Depositor and with the cooperation of the applicable Servicer, shall cause
to be
properly recorded by each Servicer in each public recording office where the
related Mortgages are recorded each Assignment of Mortgage referred to in
subsection (b)(v) above with respect to each Non-MERS Mortgage Loan. With
respect to each Cooperative Loan, the Master Servicer, at the expense of the
Depositor and with the cooperation of applicable Servicer, shall cause such
Servicer to take such actions as are necessary under applicable law in order
to
perfect the interest of the Trustee in the related Mortgaged
Property.
78
(ii) With
respect to each MERS Mortgage Loan, the Master Servicer, at the expense of
the
Depositor and with the cooperation of the applicable Servicer, shall cause
the
Servicer to take such actions as are necessary to cause the Trustee to be
clearly identified as the owner of each such Mortgage Loan on the records of
MERS for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS.
(d) In
instances where a Title Insurance Policy is required to be delivered to the
Trustee or the applicable Custodian on behalf of the Trustee under clause
(b)(vii) above and is not so delivered, the Depositor will provide a copy of
such Title Insurance Policy to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, as promptly as practicable after the execution and
delivery hereof, but in any case within 180 days of the Closing
Date.
(e) For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, herewith delivers to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, an Officer’s Certificate which shall include a statement
to the effect that all amounts received in connection with such prepayment
that
are required to be deposited in the Collection Account pursuant to Section
4.01
have been so deposited. All original documents that are not delivered to the
Trustee or the applicable Custodian on behalf of the Trustee shall be held
by
the Master Servicer or the applicable Servicer in trust for the benefit of
the
Trustee and the Certificateholders.
Section
2.02. Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
(a) The
Trustee, by execution and delivery hereof, acknowledges receipt by it or
by the
applicable Custodian on its behalf of the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to review thereof
by the Trustee, or by the applicable Custodian on behalf of the Trustee,
under
this Section 2.02. The Trustee, or the applicable Custodian on behalf of
the
Trustee, will execute and deliver to the Trustee, the Depositor, the Master
Servicer and any NIMS Insurer on the Closing Date an Initial Certification
in
the form annexed hereto as Exhibit B-1 (or in the form annexed to the applicable
Custodial Agreement as Exhibit B-1, as applicable).
79
(b) Within
45
days after the Closing Date, the Trustee or the applicable Custodian on behalf
of the Trustee, will, for the benefit of the Holders, review each Mortgage
File
to ascertain that all required documents set forth in Section 2.01 have been
received and appear on their face to contain the requisite signatures by
or on
behalf of the respective parties thereto, and shall deliver to the Trustee,
the
Depositor, the Master Servicer and any NIMS Insurer an Interim Certification
in
the form annexed hereto as Exhibit B-2 (or in the form annexed to the applicable
Custodial Agreement as Exhibit B-2, as applicable) to the effect that, as
to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan prepaid in full or any specifically identified in such certification
as not
covered by such certification), (i) all of the applicable documents specified
in
Section 2.01(b) are in its possession and (ii) such documents have been reviewed
by it and appear to relate to such Mortgage Loan. The Trustee, or the applicable
Custodian on behalf of the Trustee, shall determine whether such documents
are
executed and endorsed, but shall be under no duty or obligation to inspect,
review or examine any such documents, instruments, certificates or other
papers
to determine that the same are valid, binding, legally effective, properly
endorsed, genuine, enforceable or appropriate for the represented purpose
or
that they have actually been recorded or are in recordable form or that they
are
other than what they purport to be on their face. Neither the Trustee nor
any
applicable Custodian shall have any responsibility for verifying the genuineness
or the legal effectiveness of or authority for any signatures of or on behalf
of
any party or endorser.
(c) If
in the
course of the review described in paragraph (b) above the Trustee or the
applicable Custodian discovers any document or documents constituting a part
of
a Mortgage File that is missing, does not appear regular on its face
(i.e.,
is
mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to
be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
(each, a “Material Defect”), the Trustee, or the applicable Custodian on behalf
of the Trustee, discovering such Material Defect shall promptly identify
the
Mortgage Loan to which such Material Defect relates in the Interim Certification
delivered to the Trustee, the Depositor and the Master Servicer. Within 90
days
of its receipt of such notice, the Transferor, or, if the Transferor does
not do
so, the Depositor shall be required to cure such Material Defect (and, in
such
event, the Depositor shall provide the Trustee with an Officer’s Certificate
confirming that such cure has been effected). If the applicable Transferor
or
the Depositor, as applicable, does not so cure such Material Defect, the
Transferor, or, if the Transferor does not do so, the Depositor, shall, if
a
loss has been incurred with respect to such Mortgage Loan that would, if
such
Mortgage Loan were not purchased from the Trust Fund, constitute a Realized
Loss, and such loss is attributable to the failure of the Depositor to cure
such
Material Defect, repurchase the related Mortgage Loan from the Trust Fund
at the
Purchase Price. A loss shall be deemed to be attributable to the failure
of the
Depositor to cure a Material Defect if, as determined by the Depositor, upon
mutual agreement with the Trustee each acting in good faith, absent such
Material Defect, such loss would not have been incurred. Within the two-year
period following the Closing Date, the Depositor may, in lieu of repurchasing
a
Mortgage Loan pursuant to this Section 2.02, substitute for such Mortgage
Loan a
Qualifying Substitute Mortgage Loan subject to the provisions of Section
2.05.
The failure of the Trustee or the applicable Custodian to give the notice
contemplated herein within 45 days after the Closing Date shall not affect
or
relieve the Depositor of its obligation to repurchase any Mortgage Loan pursuant
to this Section 2.02 or any other Section of this Agreement requiring the
repurchase of Mortgage Loans from the Trust Fund.
80
(d) Within
180 days following the Closing Date, the Trustee, or the applicable Custodian,
shall deliver to the Trustee, the Depositor, the Master Servicer and any
NIMS
Insurer a Final Certification substantially in the form attached as Exhibit
B-3
(or in the form annexed to the applicable Custodial Agreement as Exhibit
B-3, as
applicable) evidencing the completeness of the Mortgage Files in its possession
or control, with any exceptions noted thereto.
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Fund, the Trustee, the Certificate Insurer, any Custodian or the
Certificateholders of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
(f) Each
of
the parties hereto acknowledges that the applicable Custodian shall perform
the
applicable review of the Mortgage Loans and respective certifications thereof
as
provided in this Section 2.02 and the Custodial Agreement.
(g) Upon
execution of this Agreement, the Depositor hereby delivers to the Trustee
and
the Trustee acknowledges a receipt of the Mortgage Loan Sale Agreement and
each
Servicing Agreement.
Section
2.03. Representations
and Warranties of the Depositor.
(a) The
Depositor hereby represents and warrants to the Trustee, for the benefit
of
Certificateholders, to the Certificate Insurer, to the Master Servicer as
of the
Closing Date or such other date as is specified, that:
(i) the
Depositor is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full corporate
power
and authority to own its property, to carry on its business as presently
conducted, to enter into and perform its obligations under this Agreement,
and
to create the trust pursuant hereto;
(ii) the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions
hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Depositor or its properties or the certificate of
incorporation or bylaws of the Depositor;
(iii) the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or
taken
prior to the date hereof;
(iv) this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the Trustee and the Master Servicer
constitutes a valid and binding obligation of the Depositor enforceable against
it in accordance with its terms except as such enforceability may be subject
to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law;
81
(v) there
are
no actions, suits or proceedings pending or, to the knowledge of the Depositor,
threatened or likely to be asserted against or affecting the Depositor, before
or by any court, administrative agency, arbitrator or governmental body (A)
with
respect to any of the transactions contemplated by this Agreement or (B)
with
respect to any other matter which in the judgment of the Depositor will be
determined adversely to the Depositor and will if determined adversely to
the
Depositor materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to
perform
its obligations under this Agreement; and
(vi) immediately
prior to the transfer and assignment of the Mortgage Loans to the Trustee,
the
Depositor was the sole owner of record and holder of each Mortgage Loan,
and the
Depositor had good and marketable title thereto, and had full right to transfer
and sell each Mortgage Loan to the Trustee free and clear, subject only to
(1)
liens of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of
recording of such Mortgage acceptable to mortgage lending institutions in
the
area in which the related Mortgaged Property is located and specifically
referred to in the lender’s Title Insurance Policy or attorney’s opinion of
title and abstract of title delivered to the originator of such Mortgage
Loan,
and (3) such other matters to which like properties are commonly subject
which
do not, individually or in the aggregate, materially interfere with the benefits
of the security intended to be provided by the Mortgage, of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
each
Mortgage Loan pursuant to this Agreement.
(b) The
representations and warranties of each Transferor with respect to the related
Mortgage Loans in the applicable Transfer Agreement, which have been assigned
to
the Trustee hereunder, were made as of the date specified in the applicable
Transfer Agreement (or underlying agreement, if such Transfer Agreement is
in
the form of an assignment of a prior agreement). To the extent that any fact,
condition or event with respect to a Mortgage Loan constitutes a breach of
both
(i) a representation or warranty of the applicable Transferor under the
applicable Transfer Agreement and (ii) a representation or warranty of the
Seller under the Mortgage Loan Sale Agreement, the only right or remedy of
the
Trustee or any Certificateholder hereunder (other than a breach by the Seller
of
the representations made pursuant to Sections 1.04(b)(xii), 1.04(b)(xiii),
1.04(b)(xiv), 1.04(b)(xv) and 1.04(b)(xvi) of the Mortgage Loan Sale Agreement)
shall be their rights to enforce the obligations of the applicable Transferor
under any applicable representation or warranty made by it. Pursuant to the
terms of the Mortgage Loan Sale Agreement, the representations and warranties
made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xiii),
1.04(b)(xiv), 1.04(b)(xv) and 1.04(b)(xvi) of the Mortgage Loan Sale Agreement
shall be the direct obligations of the Seller. With the exception of the
immediately proceeding sentence, the Seller shall not have any other obligation
or liability with respect to any breach of a representation or warranty made
by
it with respect to the Mortgage Loans sold by it if the fact, condition or
event
constituting such breach also constitutes a breach of a representation or
warranty made by the applicable Transferor in the applicable Transfer Agreement,
without regard to whether such Transferor fulfills its contractual obligations
in respect of such representation or warranty. The Depositor shall have no
obligation or liability with respect to any breach of any representation
or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.03(a)(vi)) under any circumstances.
82
Section
2.04. Discovery
of Breach.
It
is
understood and agreed that the representations and warranties (i) set forth
in
Section 2.03, (ii) of the Seller set forth in the Mortgage Loan Sale Agreement
and assigned to the Depositor by the Seller under the Mortgage Loan Sale
Agreement and to the Trustee by the Depositor hereunder and (iii) of each
Transferor and of each Servicer assigned by the Seller to the Depositor pursuant
to the Mortgage Loan Sale Agreement and assigned to the Trustee by the Depositor
hereunder, shall each survive delivery of the Mortgage Files and the Assignment
of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout
the term of this Agreement. Upon discovery by any of the Depositor, the
Certificate Insurer, the Master Servicer or the Trustee of a breach of any
of
such representations and warranties that materially and adversely affects
the
value of the related Mortgage Loan, the party discovering such breach shall
give
prompt written notice to the other parties. Within 90 days of the discovery
of a
breach of any representation or warranty given to the Trustee and the
Certificate Insurer by the Depositor or given by any Transferor or the Seller
and assigned to the Trustee, the Depositor, such Transferor or the Seller,
as
applicable, shall either (a) cure such breach in all material respects, (b)
repurchase such Mortgage Loan or any property acquired in respect thereof
from
the Trustee at the Purchase Price (or, with respect to Mortgage Loans as
to
which there is a breach of a representation or warranty set forth in Section
1.04(b)(v) of the Mortgage Loan Sale Agreement, at the purchase price therefor
paid by the Seller under the Mortgage Loan Sale Agreement) or (c) within
the
two-year period following the Closing Date, substitute a Qualifying Substitute
Mortgage Loan for the affected Mortgage Loan. In the event of discovery of
a
breach of any representation and warranty of any Transferor assigned to the
Trustee, the Trustee shall enforce its rights under the applicable Transfer
Agreement and the Mortgage Loan Sale Agreement for the benefit of
Certificateholders. As provided in the Mortgage Loan Sale Agreements, if
any
Transferor substitutes a mortgage loan for a Deleted Mortgage Loan pursuant
to
the related Transfer Agreement and such substitute mortgage loan is not a
Qualifying Substitute Mortgage Loan, then pursuant to the terms of the Mortgage
Loan Sale Agreement the Seller will, in exchange for such substitute mortgage
loan, (i) pay to the Trust Fund the applicable Purchase Price for the affected
Mortgage Loan or (ii) within two years of the Closing Date, substitute a
Qualifying Substitute Mortgage Loan.
Section
2.05. Repurchase,
Purchase or Substitution of Mortgage Loans.
83
(a) With
respect to any Mortgage Loan repurchased by the Depositor pursuant to this
Agreement, by the Seller pursuant to the Mortgage Loan Sale Agreement, or
by the
Transferor pursuant to the applicable Transfer Agreement, the principal portion
of the funds received by the Master Servicer in respect of such repurchase
of a
Mortgage Loan will be considered a Principal Prepayment and the Purchase
Price
shall be deposited in the Collection Account or a Custodial Account, as
applicable. With
respect to any Pool 2 Mortgage Loan, the Certificate Insurer shall be reimbursed
from the Purchase Price for any unpaid Reimbursement Amounts due to the
Certificate Insurer with respect to such repurchased Mortgage Loan. The
Trustee (i) upon receipt of the full amount of the Purchase Price for a Deleted
Mortgage Loan, (ii) upon receipt of a written certification from the Master
Servicer that it has received the full amount of the Purchase Price for a
Deleted Mortgage Loan and has deposited such amount in the Collection Account
or
(iii) upon receipt of notification from the Custodian that it had received
the
Mortgage File for a Qualifying Substitute Mortgage Loan substituted for a
Deleted Mortgage Loan (and any applicable Substitution Amount), shall release
or
cause to be released and reassign to the Depositor, the Seller or the
Transferor, as applicable, the related Mortgage File for the Deleted Mortgage
Loan and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, representation or warranty, as shall be necessary
to vest in such party or its designee or assignee title to any Deleted Mortgage
Loan released pursuant hereto, free and clear of all security interests,
liens
and other encumbrances created by this Agreement, which instruments shall
be
prepared by the related Servicer and the Trustee shall have no further
responsibility with respect to the Mortgage File relating to such Deleted
Mortgage Loan. The Seller indemnifies and holds the Trust Fund, the Master
Servicer, the Certificate Insurer, the Trustee, the Depositor and each
Certificateholder harmless against any and all taxes, claims, losses, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and
any
other costs, fees and expenses that the Trust Fund, the Trustee, the Certificate
Insurer,the Master Servicer, the Depositor and any Certificateholder may
sustain
in connection with any actions of the Seller relating to a repurchase of
a
Mortgage Loan other than in compliance with the terms of this Section 2.05
and
the Mortgage Loan Sale Agreement, to the extent that any such action causes
an
Adverse REMIC Event.
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to the
Trustee (or the applicable Custodian) pursuant to the terms of this Article
II
in exchange for a Deleted Mortgage Loan: (i) the Depositor, the Transferor
or
the Seller, as applicable, must deliver to the Trustee (or the applicable
Custodian) the Mortgage File for the Qualifying Substitute Mortgage Loan
containing the documents set forth in Section 2.01(b) along with a written
certification certifying as to the delivery of such Mortgage File and containing
the granting language set forth in Section 2.01(a); and (ii) the Depositor
will
be deemed to have made, with respect to such Qualifying Substitute Mortgage
Loan, each of the representations and warranties made by it with respect
to the
related Deleted Mortgage Loan. As soon as practicable after the delivery
of any
Qualifying Substitute Mortgage Loan hereunder, the Master Servicer, at the
expense of the Depositor and with the cooperation of the applicable Servicer,
shall (i) with respect to a Qualifying Substitute Mortgage Loan that is a
Non-MERS Mortgage Loan, cause the Assignment of Mortgage to be recorded by
the
applicable Servicer if required pursuant to Section 2.01(c), or (ii) with
respect to a Qualifying Substitute Mortgage Loan that is a MERS Mortgage
Loan,
cause to be taken such actions as are necessary to cause the Trustee to be
clearly identified as the owner of each such Mortgage Loan on the records
of
MERS if required pursuant to Section 2.01(c).
84
(c) 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 Qualifying Substitute Mortgage Loan for a Deleted Mortgage
Loan shall be made unless the Trustee has received an Opinion of Counsel
(at the
expense of the party seeking to make the substitution) that, under current
law,
such substitution will not result in an Adverse REMIC Event.
Section
2.06. Grant
Clause.
(a) It
is
intended that the conveyance of the Depositor’s right, title and interest in and
to property constituting the Trust Fund pursuant to this Agreement shall
constitute, and shall be construed as, a sale of such property and not a
grant
of a security interest to secure a loan. However, if such conveyance is deemed
to be in respect of a loan, it is intended that: (1) the rights and obligations
of the parties shall be established pursuant to the terms of this Agreement;
(2)
the Depositor hereby grants to the Trustee for the benefit of the Holders
and
the Certificate Insurer a first priority security interest to secure repayment
of an obligation in an amount equal to the aggregate Class Principal Amount
of
the Certificates (or the aggregate principal balance of the Pooling REMIC
1
Regular Interests or Pooling REMIC 2 Regular Interests, as applicable) in
all of
the Depositor’s right, title and interest in, to and under, whether now owned or
hereafter acquired, the Trust Fund and, with respect to the Group 1
Certificateholders, the Supplemental Interest Trust and all proceeds of any
and
all property constituting the Trust Fund and the Supplemental Interest Trust
to
secure payment of the Certificates (or Pooling REMIC 1 Regular Interests)
(such
security interest being, to the extent of the assets that constitute the
Supplemental Interest Trust, pari
passu
with the
security interest as provided in clause (4) below); (3) this Agreement shall
constitute a security agreement under applicable law; and (4) the Swap
Counterparty shall be deemed, during the term of such agreement and while
such
agreement is the property of the Trustee, to have a security interest in
all of
the assets that constitute the Supplemental Interest Trust, but only to the
extent of such Swap Counterparty’s right to payment under the Swap Agreement
(such security interest being pari
passu
with the
security interest as provided in clause (2) above). If such conveyance is
deemed
to be in respect of a loan and the trust created by this Agreement terminates
prior to the satisfaction of the claims of any Person holding any Certificate
or
Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular Interests, as
applicable, the security interest created hereby shall continue in full force
and effect and the Trustee shall be deemed to be the collateral agent for
the
benefit of such Person, and all proceeds shall be distributed as herein
provided.
(b) The
Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement
were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and shall
be
maintained as such throughout the term of this Agreement. The Depositor shall,
at its own expense, make all initial filings on or about the Closing Date
and
shall forward a copy of such filing or filings to the Trustee. Without limiting
the generality of the foregoing, the Depositor shall prepare and forward
for
filing, or shall cause to be forwarded for filing, at the expense of the
Depositor, all filings necessary to maintain the effectiveness of any original
filings necessary under the relevant UCC to perfect the Trustee’s security
interest in or lien on the Mortgage Loans, including without limitation (x)
continuation statements, and (y) such other statements as may be occasioned
by
(1) any change of name of the Seller, the Depositor or the Trustee, (2) any
change of location of the jurisdiction of organization of the Seller or the
Depositor, (3) any transfer of any interest of the Seller or the Depositor
in
any Mortgage Loan or (4) any change under the relevant UCC or other applicable
laws. Neither the Seller nor the Depositor shall organize under the law of
any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of
such action to its immediate and intermediate transferee, including the Trustee.
Before effecting such change, the Seller or the Depositor proposing to change
its jurisdiction of organization shall prepare and file in the appropriate
filing office any financing statements or other statements necessary to continue
the perfection of the interests of its immediate and mediate transferees,
including the Trustee, in the Mortgage Loans. In connection with the
transactions contemplated by this Agreement, the Seller and the Depositor
authorizes its immediate or mediate transferee to file in any filing office
any
initial financing statements, any amendments to financing statements, any
continuation statements, or any other statements or filings described in
this
paragraph (b).
85
ARTICLE
III
THE
CERTIFICATES
Section
3.01. The
Certificates.
(a) The
Certificates shall be issuable in registered form only and shall be securities
governed by Article 8 of the New York Uniform Commercial Code. The Book-Entry
Certificates will be evidenced by one or more certificates, beneficial ownership
of which will be held in the dollar denominations in Certificate Principal
Amount (or Notional Amount) or in the Percentage Interests, specified herein.
Each Class of Offered Certificates will be issued in the minimum denominations
in the Certificate Principal Amount (or Notional Amount) specified in the
Preliminary Statement hereto and in integral multiples of $1 in excess thereof.
The Class C, Class 1-P, Class 2-P, Class 1-X, Class 2-X, Class C-X and Class
S-X
Certificates shall each be maintained in definitive, fully registered form
in a
minimum denomination equal to 10.00% of the Percentage Interest of each such
Class and integral multiples of 1.00% in excess thereof. Each of the Class
LT-R-1, Class LT-R-2, Class R-1 and Class R-2 Certificates shall be issued
as a
single Certificate and maintained in definitive, fully registered form in
a
minimum denomination equal to 100% of the Percentage Interest of such Class.
The
Certificates may be issued in the form of typewritten certificates.
(b) The
Certificates shall be executed by manual or facsimile signature on behalf
of the
Trustee by an authorized officer. Each Certificate shall, on original issue,
be
authenticated by the Trustee upon the order of the Depositor upon receipt
by the
Trustee of the Mortgage Files described in Section 2.01. No Certificate shall
be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein, executed by an authorized
officer
of the Trustee or the Authenticating Agent, if any, by manual signature,
and
such certification upon any Certificate shall be conclusive evidence, and
the
only evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
86
Section
3.02. Registration.
The
Trustee is hereby appointed, and hereby accepts its appointment as, Certificate
Registrar in respect of the Certificates (and, after a Section 7.01(d) Purchase
Event, the applicable Pooling REMIC Regular Interests) and shall maintain
books
for the registration and for the transfer of Certificates (and, after a Section
7.01(d) Purchase Event, the applicable Pooling REMIC Regular Interests) (the
“Certificate Register”). The Trustee may appoint a bank or trust company to act
as Certificate Registrar. A registration book shall be maintained for the
Certificates (and, after a Section 7.01(d) Purchase Event, the applicable
Pooling REMIC Regular Interests) collectively. The Certificate Registrar
may
resign or be discharged or removed and a new successor may be appointed in
accordance with the procedures and requirements set forth in Sections 6.06
and
6.07 hereof with respect to the resignation, discharge or removal of the
Trustee
and the appointment of a successor Trustee. The Certificate Registrar may
appoint, by written instrument delivered to the Holders and the Master Servicer,
any bank or trust company to act as co-registrar under such conditions as
the
Certificate Registrar may prescribe; provided,
however,
that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
Upon
the
occurrence of a Section 7.01(d) Purchase Event, the Master Servicer shall
provide the Trustee with written notice of the identity of any transferee
of the
Master Servicer’s interest in the Pooling REMIC 1 Regular Interests or the
Pooling REMIC 2 Regular Interests, as applicable, which notice shall contain
a
certification that such transferee is a permitted LTURI holder hereunder.
The
Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular Interests, as
applicable, may only be transferred in whole and not in part to no more than
one
LTURI-holder at a time who is either (1) an affiliate of the Master Servicer
or
(2) a trustee of a privately placed securitization. The Trustee and the
Depositor shall treat the Person in whose name the Pooling REMIC 1 Regular
Interests or the Pooling REMIC 2 Regular Interests are registered on the
books
of the Certificate Registrar as the LTURI-holder for all purposes
hereunder.
Section
3.03. Transfer
and Exchange of Certificates.
(a) A
Certificate (other than Book-Entry Certificates which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the Certificate
Registrar duly endorsed or accompanied by an assignment duly executed by
such
Holder or his duly authorized attorney in such form as shall be satisfactory
to
the Certificate Registrar. Upon the transfer of any Certificate in accordance
with the preceding sentence, the Trustee shall execute, and the Trustee or
any
Authenticating Agent shall authenticate and deliver to the transferee, one
or
more new Certificates of the same Class and evidencing, in the aggregate,
the
same aggregate Certificate Principal Amount or Percentage Interest as the
Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any
tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b) A
Certificate may be exchanged by the Holder thereof for any number of new
Certificates of the same Class, in authorized denominations, representing
in the
aggregate the same Certificate Principal Amount or Percentage Interest as
the
Certificate surrendered, upon surrender of the Certificate to be exchanged
at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that
may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
and the
Trustee or the Authenticating Agent shall authenticate, date and deliver
the
Certificates which the Certificateholder making the exchange is entitled
to
receive.
87
(c) By
acceptance of a Restricted Certificate or QIB-Restricted Certificate, whether
upon original issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a Restricted Certificate to a transferee that takes delivery
in
the form of a Definitive Certificate:
(i) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is (x) to the Depositor or an affiliate (as defined
in
Rule 405 under the Securities Act) of the Depositor or (y) being made to
a
“qualified institutional buyer” (a “QIB”) as defined in Rule 144A under the
Securities Act by a transferor that has provided the Trustee with a certificate
in the form of Exhibit F hereto; and
(ii) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is being made to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Act, or to any Person all of the equity
owners in which are such accredited investors, by a transferor who furnishes
to
the Trustee a letter of the transferee substantially in the form of Exhibit
G
hereto.
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a QIB Restricted Certificate to a transferee that takes delivery
in the form of a Definitive Certificate: the Certificate Registrar shall
register the transfer of a Restricted Certificate if the requested transfer
is
(x) to the Depositor or an affiliate (as defined in Rule 405 under the
Securities Act) of the Depositor or (y) being made to a QIB as defined in
Rule
144A under the Securities Act by a transferor that has provided the Trustee
with
a certificate in the form of Exhibit F hereto.
(d) (i) No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made to any Person or shall be effective unless the
Trustee
has received (A) a certificate substantially in the form of Exhibit H hereto
(or
Exhibit D-1, in the case of a Residual Certificate) from such transferee
or (B)
an Opinion of Counsel to the effect that the purchase and holding of such
a
Certificate will not constitute or result in prohibited transactions under
Title
I of ERISA or Section 4975 of the Code and will not subject the Trustee,
the
Master Servicer, the Depositor or any NIMS Insurer to any obligation in addition
to those undertaken in the Agreement; provided,
however,
that the
Trustee will not require such certificate or opinion in the event that, as
a
result of a change of law or otherwise, the Trustee receives an Opinion of
Counsel to the effect that the purchase and holding of an ERISA-Restricted
Certificate by a Plan or a Person that is purchasing or holding such a
Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under Title I of ERISA or Section 4975 of the Code.
Each
Transferee of an ERISA-Restricted Certificate that is a Book-Entry Certificate
shall be deemed to have made the representations set forth in Exhibit H.
The
preparation and delivery of the certificate and opinions referred to above
shall
not be an expense of the Trust Fund, the Trustee, the Master Servicer, the
NIMS
Insurer or the Depositor.
88
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates. The Trustee shall have no
obligation to monitor transfers of Book-Entry Certificates that are
ERISA-Restricted Certificates and shall have no liability for transfers of
such
Certificates in violation of the transfer restrictions. The Trustee shall
be
under no liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
3.03(d) or for making any payments due on such Certificate to the Holder
thereof
or taking any other action with respect to such Holder under the provisions
of
this Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements. The Trustee shall be entitled,
but
not obligated, to recover from any Holder of any ERISA-Restricted Certificate
that was in fact a Plan or a Person acting on behalf of a Plan, any payments
made on such ERISA-Restricted Certificate at and after either such time.
Any
such payments so recovered by the Trustee shall be paid and delivered by
the
Trustee to the last preceding Holder of such Certificate that is not such
a Plan
or Person acting on behalf of a Plan.
(ii) No
transfer of an ERISA-Restricted Swap Certificate prior to the termination
of the
Swap Agreement shall be made unless the Trustee shall have received a
representation letter from the transferee of such Certificate, substantially
in
the form set forth in Exhibit H, to the effect that either (i) such transferee
is neither a Plan nor a Person acting on behalf of any such Plan or using
the
assets of any such Plan to effect such transfer or (ii) the acquisition and
holding of the ERISA-Restricted Swap Certificate are eligible for exemptive
relief under the statutory exemption for nonfiduciary service providers under
Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code, Prohibited
Transaction Class Exemption (“PTCE”) 84-14, XXXX 00-0, XXXX 00-00, XXXX 95-60 or
PTCE 96-23 or some other applicable exemption. Notwithstanding anything else
to
the contrary herein, any purported transfer of an ERISA-Restricted Swap
Certificate prior to the termination of the Swap Agreement or on behalf of
a
Plan without the delivery to the Trustee of a representation letter as described
above shall be void and of no effect. If the ERISA-Restricted Swap Certificate
is a Book-Entry Certificate, the transferee will be deemed to have made a
representation as provided in clause (i) or (ii) of this paragraph, as
applicable.
If
any
ERISA-Restricted Swap Certificate, or any interest therein, is acquired or
held
in violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of an
ERISA-Restricted Swap Certificate, or interest therein, was effected in
violation of the provisions of the preceding paragraph shall indemnify to
the
extent permitted by law and hold harmless the Depositor, the Trustee, any
NIMS
Insurer and the Master Servicer from and against any and all liabilities,
claims, costs or expenses incurred by such parties as a result of such
acquisition or holding.
89
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee shall be under no liability to any Person for any registration
of
transfer of any ERISA-Restricted Swap Certificate that is in fact not permitted
by this Section 3.03(d)(ii) or for making any payments due on such Certificate
to the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the transfer was registered
by
the Trustee in accordance with the foregoing requirements.
(e) As
a
condition of the registration of transfer or exchange of any Certificate,
the
Certificate Registrar may require the certified taxpayer identification number
of the owner of the Certificate and the payment of a sum sufficient to cover
any
tax or other governmental charge imposed in connection therewith; provided,
however,
that the
Certificate Registrar shall have no obligation to require such payment or
to
determine whether or not any such tax or charge may be applicable. No service
charge shall be made to the Certificateholder for any registration, transfer
or
exchange of a Certificate.
(f) Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be
owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless such person is (A) not a Non-U.S. Person or (B) is
a
Non-U.S. Person that holds a Residual Certificate in connection with the
conduct
of a trade or business within the United States and has furnished the transferor
and the Trustee with an effective Internal Revenue Service W-8ECI or successor
form at the time and in the manner required by the Code (any such person
who is
not covered by clause (A) or (B) above is referred to herein as a “Non-permitted
Foreign Holder”).
Prior
to
and as a condition of the registration of any transfer, sale or other
disposition of a Residual Certificate, the proposed transferee shall deliver
to
the Trustee an affidavit in substantially the form attached hereto as Exhibit
D-1 representing and warranting, among other things, that such transferee
is
neither a Disqualified Organization, an agent or nominee acting on behalf
of a
Disqualified Organization, nor a Non-Permitted Foreign Holder (any such
transferee, a “Permitted Transferee”), and the proposed transferor shall deliver
to the Trustee an affidavit in substantially the form attached hereto as
Exhibit
D-2. In addition, the Trustee may (but shall have no obligation to) require,
prior to and as a condition of any such transfer, the delivery by the proposed
transferee of an Opinion of Counsel, addressed to the Depositor, the Master
Servicer and the Trustee satisfactory in form and substance to the Depositor,
that such proposed transferee or, if the proposed transferee is an agent
or
nominee, the proposed beneficial owner, is not a Disqualified Organization,
agent or nominee thereof, or a Non-Permitted Foreign Holder. Notwithstanding
the
registration in the Certificate Register of any transfer, sale, or other
disposition of a Residual Certificate to a Disqualified Organization, an
agent
or nominee thereof, or Non-Permitted Foreign Holder, such registration shall
be
deemed to be of no legal force or effect whatsoever and such Disqualified
Organization, agent or nominee thereof, or Non-Permitted Foreign Holder shall
not be deemed to be a Certificateholder for any purpose hereunder, including,
but not limited to, the receipt of distributions on such Residual Certificate.
The Trustee shall not be under any liability to any person for any registration
or transfer of a Residual Certificate to a Disqualified Organization, agent
or
nominee thereof or Non-permitted Foreign Holder or for the maturity of any
payments due on such Residual Certificate to the Holder thereof or for taking
any other action with respect to such Holder under the provisions of the
Agreement, so long as the transfer was effected in accordance with this Section
3.03(f), unless the Trustee shall have actual knowledge at the time of such
transfer or the time of such payment or other action that the transferee
is a
Disqualified Organization, or an agent or nominee thereof, or Non-permitted
Foreign Holder. The Trustee shall be entitled to recover from any Holder
of a
Residual Certificate that was a Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder at the time it became a Holder or
any
subsequent time it became a Disqualified Organization, agent or nominee thereof,
or Non-permitted Foreign Holder, all payments made on such Residual Certificate
at and after either such times (and all costs and expenses, including but
not
limited to attorneys’ fees, incurred in connection therewith). Any payment (not
including any such costs and expenses) so recovered by the Trustee shall
be paid
and delivered to the last preceding Holder of such Residual
Certificate.
90
If
any
purported transferee shall become a registered Holder of a Residual Certificate
in violation of the provisions of this Section 3.03(f), then upon receipt
of
written notice to the Trustee that the registration of transfer of such Residual
Certificate was not in fact permitted by this Section 3.03(f), the last
preceding Permitted Transferee shall be restored to all rights as Holder
thereof
retroactive to the date of such registration of transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not permitted
by this Section 3.03(f), for making any payment due on such Certificate to
the
registered Holder thereof or for taking any other action with respect to
such
Holder under the provisions of this Agreement so long as the transfer was
registered upon receipt of the affidavit described in the preceding paragraph
of
this Section 3.03(f).
(g) Each
Holder or Certificate Owner of a Restricted Certificate,
ERISA-Restricted Certificate,
ERISA-Restricted Swap Certificate,
Residual
Certificate or QIB-Restricted Certificate, or an interest therein, by such
Holder’s or Owner’s acceptance thereof, shall be deemed for all purposes to have
consented to the provisions of this section.
Section
3.04. Cancellation
of Certificates.
Any
Certificate surrendered for registration of transfer or exchange shall be
cancelled and retained in accordance with normal retention policies with
respect
to cancelled certificates maintained by the Trustee or the Certificate
Registrar.
Section
3.05. Replacement
of Certificates.
If
(i)
any Certificate is mutilated and is surrendered to the Trustee or any
Authenticating Agent or (ii) the Trustee or any Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee or the Authenticating
Agent
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Depositor and any Authenticating
Agent that such destroyed, lost or stolen Certificate has been acquired by
a
bona fide purchaser, the Trustee shall execute and the Trustee or any
Authenticating Agent shall authenticate and deliver, in exchange for or in
lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and Certificate Principal Amount. Upon the issuance of any
new
Certificate under this Section 3.05, the Trustee and Authenticating Agent
may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee or the Authenticating Agent) connected
therewith. Any replacement Certificate issued pursuant to this Section 3.05
shall constitute complete and indefeasible evidence of ownership in the
applicable Trust Fund, as if originally issued, whether or not the lost,
stolen
or destroyed Certificate shall be found at any time.
91
Section
3.06. Persons
Deemed Owners.
Subject
to the provisions of Section 3.09 with respect to Book-Entry Certificates,
the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar and
any
agent of any of them may treat the Person in whose name any Certificate is
registered upon the books of the Certificate Registrar as the owner of such
Certificate for the purpose of receiving distributions pursuant to Sections
5.01
and 5.02 and for all other purposes whatsoever, and neither the Depositor,
the
Master Servicer, the Trustee, the Certificate Registrar nor any agent of
any of
them shall be affected by notice to the contrary.
Section
3.07. Temporary
Certificates.
(a) Pending
the preparation of definitive Certificates, upon the order of the Depositor,
the
Trustee shall execute and shall authenticate and deliver temporary Certificates
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as
the
authorized officers executing such Certificates may determine, as evidenced
by
their execution of such Certificates.
(b) If
temporary Certificates are issued, the Depositor will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation
of
definitive Certificates, the temporary Certificates shall be exchangeable
for
definitive Certificates upon surrender of the temporary Certificates at the
office or agency of the Trustee without charge to the Holder. Upon surrender
for
cancellation of any one or more temporary Certificates, the Trustee shall
execute and authenticate and deliver in exchange therefor a like aggregate
Certificate Principal Amount of definitive Certificates of the same Class
in the
authorized denominations. Until so exchanged, the temporary Certificates
shall
in all respects be entitled to the same benefits under this Agreement as
definitive Certificates of the same Class.
Section
3.08. Appointment
of Paying Agent.
The
Trustee may appoint a Paying Agent (which may be the Trustee) for the purpose
of
making distributions to Certificateholders hereunder. The Trustee shall cause
such Paying Agent (if other than the Trustee) to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent will hold all sums held by it for the payment to
Certificateholders in an Eligible Account in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to the
Certificateholders. All funds remitted by the Trustee to any such Paying
Agent
for the purpose of making distributions shall be paid to Certificateholders
on
each Distribution Date and any amounts not so paid shall be returned on such
Distribution Date to the Trustee.
92
If
the
Paying Agent is not the Trustee, the Trustee shall cause to be remitted to
the
Paying Agent on or before the Business Day prior to each Distribution Date,
by
wire transfer in immediately available funds, the funds to be distributed
on
such Distribution Date. Any Paying Agent shall be either a bank or trust
company
or otherwise authorized under law to exercise corporate trust powers. As
of
the
Closing Date the Trustee is the Paying Agent.
At
any
time during the period that a Form 10-K is being filed with respect to the
Trust
in accordance with the Exchange Act and the rules and regulations of the
Commission, the Trustee shall not appoint a Paying Agent that is not the
Trustee
unless that Paying Agent first agrees in writing with the Trustee (i) to
deliver
an assessment of compliance and an accountant’s attestation in such manner and
at such times in compliance with Section 6.01(k) and (l) of this Agreement,
(ii)
to comply with the provisions of Section 6.01(m), 6.01(n), 6.20(e)(i) and
6.20(e)(iii) of this Agreement and (iii) to indemnify the Depositor and the
Master Servicer, and their respective directors, officers, employees and
agents
and the Trust Fund and hold each of them harmless as set forth in
6.01(o)
Section
3.09. Book-Entry
Certificates.
(a) Each
Class of Book-Entry Certificates, upon original issuance, shall be issued
in the
form of one or more typewritten Certificates representing the Book-Entry
Certificates. The Book-Entry Certificates shall initially be registered on
the
Certificate Register in the name of the nominee of the Clearing Agency, and
no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner’s interest in the Book-Entry Certificates, except as provided
in Section 3.09(c). Unless Definitive Certificates have been issued to
Certificate Owners of Book-Entry Certificates pursuant to Section
3.09(c):
(i) the
provisions of this Section 3.09 shall be in full force and effect;
(ii) the
Depositor, the Master Servicer, the Paying Agent, the Registrar and the Trustee
may deal with the Clearing Agency for all purposes (including the making
of
distributions on the Book-Entry Certificates) as the authorized representatives
of the Certificate Owners and the Clearing Agency shall be responsible for
crediting the amount of such distributions to the accounts of such Persons
entitled thereto, in accordance with the Clearing Agency’s normal
procedures;
(iii) to
the
extent that the provisions of this Section 3.09 conflict with any other
provisions of this Agreement, the provisions of this Section 3.09 shall control;
and
(iv) the
rights of Certificate Owners shall be exercised only through the Clearing
Agency
and the Clearing Agency Participants and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial Clearing
Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
93
(b) Whenever
notice or other communication to the Certificateholders is required under
this
Agreement, unless and until Definitive Certificates shall have been issued
to
Certificate Owners pursuant to Section 3.09(c), the Trustee shall give all
such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency.
(c) If
(i)
(A) the Depositor advises the Trustee in writing that the Clearing Agency
is no
longer willing or able to discharge properly its responsibilities with respect
to the Book-Entry Certificates, and (B) the Trustee or the Depositor is unable
to locate a qualified successor, or (ii) after the occurrence of an Event
of Default, Certificate Owners representing beneficial interests aggregating
not
less than 50% of the Class Principal Amount (or Class Notional Amount) of
a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer’s Certificate from the Clearing Agency advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that
the
continuation of a book-entry system through the Clearing Agency is no longer
in
the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Trustee shall notify or cause the Certificate Registrar
to
notify the Clearing Agency to effect notification to all Certificate Owners,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting
the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Depositor nor the Trustee shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be protected
in
relying on, such instructions. Upon the issuance of Definitive Certificates
all
references herein to obligations imposed upon or to be performed by the Clearing
Agency shall be deemed to be imposed upon and performed by the Trustee, to
the
extent applicable, with respect to such Definitive Certificates and the Trustee
shall recognize the holders of the Definitive Certificates as Certificateholders
hereunder. None of the Seller, the Depositor, the Underwriter, the Master
Servicer, the Certificate Insurer or the Trustee shall have any responsibility
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of the Book-Entry Certificates held by the
Clearing Agency or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
ARTICLE
IV
ADMINISTRATION
OF THE TRUST FUND
Section
4.01. Collection
Account.
(a) On
the
Closing Date, the Master Servicer shall open and shall thereafter maintain
a
segregated account held in trust (the “Collection Account”), entitled
“Collection Account, Aurora Loan Services LLC, as Master Servicer, in trust
for
the benefit of the Holders of Xxxxxx XS Trust Mortgage Pass-Through
Certificates, Series 2006-17.” The Collection Account shall relate solely to the
Certificates and to the Pooling REMIC 1 Regular Interests and the Pooling
REMIC
2 Regular Interests issued by the Trust Fund hereunder, and funds in such
Collection Account shall not be commingled with any other monies.
94
(b) The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Master Servicer shall establish
a
new Collection Account that is an Eligible Account within 15 days and transfer
all funds and investment property on deposit in such existing Collection
Account
into such new Collection Account.
(c) The
Master Servicer shall give to the Trustee prior written notice of the name
and
address of the depository institution at which the Collection Account is
maintained and the account number of such Collection Account. The Master
Servicer shall take such actions as are necessary to cause the depository
institution holding the Collection Account to hold such account in the name
of
the Master Servicer under this Agreement. No later than 2:00 p.m. New York
City
time on each Master Servicer Remittance Date, the entire amount on deposit
in
the Collection Account (subject to permitted withdrawals set forth in Section
4.02), other than amounts not included in the Total Distribution Amount for
such
Distribution Date, shall be remitted to the Trustee for deposit into the
Certificate Account by wire transfer in immediately available funds. The
Master
Servicer, at its option (but with prior notice to the Trustee), may choose
to
make daily remittances from the Collection Account to the Trustee for deposit
into the Certificate Account.
(d) The
Master Servicer shall deposit or cause to be deposited into the Collection
Account, no later than two Business Days following the Closing Date, any
amounts
received with respect to the Mortgage Loans representing Scheduled Payments
on
the Mortgage Loans due after the Cut-off Date and unscheduled payments received
on or after the Cut-off Date and on or before the Closing Date. Thereafter,
the
Master Servicer shall deposit or cause to be deposited in the Collection
Account
on the earlier of the applicable Remittance Date and two Business Days following
receipt thereof, the following amounts received or payments made by it (other
than in respect of principal of and interest on the Mortgage Loans due on
or
before the
Cut-off Date):
(i) all
payments on account of principal, including Principal Prepayments, late
collections, and any Prepayment Premiums, on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans, in all cases, net
of the
Servicing Fee with respect to each such Mortgage Loan, but only to the extent
of
the amount permitted to be withdrawn or withheld from the Collection Account
in
accordance with Sections 5.04 and 9.21;
(iii) any
unscheduled payment or other recovery with respect to a Mortgage Loan not
otherwise specified in this paragraph (d), including all Net Liquidation
Proceeds with respect to the Mortgage Loans and REO Property, and all amounts
received in connection with the operation of any REO Property, net of (x)
any
unpaid Servicing Fees with respect to such Mortgage Loans (but only to the
extent of the amount permitted to be withdrawn or withheld from the Collection
Account in accordance with Sections 5.04 and 9.21) and (y) any amounts
reimbursable to a Servicer with respect to such Mortgage Loan under the
applicable Servicing Agreement and retained by such Servicer;
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(iv) all
Insurance Proceeds;
(v) all
Advances made by the Master Servicer or any Servicer pursuant to Section
5.04 or
the applicable Servicing Agreement;
(vi) all
amounts paid by any Servicer with respect to Prepayment Interest Shortfalls;
and
(vii) the
Purchase Price of any Mortgage Loan repurchased by the Depositor, the Seller,
the Master Servicer or any other Person, and any Substitution Amount related
to
any Qualifying Substitute Mortgage Loan and any purchase price paid by the
NIMS
Insurer for the purchase of any Distressed Mortgage Loan under Section
7.04.
(e) Funds
in
the Collection Account may be invested in Eligible Investments selected by
and
at the written direction of the Master Servicer, which shall mature not later
than one Business Day prior to the Master Servicer Remittance Date (except
that
if such Eligible Investment is an obligation of the Trustee, then such Eligible
Investment shall mature not later than such applicable Master Servicer
Remittance Date) and any such Eligible Investment shall not be sold or disposed
of prior to its maturity. All such Eligible Investments shall be made in
the
name of the Master Servicer in trust for the benefit of the Trustee and the
Holders of Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2006-17.
All income and gain realized from any Eligible Investment shall be for the
benefit of the Master Servicer and shall be subject to its withdrawal or
order
from time to time and shall not be part of the Trust Fund. The amount of
any
losses incurred in respect of any such investments shall be deposited in
such
Collection Account by the Master Servicer out of its own funds, without any
right of reimbursement therefor, immediately as realized. The foregoing
requirements for deposit in the Collection Account are exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments of interest on funds in the Collection Account and payments in the
nature of late payment charges, assumption fees, prepayment penalties with
respect to mortgages for which the Seller does not own the servicing rights,
and
other incidental fees and charges relating to the Mortgage Loans (other than
Prepayment Premiums) need not be deposited by the Master Servicer in the
Collection Account and may be retained by the Master Servicer or the applicable
Servicer as additional servicing compensation. If the Master Servicer deposits
in the Collection Account any amount not required to be deposited therein,
it
may at any time withdraw such amount from such Collection Account.
Section
4.02. Application
of Funds in the Collection Account.
The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i) to
reimburse itself or any Servicer for Advances or Servicing Advances made
by it
or by such Servicer pursuant to Section 5.04 or the applicable Servicing
Agreement; such right to reimbursement pursuant to this sub-clause (i) is
limited to amounts received on or in respect of a particular Mortgage Loan
(including, for this purpose, Liquidation Proceeds and amounts representing
Insurance Proceeds with respect to the property subject to the related Mortgage)
which represent late recoveries (net of the applicable Servicing Fee) of
payments of principal or interest respecting which any such Advance was made,
it
being understood, in the case of any such reimbursement, that the Master
Servicer’s or Servicer’s right thereto shall be prior to the rights of the
Certificateholders;
96
(ii) to
reimburse itself or any Servicer, following a final liquidation of a Mortgage
Loan (except as otherwise provided in the related Servicing Agreement) for
any
previously unreimbursed Advances or Servicing Advances made by it or by such
Servicer (A) that it or such Servicer determines in good faith will not be
recoverable from amounts representing late recoveries of payments of principal
or interest respecting the particular Mortgage Loan as to which such Advance
or
Servicing Advance was made or from Liquidation Proceeds or Insurance Proceeds
with respect to such Mortgage Loan and/or (B) to the extent that such
unreimbursed Advances or Servicing Advances exceed the related Liquidation
Proceeds or Insurance Proceeds, it being understood, in the case of each
such
reimbursement, that such Master Servicer’s or Servicer’s right thereto shall be
prior to the rights of the Certificateholders;
(iii) to
reimburse itself or any Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Sections 9.20 and 9.22(c)
or
the applicable Servicing Agreement in good faith in connection with the
restoration of damaged property and, to the extent that Liquidation Proceeds
after such reimbursement exceed the unpaid principal balance of the related
Mortgage Loan, together with accrued and unpaid interest thereon at the
applicable Mortgage Rate less the applicable Servicing Fee Rate for such
Mortgage Loan to the Due Date next succeeding the date of its receipt of
such
Liquidation Proceeds, to pay to itself out of such excess the amount of any
unpaid assumption fees, late payment charges or other Mortgagor charges on
the
related Mortgage Loan and to retain any excess remaining thereafter as
additional servicing compensation, it being understood, in the case of any
such
reimbursement or payment, that such Master Servicer’s or Servicer’s right
thereto shall be prior to the rights of the Certificateholders;
(iv) to
pay
the PMI Insurance Premium with respect to each Bulk PMI Policy;
(v) to
reimburse itself or any Servicer for expenses incurred by and recoverable
by or
reimbursable to it or any Servicer pursuant to Sections 9.04, 9.05, 9.06
9.07(a), 9.16, 9.30 or 11.15 or pursuant to the related Servicing
Agreement;
(vi) to
pay to
the Depositor, the Seller or any Transferor, as applicable, with respect
to each
Mortgage Loan or REO Property acquired in respect thereof that has been
purchased pursuant to this Agreement, all amounts received thereon and not
distributed on the date on which the related repurchase was effected, and
to pay
to the applicable Person any Advances and Servicing Advances to the extent
specified in the definition of Purchase Price;
(vii) subject
to Section 5.05, to pay to itself income earned on the investment of funds
deposited in the Collection Account;
97
(viii) to
make
payments to the Trustee on each Master Servicer Remittance Date for deposit
into
the Certificate Account in the amount provided in Section 4.04;
(ix) to
make
payment to itself, the Trustee and others pursuant to any other provision
of
this Agreement;
(x) to
withdraw funds deposited in error in the Collection Account;
(xi) to
clear
and terminate the Collection Account pursuant to Section 7.02;
(xii) to
reimburse a successor Master Servicer (solely in its capacity as successor
Master Servicer), for any fee or advance occasioned by a termination of the
Master Servicer, and the assumption of such duties by the Trustee or a successor
Master Servicer appointed by the Trustee pursuant to Section 6.14, in each
case
to the extent not reimbursed by the terminated Master Servicer, it being
understood, in the case of any such reimbursement or payment, that the right
of
the Master Servicer or the Trustee thereto shall be prior to the rights of
the
Certificateholders;
(xiii) to
reimburse any Servicer for such amounts as are due thereto under the applicable
Servicing Agreement and have not been retained by or paid to such Servicer,
to
the extent provided in such Servicing Agreement.
If
provided in the related Servicing Agreement, each Servicer shall be entitled
to
retain as additional servicing compensation any Prepayment Interest Excess
(to
the extent not offset by Prepayment Interest Shortfalls).
In
the
event that the Master Servicer fails on any Master Servicer Remittance Date
to
remit to the Trustee any amounts required to be so remitted to the Trustee
pursuant to sub-clause (viii) by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest calculated at the “prime
rate” (as published in the “Money Rates” section of The Wall Street Journal) on
such amounts not timely remitted for the period from and including that Master
Servicer Remittance Date to but not including the related Distribution Date.
The
Master Servicer shall only be required to pay the Trustee interest for the
actual number of days such amounts are not timely remitted (e.g., one day’s
interest, if such amounts are remitted one day after the Master Servicer
Remittance Date).
In
connection with withdrawals pursuant to sub-clauses (i), (iii), and (vi)
above,
the Master Servicer’s, any Servicer’s or such other Person’s entitlement thereto
is limited to collections or other recoveries on the related Mortgage Loan.
The
Master Servicer shall therefore keep and maintain a separate accounting for
each
Mortgage Loan it master services for the purpose of justifying any withdrawal
from the Collection Account it maintains pursuant to such sub-clause (i),
(iii)
and (vi).
Section
4.03. Reports
to Certificateholders.
98
(a) On
each
Distribution Date, the Trustee shall prepare (based solely on information
provided by the Master Servicer, the Cap Counterparty or the Swap Counterparty)
and shall make available to the Certificateholders, the Certificate Insurer
and
the Swap Counterparty a written report (the “Distribution Date Statement”)
setting forth the following information (on the basis of Mortgage Loan level
information obtained from the Servicers).
(i) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Offered Certificates, other than any Class of Notional
Certificates, allocable to principal on the Mortgage Loans, including
Liquidation Proceeds and Insurance Proceeds, stating separately the amount
attributable to scheduled principal payments and unscheduled payments in
the
nature of principal;
(ii) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Offered Certificates allocable to interest and the
calculation thereof;
(iii) the
amount, if any, of any distributions to the Holders of the Class C, Class
1-P,
Class 2-P, Class 1-X, Class 2-X, Class C-X, Class S-X, Class LT-R-1, Class
LT-R-2, Class R-1 and Class R-2 Certificates on such Distribution Date, stated
separately, and the aggregate amounts, if any, of distributions to the Holders
of the Class C, Class 1-P, Class 2-P, Class 1-X, Class 2-X, Class C-X, Class
S-X, Class LT-R-1, Class LT-R-2, Class R-1 and Class R-2 Certificates on all
Distribution Dates, stated separately;
(iv) (A) by
Mortgage Pool and in the aggregate, the aggregate amount of any Advances
required to be made by or on behalf of the Servicers (or the Master Servicer)
with respect to such Distribution Date, (B) the aggregate amount of such
Advances actually made, and (C) the amount, if any, by which (A) above
exceeds (B) above;
(v) by
Mortgage Pool and in the aggregate, the total number of Mortgage Loans, the
aggregate Scheduled Principal Balance of all the Mortgage Loans as of the
close
of business on the last day of the related Collection Period, after giving
effect to payments allocated to principal reported under clause (i)
above;
(vi) the
Class
Principal Amount of each Class of Certificates, to the extent applicable,
as of
such Distribution Date after giving effect to payments allocated to principal
reported under clause (i) above, separately identifying any reduction of
any of
the foregoing Certificate Principal Amounts due to Pool 1 Applied Loss Amounts
and/or Pool 2 Applied Loss Amounts, as applicable;
(vii) by
Mortgage Pool and in the aggregate, the amount of any Realized Losses incurred
with respect to the Mortgage Loans (x) in the applicable Prepayment Period
and
(y) in the aggregate since the Cut-off Date;
(viii) by
Mortgage Pool and in the aggregate, the amount of the Servicing Fees and
PMI
Insurance Premiums, if applicable to such Mortgage Pool, paid during the
Collection Period to which such distribution relates;
99
(ix) by
Mortgage Pool and in the aggregate, the number and aggregate Scheduled Principal
Balance of Mortgage Loans, as reported to the Trustee by the Master Servicer,
(a) remaining outstanding (b) Delinquent 30 to 59 days on a contractual basis,
(c) Delinquent 60 to 89 days on a contractual basis, (d) Delinquent 90 or
more
days on a contractual basis, (e) as to which foreclosure proceedings have
been
commenced as of the close of business on the last Business Day of the calendar
month immediately preceding the month in which such Distribution Date occurs,
(f) in bankruptcy and (g) that are REO Properties;
(x) by
Mortgage Pool and in the aggregate, the aggregate Scheduled Principal Balance
of
any Mortgage Loans with respect to which the related Mortgage Property became
a
REO Property as of the close of business on the last Business Day of the
calendar month immediately preceding the month in which such Distribution
Date
occurs;
(xi) with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Scheduled Principal Balance of each Deleted Mortgage Loan, and of each
Qualifying Substitute Mortgage Loan;
(xii) the
aggregate outstanding Carryforward Interest, Net Prepayment Interest Shortfalls,
Deferred Amounts, Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls,
if
any, for each applicable Class of Certificates, after giving effect to the
distribution made on such Distribution Date;
(xiii) the
Certificate Interest Rate applicable to such Distribution Date with respect
to
each Class of Certificates (with a notation if such Certificate Interest
Rate
reflects the application of the applicable Net Funds Cap);
(xiv) the
Interest Remittance Amount and the Principal Remittance Amount with respect
to
each Mortgage Pool and the Pool 1 Senior Principal Distribution Amount, Pool
2
Senior Principal Distribution Amount, Pool 1 Overcollateralization Release
Amount and Pool 2 Overcollateralization Release Amount applicable to such
Distribution Date;
(xv) if
applicable, the amount of any shortfall (i.e.,
the
difference between the aggregate amounts of principal and interest which
Certificateholders would have received if there were sufficient available
amounts in the Certificate Account and the amounts actually
distributed);
(xvi) the
Pool
1 Overcollateralization Amount and Pool 2 Overcollateralization Amount after
giving effect to the distributions made on such Distribution Date;
(xvii) the
amount of any Pool 1 Overcollateralization Deficiency and Pool 2
Overcollateralization Deficiency after giving effect to the distributions
made
in such Distribution Date;
(xviii) the
level
of LIBOR and the Certificate Interest Rate of each of the LIBOR
Certificates;
100
(xix) the
amount of any payments made by the Cap Counterparty to the Trust Fund under
the
Class Group 1 Cap Agreement;
(xx) each
of
(1) the aggregate amount of any insurance claim payments received with respect
to any Bulk PMI Policy during the related Collection Period, (2) the amount
of
any insurance premium and other amounts paid to MGIC and PMI under the related
Bulk PMI Policy and the related purpose of such payments, (3) the amount
of
claims denied under each Bulk PMI Policy; and (4) the remaining amount of
coverage under each Bulk PMI Policy;
(xxi) the
amount of the monthly Certificate Insurance Premium (and the Aggregate
Certificate Insurance Premium, if different) due to the Certificate Insurer
on
the related Distribution Date and the amount of any Insured Payments paid
in
respect of the Guaranteed Distributions to the Class WF-3-1, Class WF-4-1
and
Class WF-6-1 Certificates paid out of the Policy Payments Accounts under
the
Certificate Insurance Policy.
(xxii) the
amount of any Net Swap Payment to the Supplemental Interest Trust made pursuant
to Section 5.02, any Net Swap Payment to the Swap Counterparty made pursuant
to
Section 5.02, any Swap Termination Payment to the Supplemental Interest Trust
made pursuant to Sections 5.02 and any Swap Termination Payment to the Swap
Counterparty made pursuant to Section 5.02.
In
addition to the information listed above, such Distribution Date Statement
shall
also include such other information as is required by Form 10-D, including,
but
not limited to, the information required by Item 1121 (§ 229.1121) of Regulation
AB, other than those data elements specified in Item 1121(a)(11), (12) and
(14).
In
the
case of information furnished pursuant to sub-clauses (i), (ii) and (vi)
above,
the amounts shall (except with respect to the Class 1-X, Class 2-X, Class
C-X
and Class S-X Certificates) be expressed as a dollar amount per $1,000 of
original principal amount of Certificates.
On
any
Distribution Date after the occurrence of a Section 7.01(d) Purchase Event
with
respect to the Pooling REMIC 1 Regular Interests or the Pooling REMIC 2 Regular
Interests, the information required by subclauses (i), (ii), (iv), (v), (vii),
(viii), (ix), (x), (xi), (xii), (xv) (and in the case of the Class LT-R-1
and
Class LT-R-2 Certificates, subclause (iii) shall be provided to the Holder
of
the Class LT-R-1 and/or Class LT-R-2 Certificates and the LTURI-holder of
the
applicable Pooling REMIC Regular Interests.
The
Trustee will make such report and additional loan level information (and,
at its
option, any additional files containing the same information in an alternative
format) provided to it by the Master Servicer available each month to
Certificateholders, the Certificate Insurer and the Rating Agencies via the
Trustee’s internet website. The Trustee’s internet website shall initially be
located at “xxx.xx.xxxxxxxxxx.xxx”. Assistance in using the website can be
obtained by calling the Trustee’s customer service desk at (000) 000-0000. Such
parties that are unable to use the website are entitled to have a paper copy
mailed to them via first class mail by calling the customer service desk
and
indicating such or notifying the Trustee at Citibank, N.A., 000 Xxxxxxxxx
Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Agency and Trust—Xxxxxx XS Trust Service
2006-17. The Trustee shall have the right to change the way such statements
are
distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Trustee shall provide timely and
adequate notification to all above parties regarding any such
changes.
101
The
foregoing information and reports shall be prepared and determined by the
Trustee based solely on Mortgage Loan data provided to the Trustee by the
Master
Servicer (in a format agreed to by the Trustee and the Master Servicer) no
later
than 2:00 p.m. Eastern Time four Business Days prior to the Distribution
Date.
In preparing or furnishing the foregoing information, the Trustee shall be
entitled to rely conclusively on the accuracy of the information or data
(i)
regarding the Mortgage Loans and the related REO Property that has been provided
to the Master Servicer by each Servicer and to the Trustee by the Master
Servicer and (ii) regarding the Swap Agreement, that has been provided to
the
Trustee by the Swap Counterparty, and the Trustee shall not be obligated
to
verify, recompute, reconcile or recalculate any such information or data.
The
Trustee shall be entitled to conclusively rely on the Mortgage Loan data
provided by the Master Servicer and shall have no liability for any errors
in
such Mortgage Loan data.
(b) Upon
the
reasonable advance written request of any Certificateholder that is a savings
and loan, bank or insurance company, or the Certificate Insurer (which request,
if received by the Trustee will be promptly forwarded to the Master Servicer),
the Master Servicer shall provide, or cause to be provided, to the extent
such
information is available to the Master Servicer exercising reasonable efforts
to
obtain such information (or, to the extent that such information or
documentation is not required to be provided by a Servicer under the applicable
Servicing Agreement, shall use reasonable efforts to obtain such information
and
documentation from such Servicer, and provide) to such Certificateholder
such
reports and access to information and documentation regarding the Mortgage
Loans
as such Certificateholder may reasonably deem necessary to comply with
applicable regulations of the Office of Thrift Supervision or its successor
or
other regulatory authorities with respect to the NIM Securities or an investment
in the Certificates; provided,
however,
that the
Trustee shall be entitled to be reimbursed by such Certificateholder for
the
actual expenses incurred in providing such reports and access.
(c) Within
90
days, or such shorter period as may be required by statute or regulation,
after
the end of each calendar year, the Trustee shall, upon written request, prepare
and make available to each Person who at any time during the calendar year
was a
Certificateholder of record, and to Certificate Owners (identified as such
by
the Clearing Agency) in accordance with applicable regulations, a report
summarizing the items provided to the Certificateholders pursuant to Section
4.03(a)(i) and (ii) on an annual basis as may be required to enable such
Holders
to prepare their federal income tax returns; provided,
however,
that
this Section 4.03(c) shall not be applicable where relevant reports or summaries
are required elsewhere in this Agreement. Such information shall include
the
amount of original issue discount accrued on each Class of Certificates and
information regarding the expenses of the Trust Fund. The Trustee shall be
deemed to have satisfied this requirement if it makes available such information
in any other format permitted by the Code. The Master Servicer shall provide
the
Trustee with such information as is necessary for the Trustee to prepare
such
reports.
102
(d) The
Trustee shall prepare and file with the Internal Revenue Service (“IRS”), on
behalf of the Trust Fund, an application for an employer identification number
on IRS Form SS-4 or by any other acceptable method. The Trustee shall also
file
a Form 8811 as required. The Trustee, 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 Master Servicer and the Depositor. The Trustee
shall
furnish any other information that is required by the Code and regulations
thereunder to be made available to Certificateholders. The Master Servicer
shall
provide the Trustee with such information as is necessary for the Trustee
to
comply with the foregoing.
Section
4.04. Certificate
Account.
(a) The
Trustee shall establish and maintain in its name, as trustee, a trust account
(the “Certificate Account”) entitled “Certificate Account, Citibank, N.A., as
Trustee, in trust for the benefit of the Holders of Xxxxxx XS Trust Mortgage
Pass-Through Certificates, Series 2006-17” until disbursed pursuant to the terms
of this Agreement. The Certificate Account shall be an Eligible Account and
shall be for the benefit of the Certificateholders and the Certificate Insurer.
If the existing Certificate Account ceases to be an Eligible Account, the
Trustee shall establish a new Certificate Account that is an Eligible Account
within 20 Business Days and transfer all funds and investment property on
deposit in such existing Certificate Account into such new Certificate Account.
The Certificate Account shall relate solely to the Certificates and to the
Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular Interests, as
applicable, issued hereunder and funds in the Certificate Account shall be
held
separate and apart from and shall not be commingled with any other monies
including, without limitation, other monies of the Trustee held under this
Agreement.
(b) The
Trustee shall deposit or cause to be deposited into the Certificate Account,
on
the day on which, or, if such day is not a Business Day, the Business Day
immediately following the day on which, any monies are remitted by the Master
Servicer to the Trustee, all such amounts so remitted. The Trustee shall
make
withdrawals from the Certificate Account only for the following
purposes:
(i) to
make
payment to itself pursuant to any provision of this Agreement, or to reimburse
itself or its agents for any amounts reimbursable
to it pursuant to Sections 6.11, 6.12 or 7.01; provided,
however,
that
any amounts in excess of the annual cap described in clause (b) of the
definition of “Interest Remittance Amount” and clause (b) of the definition of
“Principal Remittance Amount” in any Anniversary Year, other than costs
and
expenses incurred by the Trustee pursuant to Sections 6.11, 6.14 and 7.01
in
connection with any transfer of servicing,
shall
not be withdrawn from the Certificate Account and paid to the Trustee and
the
Trustee’s reimbursement for such excess amounts shall be made pursuant to
Section 5.02(b)(vi) and 5.02(c)(v) hereof;
(ii) to
withdraw amounts deposited in the Certificate Account in error;
(iii) to
make
payments to itself and others pursuant to any provision of this
Agreement;
103
(iv) to
make
distributions to Certificateholders and the Certificate Insurer pursuant
to
Article V; and
(v) to
clear
and terminate the Certificate Account pursuant to Section 7.02.
The
Trustee may invest, or cause to be invested, funds held in the Certificate
Account, which funds, if invested, shall be invested in Eligible Investments
(which may be obligations of the Trustee). All such investments must be payable
on demand or mature no later than the next Distribution Date (except with
respect to such investments in an amount equal to the aggregate of any Net
Swap
Payments and any Swap Termination Payments payable to the Swap Counterparty,
such amount to mature no later than the next Swap Payment Date), and shall
not
be sold or disposed of prior to their maturity. All such Eligible Investments
will be made in the name of the Trustee (in its capacity as such) or its
nominee. All income and gain realized from any such investment shall be
compensation to the Trustee and shall be subject to its withdrawal on order
from
time to time. The amount of any losses incurred in respect of any such
investments shall be paid by the Trustee for deposit in the Certificate Account
out of its own funds, without any right of reimbursement therefor, immediately
as realized.
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
Section
5.01. Distributions
Generally.
(a) On
each
Distribution Date, so long as the Group 1 Senior Certificates and the Group
2
Senior Certificates are outstanding, the Trustee or the Paying Agent shall
make
distributions to the Holders in accordance with this Article V; provided,
however, that if a Section 7.01(d) Purchase Event has occurred with respect
to
either the Pooling REMIC 1 Regular Interests or the Pooling REMIC 2 Regular
Interests, the distributions related to such Pooling REMIC Regular Interests
shall be made in accordance with Section 5.02(j). Such distributions shall
be
made by wire transfer if the Certificateholder has provided the Trustee with
wire instructions or by check mailed to the address of such Certificateholder
as
it appears in the books of the Trustee if the Certificateholder has not provided
the Trustee with wire instructions in immediately available funds to an account
specified in the request and at the expense of such Certificateholder;
provided,
however,
that the
final distribution in respect of any Certificate shall be made only upon
presentation and surrender of such Certificate at the Corporate Trust Office;
provided,
further,
that the
foregoing provisions shall not apply to any Class of Certificates as long
as
such Certificate remains a Book-Entry Certificate in which case all payments
made shall be made through the Clearing Agency and its Clearing Agency
Participants. Notwithstanding such final payment of principal of any of the
Certificates, each Residual Certificate will remain outstanding until the
termination of each REMIC and the payment in full of all other amounts due
with
respect to the Residual Certificates and at such time such final payment
in
retirement of any Residual Certificate will be made only upon presentation
and
surrender of such Certificate at the applicable Corporate Trust Office. If
any
payment required to be made on the Certificates, the Certificate Insurer
or the
Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular Interests is
to be
made on a day that is not a Business Day, then such payment will be made
on the
next succeeding Business Day. Payments to the Certificate Insurer shall in
all
cases be made by wire transfer in immediately available funds to the account
designated by the Certificate Insurer.
104
(b) All
distributions or allocations made with respect to Certificateholders within
each
Class on each Distribution Date shall be allocated among the outstanding
Certificates of such Class equally in proportion to their respective initial
Class Principal Amounts (or Percentage Interests).
Section
5.02. Distributions
from the Certificate Account.
(a) On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event, a Pool
1
Termination Event or a Pool 2 Termination Event, as applicable, the Trustee
(or
the Paying Agent on behalf of the Trustee) shall withdraw from the Certificate
Account (i) the sum of the Interest Remittance Amount for Pool 1 and the
Principal Remittance Amount for Pool 1 and amounts that are available for
payment to the Swap Counterparty and shall allocate such amounts to the
interests issued in respect of each REMIC and shall distribute such amounts
as
specified in subparagraphs (b), (d), (f), (h) and (i) of this Section;
provided,
that
amounts that are available for payment to the Swap Counterparty shall be
paid on
the related Swap Payment Date, and (ii) the sum of the Interest Remittance
Amount for Pool 2 and the Principal Remittance Amount for Pool 2 and shall
allocate such amounts to the interests issued in respect of each REMIC and
shall
distribute such amounts as specified in subparagraphs (c), (e), (g) and (i)
of
this Section. All allocations and distributions made with respect to Pool
1 and
Pool 2 in subparagraphs (b) other than clause (i) thereof, (c), (d) other
than
clause (i) and (ii)(A) thereof, (e), (f) and (g) of this Section shall be
made
concurrently.
(b) On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event related
to the
Pooling REMIC 1 Regular Interests (or, with respect to clause (i) below,
on the
related Swap Payment Date), the Trustee shall distribute the Interest Remittance
Amount for Pool 1 for such date in the following order of priority:
(i) for
deposit into the Supplemental Interest Trust Account, an amount equal to
the
lesser of (x) the amount of any Net Swap Payment or Swap Termination Payment
owed to the Swap Counterparty on the related Swap Payment Date and (y) the
Interest Remittance Amount for Pool 1 for such Distribution Date less the
aggregate amount of Current Interest and any Carryforward Interest owed to
the
Class 1-AIO Certificates for such Distribution Date;
(ii) concurrently,
pro
rata, to
the
Group 1 Senior Certificates and the Class 1-AIO Certificates, Current Interest
and any Carryforward Interest for such Classes for such Distribution Date;
provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of Current Interest and
Carryforward Interest that would otherwise be distributable
thereon;
(iii) sequentially,
to the Group 1 Subordinate Certificates, in accordance with the Group 1
Subordinate Priority, any Current Interest and Carryforward Interest for
such
Classes for such Distribution Date; and
105
(iv) for
application pursuant as part of Pool 1 Monthly Excess Cashflow for such
Distribution Date, as provided in Section 5.02(f), any Pool 1 Monthly Excess
Interest for such Distribution Date.
(c) On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event related
to the
Pooling REMIC 2 Regular Interests, the Trustee shall distribute the Interest
Remittance Amount for Pool 2 for such date in the following order of
priority:
(i) to
the
Certificate Insurer, the Aggregate Certificate Insurance Premium, together
with
interest thereon at the rate set forth in the Insurance Agreement, for the
Class
WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates for such Distribution
Date;
(ii) concurrently,
pro
rata,
to the
Group 2 Senior Certificates, Current Interest and any Carryforward Interest
(and
in the case of the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates,
calculated without regard to payments received under the Certificate Insurance
Policy,) for such Classes for such Distribution Date; provided,
however, that
any
shortfall in Current Interest and Carryforward Interest shall be allocated
among
such Classes in proportion to the amount of Current Interest and Carryforward
Interest that would otherwise be distributable thereon;
(iii) concurrently,
pro
rata,
based
on the amounts due, (a) to the Certificate Insurer, any due and owing
Reimbursement Amounts and (b) in the priority provided below, to the Group
2
Senior Certificates, accrued and unpaid interest at the related Certificate
Interest Rate on any Deferred Amounts previously allocated and not previously
paid to such Classes and any Deferred Amounts previously allocated to such
Classes not previously reimbursed;
(iv) to
the
Group 2 Subordinate Certificates, in accordance with the Group 2 Subordinate
Priority, Current Interest and any Carryforward Interest for such classes
for
such Distribution Date; and
(v) for
application pursuant as part of Pool 2 Monthly Excess Cashflow for such
Distribution Date, as provided in Section 5.02(g), any Pool 2 Monthly Excess
Interest for such Distribution Date.
Any
Distributions made pursuant to subclause (iii)(b) above on a Distribution
Date
shall be made in the following order of priority:
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(1)
|
to
the Group 2 Senior Certificates, all accrued and unpaid interest
at the
related Interest Rate for each applicable Class on any Deferred
Amounts
previously allocated to such Class, pro
rata
based on amounts of such accrued and unpaid interest owed to each
such
Class, for such date; and
|
|
(2)
|
to
the Group 2 Senior Certificates, any Deferred Amounts previously
allocated
to each such Class, pro
rata
based on the Deferred Amounts owed to each such Class, for such
date.
|
106
(d) On
each
Distribution Date or related Swap Payment Date on or prior to a Section 7.01(d)
Purchase Event related to the Pooling REMIC 1 Regular Interests, the Trustee
shall distribute the Principal Distribution Amount for Pool 1 for such date,
as
follows:
(i) (a)
Prior
to the Pool 1 Stepdown Date or (b) on or after the Pool 1 Stepdown Date and
with
respect to which a Pool 1 Trigger Event is in effect, until the aggregate
Certificate Principal Amount of the Group 1 Certificates equals the Pool
1
Target Amount for such Distribution Date, the Trustee shall distribute the
Principal Distribution Amount for Pool 1 in the following order of
priority:
(A) for
deposit into the Supplemental Interest Trust Account, the amount of any Net
Swap
Payment or Swap Termination Payment owed to the Swap Counterparty (to the
extent
not deposited previously from the Interest Remittance Amount in accordance
with
clause (b)(i) above);
(B) concurrently,
pro
rata,
based
on (i) the aggregate Class Principal Amount of the Class 1-A1, Class 1-A2
and
Class 1-A3 Certificates, (ii) the Class Principal Amount of the Class 1-A4A
Certificates, (iii) the Class Principal Amount of the Class 1-A4B Certificates
and (iv) the Class Principal Amount of the Class 1-A5 Certificates, as
follows:
(1) sequentially,
to the Class 1-A1, Class 1-A2 and Class 1-A3 Certificates, in that order,
until
the Class Principal Amount of each such Class has been reduced to zero;
(2) to
the
Class 1-A4A Certificates, until the Class Principal Amount of such Class
has
been reduced to zero;
(3) to
the
Class 1-A4B Certificates, until the Class Principal Amount of such Class
has
been reduced to zero; and
(4) to
the
Class 1-A5 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(C) to
the
Group 1 Subordinate Certificates, in accordance with the Group 1 Subordinate
Priority, until the Class Principal Amount of each such Class has been reduced
to zero; and
(D) for
application as part of Pool 1 Monthly Excess Cashflow for such Distribution
Date, as provided in Section 5.02(f), any such Principal Distribution Amount
remaining undistributed after application pursuant to clauses (A) through
(C)
above.
(ii) (a)
On or
after the Pool 1 Stepdown Date and (b) with respect to which a Pool 1 Trigger
Event is not in effect, the Trustee shall distribute the Principal Distribution
Amount for Pool 1 for such date, in the following order of
priority:
107
(A) for
deposit into the Supplemental Interest Trust Account, any Net Swap Payment
or
Swap Termination Payment owed to the Swap Counterparty (to the extent not
deposited previously from the Interest Remittance Amount in accordance with
clause (b)(i) above);
(B) (1)
so
long as any of the Group 1 Subordinate Certificates are outstanding, to the
Group 1 Senior Certificates, in accordance with the Group 1 Senior Priority,
in
an amount equal to the lesser of (x) the excess, if any, of (a) the Principal
Distribution Amount for Pool 1 for such Distribution Date over (b) the amount
distributed to the Supplemental Interest Trust on such Distribution Date
pursuant to clause (A) above and (y) the Pool 1 Senior Principal Distribution
Amount for such Distribution Date until the Class Principal Amount of each
such
class has been reduced to zero; or (2) otherwise to the Group 1 Senior
Certificates (in accordance with the Group 1 Senior Priority), the excess
of (A)
the Principal Distribution Amount for Pool 1 for such Distribution Date over
(B)
the amount distributed to the Supplemental Interest Trust with respect to
such
Distribution Date pursuant to clause (A) above, in each case until the Class
Principal Amount of each such class has been reduced to zero;
(C) to
the
Class 1-M1 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 1 for such Distribution Date over
(b)
the amount distributed to the Group 1 Senior Certificates and the Supplemental
Interest Trust on such Distribution Date pursuant to clauses (A) through
(B)
above, and (y) the 1-M1 Principal Distribution Amount for such Distribution
Date, until the Class Principal Amount of such Class has been reduced to
zero;
(D) to
the
Class 1-M2 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 1 for such Distribution Date over
(b)
the amount distributed to the Group 1 Senior Certificates, the Class 1-M1
Certificates and the Supplemental Interest Trust on such Distribution Date
pursuant to clauses (A) through (C) above, and (y) the 1-M2 Principal
Distribution Amount for such Distribution Date, until the Class Principal
Amount
of such Class has been reduced to zero;
(E) to
the
Class 1-M3 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 1 for such Distribution Date over
(b)
the amount distributed to the Group 1 Senior Certificates, the Class 1-M1
and
Class 1-M2 Certificates and the Supplemental Interest Trust on such Distribution
Date pursuant to clauses (A) through (D) above, and (y) the 1-M3 Principal
Distribution Amount for such Distribution Date, until the Class Principal
Amount
of such Class has been reduced to zero;
(F) to
the
Class 1-M4 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 1 for such Distribution Date over
(b)
the amount distributed to the Group 1 Senior Certificates, the Class 1-M1,
Class
1-M2 and Class 1-M3 Certificates and the Supplemental Interest Trust on such
Distribution Date pursuant to clauses (A) through (E) above, and (y) the
1-M4
Principal Distribution Amount for such Distribution Date, until the Class
Principal Amount of such Class has been reduced to zero;
108
(G) to
the
Class 1-M5 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 1 for such Distribution Date over
(b)
the amount distributed to the Group 1 Senior Certificates, the Class 1-M1,
Class
1-M2, Class 1-M3 and Class 1-M4 Certificates and the Supplemental Interest
Trust
on such Distribution Date pursuant to clauses (A) through (F) above, and
(y) the
1-M5 Principal Distribution Amount for such Distribution Date, until the
Class
Principal Amount of such Class has been reduced to zero;
(H) to
the
Class 1-M6 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 1 for such Distribution Date over
(b)
the amount distributed to the Group 1 Senior Certificates, the Class 1-M1,
Class
1-M2, Class 1-M3, Class 1-M4 and Class 1-M5 Certificates and the Supplemental
Interest Trust on such Distribution Date pursuant to clauses (A) through
(G)
above, and (y) the 1-M6 Principal Distribution Amount for such Distribution
Date, until the Class Principal Amount of such Class has been reduced to
zero;
(I) to
the
Class 1-M7 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 1 for such Distribution Date over
(b)
the amount distributed to the Group 1 Senior Certificates, the Class 1-M1,
Class
1-M2, Class 1-M3, Class 1-M4, Class 1-M5 and Class 1-M6 Certificates and
the
Supplemental Interest Trust on such Distribution Date pursuant to clauses
(A)
through (H) above, and (y) the 1-M7 Principal Distribution Amount for such
Distribution Date, until the Class Principal Amount of such Class has been
reduced to zero;
(J) to
the
Class 1-M8 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 1 for such Distribution Date over
(b)
the amount distributed to the Group 1 Senior Certificates, the Class 1-M1,
Class
1-M2, Class 1-M3, Class 1-M4, Class 1-M5, Class 1-M6 and Class 1-M7 Certificates
and the Supplemental Interest Trust on such Distribution Date pursuant to
clauses (A) through (I) above, and (y) the 1-M8 Principal Distribution Amount
for such Distribution Date, until the Class Principal Amount of such Class
has
been reduced to zero;
(K) to
the
Class 1-M9 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 1 for such Distribution Date over
(b)
the amount distributed to the Group 1 Senior Certificates, the Class 1-M1,
Class
1-M2, Class 1-M3, Class 1-M4, Class 1-M5, Class 1-M6, Class 1-M7 and Class
1-M8
Certificates and the Supplemental Interest Trust on such Distribution Date
pursuant to clauses (A) through (J) above, and (y) the 1-M9 Principal
Distribution Amount for such Distribution Date, until the Class Principal
Amount
of such Class has been reduced to zero; and
109
(L) for
application as part of Pool 1 Monthly Excess Cashflow for such Distribution
Date, as provided in subsection (f) of
this
Section, any Principal Distribution Amount remaining after application pursuant
to subclauses (A) through (K) above.
(e) On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event related
to the
Pooling REMIC 2 Regular Interests, the Trustee shall distribute the Principal
Distribution Amount for Pool 2 for such date, as follows, provided,
however,
that any
payment of the Principal Distribution Amount for Pool 2 that constitutes
a
Subsequent Recovery that would otherwise be payable to the Class WF-3-1,
Class
WF-4-1 and Class WF-6-1 Certificates, will instead be payable to the Certificate
Insurer to the extent that the proceeds under the Certificate Insurance Policy
were previously applied to reimburse the Class WF-3-1, Class WF-4-1 and Class
WF-6-1 Certificates with respect to any Pool 2 Applied Loss Amount previously
allocated to the Class WF-3-1, Class WF-4-1 and Class WF-6-1
Certificates:
(i) (a)
Prior
to the Pool 2 Stepdown Date or (b) on or after the Pool 2 Stepdown Date and
with
respect to which a Pool 2 Trigger Event is in effect, until the aggregate
Certificate Principal Amount of the Group 2 Certificates equals the Pool
2
Target Amount for such Distribution Date, the Trustee shall distribute the
Principal Distribution Amount for Pool 2 in the following order of
priority:
(A) to
the
Group 2 Senior Certificates, in the following order of priority:
(i) concurrently,
to the Class WF-6-1 and Class WF-6-2 Certificates, pro
rata,
in
accordance with the Class WF-6-1 Priority Amount, until the Class Principal
Amount of each such Class has been reduced to zero;
(ii) sequentially,
as follows:
|
(a)
|
concurrently,
to the Class WF-1-1 and Class WF-1-2 Certificates, pro
rata,
based on Class Principal amounts, until the Class Principal Amount
of each
such Class has been reduced to
zero;
|
|
(b)
|
to
the Class WF-2 Certificates, until the Class Principal Amount of
such
class has been reduced to zero;
|
|
(c)
|
concurrently,
to the Class WF-3-1, Class WF-3-2 and Class WF-3-3 Certificates,
pro
rata,
based on Class Principal Amounts, until the Class Principal Amount
of each
such class has been reduced to
zero;
|
|
(d)
|
concurrently,
to the Class WF-4-1 and Class WF-4-2 Certificates, pro
rata,
based on Class Principal Amounts, until the Class Principal Amount
of each
such class has been reduced to zero;
and
|
|
(e)
|
to
the Class WF-5 Certificates, until the Class Principal Amount of
such
class has been reduced to zero.
|
(iii) concurrently,
to the Class WF-6-1 and Class WF-6-2 Certificates, pro
rata,
based
on Class Principal Amount, without regard to the Class WF-6 Priority Amount,
until the Class Principal Amount of each such class has been reduced to
zero.
110
(B) to
the
Group 2 Subordinate Certificates, in accordance with the Group 2 Subordinate
Priority, until the Class Principal Amount of each such Class has been reduced
to zero;
(C) to
the
Certificate Insurer, any unreimbursed Insured Payments plus all amounts due
to
the Certificate Insurer under the Insurance Agreement, together with interest
thereon at the rate specified in the Insurance Agreement to the extent not
distributed on such Distribution Date from the Interest Remittance Amount
for
Pool 2, as provided in Section 5.02(c) above; and
(D) for
application as part of Pool 2 Monthly Excess Cashflow for such Distribution
Date, as provided in Section 5.02(g), any such Principal Distribution Amount
for
Pool 2 remaining undistributed after application pursuant to clauses (A)
through
(C) above.
(ii) (a)
On or
after the Pool 2 Stepdown Date and (b) with respect to which a Pool 2 Trigger
Event is not in effect, the Trustee shall distribute the Principal Distribution
Amount for Pool 2 for such date, in the following order of priority,
provided, however,
that any
payment of the Principal Distribution Amount for Pool 2 that constitutes
a
Subsequent Recovery that would otherwise be payable to the Class WF-3-1,
Class
WF-4-1 and Class WF-6-1 Certificates, will instead be payable to the Certificate
Insurer to the extent that the proceeds under the Certificate Insurance Policy
were previously applied to reimburse the Class WF-3-1, Class WF-4-1 and Class
WF-6-1 Certificates with respect to any Pool 2 Applied Loss Amount previously
allocated to the Class WF-3-1, Class WF-4-1 and Class WF-6-1
Certificates:
(A) (1)
so
long as any of the Group 2 Subordinate Certificates are outstanding, to the
Group 2 Senior Certificates, in accordance with the Group 2 Senior Priority,
in
an amount equal to the lesser of (x) the Principal Distribution Amount for
Pool
2 for such Distribution Date and (y) the Pool 2 Senior Principal Distribution
Amount for such Distribution Date until the Class Principal Amount of each
such
class has been reduced to zero; or (2) otherwise to the Group 2 Senior
Certificates, in accordance with the Group 2 Senior Priority, the Principal
Distribution Amount for Pool 2, until the Class Principal Amount of each
such
class has been reduced to zero;
(B) to
the
Class WF-M1 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 2 for such Distribution Date over
(b)
the amount distributed to the Group 2 Senior Certificates on such Distribution
Date pursuant to clause (A) above, and (y) the WF-M1 Principal Distribution
Amount for such Distribution Date, until the Class Principal Amount of such
Class has been reduced to zero;
111
(C) to
the
Class WF-M2 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 2 for such Distribution Date over
(b)
the amount distributed to the Group 2 Senior Certificates and the Class WF-M1
Certificates on such Distribution Date pursuant to clauses (A) through (B)
above, and (y) the WF-M2 Principal Distribution Amount for such Distribution
Date, until the Class Principal Amount of such Class has been reduced to
zero;
(D) to
the
Class WF-M3 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 2 for such Distribution Date over
(b)
the amount distributed to the Group 2 Senior Certificates and the Class WF-M1
and Class WF-M2 Certificates on such Distribution Date pursuant to clauses
(A)
through (C) above, and (y) the WF-M3 Principal Distribution Amount for such
Distribution Date, until the Class Principal Amount of such Class has been
reduced to zero;
(E) to
the
Class WF-M4 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 2 for such Distribution Date over
(b)
the amount distributed to the Group 2 Senior Certificates and the Class WF-M1,
Class WF-M2 and Class WF-M3 Certificates on such Distribution Date pursuant
to
clauses (A) through (D) above, and (y) the WF-M4 Principal Distribution Amount
for such Distribution Date, until the Class Principal Amount of such Class
has
been reduced to zero;
(F) to
the
Class WF-M5 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 2 for such Distribution Date over
(b)
the amount distributed to the Group 2 Senior Certificates and the Class WF-M1,
Class WF-M2, Class WF-M3 and Class WF-M4 Certificates on such Distribution
Date
pursuant to clauses (A) through (E) above, and (y) the WF-M5 Principal
Distribution Amount for such Distribution Date, until the Class Principal
Amount
of such Class has been reduced to zero;
(G) to
the
Class WF-M6 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 2 for such Distribution Date over
(b)
the amount distributed to the Group 2 Senior Certificates and the Class WF-M1,
Class WF-M2, Class WF-M3, Class WF-M4 and Class WF-M5 Certificates on such
Distribution Date pursuant to clauses (A) through (F) above, and (y) the
WF-M6
Principal Distribution Amount for such Distribution Date, until the Class
Principal Amount of such Class has been reduced to zero;
(H) to
the
Class WF-M7 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 2 for such Distribution Date over
(b)
the amount distributed to the Group 2 Senior Certificates and the Class WF-M1,
Class WF-M2, Class WF-M3, Class WF-M4, Class WF-M5 and Class WF-M6 Certificates
on such Distribution Date pursuant to clauses (A) through (G) above, and
(y) the
WF-M7 Principal Distribution Amount for such Distribution Date, until the
Class
Principal Amount of such Class has been reduced to zero;
112
(I) to
the
Class WF-M8 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 2 for such Distribution Date over
(b)
the amount distributed to the Group 2 Senior Certificates and the Class WF-M1,
Class WF-M2, Class WF-M3, Class WF-M4, Class WF-M5, Class WF-M6 and Class
WF-M7
Certificates on such Distribution Date pursuant to clauses (A) through (H)
above, and (y) the WF-M8 Principal Distribution Amount for such Distribution
Date, until the Class Principal Amount of such Class has been reduced to
zero;
(J) to
the
Class WF-M9 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the Principal Distribution Amount for Pool 2 for such Distribution Date over
(b)
the amount distributed to the Group 2 Senior Certificates and the Class WF-M1,
Class WF-M2, Class WF-M3, Class WF-M4, Class WF-M5, Class WF-M6, Class WF-M7
and
Class WF-M8 Certificates on such Distribution Date pursuant to clauses (A)
through (I) above, and (y) the WF-M9 Principal Distribution Amount for such
Distribution Date, until the Class Principal Amount of such Class has been
reduced to zero;
(K) to
the
Class WF-M10 Certificates, an amount equal to the lesser of (x) the excess
of
(a) the Principal Distribution Amount for Pool 2 for such Distribution Date
over
(b) the amount distributed to the Group 2 Senior Certificates and the Class
WF-M1, Class WF-M2, Class WF-M3, Class WF-M4, Class WF-M5, Class WF-M6, Class
WF-M7, Class WF-M8 and Class WF-M9 Certificates on such Distribution Date
pursuant to clauses (A) through (J) above, and (y) the WF-M10 Principal
Distribution Amount for such Distribution Date, until the Class Principal
Amount
of such Class has been reduced to zero;
(L) to
the
Certificate Insurer, any unreimbursed Insured Payments plus all amounts due
to
the Certificate Insurer under the Insurance Agreement, together with interest
thereon at the rate specified in the Insurance Agreement to the extent not
distributed on such Distribution Date from the Interest Remittance Amount
for
Pool 2, as provided in Section 5.02(c) above; and
(M) for
application as part of Pool 2 Monthly Excess Cashflow for such Distribution
Date, as provided in subsection (g) of
this
Section, any Principal Distribution Amount for Pool 2 remaining undistributed
after application pursuant to subclauses (A) through (L) above.
(f) On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event related
to the
Pooling REMIC 1 Regular Interests, the Trustee shall distribute any Pool
1
Monthly Excess Cashflow for such Distribution Date, together with any payments
received under the Group 1 Cap Agreement in the case of distributions made
pursuant to subclause (iv) below,
in
the following order of priority:
113
(i) For
each
Distribution Date, Pool 1 Monthly Excess Cashflow will be paid to the Group
1
Certificates and the Class 1-AIO Certificates in the following order of
priority:
(A) concurrently, on
a pro
rata basis, based on amounts due, to the Group 1 Senior Certificates and
the
Class 1-AIO Certificates, Current
Interest and any Carryforward Interest for such Classes for such Distribution
Date, to the extent unpaid pursuant to clauses 5.02(b)(ii);
provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of Current Interest and
Carryforward Interest that would otherwise be distributable thereon;
(B) to
the
Group 1 Subordinate Certificates, in accordance with the Group 1 Subordinate
Priority, any Current Interest and Carryforward Interest for such Classes
for
such Distribution Date, to the extent unpaid pursuant to clause 5.02(b)(iii);
and;
(C) to
the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and allocable
to Pool 1 and not previously reimbursed to the Trustee.
(ii) for
each
Distribution Date occurring (a) before the Pool 1 Stepdown Date or (b) on
or
after the Pool 1 Stepdown Date but for which a Pool 1 Trigger Event is in
effect, then until the aggregate Class Principal Amount of the Group 1
Certificates equals the Pool 1 Target Amount, in reduction of the Class
Principal Amounts of the Group 1 Certificates in the following order of
priority:
(A) to
each
Class of Group 1 Senior Certificates, in accordance with the Group 1 Senior
Priority, in reduction of their respective Class Principal Amounts, until
the
Class Principal Amount of each such class has been reduced to zero;
and
(B) to
the
Group 1 Subordinate Certificates, in accordance with the Group 1 Subordinate
Priority, in reduction of their Class Principal Amounts, until the Class
Principal Amount of each such Class has been reduced to zero;
(iii) for
each
Distribution Date occurring on or after the Pool 1 Stepdown Date and for
which a
Pool 1 Trigger Event is
not in
effect,
in the
following order of priority:
(A) to
each
Class of Group 1 Senior Certificates, in accordance with the Group 1 Senior
Priority, in reduction of their respective Class Principal Amounts, until
the
aggregate Class Principal Amount of such Group 1 Senior Certificates, after
giving effect to distributions on such Distribution Date, equals the Group
1
Senior Target Amount;
(B) to
the
Class 1-M1 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Group 1 Senior Certificates and the
Class 1-M1 Certificates, after giving effect to distributions on such
Distribution Date, equals the 1-M1 Target Amount;
114
(C) to
the
Class 1-M2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Group 1 Senior Certificates and the
Class 1-M1 and Class 1-M2 Certificates, after giving effect to distributions
on
such Distribution Date, equals the 1-M2 Target Amount;
(D) to
the
Class 1-M3 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Group 1 Senior Certificates and the
Class 1-M1, Class 1-M2 and Class 1-M3 Certificates, after giving effect to
distributions on such Distribution Date, equals the 1-M3 Target
Amount;
(E) to
the
Class 1-M4 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Group 1 Senior Certificates and the
Class 1-M1, Class 1-M2, Class 1-M3 and Class 1-M4 Certificates, after giving
effect to distributions on such Distribution Date, equals the 1-M4 Target
Amount;
(F) to
the
Class 1-M5 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Group 1 Senior Certificates and the
Class 1-M1, Class 1-M2, Class 1-M3, Class 1-M4 and Class 1-M5 Certificates,
after giving effect to distributions on such Distribution Date, equals the
1-M5
Target Amount;
(G) to
the
Class 1-M6 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Group 1 Senior Certificates and the
Class 1-M1, Class 1-M2, Class 1-M3, Class 1-M4, Class 1-M5 and Class 1-M6
Certificates, after giving effect to distributions on such Distribution Date,
equals the 1-M6 Target Amount;
(H) to
the
Class 1-M7 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Group 1 Senior Certificates and the
Class 1-M1, Class 1-M2, Class 1-M3, Class 1-M4, Class 1-M5, Class 1-M6 and
Class
1-M7 Certificates, after giving effect to distributions on such Distribution
Date, equals the 1-M7 Target Amount;
(I) to
the
Class 1-M8 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Group 1 Senior Certificates and the
Class 1-M1, Class 1-M2, Class 1-M3, Class 1-M4, Class 1-M5, Class 1-M6, Class
1-M7 and Class 1-M8 Certificates, after giving effect to distributions on
such
Distribution Date, equals the 1-M8 Target Amount; and
(J) to
the
Class 1-M9 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Group 1 Senior Certificates and the
Class 1-M1, Class 1-M2, Class 1-M3, Class 1-M4, Class 1-M5, Class 1-M6, Class
1-M7, Class 1-M8 and Class 1-M9 Certificates, after giving effect to
distributions on such Distribution Date, equals the 1-M9 Target
Amount;
115
(iv) to
the
Pool 1 Basis Risk Reserve Fund, an amount equal to the Pool 1 Basis Risk
Payment
and any payment received in respect of the Group 1 Cap Agreement, and then
from
the Pool 1 Basis Risk Reserve Fund, in the following order of
priority:
(A) from
any
proceeds received under the Group 1 Cap Agreement, first,
to the
Group 1 Senior Certificates, the amount of any Basis Risk Shortfalls and
Unpaid
Basis Risk Shortfalls for each such class and such Distribution Date,
pro
rata
in
proportion to the amount of such shortfalls, and second,
to the
Group 1 Subordinate Certificates, the amount of any Basis Risk Shortfalls
and
Unpaid Basis Risk Shortfalls for each such class and Distribution Date, in
accordance with the Subordinate Priority (provided that any payments received
from the Group 1 Cap Agreement which are in excess of those required to pay
Basis Risk Shortfalls or Unpaid Basis Risk Shortfalls to the Group 1
Certificates shall be distributed to the Class C-X Certificates);
(B) to
the
Group 1 Senior Certificates, the amount of any Basis Risk Shortfalls and
Unpaid
Basis Risk Shortfalls for each such class and such Distribution Date,
pro
rata in
proportion to the amount of such shortfalls, to the extent unpaid pursuant
to
clause 5.02(h)(v) and (vii) below and clause (A) above;
(C) to
the
Group 1 Subordinate Certificates, in accordance with the Group 1 Subordinate
Priority, any applicable Basis Risk Shortfall and Unpaid Basis Risk Shortfall
for each such Class and such Distribution Date, to the extent unpaid pursuant
to
Section 5.02(h)(v) and (vii) below and clause (A) above;
(D) to
the
Class 1-X Certificates, any amounts remaining in the Pool 1 Basis Risk Reserve
Fund, after taking into account distributions pursuant to clauses
(A) through (C) above, in excess of the Pool 1 Required Reserve Fund Amount
for such Distribution Date;
provided,
that, the
amount of the Pool 1 Basis Risk Payment for any Distribution Date payable
solely
pursuant to this clause 5.02(f)(iv) of this Agreement cannot exceed the amount
of Pool 1 Monthly Excess Cashflow otherwise available for distribution pursuant
to Section 5.02(f)(iv) of
this
Agreement.
(v) pro
rata,
in
proportion to their respective Deferred Amounts (and any interest accrued
on
such Deferred Amounts), after giving effect to distributions described above
on
such Distribution Date, to the Group 1 Senior Certificates, any applicable
Deferred Amount and any interest accrued on such Deferred Amount for each
such
Class and such Distribution Date;
(vi) to
the
Group 1 Subordinate Certificates, in accordance with the Group 1 Subordinate
Priority, any Deferred Amounts for each such Class and such Distribution
Date;
(vii)
[reserved];
116
(viii) to
the
Class 1-X Certificates, the Class 1-X Distributable Amount (less any Pool
1
Basis Risk Payment for such Distribution Date) for such Distribution
Date;
(ix) on
the
earlier of (a) the Distribution Date occurring in November 2009 (or the next
occurring Distribution Date on which sufficient funds are available in the
Certificate Account) and (b) the final Distribution Date, to the Class 1-P
Certificates, $100 in payment of the Class 1-P Principal Amount;
(x) to
the
Supplemental Interest Trust, for distribution pursuant to clause 5.02(h)(x),
any
Swap Termination Payment due to a Swap Counterparty Trigger Event owed to
the
Swap Counterparty pursuant to the Swap Agreement; and
(xi) to
the
Class LT-R-1 Certificate, any amount remaining on such date after application
pursuant to clauses (i) through (ix) above to the extent attributable to
Pooling
REMIC 1, and otherwise to the Class R-1 Certificate;
(g) On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event related
to the
Pooling REMIC 2 Regular Interests, the Trustee shall distribute any Pool
2
Monthly Excess Cashflow for such Distribution Date in the following order
of
priority:
(i) For
each
Distribution Date, Pool 2 Monthly Excess Cashflow will be paid to the Group
2
Certificates in the following order of priority:
(A) concurrently,
on a pro rata basis, based on amount due, to the Group 2 Senior Certificates,
Current Interest and any Carryforward Interest for such Classes for such
Distribution Date, to the extent unpaid pursuant to clauses 5.02(c)(ii);
(B) to
the
Group 2 Subordinate Certificates, in accordance with the Group 2 Subordinate
Priority, any Current Interest and Carryforward Interest for such Classes
for
such Distribution Date, to the extent unpaid pursuant to clause 5.02(c)(iii);
and
(C) to
the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) allocable
to
Pool 2 and not previously reimbursed to the Trustee.
(ii) for
each
Distribution Date occurring (a) before the Pool 2 Stepdown Date or (b) on
or
after the Pool 2 Stepdown Date but for which a Pool 2 Trigger Event is in
effect, then until the aggregate Class Principal Amount of the Group 2
Certificates equals the Pool 2 Target Amount, in reduction of the Class
Principal Amounts of the Group 2 Certificates in the following order of
priority:
(A) to
each
such class of Group 2 Senior Certificates, in accordance with Group 2 Senior
Priority, in reduction of their respective Class Principal Amounts, until
the
Class Principal Amount of each such class has been reduced to zero;
117
(B) to
the
Certificate Insurer, any unreimbursed Insured Payments plus all payments
due to
the Certificate Insurer under the Insurance Agreement, together with interest
thereon at the rate specified in the Insurance Agreement; and
(C) to
the
Group 2 Subordinate Certificates, in accordance with the Group 2 Subordinate
Priority, in reduction of their Class Principal Amounts, until the Class
Principal Amount of each such Class has been reduced to zero;
(iii) for
each
Distribution Date occurring on or after the Pool 2 Stepdown Date and for
which a
Pool 2 Trigger Event is
not in
effect,
in the
following order of priority:
(A) to
each
class of Group 2 Senior Certificates, in accordance with the Group 2 Senior
Priority, in reduction of their respective Class Principal Amounts, until
the
aggregate Class Principal Amount of such Group 2 Senior Certificates, after
giving effect to distributions on such Distribution Date, equals the Pool
2
Senior Target Amount;
(B) to
the
Certificate Insurer, any unreimbursed Insured Payments plus all amounts due
to
the Certificate Insurer under the Insurance Agreement, together with interest
thereon at the rate specified in the Insurance Agreement;
(C) to
the
Class WF-M1 Certificates, in reduction of their Class Principal Amount, until
the aggregate Class Principal Amount of the Group 2 Senior Certificates and
the
Class WF-M1 Certificates, after giving effect to distributions on such
Distribution Date, equals the WF-M1 Target Amount;
(D) to
the
Class WF-M2 Certificates, in reduction of their Class Principal Amount, until
the aggregate Class Principal Amount of the Group 2 Senior Certificates and
the
Class WF-M1 and Class WF-M2 Certificates, after giving effect to distributions
on such Distribution Date, equals the WF-M2 Target Amount;
(E) to
the
Class WF-M3 Certificates, in reduction of their Class Principal Amount, until
the aggregate Class Principal Amount of the Group 2 Senior Certificates and
the
Class WF-M1, Class WF-M2 and Class WF-M3 Certificates, after giving effect
to
distributions on such Distribution Date, equals the WF-M3 Target
Amount;
(F) to
the
Class WF-M4 Certificates, in reduction of their Class Principal Amount, until
the aggregate Class Principal Amount of the Group 2 Senior Certificates and
the
Class WF-M1, Class WF-M2, Class WF-M3 and Class WF-M4 Certificates, after
giving
effect to distributions on such Distribution Date, equals the WF-M4 Target
Amount;
(G) to
the
Class WF-M5 Certificates, in reduction of their Class Principal Amount, until
the aggregate Class Principal Amount of the Group 2 Senior Certificates and
the
Class WF-M1, Class WF-M2, Class WF-M3, Class WF-M4 and Class WF-M5 Certificates,
after giving effect to distributions on such Distribution Date, equals the
WF-M5
Target Amount;
118
(H) to
the
Class WF-M6 Certificates, in reduction of their Class Principal Amount, until
the aggregate Class Principal Amount of the Group 2 Senior Certificates and
the
Class WF-M1, Class WF-M2, Class WF-M3, Class WF-M4, Class WF-M5 and Class
WF-M6
Certificates, after giving effect to distributions on such Distribution Date,
equals the WF-M6 Target Amount;
(I) to
the
Class WF-M7 Certificates, in reduction of their Class Principal Amount, until
the aggregate Class Principal Amount of the Group 2 Senior Certificates and
the
Class WF-M1, Class WF-M2, Class WF-M3, Class WF-M4, Class WF-M5, Class WF-M6
and
Class WF-M7 Certificates, after giving effect to distributions on such
Distribution Date, equals the WF-M7 Target Amount;
(J) to
the
Class WF-M8 Certificates, in reduction of their Class Principal Amount, until
the aggregate Class Principal Amount of the Group 2 Senior Certificates and
the
Class WF-M1, Class WF-M2, Class WF-M3, Class WF-M4, Class WF-M5, Class WF-M6,
Class WF-M7 and Class WF-M8 Certificates, after giving effect to distributions
on such Distribution Date, equals the WF-M8 Target Amount;
(K) to
the
Class WF-M9 Certificates, in reduction of their Class Principal Amount, until
the aggregate Class Principal Amount of the Group 2 Senior Certificates and
the
Class WF-M1, Class WF-M2, Class WF-M3, Class WF-M4, Class WF-M5, Class WF-M6,
Class WF-M7, Class WF-M8 and Class WF-M9 Certificates, after giving effect
to
distributions on such Distribution Date, equals the WF-M9 Target
Amount;
(L) to
the
Class WF-M10 Certificates, in reduction of their Class Principal Amount,
until
the aggregate Class Principal Amount of the Group 2 Senior Certificates and
the
Class WF-M1, Class WF-M2, Class WF-M3, Class WF-M4, Class WF-M5, Class WF-M6,
Class WF-M7, Class WF-M8, Class WF-M9 and Class WF-M10 Certificates, after
giving effect to distributions on such Distribution Date, equals the WF-M10
Target Amount;
(iv) to
the
Pool 2 Basis Risk Reserve Fund, an amount equal to the Pool 2 Basis Risk
Payment, and then from the Pool 2 Basis Risk Reserve Fund, in the following
order of priority:
(A) to
the
Group 2 Senior Certificates, the amount of any Basis Risk Shortfalls and
Unpaid
Basis Risk Shortfalls for such class and such Distribution Date, pro
rata,
in
proportion to the amount of such shortfalls;
(B) to
the
Group 2 Subordinate Certificates, in accordance with the Group 2 Subordinate
Priority, any applicable Basis Risk Shortfall and Unpaid Basis Risk Shortfall
for each such Class and such Distribution Date; and
119
(C) to
the
Class 2-X Certificates, any amounts remaining in the Pool 2 Basis Risk Reserve
Fund, after taking into account distributions pursuant to clauses (A) and
(B) above, in excess of the Pool 2 Required Reserve Fund Amount for such
Distribution Date;
provided,
that, the
amount of the Pool 2 Basis Risk Payment for any Distribution Date payable
solely
pursuant to this clause 5.02(g)(iv) of this Agreement cannot exceed the amount
of Pool 2 Monthly Excess Cashflow otherwise available for distribution pursuant
to Section 5.02(g)(iv) of
this
Agreement.
(v) after
giving effect to distributions described above on such Distribution Date,
pro
rata,
in
proportion to their Deferred Amounts (and any interest accrued on such Deferred
Amounts), to the Group 2 Senior Certificates, any applicable Deferred Amount
and
any interest accrued on such Deferred Amount for each such Class and such
Distribution Date, to the extent unpaid pursuant to section
5.02(c)(iii);
(vi) to
the
Group 2 Subordinate Certificates, in accordance with the Group 2 Subordinate
Priority, any Deferred Amounts for each such Class and such Distribution
Date;
(vii) [reserved];
(viii) to
the
Class 2-X Certificates, the Class 2-X Distributable Amount (less any Pool
2
Basis Risk Payment for such Distribution Date) for such Distribution
Date;
(ix) on
the
earlier of (a) the Distribution Date occurring in November 2009 (or the next
occurring Distribution Date on which sufficient funds are available in the
Certificate Account) and (b) the final Distribution Date, to the Class 2-P
Certificates, $100 in payment of the Class 2-P Principal Amount;
and
(x) to
the
Class LT-R-2 Certificate, any amount remaining on such date after application
pursuant to clauses (i) through (ix) above to the extent attributable to
the
Pooling REMIC 2, and otherwise to the Class R-2 Certificate;
(h) On
each
Distribution Date (or, with respect to clauses (i), (ii), (ix) and (x) below,
on
the related Swap Payment Date), the Trustee shall distribute the Supplemental
Interest Trust Amount from the Supplemental Interest Trust Account for such
date
as follows:
(i) to
the
Swap Counterparty, any Net Swap Payment owed to the Swap Counterparty pursuant
to the Swap Agreement for such Distribution Date to the extent unpaid from
the
Interest Remittance Amount for Pool 1 and from the Principal Distribution
Amount
for Pool 1;
(ii) to
the
Swap Counterparty, any Swap Termination Payment not due to a Swap Counterparty
Trigger Event owed to the Swap Counterparty pursuant to the Swap Agreement
to
the extent unpaid from the Interest Remittance Amount for Pool 1 and from
the
Principal Distribution Amount for Pool 1;
120
(iii) to
the
Group 1 Senior Certificates, pro
rata, Current
Interest and any Carryforward Interest for each such Class and such Distribution
Date, to the extent unpaid and in the priorities set forth in Section 5.02(b)
above (as applicable);
(iv) to
the
Group 1 Subordinate Certificates, in accordance with the Group 1 Subordinate
Priority, Current Interest and any Carryforward Interest for such class for
such
Distribution Date, to the extent unpaid pursuant to Section 5.02(b)
above;
(v) the
Available Basis Risk Amount, in the following order of priority:
(A) first,
to the
Group 1 Senior Certificates and the Group 1 Subordinate Certificates, in
the
following order of priority:
(i) concurrently,
pro
rata,
to the
Group 1 Senior Certificates, the amount of any Basis Risk Shortfalls and
Unpaid
Basis Risk Shortfalls for each such Class and such Distribution Date, to
the
extent unpaid pursuant to Section 5.02(f)(iv)(A) above;
(ii) to
the
Group 1 Subordinate Certificates, in accordance with the Subordinate Priority,
any applicable Basis Risk Shortfall and Unpaid Basis Risk Shortfall for each
such Class and such Distribution Date, to the extent unpaid pursuant to Section
5.02(f)(iv)(A) above;
(B) second,
if
applicable, to the Termination Receipts Account for application to the purchase
of a replacement swap agreement pursuant to Section 5.10; and
(C) third,
to the
Class S-X Certificates, any amounts remaining;
(vi) to
the
Group 1 Senior Certificates and Group 1 Subordinate Certificates, any amount
necessary to create and maintain the Targeted Overcollateralization Amount
specified in Sections 5.02(f)(i) and (ii) for such Distribution Date, for
application pursuant to the priorities set forth in such Sections, after
giving
effect to distributions pursuant to such Sections; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(h)(vi)
and all
amounts distributed pursuant to Section 5.02(h)(viii) shall not exceed the
aggregate amount of cumulative Realized Losses on the Pool 1 Mortgage Loans
incurred from the Cut-off Date through the last day of the related Collection
Period;
(vii) to
the
Group 1 Senior Certificates and Group 1 Subordinate Certificates, any remaining
Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls (less the amount of
any
Available Basis Risk Amount paid to each such Class pursuant to clause (v)
above) for each such class and for such Distribution Date, for application
pursuant to the priorities set forth in Sections 5.02(f)(iv)(B) and (C),
to the
extent unpaid pursuant to Section 5.02(f)(iv)(A) above and clause (v)
above;
(viii)
first,
concurrently, to the Group 1 Senior Certificates, in accordance with the
Group 1
Senior Priority, any Deferred Amount for each such Class (and any interest
accrued on such Deferred Amounts) and second, to the Group 1 Subordinate
Certificates, in accordance with the Group 1 Subordinate Priority, any Deferred
Amount for each such Class and such Distribution Date for application pursuant
to the priority set forth in Sections 5.02(f)(v) and (vi), respectively,
to the
extent unpaid pursuant to such Sections; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(h)(viii)
and
all amounts distributed pursuant to Section 5.02(h)(vii) shall not exceed
the
aggregate amount of cumulative Realized Losses on the Pool 1 Mortgage Loans
incurred from the Cut-off Date through the last day of the related Collection
Period;
121
(ix) if
applicable, to the Termination Receipts Account for application to the purchase
of a replacement swap agreement pursuant to Section 5.10;
(x) to
the
Swap Counterparty, any Swap Termination Payment due to a Swap Counterparty
Trigger Event owed to the Swap Counterparty pursuant to the Swap Agreement;
(xi) to
the
S-X Certificates, any remaining Supplemental Interest Trust Amount;
and
(xii) on
the
first Distribution Date on which the Class Principal Amount of each
Class
of
Certificates has been reduced to zero, to the Class S-X Certificates, all
amounts remaining in the Supplemental Interest Trust Account.
(i) On
each
Distribution Date on and prior to the Class X Account Termination Date, the
Trustee shall withdraw the Class C Distributable Amount for such Distribution
Date from the Class X Account, pursuant to Section 5.11 herein, and shall
distribute such amount to the Class C Certificates.
(i) On
each
Distribution Date on and prior to the Class X Account Termination Date, the
Trustee shall withdraw the Class C Distributable Amount for such Distribution
Date from the Class X Account, pursuant to Section 5.11 herein, and shall
distribute such amount to the Class C Certificates.
(ii)
On each
Distribution Date on and prior to the Class X Account Termination Date, the
Trustee shall withdraw amounts on deposit in the Class X Account after providing
for the Class C Distributable Amount for such Distribution Date and distribute
to the Class 1-X and Class 2-X Certificates an amount equal to the excess,
if
any, of the sum of Realized Losses attributable to the Class C Mortgage Loans
in
the related Pool over the sum of all amounts distributed pursuant to this
Section 5.02(i)(ii) on prior Distribution Dates to the Class 1-X or Class
2-X
Certificates, as applicable. If, on any Distribution Date, the amount required
to be distributed pursuant to the immediately preceding sentence exceeds
the
amount then on deposit in the Class X Account, the entire amount then on
deposit
shall be allocated between the Class 1-X Certificates and the Class 2-X
Certificates in proportion to the amounts such Classes would have otherwise
received on such Distribution Date pursuant to the immediately preceding
sentence.
122
(j) On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event relating
to
the Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular Interests,
an
amount equal to the aggregate of all Prepayment Premiums collected with respect
to Pool 1 during the preceding Prepayment Period shall be distributed to
the
Holders of the Class 1-P Certificates and the aggregate of all Prepayment
Premiums collected with respect to Pool 2 during the preceding Prepayment
Period
shall be distributed to the Holders of the Class 2-P Certificates.
(k) On
each
Distribution Date occurring after a Section 7.01(d) Purchase Event but on
or
prior to a Trust Fund Termination Event, the Trustee (or the Paying Agent
on
behalf of the Trustee), shall withdraw from the Certificate Account the related
Total Distribution Amount (to the extent such amount is on deposit in the
Certificate Account) and shall allocate such amount to the interests issued
in
respect of the Pooling REMIC 1 Regular Interests or the Pooling REMIC 2 Regular
Interests, as applicable, created pursuant to this Agreement and shall
distribute such Total Distribution Amount first,
to the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee, second,
to the
LTURI-holder, any remaining related Total Distribution Amount to the extent
payable on the Pooling REMIC 1 Regular Interests or the Pooling REMIC 2 Regular
Interests as provided in the Preliminary Statement, and third,
to the
Class LT-R-1 and Class LT-R-2 Certificates any remaining amounts.
Section
5.03. Allocation
of Losses.
(a) On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event relating
to
the Pooling REMIC 1 Regular Interests, the Class Principal Amounts of the
Group
1 Certificates shall be reduced by the amount of any Pool 1 Applied Loss
Amount
for such date, in the following order of priority:
(i) to
the
Class 1-M9 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(ii) to
the
Class 1-M8 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(iii) to
the
Class 1-M7 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(iv) to
the
Class 1-M6 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(v) to
the
Class 1-M5 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(vi) to
the
Class 1-M4 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(vii) to
the
Class 1-M3 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
123
(viii) to
the
Class 1-M2 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(ix) to
the
Class 1-M1 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero; and
(x) to
the
Group 1 Senior Certificates, pro
rata,
based on
their respective Class Principal Amounts, until their respective Class Principal
Amounts are reduced to zero; provided,
however,
(1)
that any Pool 1 Applied Loss Amounts otherwise allocable to the Class 1-A1,
Class 1-A2, Class 1-A3, Class 1-A4A and Class 1-A4B Certificates will be
applied
in reduction of the Class Principal Amount of the Class 1-A5 Certificates,
until
the Class Principal Amount of the Class 1-A5 Certificates has been reduced
to
zero, and (2) that, after the Class 1-A5 Certificates have been reduced to
zero,
losses that would otherwise reduce the principal amount of the Class 1-A4A
Certificates will first reduce the principal amount of the Class 1-A4B
Certificates until the principal amount of the Class 1-A4B Certificates has
been
reduced to zero.
(b) On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event relating
to
the Pooling REMIC 2 Regular Interests, the Class Principal Amounts of the
Group
2 Certificates shall be reduced by the amount of any Pool 2 Applied Loss
Amount
for such date, in the following order of priority:
(i) to
the
Class WF-M10 Certificates, until the Class Principal Amount of such Class
has
been reduced to zero;
(ii) to
the
Class WF-M9 Certificates, until the Class Principal Amount of such Class
has
been reduced to zero;
(iii) to
the
Class WF-M8 Certificates, until the Class Principal Amount of such Class
has
been reduced to zero;
(iv) to
the
Class WF-M7 Certificates, until the Class Principal Amount of such Class
has
been reduced to zero;
(v) to
the
Class WF-M6 Certificates, until the Class Principal Amount of such Class
has
been reduced to zero;
(vi) to
the
Class WF-M5 Certificates, until the Class Principal Amount of such Class
has
been reduced to zero;
(vii) to
the
Class WF-M4 Certificates, until the Class Principal Amount of such Class
has
been reduced to zero;
(viii) to
the
Class WF-M3 Certificates, until the Class Principal Amount of such Class
has
been reduced to zero;
(ix) to
the
Class WF-M2 Certificates, until the Class Principal Amount of such Class
has
been reduced to zero;
124
(x) to
the
Class WF-M1 Certificates, until the Class Principal Amount of such Class
has
been reduced to zero; and
(xi) to
the
Group 2 Senior Certificates, pro
rata,
based on
their respective Class Principal Amounts, until their respective Class Principal
Amounts are reduced to zero; provided,
however,
(1)
that any Pool 2 Applied Loss Amounts otherwise allocable to the Class WF-1-1
Certificates will be applied in reduction of the Class Principal Amount of
the
Class WF-1-2 Certificates, until the Class Principal Amount of the Class
WF-1-2
Certificates has been reduced to zero and (2) that, any Pool 2 Applied Loss
Amounts otherwise allocable to the Class WF-3-2 Certificates will be applied
in
reduction of the Class Principal Amount of the Class WF-3-3 Certificates,
until
the Class Principal Amount of the Class WF-3-3 Certificates has been reduced
to
zero.
Section
5.04. Advances
by Master Servicer, Servicers and Trustee.
(a) Subject
to Section 9.07, Advances shall be made in respect of each Determination
Date as
provided herein. If, on any Determination Date, any Servicer determines that
any
Scheduled Payments due during the related Collection Period (other than Balloon
Payments) have not been received, such Servicer shall advance such amount
on the
Deposit Date immediately following such Determination Date to the extent
provided in the applicable Servicing Agreement. If any Servicer fails to
remit
Advances required to be made under the applicable Servicing Agreement, the
Master Servicer shall itself make, or shall cause the successor Servicer
to
make, such Advance on the Master Servicer Remittance Date immediately following
such Determination Date; provided,
however,
that
required Advances remitted by the Servicer or the Master Servicer may be
reduced
by an amount, if any, to be set forth in an Officer’s Certificate to be
delivered to the Trustee on such Determination Date, which if advanced the
Master Servicer or the applicable Servicer has determined would not be
recoverable from amounts received with respect to such Mortgage Loan, including
late payments, Liquidation Proceeds, Insurance Proceeds or otherwise. If
the
Master Servicer determines that an Advance is required, it shall on the Master
Servicer Remittance Date immediately following such Determination Date either
(i) remit to the Trustee from its own funds (or funds advanced by the applicable
Servicer) for deposit in the Certificate Account immediately available funds
in
an amount equal to such Advance, (ii) cause to be made an appropriate entry
in
the records of the Collection Account that funds in such account being held
for
future distribution or withdrawal have been, as permitted by this Section
5.04,
used by the Master Servicer to make such Advance, and remit such immediately
available funds to the Trustee for deposit in the Certificate Account or
(iii)
make Advances in the form of any combination of clauses (i) and (ii) aggregating
the amount of such Advance. Any funds being held in the Collection Account
for
future distribution to Certificateholders and so used shall be replaced by
the
Master Servicer from its own funds by remittance to the Trustee for deposit
in
the Certificate Account on or before any future Master Servicer Remittance
Date
to the extent that funds in the Certificate Account on such Master Servicer
Remittance Date shall be less than payments to Certificateholders required
to be
made on the related Distribution Date. The Master Servicer and each Servicer
shall be entitled to be reimbursed from the Collection Account for all Advances
made by it as provided in Section 4.02. Notwithstanding anything to the contrary
herein, in the event the Master Servicer determines in its reasonable judgment
that an Advance is non-recoverable, the Master Servicer shall be under no
obligation to make such Advance. The Trustee shall be entitled to conclusively
rely upon any determination by the Master Servicer that an Advance, if made,
would constitute a non-recoverable Advance.
125
(b) Notwithstanding
anything herein to the contrary, in the event that the Master Servicer or
Servicer fails for any reason to make an Advance required to be made pursuant
to
this Section 5.04 on or before the Master Servicer Remittance Date, the Trustee,
in its capacity as successor Master Servicer pursuant to Section 6.14, shall,
on
or before the related Distribution Date, deposit in the Certificate Account
an
amount equal to the excess of (a) Advances required to be made by the Master
Servicer or the Servicers that would have been deposited in such Certificate
Account over (b) the amount of any Advance made by the Master Servicer or
any
Servicer with respect to such Distribution Date; provided,
however,
that the
Trustee shall be required to make such Advance only if it is not prohibited
by
law from doing so and it has determined that such Advance would be recoverable
from amounts to be received with respect to such Mortgage Loan, including
late
payments, Liquidation Proceeds, Insurance Proceeds, or otherwise. The Trustee
shall be entitled to be reimbursed from the Certificate Account for Advances
made by it pursuant to this Section 5.04 as if it were the Master Servicer.
Notwithstanding anything herein to the contrary, in no event shall the Trustee
be required for any reason to make an Advance with regards to any Balloon
Payment.
Section
5.05. Compensating
Interest Payments.
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicers. Any Compensating Interest Payments made
by
the Servicers shall be a component of the Interest Remittance Amount.
Notwithstanding anything herein to the contrary, in no event shall the Trustee
(in its capacity as successor Master Servicer) be required to make an Advance
with regard to any Balloon Payment.
Section
5.06. Basis
Risk Reserve Funds.
(a) On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the holders of the Group 1 Certificates, the Pool 1 Basis
Risk
Reserve Fund, into which LBH shall deposit $1,000. In addition, the Trustee
shall hold the Group 1 Cap Agreement as an asset in the Pool 1 Basis Risk
Reserve Fund. The Pool 1 Basis Risk Reserve Fund shall be an Eligible Account,
and funds on deposit therein shall be held separate and apart from, and shall
not be commingled with, any other moneys, including, without limitation,
other
moneys of the Trustee held pursuant to this Agreement.
(b) On
each
Distribution Date on which there is a payment received under the Group 1
Cap
Agreement that is based on a notional amount in excess of the aggregate Class
Principal Amount of the Group 1 Certificates (such amount, the “Class C-X Excess
Cap Amount”), the Trustee shall distribute such Class C-X Excess Cap Amount to
the Class C-X Certificateholders pursuant to Section 5.02(f)(iv). On
each
Distribution Date the Trustee shall distribute in the order of priority and
to
the extent specified in Section 5.02(f)(iv) of this Agreement the sum of
(without duplication) (a) any payments made by the Cap Counterparty to the
Trust
Fund for such Distribution Date with respect to the Group 1 Cap Agreement
and
(b) any amounts then on deposit in the Pool 1 Basis Risk Reserve Fund, including
any earnings thereon. On any Distribution Date, any amounts that the Trustee
is
not required to distribute from the Pool 1 Basis Risk Reserve Fund pursuant
to
Section 5.02(f)(iv) of this Agreement shall remain on deposit in the Pool
1
Basis Risk Reserve Fund.
126
(c) On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the holders of the Group 2 Certificates, the Pool 2 Basis
Risk
Reserve Fund, into which LBH shall deposit $1,000. The Pool 2 Basis Risk
Reserve
Fund shall be an Eligible Account, and funds on deposit therein shall be
held
separate and apart from, and shall not be commingled with, any other moneys,
including, without limitation, other moneys of the Trustee held pursuant
to this
Agreement.
(d) On
each
Distribution Date the Trustee shall distribute in the order of priority and
to
the extent specified in Section 5.02(g)(iv) of this Agreement any amounts
then
on deposit in the Pool 2 Basis Risk Reserve Fund, including any earnings
thereon. On any Distribution Date, any amounts that the Trustee is not required
to distribute from the Pool 2 Basis Risk Reserve Fund pursuant to Section
5.02(g)(iv) of this Agreement shall remain on deposit in the Pool 2 Basis
Risk
Reserve Fund.
(e) Funds
in
the Pool 1 Basis Risk Reserve Fund and Pool 2 Basis Risk Reserve Fund shall
be
invested in Eligible Investments. The Class C-X Certificates and the Class
2-X
Certificates shall evidence ownership of the Pool 1 Basis Risk Reserve Fund
and
the Pool 2 Basis Risk Reserve Fund, respectively, for federal income tax
purposes and LBH on behalf of the Holders thereof shall direct the Trustee,
in
writing, as to investment of amounts on deposit therein. LBH shall be liable
for
any losses incurred on such investments. In the absence of written instructions
from LBH as to investment of funds on deposit in the Pool 1 Basis Risk Reserve
Fund and Pool 2 Basis Risk Reserve Fund, such funds shall remain uninvested.
The
Pool 1 Basis Risk Reserve Fund will be terminated after a Pool 1 Termination
Event. The Pool 2 Basis Risk Reserve Fund will be terminated after a Pool
2
Termination Event.
Section
5.07. The
Certificate Insurance Policy.
(a) If,
on
the second Business Day before any Distribution Date, the Trustee determines
that an Insured Payment is required to be made by the Certificate Insurer
on
such Distribution Date, the Trustee shall
determine the amount of any such Insured Payment and shall give written notice
to the Certificate Insurer by completing a Notice of Nonpayment in the form
of
Exhibit A to the Certificate Insurance Policy and submitting such Notice
of
Nonpayment by 12:00 noon, New York City time on such second Business Day
as a
claim for an Insured Payment. The Trustee’s responsibility for delivering a
Notice of Nonpayment to the Certificate Insurer, as provided in the preceding
sentence, is limited to the availability, timeliness and accuracy of the
information provided to it by the Master Servicer.
In
the
event the Trustee receives a certified copy of an order of the appropriate
court
that any scheduled payment of principal or interest on the Class WF-3-1,
Class
WF-4-1 and Class WF-6-1 Certificates has been voided in whole or in part
as a
preference payment under applicable bankruptcy law, the Trustee shall promptly
notify the Certificate Insurer in writing and the fiscal agent, if any, and
the
Trustee shall, on behalf of the Trust and the Class WF-3-1, Class WF-4-1
and
Class WF-6-1 Certificateholders, make a claim on the Certificate Insurance
Policy in accordance with the provisions thereof to obtain payment by the
Certificate Insurer of such voided scheduled payment. In addition, the Trustee
shall mail notice to all Holders of the Class WF-3-1, Class WF-4-1 and Class
WF-6-1 Certificates so affected that, in the event that any such Holder’s
scheduled payment is so recovered, such Holder will be entitled to payment
pursuant to the terms of the Certificate Insurance Policy, a copy of which
shall
be made available to such Holders by the Trustee. The Trustee shall furnish
to
the Certificate Insurer and the appropriate fiscal agent, if any, its records
listing the payments on the affected Class WF-3-1, Class WF-4-1 and Class
WF-6-1
Certificates, if any, that have been made by the Trustee and subsequently
recovered from the affected Holders, and the dates on which such payments
were
made by the Trustee.
127
(b) At
the
time of the execution hereof, and for the purposes hereof, the Trustee shall
establish the Policy Payments Account over which the Trustee shall have
exclusive control and sole right of withdrawal. The Policy Payments Account
shall be an Eligible Account. The Trustee shall deposit any amount paid under
the Certificate Insurance Policy into the Policy Payments Account and distribute
such amount only for the purposes of making payments to Holders of the Class
WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates in respect of the Guaranteed
Distributions (or other amounts payable pursuant to the second paragraph
of
subsection (a) above on such Class WF-3-1, Class WF-4-1 and Class WF-6-1
Certificates by the Certificate Insurer pursuant to the Certificate Insurance
Policy) for which the related claim was made under the Certificate Insurance
Policy. Such amounts shall be allocated by the Trustee to Holders of Class
WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates entitled to such payments
in
the same manner as principal and interest distributions are to be allocated
with
respect to such Certificates pursuant to Section 5.02. It shall not be necessary
for such payments to be made by checks or wire transfers separate from the
checks or wire transfers used to make regular payments hereunder with funds
withdrawn from the Certificate Account. However, any payments made on the
Class
WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates from funds in the Policy
Payments Account shall be noted as provided in subsection (e) below. Funds
held
in the Policy Payments Account shall not be invested by the
Trustee.
(c) Any
funds
received from the Certificate Insurer for deposit into the Policy Payments
Account pursuant to this Agreement and the Certificate Insurance Policy in
respect of a Distribution Date or otherwise as a result of any claim under
such
Certificate Insurance Policy shall be applied by the Trustee directly to
the
payment in full (i) of the Insured Payments due on such Distribution Date
on the
Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates, or (ii) of other
amounts to which payments under the Certificate Insurance Policy are to be
applied. Funds received by the Trustee as a result of any claim under the
Certificate Insurance Policy shall be used solely for payment to the Holders
of
the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates and may not
be
applied for any other purpose, including, without limitation, satisfaction
of
any costs, expenses or liabilities of the Trust, the Trustee or the Trust
Fund.
Any funds remaining in the Policy Payments Account on the first Business
Day
after each Distribution Date (other than the final Distribution Date to the
extent of funds remaining in the Policy Payments Account required to be paid
to
Holders of the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates)
shall
be remitted promptly to the Certificate Insurer pursuant to the written
instruction of the Certificate Insurer.
128
(d) The
Trustee shall keep complete and accurate records in respect of (i) all funds
remitted to the Trustee by the Certificate Insurer and deposited into the
Policy
Payments Account and (ii) the allocation of such funds to (A) payments of
interest on and principal in respect of any Class WF-3-1, Class WF-4-1 and
Class
WF-6-1 Certificates, (B) Pool 2 Applied Loss Amounts allocated to the Class
WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates, and (C) payments in respect
of Preference Amounts. The Certificate Insurer shall have the right to inspect
such records at reasonable times during normal business hours upon three
Business Days’ prior notice to the Trustee. Any Insured Payments disbursed by
the Trustee from proceeds of the Certificate Insurance Policy shall be
considered payment by the Certificate Insurer and not by the Trust Fund with
respect to the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates,
and the
Certificate Insurer will be entitled to receive the related Reimbursement
Amount
pursuant to Section 5.02.
(e) The
Trustee acknowledges, and each Holder of a Class WF-3-1, Class WF-4-1 and
Class
WF-6-1 Certificates by their acceptance of such Certificates agrees, that
without the need for any further action on the part of the Certificate Insurer
or the Trustee, to the extent the Certificate Insurer pays Insured Payments,
directly or indirectly, on account of principal of or interest on any such
Class
of Certificates, the Certificate Insurer will be fully subrogated to the
rights
of the Holders of such Class to receive the related Reimbursement Amount
pursuant to Section 5.02 and the Certificate Insurer shall also have the
rights
conferred upon the Certificate Insurer pursuant to Sections 4.06 and 5.02
of the
Insurance Agreement, as if fully set forth herein. The Class WF-3-1, Class
WF-4-1 and Class WF-6-1 Certificateholders, by acceptance of their Certificates
assign their rights as Holders of such Class of Certificates to the extent
of
the Certificate Insurer’s interest with respect to amounts paid under the
Certificate Insurance Policy. Each of the Depositor and the Trustee agrees
to
such subrogation and further agrees to execute such instruments and to take
such
actions as, in the sole judgment of the Certificate Insurer, are necessary
to
evidence such subrogation and, subject to the priority of payment provisions
of
this Agreement, to perfect the rights of the Certificate Insurer to receive
any
moneys paid or payable in respect of the Class WF-3-1, Class WF-4-1 and Class
WF-6-1 Certificates under this Agreement or otherwise. Anything herein to
the
contrary notwithstanding, solely for purposes of determining the Certificate
Insurer’s rights as subrogee for payments distributable pursuant to Section
5.02, any payment with respect to distributions to the Class WF-3-1, Class
WF-4-1 and Class WF-6-1 Certificates that is made with funds received pursuant
to the terms of the Certificate Insurance Policy shall not be considered
payment
of such Class of Certificates from the Trust Fund and shall not result in
the
distribution or the provision for the distribution in reduction of the Class
Principal Amount of such Class of Certificates or Current Interest thereon,
within the meaning of Article V.
(f) The
Trustee shall promptly notify the Certificate Insurer of either of the following
as to which a Responsible Officer has actual knowledge: (A) the commencement
of
any proceeding by or against the Depositor commenced under the Bankruptcy
Code
or any other applicable bankruptcy, insolvency, receivership, rehabilitation
or
similar law (an “Insolvency Proceeding”) and (B) the making of any claim in
connection with any Insolvency Proceeding seeking the avoidance as a
preferential transfer (a “Preference Claim”) of any distribution made with
respect to the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates.
Each
Holder of a Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates, by
its
purchase of its respective Class of Certificate, and the Trustee hereby agree
that the Certificate Insurer (so long as no Certificate Insurer Default exists)
may at any time during the continuation of any proceeding relating to a
Preference Claim direct all matters relating to such Preference Claim,
including, without limitation, (i) the direction of any appeal of any order
relating to any Preference Claim and (ii) the posting of any surety, supersedeas
or performance bond pending any such appeal. In addition and without limitation
of the foregoing, the Certificate Insurer shall be subrogated to the rights
of
the Trustee and each Holder of a Class WF-3-1, Class WF-4-1 and Class WF-6-1
Certificates in the conduct of any Preference Claim, including, without
limitation, all rights of any party to an adversary proceeding action with
respect to any court order issued in connection with any such Preference
Claim.
129
(g) The
Trustee shall surrender the Certificate Insurance Policy to the Certificate
Insurer for cancellation upon the termination of the Trust Fund pursuant
to
Article VII hereof.
Section
5.08. Supplemental
Interest Trust.
(a) A
separate trust is hereby established (the “Supplemental Interest Trust”), the
corpus of which shall be held by the Trustee, in trust, for the benefit of
the
holders of the Group 1 Certificates. The Trustee, as trustee of the Supplemental
Interest Trust, shall establish an account (the “Supplemental Interest Trust
Account”), into which LBH shall initially deposit $1,000 on the Closing Date.
The Supplemental Interest Trust Account shall be an Eligible Account, and
funds
on deposit therein shall be held separate and apart from, and shall not be
commingled with, any other moneys, including, without limitation, other moneys
of the Trustee held pursuant to this Agreement.
(b) The
Trustee shall deposit into the Supplemental Interest Trust Account any Net
Swap
Payment required pursuant to Sections 5.02(b), (d), and (f), any Swap
Termination Payment required pursuant to Sections 5.02(b), (d) and (f), any
amounts received from the Swap Counterparty under the Swap Agreement, and
shall
distribute from the Supplemental Interest Trust Account any Net Swap Payment
required pursuant to Section 5.02(h)(i) or Swap Termination Payment required
pursuant to Sections 5.02(h)(ii) and (x).
(c) Funds
in
the Supplemental Interest Trust Account shall be invested in Eligible
Investments. Any earnings on such amounts shall be distributed on each
Distribution Date pursuant to Section 5.02(h). The Class S-X Certificates
shall
evidence ownership of the Supplemental Interest Trust Account for federal
income
tax purposes and the Holder thereof shall direct the Trustee, in writing,
as to
investment of amounts on deposit therein. The Class S-X Certificateholders
shall
be liable for any losses incurred on such investments. In the absence of
written
instructions from the Class S-X Certificateholders as to investment of funds
on
deposit in the Supplemental Interest Trust Account, such funds shall remain
uninvested. Any amounts on deposit in the Supplemental Interest Trust Account
in
excess of the Supplemental Interest Trust Amount on any Distribution Date
shall
be held for distribution pursuant to Section 5.02(h) on the following
Distribution Date.
(d) Upon
a
Pool 1 Termination Event or termination of the Trust Fund, any amounts remaining
in the Supplemental Interest Trust Account shall be distributed pursuant
to the
priorities set forth in Section 5.02(h).
130
(e) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the holder of the Class S-X Certificates unless and
until the date when either (i) there is more than one Class S-X
Certificateholder or (ii) any Class of Certificates in addition to the Class
S-X
Certificates is recharacterized as an equity interest in the Supplemental
Interest Trust for federal income tax purposes. The Trustee shall not be
responsible for any entity level tax reporting for the Supplemental Interest
Trust.
To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Trustee, any obligation of the Trustee under the Swap Agreement
shall be deemed to be an obligation of the Supplemental Interest
Trust.
Section
5.09. Rights
of Swap Counterparty.
The
Swap
Counterparty shall be deemed a third-party beneficiary of this Agreement
to the
same extent as if it were a party hereto and shall have the right, upon
designation of an “Early Termination Date” (as defined in the Swap Agreement),
to enforce its rights under this Agreement, which rights include but are
not
limited to the obligation of the Trustee (A) to deposit any Net Swap Payment
required pursuant to Sections 5.02(b), (d) and (f), and any Swap Termination
Payment required pursuant to Sections 5.02(b), (d) and (f), into the
Supplemental Interest Trust Account, (B) to pay any Net Swap Payment required
pursuant to Section 5.02(h)(i) or Swap Termination Payment required pursuant
to
Sections 5.02(h)(ii) and (x) to the Swap Counterparty and (C) to establish
and
maintain the Supplemental Interest Trust Account, to make such deposits thereto,
investments therein and distributions therefrom as are required pursuant
to
Section 5.08. For the protection and enforcement of the provisions of this
Section the Swap Counterparty shall be entitled to such relief as can be
given
either at law or in equity.
Section
5.10. Termination
Receipts.
In
the
event of an “Early Termination Event” as defined under the Swap Agreement, (i)
any Swap Termination Payment made by the Swap Counterparty to the Supplemental
Interest Trust and paid pursuant to Section 5.02(h)(ix) (“Termination Receipts”)
will be deposited in a segregated non-interest bearing account which shall
be an
Eligible Account established by the Trustee (the “Termination Receipts Account”)
and (ii) any amounts received from a replacement Swap Counterparty (“Replacement
Receipts”) will be deposited in a segregated non-interest bearing account which
shall be an Eligible Account established by the Trustee (the “Replacement
Receipts Account”). Solely upon written direction of the Depositor, the Trustee
shall invest, or cause to be invested, funds held in the Termination Receipts
Account and the Replacement Receipts Account in time deposits of the Trustee
as
permitted by clause (ii) of the definition of Eligible Investments or as
otherwise directed in writing by a majority of the Certificateholders. All
such
investments must be payable on demand or mature on a Distribution Date or
such
other date as directed by the Certificateholders. If no such direction is
given
by the Depositor, such funds shall remain uninvested. All such Eligible
Investments will be made in the name of the Trustee, as trustee of the
Supplemental Interest Trust (in its capacity as such) or its nominee. All
income
and gain realized from any such investment shall be deposited in the Termination
Receipts Account or the Replacement Receipts Account, as applicable, and
all
losses, if any, shall be borne by the related account.
131
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Swap Agreement(s)
and
the Trustee shall promptly, at the written direction of the Depositor, use
amounts on deposit in the Termination Receipts Account, if necessary, to
enter
into replacement Swap Agreement(s) which shall be executed and delivered
by the
Trustee upon receipt of written confirmation from each Rating Agency that
such
replacement Swap Agreement(s) will not result in the reduction or withdrawal
of
the rating of any outstanding Class of Certificates with respect to which
it is
a Rating Agency.
Amounts
on deposit in the Replacement Receipts Account shall be held for the benefit
of
the related Swap Counterparty and paid to such Swap Counterparty if the
Supplemental Interest Trust is required to make a payment to such Swap
Counterparty following an event of default or termination event with respect
to
the Supplemental Interest Trust under the related Swap Agreement. Any amounts
not so applied shall, following the termination or expiration of such Swap
Agreement, be paid to the Class S-X Certificates.
Section
5.11. Class
X Account.
(a) On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the holders of the Class 1-X, Class 2-X and Class C Certificates,
the Class X Account. No later than the first date on which any NIMS Securities
are issued, the Depositor shall deposit a dollar amount into the Class X
Account. The Class X Account shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled
with,
any other moneys, including, without limitation, other moneys of the Trustee
held pursuant to this Agreement.
(b) Funds
in
the Class X Account may be invested in Eligible Investments having fixed
maturities described in clauses (i), (iv), (v) or (vii) of the definition
thereof by the Trustee at the direction of the holders of the Class C
Certificates maturing on or prior to the next succeeding Distribution Date.
No
Eligible Investments shall be acquired or disposed of for the primary purpose
of
recognizing gains or decreasing losses from market value changes. Any funds
held
in the Class X Account that are not invested shall be held in cash. In the
absence of such written direction, all funds in the Class X Account shall
remain
uninvested. Any investment earnings on such amounts shall be payable to the
holders of the Class C Certificates. The Trustee shall account for the
Class X Account as an outside reserve fund within the meaning of Treasury
regulation 1.860G-2(h) and not an asset of any REMIC created pursuant to
this
Agreement. The Class C Certificates shall evidence ownership of the Class X
Account for federal tax purposes and the Holders thereof shall direct the
Trustee in writing as to the investment of amounts therein. The Trustee shall
have no liability for losses on investments in Eligible Investments made
pursuant to this Section 5.11(b) (other than as obligor on any such
investments). Upon termination of the Class X Account, any amounts remaining
in
the Class X Account shall be distributed to the Holders of the Class C
Certificates in the same manner as if distributed pursuant to Section 5.02(i)(i)
hereof.
(c) On
each
Distribution Date on and prior to the Class X Account Termination Date, amounts
on deposit in the Class X Account will be withdrawn and applied to make payments
to the Class 1-X, Class 2-X and Class C Certificates as provided in Section
5.02(i) of this Agreement. Any
amounts that the Trustee is not required to distribute from the Class X Account
pursuant to Section 5.02(i) of this Agreement shall remain on deposit in
the
Class X Account.
132
(d) The
Class
X Account shall terminate on the earlier of (i) the Class X Account Termination
Date or (ii) the Distribution Date on which the amount on deposit in the
Class X
Account is reduced to zero.
ARTICLE
VI
CONCERNING
THE TRUSTEE EVENTS OF DEFAULT
Section
6.01. Duties
of Trustee.
(a) The
Trustee, except during the continuance of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge, undertakes
to
perform such duties and only such duties as are specifically set forth in
this
Agreement. Any permissive right of the Trustee provided for in this Agreement
shall not be construed as a duty of the Trustee. If an Event of Default (of
which a Responsible Officer of the Trustee shall have actual knowledge) has
occurred and has not otherwise been cured or waived, the Trustee shall exercise
such of the rights and powers vested in it by this Agreement and use the
same
degree of care and skill in their exercise as a prudent Person would exercise
or
use under the circumstances in the conduct of such Person’s own
affairs.
(b) The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee
which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they are in the form required
by this Agreement; provided,
however,
that the
Trustee shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer, any Servicer or the Swap
Counterparty to the Trustee pursuant to this Agreement, and shall not be
required to recalculate or verify any numerical information furnished to
the
Trustee pursuant to this Agreement.
(c) The
Trustee shall not have any liability arising out of or in connection with
this
Agreement, except for its negligence or willful misconduct. Notwithstanding
anything in this Agreement to the contrary, the Trustee shall not be liable
for
special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits). No provision of this Agreement
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided,
however,
that:
(i) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction or with the consent of Holders of Certificates as provided in Section
6.18 hereof;
(ii) For
all
purposes under this Agreement, the Trustee shall not be deemed to have notice
of
any Event of Default (other than resulting from a failure by the Master Servicer
(i) to remit funds (or to make Advances) or (ii) to furnish information to
the
Trustee when required to do so) unless a Responsible Officer of the Trustee
has
actual knowledge thereof or unless written notice of any event which is in
fact
such a default is received by the Trustee at the applicable Corporate Trust
Office, and such notice references the Holders and this Agreement;
133
(iii) No
provision of this Agreement shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers,
if it
shall have reasonable grounds for believing that repayment of such funds
or
adequate indemnity against such risk or liability is not reasonably assured
to
it; and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Depositor or the Master Servicer under
this
Agreement or the Certificate Insurer under the Certificate Insurance Policy;
and
(iv) The
Trustee shall not be responsible for the act or omission of the Master Servicer,
any Servicer, the the Certificate Insurer, the Depositor, the Seller or any
Custodian.
(d) The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered to or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided,
however,
that the
Trustee shall promptly remit to the Master Servicer upon receipt any such
complaint, claim, demand, notice or other document (i) which is delivered
to the
applicable Corporate Trust Office of the Trustee, (ii) of which a Responsible
Officer has actual knowledge, and (iii) which contains information sufficient
to
permit the Trustee to make a determination that the real property to which
such
document relates is a Mortgaged Property.
(e) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of any NIMS Insurer or the Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests aggregating
not less than 25% as to the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred upon the Trustee under this Agreement.
(f) The
Trustee shall not be required to perform services under this Agreement, or
to
expend or risk its own funds or otherwise incur financial liability for the
performance of any of its duties hereunder or the exercise of any of its
rights
or powers if there is reasonable ground for believing that the timely payment
of
its fees and expenses or the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it, and none
of the
provisions contained in this Agreement shall in any event require the Trustee
to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer or any Servicer under this Agreement or
any
Servicing Agreement except during such time, if any, as the Trustee shall
be the
successor to, and be vested with the rights, duties, powers and privileges
of,
the Master Servicer in accordance with the terms of this Agreement.
134
(g) The
Trustee shall not be held liable by reason of any insufficiency in the
Collection Account or the Basis Risk Reserve Funds resulting from any investment
loss on any Eligible Investment included therein (except to the extent that
the
Trustee is the obligor and has defaulted thereon).
(h) Except
as
otherwise provided herein, the Trustee shall not have any duty (A) to undertake
any recording, filing, or depositing of this Agreement or any agreement referred
to herein or any financing statement or continuation statement evidencing
a
security interest, or to ensure the maintenance of any such recording or
filing
or depositing or to undertake any rerecording, refiling or redepositing of
any
such statement or agreement, (B) to establish or maintain any insurance,
(C) to
see to the payment or discharge of any tax, assessment, or other governmental
charge or any lien or encumbrance of any kind owing with respect to, assessed
or
levied against, any part of the Trust Fund other than from funds available
in
the Collection Account or the Certificate Account, (D) to confirm or verify
the
contents of any reports or certificates of the Master Servicer, any Servicer,
the Swap Counterparty or the Depositor delivered to the Trustee pursuant
to this
Agreement believed by the Trustee to be genuine and to have been signed or
presented by the proper party or parties or (E) to pay any premiums or file
any
claims under any Bulk PMI Policy (other than in its role as successor Master
Servicer).
(i) The
Trustee shall not be liable in its individual capacity for an error of judgment
made in good faith by a Responsible Officer or any other officer of the Trustee
unless it shall be proved that the Trustee was negligent in ascertaining
the
pertinent facts.
(j) Notwithstanding
anything in this Agreement to the contrary, the Trustee shall not be liable
for
special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits), even if the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form
of
action.
(k) On
or
before March 15 of each calendar year in which the Depositor is required
to file
reports with respect to the Trust Fund in accordance with the Exchange Act
and
the rules and regulations of the Commission, beginning with March 15, 2007,
the
Trustee shall deliver to the Sponsor, the Master Servicer and the Depositor
a
report regarding its assessment of compliance with the Relevant Servicing
Criteria applicable to the Trustee, as identified on Exhibit O 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. 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 (§
229.1122(d)) to assess 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 Trustee as provided
in Section 6.01(l). In addition, on or before March 15th of each calendar
year
in which the Depositor is required to file reports with respect to the Trust
Fund in accordance with the Exchange Act and the rules and regulations of
the
Commission, beginning with March 15, 2007, the Trustee shall, at its own
expense, furnish or cause to be furnished to the Sponsor and the Depositor
an
assessment of compliance of any Subservicer or Subcontractor with respect
to the
Trustee.
135
(l) On
or
before March 15th of each calendar year for so long as the Depositor is subject
to Exchange Act reporting requirements for the Xxxxxx XS Trust 2006-17,
beginning with March 15, 2007, the Trustee shall, at its own expense, cause
a
firm of independent public accountants (who may also render other services
to
Trustee), which is a member of the American Institute of Certified Public
Accountants, to furnish to the Sponsor, the Master Servicer and the Depositor
a
report to the effect that such firm attests to, and reports on, the assessment
made by such asserting party pursuant to Section 6.01(l) above, which report
shall be made in accordance with standards for attestation engagements issued
or
adopted by the PCAOB. In addition, on or before March 15th of each calendar
year
in which the Depositor is required to file reports with respect to the Trust
Fund in accordance with the Exchange Act and the rules and regulations of
the
Commission, beginning with March 15, 2007, the Trustee shall, at its own
expense, furnish to the Sponsor and the Depositor an accountant’s attestation of
any Subservicer or Subcontractor with respect to the Trustee.
(m) The
Trustee shall give prior written notice to the Sponsor, the Master Servicer
and
the Depositor of the appointment of any Subcontractor by it and a written
description (in form and substance satisfactory to the Sponsor and the
Depositor) of the role and function of each Subcontractor utilized by the
Trustee, specifying (A) the identity of each such Subcontractor and (B) which
elements of the servicing criteria set forth under Item 1122(d) of Regulation
AB
will be addressed in assessments of compliance and accountant’s attestations
provided by each such Subcontractor.
(n) For
as
long as the Depositor is subject to Exchange Act reporting with respect to
the
Trust Fund, the Trustee shall notify the Depositor, the Master Servicer and
the
Sponsor within three (3) Business Days of the related Distribution Date (i)
of
any legal proceedings pending against the Trustee of the type described in
Item
1117 (§ 229.1117) of Regulation AB and (ii) if the Trustee shall become (but
only to the extent not previously disclosed) at any time an affiliate of
any of
the parties listed on Exhibit P hereto, together with a description thereof.
On
or before March 1st
of each
year, the Depositor shall distribute the information in Exhibit P to the
Trustee.
(o) The
Trustee agrees to indemnify the Depositor and the Master Servicer, and their
respective directors, officers, employees and agents and the Trust Fund 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 any failure by the Trustee to comply with the provisions of Subsections
6.01(k), (m) and (n) above; provided,
however,
that in
no event shall the Trustee be liable for any special, consequential, indirect
or
punitive damages pursuant to this Section 6.01(o), even if advised of the
possibility of such damages.
Section
6.02. Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 6.01:
(i) The
Trustee may request and may rely upon, and shall be protected in acting or
refraining from acting upon any resolution, Officer’s Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper
party or parties;
136
(ii) The
Trustee may consult with counsel and any advice of its counsel or Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and
in
accordance with such advice or Opinion of Counsel;
(iii) The
Trustee shall not be personally liable for any action taken, suffered or
omitted
by it in good faith and reasonably believed by it to be authorized or within
the
discretion or rights or powers conferred upon it by this Agreement;
(iv) Unless
an
Event of Default shall have occurred and be continuing, the Trustee shall
not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document (provided
the
same appears regular on its face), unless requested in writing to do so by
any
NIMS Insurer or the Holders of at least a majority in Class Principal Amount
(or
Percentage Interest) of each Class of Certificates or, if such Classes have
been
retired pursuant to a Section 7.01(d) Purchase Event, the LTURI-holder;
provided,
however,
that, if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses from any NIMS Insurer or the Certificateholders, as
applicable, as a condition to proceeding. The reasonable expense thereof
shall
be paid by the party requesting such investigation and if not reimbursed
by the
requesting party shall be reimbursed to the Trustee by the Trust
Fund;
(v) The
Trustee may execute any of the trusts or powers hereunder or perform any
duties
hereunder either directly or by or through agents, custodians or attorneys,
which agents, custodians or attorneys shall have any and all of the rights,
powers, duties and obligations of the Trustee conferred on them by such
appointment, provided that the Trustee shall continue to be responsible for
its
duties and obligations hereunder to the extent provided herein, and provided
further that the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care
by
the Trustee;
(vi) The
Trustee shall not be under any obligation to exercise any of the trusts or
powers vested in it by this Agreement or to institute, conduct or defend
any
litigation hereunder or in relation hereto, in each case at the request,
order
or direction of any of the Certificateholders or any NIMS Insurer pursuant
to
the provisions of this Agreement, unless such Certificateholders or any NIMS
Insurer shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein
or
thereby;
(vii) The
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable
for
other than its negligence or willful misconduct in the performance of such
act;
and
137
(viii) The
Trustee shall not be required to give any bond or surety in respect of the
execution of the Trust Fund created hereby or the powers granted
hereunder.
Section
6.03. Trustee
Not Liable for Certificates.
The
Trustee makes no representations as to the validity or sufficiency of this
Agreement, the Group 1 Cap Agreement, the Certificate Insurance Policy, the
Swap
Agreement or of the Certificates (other than the certificate of authentication
on the Certificates), the Pooling REMIC 1 Regular Interests or the Pooling
REMIC
2 Regular Interests or of any Mortgage Loan, or related document save that
the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation, enforceable against
it
in accordance with its terms except that such enforceability may be subject
to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law. The Trustee shall not be accountable for the use or
application by the Depositor of funds paid to the Depositor in consideration
of
the assignment of the Mortgage Loans to the Trust Fund by the Depositor or
for
the use or application of any funds deposited into the Collection Account,
the
Certificate Account, any Escrow Account or any other fund or account maintained
with respect to the Certificates. The Trustee shall not be responsible for
the
legality or validity of this Agreement or the Swap Agreement or the validity,
priority, perfection or sufficiency of the security for the Certificates,
the
Pooling REMIC 1 Regular Interests or the Pooling REMIC 2 Regular Interests
issued or intended to be issued hereunder. Except as otherwise provided herein,
the Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement.
Section
6.04. Trustee
May Own Certificates.
The
Trustee and any Affiliate or agent of the Trustee in its individual or any
other
capacity may become the owner or pledgee of Certificates, the Pooling REMIC
1
Regular Interests or the Pooling REMIC 2 Regular Interests and may transact
banking and trust business with the other parties hereto and their Affiliates
with the same rights it would have if it were not Trustee or such
agent.
Section
6.05. Eligibility
Requirements for Trustee.
The
Trustee hereunder shall at all times be (i) an institution whose accounts
are
insured by the FDIC, (ii) a corporation or national banking association,
organized and doing business under the laws of any State or the United States
of
America, authorized under such laws to exercise corporate trust powers, having
a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority and (iii) not an
Affiliate of the Master Servicer or any Servicer. If such corporation or
national banking association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such corporation or national banking association shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with provisions of this Section, the Trustee shall
resign
immediately in the manner and with the effect specified in Section
6.06.
138
Section
6.06. Resignation
and Removal of Trustee.
(a) The
Trustee may at any time resign and be discharged from the trust hereby created
by giving written notice thereof to the Depositor, any NIMS Insurer, the
Swap
Counterparty, the Master Servicer and the Certificate Insurer. Upon receiving
such notice of resignation, the Depositor will promptly appoint a successor
trustee acceptable to any NIMS Insurer by written instrument, one copy of
which
instrument shall be delivered to the resigning Trustee, one copy to the
successor trustee and one copy to each of the Master Servicer, the Certificate
Insurer, the Swap Counterparty and any NIMS Insurer. If no successor trustee
shall have been so appointed and shall have accepted appointment within 30
days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If
at any
time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.05 and shall fail to resign after written request
therefor by the Depositor or any NIMS Insurer, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee of its property shall be appointed, or any public officer
shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed
or threatened with respect to the Trust Fund by any state in which the Trustee
or the Trust Fund held by the Trustee is located, (iv) the continued use
of the
Trustee would result in a downgrading of the rating by any Rating Agency
of any
Class of Certificates with a rating (in the case of the Class WF-3-1, Class
WF-4-1 and Class WF-6-1 Certificates, determined without regard to the
Certificate Insurance Policy) or (v)
the
Trustee shall fail to deliver the information or reports required pursuant
to
Section 6.01(k) through (n) hereto,
then
the Depositor, any NIMS Insurer or the Master Servicer shall remove the Trustee
and the Depositor shall appoint a successor trustee acceptable to any NIMS
Insurer and the Master Servicer by written instrument, one copy of which
instrument shall be delivered to the Trustee so removed, one copy each to
the
successor trustee and one copy to the Master Servicer, the Swap Counterparty,
the Certificate Insurer and any NIMS Insurer; provided,
however, that
if
the Trustee is removed for the failure to provide the accountant’s attestation
pursuant to Section 6.01(l) of this Agreement, the Trustee shall reimburse
the
Depositor for reasonable out-of pocket costs incurred by the Depositor in
providing for a successor Trustee.
(c) The
Holders of more than 50% of the Class Principal Amount (or Percentage Interest)
of each Class of Certificates (or any NIMS Insurer in the event of failure
of
the Trustee to perform its obligations hereunder) may at any time upon 30
days’
written notice to the Trustee, the Certificate Insurer and the Depositor
remove
the Trustee by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized (or by any NIMS Insurer), one copy of which
instrument shall be delivered to the Depositor, one copy to the the Certificate
Insurer, one copy to the Trustee and one copy to the Master Servicer, the Swap
Counterparty and any NIMS Insurer; the Depositor shall thereupon appoint
a
successor trustee in accordance with this Section mutually acceptable to
the
Depositor and the Master Servicer and any NIMS Insurer.
139
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall become effective
upon
(i) the payment of all unpaid amounts owed to the Trustee and (ii) the
acceptance of appointment by the successor trustee as provided in Section
6.07.
Section
6.07. Successor
Trustee.
(a) Any
successor trustee appointed as provided in Section 6.06 shall execute,
acknowledge and deliver to the Depositor, the Swap Counterparty, the Master
Servicer and any NIMS Insurer and to its predecessor trustee (i) an instrument
accepting such appointment hereunder and (ii) if such successor trustee is
appointed at any time during the period that a Form 10-K is being filed with
respect to the Trust in accordance with the Exchange Act and the rules and
regulations of the Commission, the certification required pursuant to the
first
sentence of Section 6.01(k) indicating which Servicing Criteria are applicable
to such successor trustee, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with
like
effect as if originally named as trustee herein. The predecessor trustee
(or its
custodian) shall deliver to the successor trustee (or assign to the Trustee
its
interest under each Custodial Agreement, to the extent permitted thereunder)
all
Mortgage Files and documents and statements related to each Mortgage File
held
by it hereunder, and shall duly assign, transfer, deliver and pay over to
the
successor trustee the entire Trust Fund, together with all necessary instruments
of transfer and assignment or other documents properly executed necessary
to
effect such transfer and such of the records or copies thereof maintained
by the
predecessor trustee in the administration hereof as may be requested by the
successor trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Master Servicer and
the
predecessor trustee shall execute and deliver such other instruments and
do such
other things as may reasonably be required to more fully and certainly vest
and
confirm in the successor trustee all such rights, powers, duties and
obligations.
(b) No
successor trustee shall accept appointment as provided in this Section unless
at
the time of such appointment such successor trustee shall be eligible under
the
provisions of Section 6.05.
(c) Upon
acceptance of appointment by a successor trustee as provided in this Section,
the predecessor trustee shall mail notice of the succession of such trustee
hereunder to the Certificate Insurer and to all Holders of Certificates at
their
addresses as shown in the Certificate Register and to any Rating Agency.
The
expenses of such mailing shall be borne by the predecessor trustee.
Section
6.08. Merger
or Consolidation of Trustee.
140
Any
Person into which the Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons succeeding
to the business of the Trustee shall be the successor to the Trustee hereunder,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto, anything herein to the contrary notwithstanding,
provided that such Person shall be eligible under the provisions of Section
6.05. As
a
condition to the succession to the Trustee under this Agreement by any Person
(i) into which the Trustee may be merged or consolidated, or (ii) which may
be
appointed as a successor to the Trustee, the Trustee shall notify the Sponsor,
the Master Servicer and the Depositor, at least 15 calendar days prior to
the
effective date of such succession or appointment, of such succession or
appointment and shall furnish to the Sponsor, the Master Servicer and the
Depositor in writing and in form and substance reasonably satisfactory to
the
Sponsor, the Master Servicer and the Depositor, all information reasonably
necessary for the Trustee to accurately and timely report, pursuant to Section
6.20, the event under Item 6.02 of Form 8-K pursuant to the Exchange Act
(if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
Section
6.09. Appointment
of Co-Trustee, Separate Trustee or Custodian.
(a) Notwithstanding
any other provisions hereof, at any time, the Trustee, the Depositor or the
Certificateholders evidencing more than 50% of the Class Principal Amount
(or
Percentage Interest) of every Class of Certificates shall have the power
from
time to time to appoint one or more Persons, approved by the Trustee and
any
NIMS Insurer, to act either as co-trustees jointly with the Trustee, or as
separate trustees, or as custodians, for the purpose of holding title to,
foreclosing or otherwise taking action with respect to any Mortgage Loan
outside
the state where the Trustee has its principal place of business where such
separate trustee or co-trustee is necessary or advisable (or the Trustee
has
been advised by the Master Servicer that such separate trustee or co-trustee
is
necessary or advisable) under the laws of any state in which a property securing
a Mortgage Loan is located or for the purpose of otherwise conforming to
any
legal requirement, restriction or condition in any state in which a property
securing a Mortgage Loan is located or in any state in which any portion
of the
Trust Fund is located. The separate trustees, co-trustees, or custodians
so
appointed shall be trustees or custodians for the benefit of all the
Certificateholders and shall have such powers, rights and remedies as shall
be
specified in the instrument of appointment; provided,
however,
that no
such appointment shall, or shall be deemed to, constitute the appointee an
agent
of the Trustee. The Trustee shall not be responsible for any action or omission
of any separate trustee, co-trustee or custodian. Notwithstanding
the foregoing,
at any
time during the period that a Form 10-K is being filed with respect to the
Trust
in accordance with the Exchange Act and the rules and regulations of the
Commission, no
such
co-custodian or co-trustee shall be vested with any powers, rights and remedies
under this Agreement unless such party has agreed to comply with all Regulation
AB requirements set forth under this Agreement or the related Custodial
Agreement, as applicable.
(b) Every
separate trustee, co-trustee, and custodian shall, to the extent permitted
by
law, be appointed and act subject to the following provisions and
conditions:
(i) all
powers, duties, obligations and rights conferred upon the Trustee in respect
of
the receipt, custody and payment of moneys shall be exercised solely by the
Trustee;
141
(ii) all
other
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee, co-trustee, or custodian jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed the Trustee shall be incompetent or unqualified to perform
such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust Fund or any portion thereof in
any
such jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no
trustee or custodian hereunder shall be personally liable by reason of any
act
or omission of any other trustee or custodian hereunder; and
(iv) the
Trustee or the Certificateholders evidencing more than 50% of the Aggregate
Voting Interests of the Certificates may at any time accept the resignation
of
or remove any separate trustee, co-trustee or custodian, so appointed by
it or
them, if such resignation or removal does not violate the other terms of
this
Agreement.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee,
co-trustee or custodian shall refer to this Agreement and the conditions
of this
Article VI. Each separate trustee and co-trustee, upon its acceptance of
the
trusts conferred, shall be vested with the estates or property specified
in its
instrument of appointment, either jointly with the Trustee or separately,
as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct
of, affecting the liability of, or affording protection to, the Trustee.
Every
such instrument shall be filed with the Trustee and a copy given to the Master
Servicer and any NIMS Insurer.
(d) Any
separate trustee, co-trustee or custodian may, at any time, constitute the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this
Agreement on its behalf and in its name. If any separate trustee, co-trustee
or
custodian shall die, become incapable of acting, resign or be removed, all
of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) No
separate trustee, co-trustee or custodian hereunder shall be required to
meet
the terms of eligibility as a successor trustee under Section 6.05 hereunder
and
no notice to Certificateholders of the appointment shall be required under
Section 6.07 hereof.
(f) The
Trustee agrees to instruct the co-trustees, if any, to the extent necessary
to
fulfill the Trustee’s obligations hereunder.
(g) The
Trustee shall pay the reasonable compensation of the co-trustees (which
compensation shall not reduce any compensation payable to the Trustee ) and,
if
paid by the Trustee, shall be a reimbursable expense pursuant to Section
6.12.
Section
6.10. Authenticating
Agents.
142
(a) The
Trustee may appoint one or more Authenticating Agents which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. Wherever
reference is made in this Agreement to the authentication of Certificates
by the
Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by
an Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America
or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or
examination by federal or state authorities and acceptable to any NIMS
Insurer.
(b) Any
Person into which any Authenticating Agent may be merged or converted or
with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which any Authenticating Agent shall be a
party,
or any Person succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent without the execution
or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
(c) Any
Authenticating Agent may at any time resign by giving at least 30 days’ advance
written notice of resignation to the Trustee, any NIMS Insurer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, any NIMS Insurer and the Depositor. Upon receiving
a
notice of resignation or upon such a termination, or in case at any time
any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Depositor and any NIMS Insurer and shall mail notice of such appointment
to all
Holders of Certificates. Any successor Authenticating Agent upon acceptance
of
its appointment hereunder shall become vested with all the rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect
as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10.
No
Authenticating Agent shall have responsibility or liability for any action
taken
by it as such at the direction of the Trustee. Any Authenticating Agent shall
be
entitled to reasonable compensation for its services and, if paid by the
Trustee, it shall be a reimbursable expense pursuant to Section
6.12.
Section
6.11. Indemnification
of Trustee.
The
Trustee, including in its individual capacity, and its respective directors,
officers, employees and agents shall be entitled to indemnification from
the
Trust Fund for any loss, liability or expense incurred in connection with
any
legal proceeding or incurred without negligence or willful misconduct on
their
part, arising out of, or in connection with, the acceptance or administration
of
the trusts created hereunder or in connection with the performance of their
duties hereunder or under the Certificate Insurance Policy, the MGIC Letter
Agreement, the PMI Letter Agreement, the Swap Agreement, the Group 1 Cap
Agreement, the Mortgage Loan Sale Agreement, any Transfer Agreement, any
Servicing Agreement or any Custodial Agreement, including any applicable
fees
and expenses payable pursuant to Section 6.12 and the costs and expenses
of
defending themselves against any claim in connection with the exercise or
performance of any of their powers or duties hereunder, provided
that:
143
(i) with
respect to any such claim, the Trustee shall have given the Depositor, the
Master Servicer and the Holders written notice thereof promptly after the
Trustee shall have knowledge thereof; provided that failure of the Trustee
to
provide such written notice shall not relieve the Trust Fund of the obligation
to indemnify the Trustee under this Section 6.11;
(ii) while
maintaining control over its own defense, the Trustee shall cooperate and
consult fully with the Depositor in preparing such defense; and
(iii) notwithstanding
anything to the contrary in this Section 6.11, the Trust Fund shall not be
liable for settlement of any such claim by the Trustee entered into without
the
prior consent of the Depositor, which consent shall not be unreasonably
withheld.
The
Trustee shall be further indemnified by the Seller for and held harmless
against, any loss, liability or expense arising out of, or in connection
with,
the provisions set forth in the fourth paragraph of Section 2.01(a) hereof,
including, without limitation, all costs, liabilities and expenses (including
reasonable legal fees and expenses) of investigating and defending itself
against any claim, action or proceeding, pending or threatened, relating
to the
provisions of such paragraph.
The
provisions of this Section 6.11 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
Section
6.12. Fees
and Expenses of Trustee and Custodians.
The
Trustee shall be entitled to (i) receive, and is authorized to pay itself,
the
amount of income or gain earned from investment of or other earnings on funds
in
the Certificate Account and (ii) reimbursement of all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with
this Agreement (including fees and expenses of its counsel and all persons
not
regularly in its employment and any amounts described in Section 10.01 to
which
the Trustee is entitled as provided therein), except for expenses, disbursements
and advances that either (i) do not constitute “unanticipated expenses” within
the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii) or (ii) arise
from its negligence, bad faith or willful misconduct. The Trustee shall be
entitled to reimbursement of its reasonable expenses and disbursements incurred
or made in connection with a Section 7.01(d) Purchase Event in accordance
with
Section 4.04(b). Each Custodian shall receive compensation and indemnification
amounts or payment of its expenses under the related Custodial Agreement
as
provided therein; provided that, to the extent required under Section 6 or
Section 20 of the Custodial Agreement, the Trustee is hereby authorized to
pay
such compensation or indemnification amounts from amounts on deposit in the
Certificate Account prior to any distributions to Certificateholders pursuant
to
Section 5.02 hereof.
Section
6.13. Collection
of Monies.
144
Except
as
otherwise expressly provided in this Agreement, the Trustee may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee pursuant to this Agreement. The Trustee
shall hold all such money and property received by it as part of the Trust
Fund
and shall distribute it as provided in this Agreement. If the Trustee shall
not
have timely received amounts to be remitted with respect to the Mortgage
Loans
from the Master Servicer, the Trustee shall request the Master Servicer to
make
such distribution as promptly as practicable or legally permitted. If the
Trustee shall subsequently receive any such amount, it may withdraw such
request.
Section
6.14. Events
of Default; Trustee To Act; Appointment of Successor.
(a) The
occurrence of any one or more of the following events shall constitute an
“Event
of Default”:
(i) Any
failure by the Master Servicer to furnish to the Trustee the Mortgage Loan
data
sufficient to prepare the reports described in Section 4.03(a) which continues
unremedied for a period of one (1) Business Day after the date upon which
written notice of such failure shall have been given to such Master Servicer
by
the Trustee or to such Master Servicer and the Trustee by the Holders of
not
less than 25% of the Class Principal Amount or Class Notional Amount of each
Class of Certificates affected thereby; or
(ii) Any
failure on the part of the Master Servicer duly to observe or perform in
any
material respect any other of the covenants or agreements on the part of
the
Master Servicer contained in this Agreement which continues unremedied for
a
period of 30 days (or 15 days, in the case of failure to maintain any Insurance
Policy required to be maintained pursuant to this Agreement) after the date
on
which written notice of such failure, requiring the same to be remedied,
shall
have been given to the Master Servicer by the Trustee or to the Master Servicer
and the Trustee by the Holders of not less than 25% of the Class Principal
Amount (or Class Notional Amount) of each Class of Certificates affected
thereby
or by any NIMS Insurer; or
(iii) A
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer, and such decree or order shall
have
remained in force undischarged or unstayed for a period of 60 days or any
Rating
Agency reduces or withdraws or threatens to reduce or withdraw the rating
of the
Certificates because of the financial condition or loan servicing capability
of
such Master Servicer; or
(iv) The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities, voluntary liquidation or similar proceedings of or relating
to the
Master Servicer or of or relating to all or substantially all of its property;
or
(v) The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its
creditors or voluntarily suspend payment of its obligations; or
145
(vi) The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall
permit
another entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a successor servicer as specified in Section
9.28
hereof; or
(vii) If
a
representation or warranty set forth in Section 9.14 hereof shall prove to
be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Certificateholders, and the circumstance or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 30 days after the date on
which
written notice of such incorrect representation or warranty shall have been
given to the Master Servicer by the Trustee or to the Master Servicer and
the
Trustee by the Holders of more than 50% of the Aggregate Voting Interests
of the
Certificates or by any NIMS Insurer; or
(viii) A
sale or
pledge of any of the rights of the Master Servicer hereunder or an assignment
of
this Agreement by the Master Servicer or a delegation of the rights or duties
of
the Master Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the Trustee,
any
NIMS Insurer and Certificateholders holding more than 50% of the Aggregate
Voting Interests of the Certificates; or
(ix) The
Master Servicer has notice or actual knowledge that any Servicer at any time
is
not either a Xxxxxx Xxx- or Xxxxxxx Mac- approved Seller/Servicer, and the
Master Servicer has not terminated the rights and obligations of such Servicer
under the applicable Servicing Agreement and replaced such Servicer with
a
Xxxxxx Mae- or Xxxxxxx Mac-approved servicer within 60 days of the date the
Master Servicer receives such notice or actual knowledge; or
(x) Any
failure of the Master Servicer to remit to the Trustee any payment required
to
be made to the Trustee for the benefit of Certificateholders under the terms
of
this Agreement, including any Advance, on any Master Servicer Remittance
Date,
which failure continues unremedied for a period of one Business Day (but
in no
event later than 12:00 p.m. New York time on the related Distribution Date)
after the date upon which such written notice of such failure shall have
been
given to the Master Servicer by the Trustee.
146
If
an
Event of Default described in clauses (i) through (ix) of this Section 6.14
shall occur, then, in each and every case, subject to applicable law, so
long as
any such Event of Default shall not have been remedied within any period
of time
prescribed by this Section, the Trustee, by notice in writing to the Master
Servicer may, and shall, if so directed by Certificateholders evidencing
more
than 50% of the Class Principal Amount (or Class Notional Amount) of each
Class
of Certificates (subject to the prior written consent of the Certificate
Insurer), terminate all of the rights and obligations of the Master Servicer
hereunder and in and to the Mortgage Loans and the proceeds thereof. If an
Event
of Default described in clause (x) of this Section 6.14 shall occur, then,
in
each and every case, subject to applicable law, so long as such Event of
Default
shall not have been remedied within the time period prescribed by clause
(x) of
this Section 6.14, the Trustee, by notice in writing to the Master Servicer,
shall promptly terminate all the rights and obligations of the Master Servicer
hereunder and in and to the Mortgage Loans and the proceeds thereof. On or
after
the receipt by the Master Servicer of such written notice, all authority
and
power of the Master Servicer, and only in its capacity as Master Servicer
under
this Agreement, whether with respect to the Mortgage Loans or otherwise,
shall
pass to and be vested in the Trustee and pursuant to and under the terms
of this
Agreement; provided,
however,
the
parties acknowledge that notwithstanding the preceding sentence, there may
be a
transition period, not to exceed 90 days, in order to effect the transfer
of the
Master Servicer’s obligations to the Trustee; provided,
further,
the
obligation to make Advances by the Trustee, as successor master servicer,
shall
be effective upon the Trustee providing notice of termination to the Master
Servicer pursuant to this Section 6.14. The Trustee is hereby authorized
and
empowered to execute and deliver, on behalf of the defaulting Master Servicer
as
attorney-in-fact or otherwise, any and all documents and other instruments,
and
to do or accomplish all other acts or things necessary or appropriate to
effect
the purposes of such notice of termination, whether to complete the transfer
and
endorsement or assignment of the Mortgage Loans and related documents or
otherwise. The defaulting Master Servicer agrees to cooperate with the Trustee
in effecting the termination of the defaulting Master Servicer’s
responsibilities and rights hereunder as Master Servicer including, without
limitation, notifying Servicers of the assignment of the master servicing
function and providing the Trustee or its designee all documents and records
in
electronic or other form reasonably requested by it to enable the Trustee
or its
designee to assume the defaulting Master Servicer’s functions hereunder and the
transfer to the Trustee for administration by it of all amounts which shall
at
the time be or should have been deposited by the defaulting Master Servicer
in
the Collection Account maintained by such defaulting Master Servicer and
any
other account or fund maintained with respect to the Certificates or thereafter
received with respect to the Mortgage Loans. The Master Servicer being
terminated shall bear all costs of a master servicing transfer, including
but
not limited to those of the Trustee reasonably allocable to specific employees
and overhead, legal fees and expenses, accounting and financial consulting
fees
and expenses, and costs of amending the Agreement, if necessary.
The
Trustee shall be entitled to be reimbursed from the Master Servicer (or by
the
Trust Fund, if the Master Servicer is unable to fulfill its obligations
hereunder) for all costs associated with the transfer of servicing from the
predecessor Master Servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all servicing data and
the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing
data or
otherwise to enable the Trustee to master service the Mortgage Loans properly
and effectively. If the terminated Master Servicer does not pay such
reimbursement within thirty (30) days of its receipt of an invoice therefor,
such reimbursement shall be an expense of the Trust Fund and the Trustee
shall
be entitled to withdraw such reimbursement from amounts on deposit in the
Certificate Account pursuant to Section 4.04(b); provided that the terminated
Master Servicer shall reimburse the Trust Fund for any such expense incurred
by
the Trust Fund; and provided,
further,
that the
Trustee shall decide whether and to what extent it is in the best interest
of
the Certificateholders to pursue any remedy against any party obligated to
make
such reimbursement.
147
Notwithstanding
the termination of its activities as Master Servicer, each terminated Master
Servicer shall continue to be entitled to reimbursement to the extent provided
in Section 4.02(i), (ii), (iii), (v), (vii) and (ix) to the extent such
reimbursement relates to the period prior to such Master Servicer’s
termination.
If
any
Event of Default shall occur of which a Responsible Officer of the Trustee
has
actual knowledge, the Trustee, shall promptly notify the Certificate Insurer,
the Swap Counterparty, any NIMS Insurer and each Rating Agency of the nature
and
extent of such Event of Default. The Trustee shall immediately give written
notice to the Master Servicer upon the Master Servicer’s failure to remit funds
on the Master Servicer Remittance Date.
(b) Within
90
days of the time the Master Servicer receives a notice of termination from
the
Trustee pursuant to Section 6.14(a) or the Trustee receives the resignation
of
the Master Servicer evidenced by an Opinion of Counsel pursuant to Section
9.28,
the Trustee, unless another master servicer shall have been appointed, shall
be
the successor in all respects to the Master Servicer in its capacity as such
under this Agreement and the transactions set forth or provided for herein
and
shall have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on
the
Master Servicer hereunder, including the obligation to make Advances;
provided,
however,
that any
failure to perform such duties or responsibilities caused by the Master
Servicer’s failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In addition, the Trustee
shall
have no responsibility for any act or omission of the Master Servicer prior
to
the issuance of any notice of termination and within a period of time not
to
exceed 90 days after the issuance of written notice of termination pursuant
to
Section 6.14(a) or Section 9.28 or for any breach of representation or warranty
by such predecessor Master Servicer. The Trustee shall have no liability
relating to the representations and warranties of the Master Servicer set
forth
in Section 9.14. In the Trustee’s capacity as such successor, the Trustee shall
have the same limitations on liability herein granted to the Master Servicer.
As
compensation therefor, the Trustee shall be entitled to receive all compensation
payable to the Master Servicer under this Agreement, including the Master
Servicing Fee.
(c) Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so act,
or
shall, if it is unable to so act, petition a court of competent jurisdiction
to
appoint, or appoint on its own behalf any established housing and home finance
institution servicer, master servicer, servicing or mortgage servicing
institution having a net worth of not less than $15,000,000 and meeting such
other standards for a successor master servicer as are set forth in this
Agreement, as the successor to such Master Servicer in the assumption of
all of
the responsibilities, duties or liabilities of the Master Servicer hereunder.
Any entity designated by the Trustee as a successor master servicer may be
an
Affiliate of the Trustee; provided,
however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer, the Trustee in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Trust Fund for such Affiliate’s actions and omissions in performing its
duties hereunder. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor
out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted to the Master Servicer
hereunder. The Trustee and such successor shall take such actions, consistent
with this Agreement, as shall be necessary to effectuate any such succession
and
may make other arrangements with respect to the servicing to be conducted
hereunder which are not inconsistent herewith. The Master Servicer shall
cooperate with the Trustee and any successor master servicer in effecting
the
termination of the Master Servicer’s responsibilities and rights hereunder
including, without limitation, notifying Mortgagors of the assignment of
the
master servicing functions and providing the Trustee and successor master
servicer, as applicable, all documents and records in electronic or other
form
reasonably requested by it to enable it to assume the Master Servicer’s
functions hereunder and the transfer to the Trustee or such successor master
servicer, as applicable, all amounts which shall at the time be or should
have
been deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates, the Pooling
REMIC 1
Regular Interests or the Pooling REMIC 2 Regular Interests or thereafter
be
received with respect to the Mortgage Loans. 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 caused by (i) the failure of the Master Servicer to deliver,
or any delay in delivering, cash, documents or records to it, (ii) the failure
of the Master Servicer to cooperate as required by this Agreement, (iii)
the
failure of the Master Servicer to deliver the Mortgage Loan data to the Trustee
as required by this Agreement or (iv) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer.
148
Section
6.15. Additional
Remedies of Trustee Upon Event of Default.
During
the continuance of any Event of Default, so long as such Event of Default
shall
not have been remedied, the Trustee, in addition to the rights specified
in
Section 6.14, shall have the right, in its own name and as trustee of an
express
trust, to take all actions now or hereafter existing at law, in equity or
by
statute to enforce its rights and remedies and to protect the interests,
and
enforce the rights and remedies, of any NIMS Insurer, the Certificateholders
and
the Certificate Insurer (including the institution and prosecution of all
judicial, administrative and other proceedings and the filings of proofs
of
claim and debt in connection therewith). Except as otherwise expressly provided
in this Agreement, no remedy provided for by this Agreement shall be exclusive
of any other remedy, and each and every remedy shall be cumulative and in
addition to any other remedy, and no delay or omission to exercise any right
or
remedy shall impair any such right or remedy or shall be deemed to be a waiver
of any Event of Default.
Section
6.16. Waiver
of Defaults.
More
than
50% of the Aggregate Voting Interests of Certificateholders (with the consent
of
any NIMS Insurer) may waive any default or Event of Default by the Master
Servicer in the performance of its obligations hereunder, except that a default
in the making of any required deposit to the Certificate Account that would
result in a failure of the Trustee to make any required payment of principal
of
or interest on the Certificates may only be waived with the consent of 100%
of
the affected Certificateholders and with the consent of any NIMS Insurer.
Upon
any such waiver of a past default, such default shall cease to exist, and
any
Event of Default arising therefrom shall be deemed to have been remedied
for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
149
Section
6.17. Notification
to Holders.
Upon
termination of the Master Servicer or appointment of a successor to the Master
Servicer, in each case as provided herein, the Trustee shall promptly mail
notice thereof by first class mail to the the Certificate Insurer, the
Certificateholders at their respective addresses appearing on the Certificate
Register, any NIMS Insurer and the Swap Counterparty. The Trustee shall also,
within 45 days after the occurrence of any Event of Default known to a
Responsible Officer of the Trustee, give written notice thereof to any NIMS
Insurer and the Certificateholders, unless such Event of Default shall have
been
cured or waived prior to the issuance of such notice and within such 45-day
period.
Section
6.18. Directions
by Certificateholders and Duties of Trustee During Event of
Default.
Subject
to the provisions of Section 8.01 hereof, during the continuance of any Event
of
Default, Holders of Certificates evidencing not less than 25% of the Class
Principal Amount (or Percentage Interest) of each Class of Certificates affected
thereby may, with the consent of any NIMS Insurer, direct the time, method
and
place of conducting any proceeding for any remedy available to the Trustee,
or
exercising any trust or power conferred upon the Trustee, under this Agreement;
provided,
however,
that the
Trustee shall be under no obligation to pursue any such remedy, or to exercise
any of the trusts or powers vested in it by this Agreement (including, without
limitation, (i) the conducting or defending of any administrative action
or
litigation hereunder or in relation hereto and (ii) the terminating of the
Master Servicer or any successor master servicer from its rights and duties
as
master servicer hereunder) at the request, order or direction of any of the
Certificateholders, or any NIMS Insurer, unless such Certificateholders,
or any
NIMS Insurer, shall have offered to the Trustee reasonable security or indemnity
against the cost, expenses and liabilities which may be incurred therein
or
thereby; and, provided further, that, subject to the provisions of Section
8.01,
the Trustee shall have the right to decline to follow any such direction
if the
Trustee, in accordance with an Opinion of Counsel, determines that the action
or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith
determines that the action or proceeding so directed would involve it in
personal liability for which it is not indemnified to its satisfaction or
be
unjustly prejudicial to the non-assenting Certificateholders.
Section
6.19. Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
In
the
event that a Responsible Officer of the Trustee shall have actual knowledge
of
any action or inaction of the Master Servicer that would become an Event
of
Default upon the Master Servicer’s failure to remedy the same after notice, the
Trustee shall give notice thereof to the Master Servicer and the Swap
Counterparty. For all purposes of this Agreement, in the absence of actual
knowledge by a Responsible Officer of the Trustee, the Trustee shall not
be
deemed to have knowledge of any failure of the Master Servicer or any other
Event of Default unless notified in writing by the Depositor, the Master
Servicer, the Swap Counterparty or the Certificateholders.
Section
6.20. Preparation
of Tax Returns and Reports to the Commission.
150
(a) The
Trustee shall prepare or cause to be prepared on behalf of the Trust Fund,
based
upon information calculated in accordance with this Agreement pursuant to
instructions given by the Depositor, and the Trustee shall file federal tax
returns, all in accordance with Article X hereof. The Trustee shall prepare
and
file required 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 Trustee’s possession). The Trustee
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 Trustee 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 Trustee 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 Trustee) to the extent required
by
applicable law. The Master Servicer shall indemnify the Trustee for any
liability of or assessment against the Trustee resulting from any error in
any
of such tax or information returns directly resulting from errors in the
information provided by such Master Servicer.
(b) The
Trustee shall prepare and file with the Internal Revenue Service (“IRS”), on
behalf of each REMIC created hereby, an application on IRS Form SS-4. The
Trustee, upon receipt from the IRS of the Notice of Taxpayer Identification
Number Assigned for each REMIC, shall promptly forward copies of such notices
to
the Master Servicer, the Trustee and the Depositor. The Trustee will file
an IRS
Form 8811. The Trustee shall have no obligation to verify the information
in any
form 8811 or form SS-4 filings.
(c) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, within 10 days (or, if applicable, within such shorter
period of time as is required under the rules of the Commission) as in effect
from time to time (the “Rules”)) following each Distribution Date, the Trustee
shall, in accordance with industry standards and the Rules, prepare and file
with the Commission via the Electronic Data Gathering and Retrieval System
(“XXXXX”) the reports listed in subsections (d) through (f) of this Section 6.20
in respect of the Trust Fund as and to the extent required under the Exchange
Act each of which reports and any amendment thereof shall be signed by the
Exchange Act Signing Party.
(d) Reports
Filed on Form 10-D.
(i) Within
15
days following each Distribution Date (or such later date as may be permissible
due to an extension of the filing deadline under the Exchange Act), the Trustee
will prepare and file a distribution report on Form 10-D (the “Distribution
Report”) with respect to the Trust Fund, which Distribution Report shall include
a copy of the Distribution Date Statement prepared by the Trustee in respect
of
the related Distribution Date detailing all applicable data elements specified
in Item 1121(a) of Regulation AB, other than those data elements specified
in
Item 1121(a)(11), (12) and (14); provided, that, the Trustee shall have received
from the Depositor, the Sponsor, the Master Servicer, any Servicer, any
Custodian, any Cap Counterparty, any Swap Counterparty or any Subservicer
or
Subcontractor therefor, no later than three Business Days after the related
Distribution Date, the following additional information, data, and materials,
in
a form suitable for conversion to the format required for filing with the
Commission via XXXXX, required to be included in the Distribution Report
on Form
10-D for such Distribution Date:
151
(A) Item
1 -
Distribution and Pool Performance Information (each of the data elements
specified in Item 1121(a)(11), (12) and (14) of Regulation AB);
(B) Item
2 -
Legal Proceedings (information required by Item 1117 of Regulation
AB);
(C) Item
3 -
Sale of Securities and Use of Proceeds (information required by Item 2 of
Part
II of Form 10-Q);
(D) Item
4 -
Defaults Upon Senior Securities (information required by Item 3 of Part II
of
Form 10-Q);
(E) Item
5 -
Submission of Matters to a Vote of Security Holders (information required
by
Item 4 of Part II of Form 10-Q);
(F) Item
6 -
Significant Obligors of Pool Assets (information required by Item 1112(b)
of
Regulation AB);
(G) Item
7 -
Significant Enhancement Provider Information (information required by Items
1114(b)(2) and 1115(b) of Regulation AB);
(H) Item
8 -
Other Information (all other information required to be disclosed on Form
8-K
during the period covered by the report and not yet reported); and
(I) Item
9 -
Exhibits (all exhibits required to be filed by Form 10-D and Item 601 of
Regulation S-K other than the Distribution Date Statement to be provided
by the
Trustee).
(ii) After
preparing the Form 10-D, the Trustee shall forward electronically a draft
copy
of the Form 10-D to the Exchange Act Signing Party for review and approval.
If
the Master Servicer is the Exchange Act Signing Party and the Form 10-D includes
Additional Form 10-D Disclosure, then the Form 10-D shall also be electronically
distributed to the Depositor for review and approval. No later than two Business
Days prior to the 15th
calendar
day after the related Distribution Date, a duly authorized officer of the
Exchange Act Signing Party shall sign the Form 10-D and return an electronic
or
fax copy of such signed Form 10-D (with an original executed hard copy to
follow
by overnight mail) to the Trustee. If a Form 10-D cannot be filed on time
or if
a previously filed Form 10-D needs to be amended, the Trustee will follow
the
procedures set forth in subsection (g)(ii) of this Section 6.20. Promptly
(but
no later than one Business Day) after filing with the Commission, the Trustee
will make available on its internet website a final executed copy of each
Form
10-D filed by the Trustee. Each party to this Agreement acknowledges that
the
performance by the Trustee of its duties under this Section 6.20(d) related
to
the timely preparation and filing of Form 10-D is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under this Section 6.20(d). The Trustee shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 10-D, where such failure results from
the
Trustee’s inability or failure to obtain or receive, on a timely basis, any
information from any other party hereto needed to prepare or file such Form
10-D, not resulting from its own negligence, bad faith or willful misconduct.
The Trustee shall not be responsible (1) for the content of any of the
information provided pursuant to clauses (d)(i)(A) - (I) above (unless such
item
is provided by and specific to the Trustee, in which case the Trustee will
be
responsible for the content of such information; provided
that
such
information is not revised without the prior consent of the Trustee),
(2)
for determining whether any such information is required to be included in
any
Form 10-D, (3) for reformatting any information that is not in a form suitable
for conversion to the format required for filing with the Commission via
XXXXX
so that it is able to be filed on XXXXX or (4) for the failure to include
any
information if it is not provided to the Trustee on a timely basis (unless
such
item is specific to the Trustee, in which case the Trustee will be responsible
for the failure to include such information, unless
such information is not included in the final Form 10-D without the consent
of
the Trustee).
152
(e) Reports
Filed on Form 10-K.
(i) On
or
prior to the 90th
day
after the end of each fiscal year of the Trust Fund or such earlier date
as may
be required by the Exchange Act (the “10-K Filing Deadline”) (it being
understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2007, and, unless and until a Form 15 Suspension
Notification shall have been filed, the Trustee shall prepare and file (but
will
not execute) a Form 10-K in respect of the Trust Fund, which shall include
the
certification required pursuant to Rule 13a-14 under the Exchange Act (the
“Form
10-K Certification”) signed by an appropriate party or parties (which Form 10-K
Certification the Trustee shall not be required to prepare or sign) and such
other information as is required by the Rules; provided,
that,
the Trustee shall have received from the Depositor, each Servicer, each
Custodian, each Additional Servicer, any Servicing Function Participant and
the
Master Servicer (each, a “Reporting Servicer”), no later than March 15th of each
calendar year prior to the filing deadline for such Annual Report, all
information, data, assessments of compliance, accountant’s attestations and
exhibits required to be provided or filed with such Annual Report including
information, data, assessments of compliance, accountant’s attestations and
exhibits required to be provided in connection with the following Items and
other filing requirements of Form 10-K:
(A) Item
9B -
Other Information (information required to be reported on Form 8-K in the
fourth
quarter but not reported);
(B) Item
15 -
Exhibits and Financial Statement Schedules (including all exhibits required
to
be filed pursuant to Item 601 of Regulation S-K under the Exchange Act other
than the certification specified in Item 601(b)(31)(ii) of Regulation S-K
and
the Assessment of Compliance, Attestation Report, and Compliance Statement
specified in Item 601(b)(33), (34) and (35) of Regulation S-K with respect
to
those Servicing Criteria as to which the Trustee is the Item 1122 Responsible
Party);
153
(C) Significant
Obligor Financial Information (Item 1112(b) of Regulation AB);
(D) Significant
Enhancement Provider Financial Information (Items 1114(b)(2) and 1115(b)
of
Regulation AB);
(E) Legal
Proceedings (Item 1117 of Regulation AB);
(F) Affiliations
and Certain Relationships and Related; Transactions (Item 1119 of Regulation
AB);
(G) Compliance
with Applicable Servicing Criteria (Item 1122 of Regulation AB);
and
(H) Servicer
Compliance Statement (Item 1123 of Regulation AB).
(ii) After
preparing the Form 10-K, the Trustee shall forward electronically a draft
copy
of the Form 10-K to the Exchange
Act Signing Party for review and approval. If the Master
Servicer is
the
Exchange Act Signing Party and the Form 10-K includes Additional Form 10-K
Disclosure, then the Form 10-K shall also be electronically distributed to
the
Depositor for review and approval. No later than the close of business New
York
City time on the 4th Business Day prior to the 10-K Filing Deadline, a senior
officer of the Exchange
Act Signing Party
shall
sign the Form 10-K and return an electronic or fax copy of such signed Form
10-K
(with an original executed hard copy to follow by overnight mail) to the
Trustee.
If a
Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be
amended, the Trustee will follow the procedures set forth in subsection (g)
of
this Section 6.20. Promptly (but no later than one Business Day) after filing
with the Commission, the Trustee will make available on its internet website
a
final executed copy of each Form 10-K filed by the Trustee. The parties to
this
Agreement acknowledge that the performance by the Trustee of its duties under
this Section 6.20(e) related to the timely preparation and filing of Form
10-K
is contingent upon such parties (and any Additional Servicer or Servicing
Function Participant) strictly observing all applicable deadlines in the
performance of their duties under this Section 6.20(e), Section 9.25(a),
Section
9.25(b) and Section 9.26. The Trustee shall have no liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 10-K, where such failure results
from the Trustee’s inability or failure to obtain or receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-K, not resulting from its own negligence,
bad
faith or willful misconduct. The Trustee shall not be responsible (1) for
the
content of any of the information provided pursuant to clauses (e)(i)(A)
- (H)
above (unless such item is provided by and specific to the Trustee, in which
case the Trustee will be responsible for the content of such information;
provided
that
such
information is not revised without the prior consent of the Trustee),
(2)
for determining whether any such information is required to be included in
any
Form 10-K, (3) for reformatting any information that is not in a form suitable
for conversion to the format required for filing with the Commission via
XXXXX
so that it is able to be filed on XXXXX or (4) for the failure to include
any
information if it is not provided to the Trustee on a timely basis (unless
such
item is specific to the Trustee, in which case the Trustee will be responsible
for the failure to include such information, unless
such information is not included in the final Form 10-K without the consent
of
the Trustee).
154
(iii) Unless
a
Form 15 Suspension Notification with respect to the Trust Fund has been filed,
if so requested, on or prior to March 15th
of each
year, beginning in March 2007, the Trustee shall sign a certification in
the
form attached hereto as Exhibit M (the “Back-up Certification”) for the benefit
of the Exchange Act Signing Party and the Person who signs the Form 10-K
Certification (the “Certifying Party”) regarding certain aspects of such Form
10-K Certification, upon which the Exchange Act Signing Party and the Certifying
Party can reasonably rely (provided,
however,
that the
Trustee shall not be required to undertake an analysis of, and shall have
no
responsibility for, any financial information, the accountant’s report,
certification or other materials contained therein, except for those
computations prepared by the Trustee and reflected in the distribution report).
Nothing in this Section 6.20(i) shall relieve the Trustee of its responsibility
for the matters as to which it is certifying in the form attached hereto
as
Exhibit M.
(iv) Each
person (including their officers or directors) that signs any Form 10-K
Certification shall be entitled to indemnification from the Trust Fund for
any
liability or expense incurred by it in connection with such certification,
other
than any liability or expense attributable to such Person’s own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal
of such
Person.
(f) Reports
Filed on Form 8-K.
(i) Within
four Business Days after the occurrence of an event requiring disclosure
on Form
8-K (each such event, a “Reportable Event”), at the written direction and
expense of the Depositor, the Trustee shall prepare and file Current Reports
on
Form 8-K in respect of the Trust Fund, as required by the Exchange Act;
provided,
that,
the Depositor shall have timely notified the Trustee of an item reportable
on a
Current Report on Form 8-K and shall have delivered to the Trustee no later
than
two Business Days prior to the filing deadline for such Current Report, all
information, data, and exhibits required to be provided or filed with such
Current Report, including, particularly, information, data and exhibits,
in a
form suitable for conversion to the format required for filing with the
Commission via XXXXX, required to be provided in connection with the following
Items of Form 8-K:
(A) Item
1.01
- Entry into a Material Definitive Agreement;
(B) Item
1.02
- Termination of a Material Definitive Agreement;
(C) Item
1.03
- Bankruptcy or Receivership;
155
(D) Item
2.04
- Triggering Events that Accelerate or Increase a Direct Financial Obligation
or
an Obligation under an Off-Balance Sheet Arrangement;
(E) Item
3.03
- Material Modification to Rights of Security Holders;
(F) Item
5.03
- Amendments of Articles of Incorporation or Bylaws; Change of Fiscal
Year
(G) Item
6.02
- Change in Servicer or Trustee;
(H) Item
6.03
- Change in Credit Enhancement or Other External Support;
(I) Item
6.04
- Failure to Make a Required Distribution; and
(J) Item
6.05
- Securities Act Updating Disclosure.
(ii) After
preparing the Form 8-K, the Trustee shall forward electronically, no later
than
Noon New York City time on the 3rd
Business
Day after the Reportable Event, a draft copy of the Form 8-K to the Exchange
Act
Signing Party for review and approval. If the Master Servicer is the Exchange
Act Signing Party, then the Form 8-K shall also be electronically distributed
to
the Depositor for review and approval. No later than 1 p.m. New York City
time
on the 4th
Business
Day after the Reportable Event, a duly authorized officer of the Exchange
Act
Signing Party shall sign the Form 8-K and return an electronic or fax copy
of
such signed Form 8-K (with an original executed hard copy to follow by overnight
mail) to the Trustee. If a Form 8-K cannot be filed on time or if a previously
filed Form 8-K needs to be amended, the Trustee will follow the procedures
set
forth in subsection (g) of this Section 6.20. Promptly (but no later than
one
Business Day) after filing with the Commission, the Trustee will make available
on its internet website a final executed copy of each Form 8-K filed by the
Trustee. The parties to this Agreement acknowledge that the performance by
the
Trustee of its duties under this Section 6.20(f) related to the timely
preparation and filing of Form 8-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Section 6.20(f). The Trustee shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare
and/or timely file such Form 8-K, where such failure results from the Trustee’s
inability or failure to obtain or receive, on a timely basis, any information
from any other party hereto needed to prepare or file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct. The
Trustee shall not be responsible (1) for the content of any of the information
provided pursuant to clauses (f)(i)(A) - (J) above (unless such item is provided
by and specific to the Trustee, in which case the Trustee will be responsible
for the content of such information; provided
that
such
information is not revised without the prior consent of the Trustee),
(2)
for determining what information is required to be filed on a Form 8-K in
connection with the transactions contemplated by this Agreement (unless such
information is specific to the Trustee, in which case the Trustee will be
responsible for making such a determination, unless
such information is not included in the final Form 8-K without the consent
of
the Trustee),
(3)
for reformatting any information that is not in a form suitable for conversion
to the format required for filing with the Commission via XXXXX so that it
is
able to be filed on XXXXX or (4) for any late filing of a Form 8-K in the
event
that it does not receive all information, data, signatures and exhibits required
to be provided or filed on or prior to the second Business Day prior to the
applicable filing deadline.
156
(g) Delisting;
Amendments; Late Filings.
(i) Prior
to
January 30 of the first year in which the Trustee is able to do so under
applicable law, unless otherwise directed by the Depositor in writing, the
Trustee shall prepare and file a Form 15 relating to the automatic suspension
of
reporting in respect of the Trust Fund under the Exchange Act.
(ii) In
the
event that the Trustee becomes aware that it will be unable to timely file
with
the Commission all or any required portion of any Forms 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 Trustee will
immediately notify the Depositor. In the case of Forms 10-D and 10-K, the
parties to this Agreement and each Servicer will cooperate to prepare and
file a
Form 12b-25 and Forms 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25
of the Exchange Act. In the case of Form 8-K, the Trustee will, upon receipt
of
all required Form 8-K Disclosure Information and upon the approval and direction
of the Depositor, include such disclosure information on the next Form 10-D.
In
the event that any previously filed Forms 8-K, 10-D or 10-K needs to be amended,
the Trustee will notify the Depositor and each Servicer and such parties
will
cooperate to prepare any necessary Forms 8-K/A, 10-D/A or 10-K/A. Any Form
15,
Form 12b-25 or any amendment to Forms 8-K, 10-D or 10-K shall be signed by
a
senior officer of the Exchange Act Signing Party. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this
Section
6.20(g) related to the timely preparation 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. The Trustee shall have no liability
for any loss, expense, damage or claim arising out of or with respect to
any
failure to properly prepare and/or timely file 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
Trustee’s inability or failure to obtain or receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or
10-K,
not resulting from its own negligence, bad faith or willful
misconduct.
(h) The
Trustee, with the prior consent of the Depositor, may include in any Exchange
Act report all relevant information, data, and exhibits as the Trustee may
receive in connection with such report irrespective of any provision that
may
permit the exclusion of such material. For example, the Trustee, with the
prior
consent of the Depositor, may file all Assessments of Compliance, Attestation
Reports and Compliance Statements timely received from any Item 1122 Responsible
Party irrespective of any applicable minimum pool asset percentage requirement
for disclosure related to such Item 1122 Responsible Party.
157
(i) Any
party
that signs any Exchange Act report that the Trustee is required to file shall
provide to the Trustee prompt notice of the execution of such Exchange Act
report along with the name and contact information for the person signing
such
report and shall promptly deliver to the Trustee the original executed signature
page for such report. In addition, each of the parties agrees to provide
to the
Trustee such additional information related to such party as the Trustee
may
reasonably request, including evidence of the authorization of the person
signing any certification or statement, financial information and reports,
and
such other information related to such party or its performance
hereunder.
(j)
The
Depositor and the Master Servicer, by mutual agreement, shall determine which
of
the Depositor or the Master Servicer shall be the initial Exchange Act Signing
Party. Upon such determination, the Depositor shall timely notify the Trustee,
and such notice shall provide contact information for the Exchange Act Signing
Party. If the Depositor and Master Servicer, at any time, mutually agree
to
change the identity of the Exchange Act Signing Party, the Depositor shall
provide timely notice to the Trustee of any such change.
Section
6.21. Compliance
with Regulation AB.
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.01
and
6.20 of this Agreement is to facilitate compliance by the Sponsor, the Master
Servicer, the Depositor and the Trustee with the provisions of Regulation
AB, as
such may be amended or clarified from time to time. Therefore, each of the
parties agrees that (a) the obligations of the parties hereunder shall be
interpreted in such a manner as to accomplish compliance with Regulation
AB, (b)
the parties’ obligations hereunder will be supplemented and modified as
necessary to be consistent with any such amendments, interpretive advice
or
guidance from the Commission, convention or consensus among active participants
in the asset-backed securities markets, or otherwise in respect of the
requirements of Regulation AB and (c) the parties shall comply with reasonable
requests made by the Sponsor, the Master Servicer, the Depositor or the Trustee
for delivery of additional or different information, to the extent such
information is available or reasonably attainable, as the Sponsor, the Master
Servicer, the Depositor or the Trustee may determine in good faith is necessary
to comply with the provisions of Regulation AB.
ARTICLE
VII
PURCHASE
OF MORTGAGE LOANS AND
TERMINATION
OF THE TRUST FUND
| Section 7.01. |
Purchase
of Mortgage Loans; Termination of a Mortgage Pool or the Trust
Fund Upon
Purchase or Liquidation of Mortgage Loans; Purchase of the Pooling
REMIC 1
Regular Interests or the Pooling REMIC 2 Regular
Interests.
|
(a) The
respective obligations and responsibilities of the Trustee and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders and the Swap Counterparty as set forth in
Section
7.02, the obligation of the Master Servicer to make a final remittance to
the
Trustee pursuant to Section 4.01, and the obligations of the Master Servicer
to
the Trustee pursuant to Sections 9.10 and 9.14) with respect to Pool 1 shall
terminate on the earliest of (i) the final payment or other liquidation of
the
last Mortgage Loan remaining in Pool 1 and the disposition of all related
REO
Property, (ii) the latest to occur of the sale of the property held by the
Trust
Fund in accordance with Section 7.01(b) and (iii) the applicable Latest Possible
Maturity Date (each, a “Pool 1 Termination Event”); provided, however, that in
no event shall the Trust Fund created hereby continue beyond the expiration
of
21 years from the death of the last survivor of the descendants of Xxxxxx
X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James’s,
living on the date hereof. Upon the occurrence of a Pool 1 Termination Event,
each REMIC related to Pool 1 shall be terminated in a manner that shall qualify
as a “qualified liquidation” under the REMIC Provisions as evidenced by an
Opinion of Counsel provided to the Trustee and the Certificate Insurer at
the
expense of the Trust Fund.
158
The
respective obligations and responsibilities of the Trustee and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders as set forth in Section 7.02, the obligation
of
the Master Servicer to make a final remittance to the Trustee pursuant to
Section 4.01, and the obligations of the Master Servicer to the Trustee pursuant
to Sections 9.10 and 9.14) with respect to Pool 2 shall terminate on the
earliest of (i) the final payment or other liquidation of the last Mortgage
Loan
remaining in Pool 2 and the disposition of all related REO Property, (ii)
the
latest to occur of the sale of the property held by the Trust Fund in accordance
with Section 7.01(c) and (iii) the applicable Latest Possible Maturity Date
(each a “Pool 2 Termination Event”); provided,
however,
that in
no event shall the Trust Fund created hereby continue beyond the expiration
of
21 years from the death of the last survivor of the descendants of Xxxxxx
X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James’s,
living on the date hereof. Upon the occurrence of a Pool 2 Termination Event,
each REMIC related to Pool 2 shall be terminated in a manner that shall qualify
as a “qualified liquidation” under the REMIC Provisions as evidenced by an
Opinion of Counsel provided to the Trustee and the Certificate Insurer at
the
expense of the Trust Fund.
Upon
the
occurrence of a Pool 1 Termination Event and a Pool 2 Termination Event (a
“Trust Fund Termination Event”), each REMIC shall be terminated in a manner that
shall qualify as a “qualified liquidation” under the REMIC Provisions as
evidenced by an Opinion of Counsel provided to the Trustee and the Certificate
Insurer at the expense of the Trust Fund.
(b) On
any
Distribution Date occurring on or after the Pool 1 Initial Optional Termination
Date, the Master Servicer or the LTURI-holder, as applicable, with the prior
written consent of any NIMS Insurer and the Seller (which consent shall not
be
unreasonably withheld) has the option to purchase the Mortgage Loans in Pool
1
and any REO Property related to Pool 1 for the Pool 1 Purchase Price upon
written direction to the Trustee (delivered no later than 30 days prior to
the
anticipated sale date); provided,
however, if
there
are any NIM Securities outstanding, the Master Servicer may only exercise
its
option after receiving the prior written consent of the holders of such NIM
Securities and, if such consent is given, the Pool 1 Purchase Price shall
also
include an amount equal to the sum of (1) any accrued interest on the NIM
Securities, (2) the unpaid principal balance of any such NIM Securities and
(3)
any other reimbursable expenses owed by the issuer of the NIM Securities
(the
“NIM Redemption Amount”). Upon exercise of such option, the property of the
Trust Fund in Pool 1 shall be sold to the Master Servicer for the Pool 1
Purchase Price. The Master Servicer, each Servicer (or the Trustee, if
applicable) shall be reimbursed from the Pool 1 Purchase Price for any Mortgage
Loan in Pool 1 or related REO Property for any Advances made or other amounts
advanced with respect to the Mortgage Loans in Pool 1 that are reimbursable
to
the Master Servicer or the Trustee under this Agreement or the related Servicing
Agreement, together with any accrued and unpaid compensation and any other
amounts due to the Master Servicer hereunder or the Servicers thereunder,
and
the Trustee shall be entitled to be reimbursed from the Pool 1 Purchase Price
for any related amounts owed to the Trustee under Section 6.11 and Section
6.12
hereof. If the NIMS Insurer directs the Master Servicer to exercise its right
to
cause the Trust Fund to sell its property in Pool 1 as described above, then
(i)
the Master Servicer shall cause the Trust Fund to sell its property in Pool
1 as
described above, (ii) the NIMS Insurer shall remit the Pool 1 Purchase Price
in
immediately available funds to the Master Servicer at least three Business
Days
prior to the applicable Distribution Date and, upon receipt of such funds
from
the NIMS Insurer, the Master Servicer shall promptly deposit such funds in
the
Collection Account and (iii) the Trustee shall transfer the property of the
Trust Fund in Pool 1 to the NIMS Insurer. The NIMS Insurer shall be obligated
to
reimburse the Master Servicer and the Trustee for their reasonable out-of-pocket
expenses incurred in connection with its sale of the property in Pool 1 at
the
direction of the NIMS Insurer and shall indemnify and hold harmless the Master
Servicer and the Trustee for any losses, liabilities or expenses resulting
from
any claims directly resulting from or relating to the Master Servicer’s or
Trustee’s sale of the property in Pool 1 at the direction of the NIMS Insurer,
except to the extent such losses, liabilities or expenses arise out of or
result
from the Master Servicer’s or Trustee’s, as the case may be, negligence, bad
faith or willful misconduct.
159
(c) On
any
Distribution Date occurring on or after the Pool 2 Initial Optional Termination
Date, the Master Servicer or the LTURI-holder, as applicable, with the prior
written consent of the Certificate Insurer, any NIMS Insurer and the Seller
(which consent shall not be unreasonably withheld) has the option to purchase
the Mortgage Loans in Pool 2 and any REO Property related to Pool 2 for the
Pool
2 Purchase Price upon written direction to the Trustee (delivered no later
than
30 days prior to the anticipated sale date); provided,
however, if
there
are any NIM Securities outstanding, the Master Servicer may only exercise
its
option after receiving the prior written consent of the holders of the NIM
Securities and, if such consent is given, the Pool 2 Purchase Price shall
include the NIM Redemption Amount. Upon exercise of such option, the property
of
the Trust Fund in Pool 2 shall be sold to the Master Servicer for the Pool
2
Purchase Price. The Master Servicer, each Servicer (or the Trustee, if
applicable) shall be reimbursed from the Pool 2 Purchase Price for any Mortgage
Loan in Pool 2 or related REO Property for any Advances made or other amounts
advanced with respect to the Mortgage Loans in Pool 2 that are reimbursable
to
the Master Servicer or the Trustee under this Agreement or the related Servicing
Agreement, together with any accrued and unpaid compensation and any other
amounts due to the Master Servicer hereunder or the Servicers thereunder,
and
the Trustee shall be entitled to be reimbursed from the Pool 2 Purchase Price
for any related amounts owed to the Trustee under Section 6.11 and Section
6.12
hereof and the Certificate Insurer shall be entitled to be reimbursed for
all
unpaid Reimbursement Amounts. If the NIMS Insurer directs the Master Servicer
to
exercise its right to cause the Trust Fund to sell its property in Pool 2
as
described above, then (i) the Master Servicer shall cause the Trust Fund
to sell
its property in Pool 2 as described above, (ii) the NIMS Insurer shall remit
the
Pool 2 Purchase Price in immediately available funds to the Master Servicer
at
least three Business Days prior to the applicable Distribution Date and,
upon
receipt of such funds from the NIMS Insurer, the Master Servicer shall promptly
deposit such funds in the Collection Account and (iii) the Trustee shall
transfer the property of the Trust Fund in Pool 2 to the NIMS Insurer. The
NIMS
Insurer shall be obligated to reimburse the Master Servicer and the Trustee
for
their reasonable out-of-pocket expenses incurred in connection with its sale
of
the property in Pool 2 at the direction of the NIMS Insurer and shall indemnify
and hold harmless the Master Servicer and the Trustee for any losses,
liabilities or expenses resulting from any claims directly resulting from
or
relating to the Master Servicer’s or Trustee’s sale of the property in Pool 2 at
the direction of the NIMS Insurer, except to the extent such losses, liabilities
or expenses arise out of or result from the Master Servicer’s or Trustee’s, as
the case may be, negligence, bad faith or willful misconduct.
160
(d) On
any
Distribution Date occurring on or after the Pool 1 Initial Optional Termination
Date or the Pool 2 Initial Optional Termination Date, as applicable, and
provided there are no NIM Securities outstanding, the Master Servicer, with
the
prior written consent of the Seller, which consent shall not be unreasonably
withheld, has the option to purchase all of the Pooling REMIC 1 Regular
Interests or the Pooling REMIC 2 Regular Interests, respectively.
Upon
exercise of such option with respect to Pool 1, the Pooling REMIC 1 Regular
Interests shall be sold to the Master Servicer at a price (the “Pooling REMIC 1
Regular Interests Purchase Price”) equal to the sum of (i) 100% of the unpaid
principal balance of each Pool 1 Mortgage Loan on the day of such purchase
plus
interest accrued thereon at the applicable Mortgage Rate with respect to
any
such Mortgage Loan to the Due Date in the Collection Period immediately
preceding the related Distribution Date to the date of such repurchase and
(ii)
the fair market value of any REO Property and any other property held by
any
Pool 1 REMIC, such fair market value to be determined by an independent
appraiser or appraisers mutually agreed upon by the Master Servicer, any
NIMS
Insurer and the Trustee (reduced, in the case of REO Property, by (1) reasonably
anticipated disposition costs and (2) any amount by which the fair market
value
as so reduced exceeds the outstanding principal balance of the related Mortgage
Loan plus interest accrued thereon at the applicable Net Mortgage Rate to
the
date of such purchase). If the Master Servicer elects to exercise such option,
each Pool 1 REMIC created pursuant to this Agreement (other than Pooling
REMIC
1) shall be terminated in such a manner so that the termination of each such
REMIC shall qualify as a “qualified liquidation” under the REMIC Provisions and
the Pooling REMIC 1 Regular Interests and the Class LT-R-1 Certificates will
evidence the entire beneficial interest in the property of the Trust Fund
relating to Pool 1. Following a purchase of the Pooling REMIC 1 Regular
Interests pursuant to this subsection, the Trust Fund (and Pooling REMIC
1) will
remain outstanding and final payment on the Group 1 Certificates (other than
the
Class LT-R-1 Certificates) will be made in accordance with Section 7.03(a)(iii)
and 5.02. The Trust Fund, as it relates Pool 1, will terminate upon the
occurrence of a Trust Fund Termination Event, in accordance with Section
7.01(a).
In
addition, upon exercise of such option with respect to Pool 2, the Pooling
REMIC
2 Regular Interests shall be sold to the Master Servicer at a price (the
“Pooling REMIC 2 Regular Interests Purchase Price”) equal to the sum of (i) 100%
of the unpaid principal balance of each Pool 2 Mortgage Loan on the day of
such
purchase plus interest accrued thereon at the applicable Mortgage Rate with
respect to any such Mortgage Loan to the Due Date in the Collection Period
immediately preceding the related Distribution Date to the date of such
repurchase and (ii) the fair market value of any REO Property and any other
property held by any Pool 2 REMIC, such fair market value to be determined
by an
independent appraiser or appraisers mutually agreed upon by the Master Servicer,
any NIMS Insurer and the Trustee (reduced, in the case of REO Property, by
(1)
reasonably anticipated disposition costs and (2) any amount by which the
fair
market value as so reduced exceeds the outstanding principal balance of the
related Mortgage Loan plus interest accrued thereon at the applicable Net
Mortgage Rate to the date of such purchase). If the Master Servicer elects
to
exercise such option, each Pool 2 REMIC created pursuant to this Agreement
(other than Pooling REMIC 2) shall be terminated in such a manner so that
the
termination of each such REMIC shall qualify as a “qualified liquidation” under
the REMIC Provisions and the Pooling REMIC 2 Regular Interests and the Class
LT-R-2 Certificates will evidence the entire beneficial interest in the property
of the Trust Fund. Following a purchase of the Pooling REMIC 2 Regular Interests
pursuant to this subsection, the Trust Fund (and Pooling REMIC 2) will remain
outstanding and final payment on the Group 2 Certificates (other than the
Class
LT-R-2 Certificates) will be made in accordance with Section 7.03(a)(iii)
and
5.02. The Trust Fund, as it relates to Pool 2, will terminate upon the
occurrence of a Trust Fund Termination Event, in accordance with Section
7.01(a).
161
| Section 7.02. |
Procedure
Upon Termination of Trust Fund or Purchase of Pooling REMIC 1 Regular
Interests or Pooling REMIC 2 Regular Interests.
|
(a) Notice
of
any Trust Fund Termination Event and notice of the purchase of the Pooling
REMIC
1 Regular Interests or the Pooling REMIC 2 Regular Interests, specifying
the
Distribution Date upon which the final distribution to the Certificates (other
than the Class LT-R-1 or Class LT-R-2 Certificates, in the case of a purchase
of
the Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular Interests,
respectively) shall be made, shall be given promptly by the Trustee by first
class mail to Certificateholders mailed no later than 5 Business Days after
the
Trustee has received notice from the Master Servicer of its election to cause
(x) sale of all of the property of the Trust Fund related to Pool 1 or related
to Pool 2, pursuant to Section 7.01(b) or Section 7.01(c) respectively, (y)
the
purchase of the Pooling REMIC 1 Regular Interests or the Pooling REMIC 2
Regular
Interests pursuant to Section 7.01(d), or (z) upon the final payment or other
liquidation of the last Mortgage Loan or REO Property in the applicable Pool
in
the Trust Fund. In the case of a Trust Fund Termination Event, the Trustee
shall
also give notice to the Master Servicer and the Certificate Registrar at
the
time notice is given to the Holders.
In
the
case of a Pool 1 Termination Event or Pool 2 Termination Event, such notice
shall specify (A) the Distribution Date upon which final distribution on
the
related Certificates, Pooling REMIC 1 Regular Interests or Pooling REMIC
2
Regular Interests of all amounts required to be distributed to
Certificateholders pursuant to Section 5.02 will be made upon presentation
and
surrender of the Certificates at the Corporate Trust Office, and (B) that
the
Record Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the Certificates
at the office or agency of the Trustee therein specified. Upon any such Trust
Fund Termination Event, the duties of the Certificate Registrar with respect
to
the Certificates, Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular
Interests shall terminate and the Trustee shall terminate or request the
Master
Servicer to terminate, the Collection Account it maintains, the Certificate
Account and any other account or fund maintained with respect to the
Certificates, Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular
Interests, subject to the Trustee’s obligation hereunder to hold all amounts
payable to Certificateholders in trust without interest pending such payment.
162
In
the
case of a purchase of the Pooling REMIC 1 Regular Interests or the Pooling
REMIC
2 Regular Interests, such notice shall specify (A) the Distribution Date
upon
which final distribution on the Certificates (other than the Class LT-R-1
Certificates and Class LT-R-2 Certificates) of all amounts required to be
distributed to Certificateholders pursuant to Section 5.02 (other than any
distributions to the Class LT-R-1 Certificates in respect of Pooling REMIC
1, or
the Class LT-R-2 Certificate in the case of Pooling REMIC 2) will be made
upon
presentation and surrender of the Certificates (other than the Class LT-R-1
Certificates or Class LT-R-2 Certificates, as applicable) at the Corporate
Trust
Office, and (B) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distribution being made only upon presentation and
surrender of the Certificates (other than the Class LT-R-1 Certificates or
Class
LT-R-2 Certificates, as applicable) at the office or agency of the Trustee
therein specified. Upon any such purchase of the Pooling REMIC 1 Regular
Interests or the Pooling REMIC 2 Regular Interests, the duties of the
Certificate Registrar with respect to the related Certificates shall terminate
but the Trustee shall not terminate or request the Master Servicer to terminate,
the Collection Account it maintains, the Certificate Account and any other
account or fund maintained with respect to the related Certificates, subject
to
the Trustee’s obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment. For all
Distribution Dates following the Distribution Date on which the Master Servicer
purchases either the Pooling REMIC 1 Regular Interests or the Pooling REMIC
2
Regular Interests, all amounts that would be distributed on the related
Certificates (other than the Class LT-R-1 Certificate or the Class LT-R-2
Certificate, as applicable, and exclusive of amounts payable from any fund
that
is treated as an Excluded Trust Asset) absent such purchase shall be payable
to
the applicable LTURI-holder.
(b) In
the
event that all of the Holders do not surrender their Certificates for
cancellation within three months after the time specified in the above-mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within one year after the
second
notice any Certificates shall not have been surrendered for cancellation,
the
Trustee may take appropriate steps to contact the remaining Certificateholders
concerning surrender of such Certificates, and the cost thereof shall be
paid
out of the amounts distributable to such Holders. If within two years after
the
second notice any Certificates shall not have been surrendered for cancellation,
the Trustee shall, subject to applicable state law relating to escheatment,
hold
all amounts distributable to such Holders for the benefit of such Holders.
No
interest shall accrue on any amount held by the Trustee and not distributed
to a
Certificateholder due to such Certificateholder’s failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with
this Section.
(c) Any
reasonable expenses incurred by the Trustee in connection with any Trust
Fund
Termination Event or any purchase of the Pooling REMIC 1 Regular Interests
or
Pooling REMIC 2 Regular Interests shall be reimbursed from proceeds received
from such termination or purchase.
163
| Section 7.03. |
Additional
Requirements for any Trust Fund Termination Event or Purchase of
the
Pooling REMIC 1 Regular Interests or the Pooling REMIC 2 Regular
Interests.
|
(a) Any
termination of the Trust Fund pursuant to Section 7.01(a) or any termination
of
a REMIC pursuant to Section 7.01(d) shall be effected in accordance with
the
following additional requirements, unless the Trustee seeks (at the request
of
the party exercising the option to purchase all of the Mortgage Loans or
Pooling
REMIC 1 Regular Interests or the Pooling REMIC 2 Regular Interests,
respectively, pursuant to Section 7.01(b) or Section 7.01(c) or Section 7.01(d),
respectively), and subsequently receives, an Opinion of Counsel (at the expense
of such requesting party), addressed to the Trustee and any NIMS Insurer
to the
effect that the failure to comply with the requirements of this Section 7.03
will not result in an Adverse REMIC Event:
(i) Within
89
days prior to the time of the making of the final payment on the Certificates
(other than the Class LT-R-1 and Class LT-R-2 Certificates, in the case of
a
purchase of the Pooling REMIC 1 Regular Interests or the Pooling REMIC 2
Regular
Interests, respectively, upon notification by the Master Servicer, any NIMS
Insurer or an Affiliate of the Seller that it intends to exercise its option
to
cause the termination of the Trust Fund or purchase the Pooling REMIC 1 Regular
Interests or the Pooling REMIC 2 Regular Interests, the Trustee shall adopt
a
plan of complete liquidation on behalf of each REMIC (other than Pooling
REMIC
1, in the case of a purchase of the Pooling REMIC 1 Regular Interests and
other
than Pooling REMIC 2, in the case of a purchase of the Pooling REMIC 2 Regular
Interests), meeting the requirements of a qualified liquidation under the
REMIC
Provisions;
(ii) Any
sale
of the assets of the Trust Fund, the Pooling REMIC 1 Regular Interests or
Pooling REMIC 2 Regular Interests pursuant to Section 7.02 shall be a sale
for
cash and shall occur at or after the time of adoption of such a plan of complete
liquidation and prior to the time of making of the final payment on the
Certificates (other than the Class LT-R-1 and Class LT-R-2 Certificates,
in the
case of a purchase of the Pooling REMIC 1 Regular Interests or Pooling REMIC
2
Regular Interests);
(iii) On
the
date specified for final payment of the Certificates (other than the Class
LT-R-1 and Class LT-R-2 Certificates, in the case of a purchase of the Pooling
REMIC 1 Regular Interests or Pooling REMIC 2 Regular Interests, the Trustee
shall make final distributions of principal and interest on such Certificates
in
accordance with Section 5.02. In the case of a Trust Fund Termination Event,
and, after payment of, or provision for any outstanding expenses, the Trustee
shall distribute or credit, or cause to be distributed or credited, to the
Holders of the Residual Certificates all cash on hand after such final payment
(other than cash retained to meet claims), and the Trust Fund (and each REMIC)
shall terminate at that time; and
(iv) In
no
event may the final payment on the Certificates or the final distribution
or
credit to the Holders of the Residual Certificates in respect of the residual
interest in any liquidated REMIC be made after the 89th day from the date
on
which the plan of complete liquidation for such REMIC is adopted.
164
(b) By
its
acceptance of a Residual Certificate, each Holder thereof hereby agrees to
accept the plan of complete liquidation prepared by the Depositor and adopted
by
the Trustee under this Section and to take such other action in connection
therewith as may be reasonably requested by the Master Servicer or the
Servicer.
(c)
In
connection with the termination of the Trust Fund or a Section 7.01(d) Purchase
Event, the Trustee and the Certificate Insurer may request and Opinion of
Counsel addressed to the Trustee and the Certificate Insurer (at the expense
of
the Depositor) to the effect that all the requirements of a qualified
liquidation under the REMIC Provisions have been met.
Section
7.04. Optional
Purchase Right of NIMS Insurer.
The
NIMS
Insurer may purchase any Distressed Mortgage Loan for a purchase price equal
to
the outstanding principal balance of such Mortgage Loan, plus accrued interest
thereon to the date of repurchase plus any unreimbursed Advances, Servicing
Advances, Servicing Fees or Trustee Fees and any unreimbursed expenses of
the
Trustee allocable to such Distressed Mortgage Loan. Any such purchase shall
be
accomplished by the NIM Insurer’s remittance of the purchase price for the
Distressed Mortgage Loan to the Master Servicer for deposit into the Collection
Account.
ARTICLE
VIII
RIGHTS
OF
CERTIFICATEHOLDERS
Section
8.01. Limitation
on Rights of Holders.
(a) The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of this Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any
of
them. Except as otherwise expressly provided herein, no Certificateholder,
solely by virtue of its status as a Certificateholder, shall have any right
to
vote or in any manner otherwise control the Master Servicer or the operation
and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time
as
partners or members of an association, nor shall any Certificateholder be
under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(b) No
Certificateholder, solely by virtue of its status as Certificateholder, shall
have any right by virtue or by availing of any provision of this Agreement
to
institute any suit, action or proceeding in equity or at law upon or under
or
with respect to this Agreement, unless such Holder previously shall have
given
to the Trustee a written notice of an Event of Default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
evidencing not less than 25% of the Class Principal Amount or Class Notional
Amount, as applicable, (or Percentage Interest) of Certificates of each Class
affected thereby shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder and
shall
have offered to the Trustee such reasonable indemnity as it may require against
the cost, expenses and liabilities to be incurred therein or thereby, and
the
Trustee, for sixty days after its receipt of such notice, request and offer
of
indemnity, shall have neglected or refused to institute any such action,
suit or
proceeding and no direction inconsistent with such written request has been
given such Trustee during such sixty-day period by such Certificateholders;
it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that
no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates,
or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the protection
and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at
law
or in equity.
165
Section
8.02. Access
to List of Holders.
(a) If
the
Trustee is not acting as Certificate Registrar, the Certificate Registrar
will
furnish or cause to be furnished to the Trustee, within fifteen days after
receipt by the Certificate Registrar of a request by the Trustee in writing,
a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Certificateholders of each Class as of the most recent Record
Date.
(b) If
three
or more Holders or Certificate Owners (hereinafter referred to as “Applicants”)
apply in writing to the Trustee, and such application states that the Applicants
desire to communicate with other Holders with respect to their rights under
this
Agreement or under the Certificates and is accompanied by a copy of the
communication which such Applicants propose to transmit, then the Trustee
shall,
within five Business Days after the receipt of such application, afford such
Applicants reasonable access during the normal business hours of the Trustee
to
the most recent list of Certificateholders held by the Trustee or shall,
as an
alternative, send, at the Applicants’ expense, the written communication
proffered by the Applicants to all Certificateholders at their addresses
as they
appear in the Certificate Register.
(c) Every
Holder or Certificate Owner, if the Holder is a Clearing Agency, by receiving
and holding a Certificate, agrees with the Depositor, the Master Servicer,
the
Certificate Registrar and the Trustee, that none of the Depositor, the Master
Servicer, the Certificate Registrar, the Paying Agent or the Trustee shall
be
held accountable by reason of the disclosure of any such information as to
the
names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
Section
8.03. Acts
of Holders of Certificates.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced
by
one or more instruments of substantially similar tenor signed by such Holders
in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or
instruments are delivered to the Trustee, the Certificate Registrar and the
Paying Agent and, where expressly required herein, to the Master Servicer.
Such
instrument or instruments (as the action embodies therein and evidenced thereby)
are herein sometimes referred to as an “Act” of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of
a
writing appointing any such agents shall be sufficient for any purpose of
this
Agreement and conclusive in favor of the Trustee and the Master Servicer,
if
made in the manner provided in this Section. Each of the Trustee and the
Master
Servicer shall promptly notify the others of receipt of any such instrument
by
it, and shall promptly forward a copy of such instrument to the
others.
166
(b) The
fact
and date of the execution by any Person of any such instrument or writing
may be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
or
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by
an
officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of
any
such instrument or writing, or the authority of the individual executing
the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The
ownership of Certificates, Pooling REMIC 1 Regular Interests or Pooling REMIC
2
Regular Interests (whether or not such Certificates, Pooling REMIC 1 Regular
Interests or Pooling REMIC 2 Regular Interests shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Trustee) shall be proved by the Certificate Register,
and
none of the Trustee, the Master Servicer, the Paying Agent or the Depositor
shall be affected by any notice to the contrary.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Certificate, Pooling REMIC 1 Regular Interests
or
Pooling REMIC 2 Regular Interests shall bind every future Holder of the same
Certificate, Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular
Interests and the Holder of every Certificate, Pooling REMIC 1 Regular Interests
or Pooling REMIC 2 Regular Interests issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything
done,
omitted or suffered to be done by the Trustee or the Master Servicer in reliance
thereon, whether or not notation of such action is made upon such Certificate,
Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular
Interests.
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
BY
THE
MASTER SERVICER
Section
9.01. Duties
of the Master Servicer.
167
The
Certificateholders, by their purchase and acceptance of the Certificates,
Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular Interests, appoint
Aurora Loan Services LLC, as Master Servicer. For and on behalf of the
Depositor, the Trustee and the Certificateholders, the Master Servicer shall
master service the Mortgage Loans in accordance with the provisions of this
Agreement and the provisions of each Servicing Agreement.
Section
9.02. Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
(a) The
Master Servicer, at its expense, shall maintain in effect a Master Servicer
Fidelity Bond and a Master Servicer 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
Master Servicer Errors and Omissions Insurance Policy and the Master Servicer
Fidelity Bond shall be in such form and amount that would meet the requirements
of Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans.
The
Master Servicer shall provide the Trustee upon request, with a copy of such
policy and fidelity bond. The Master Servicer shall (i) require each Servicer
to
maintain an Errors and Omissions Insurance Policy and a Servicer Fidelity
Bond
in accordance with the provisions of the applicable Servicing Agreement,
(ii)
cause each Servicer to provide to the Master Servicer certificates evidencing
that such policy and bond is in effect and to furnish to the Master Servicer
any
notice of cancellation, non-renewal or modification of the policy or bond
received by it, as and to the extent provided in the applicable Servicing
Agreement, and (iii) furnish copies of such policies and of the certificates
and
notices referred to in clause (ii) to the Trustee upon request.
(b) The
Master Servicer shall promptly report to the Trustee any material changes
that
may occur in the Master Servicer Fidelity Bond or the Master Servicer Errors
and
Omissions Insurance Policy and shall furnish to the Trustee, on request,
certificates evidencing that such bond and insurance policy are in full force
and effect. The Master Servicer shall promptly report to the Trustee all
cases
of embezzlement or fraud, if such events involve funds relating to the Mortgage
Loans. The total losses, regardless of whether claims are filed with the
applicable insurer or surety, shall be disclosed in such reports together
with
the amount of such losses covered by insurance. If a bond or insurance claim
report is filed with any of such bonding companies or insurers, the Master
Servicer shall promptly furnish a copy of such report to the Trustee. Any
amounts relating to the Mortgage Loans collected by the Master Servicer under
any such bond or policy shall be promptly remitted by the Master Servicer
to the
Trustee for deposit into the Certificate Account. Any amounts relating to
the
Mortgage Loans collected by the applicable Servicer under any such bond or
policy shall be remitted to the Master Servicer to the extent provided in
the
applicable Servicing Agreement.
Section
9.03. Master
Servicer’s Financial Statements and Related Information.
For
each
year this Agreement is in effect, the Master Servicer shall submit to the
Trustee, each Rating Agency, the Certificate Insurer and the Depositor a
copy of
the annual audited financial statements on or prior to March 31st of each
year
commencing on March 31, 2007. Such financial statements shall include
comparative balance sheets, income statements, statement of changes in
shareholder's equity, statements of cash flows, a consolidating schedule
showing
consolidated subsidiaries and any related notes required pursuant to generally
accepted accounting principles, certified by a nationally recognized firm
of
Independent Accountants to the effect that such financial statements were
examined and prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding
year.
168
Section
9.04. Power
to Act; Procedures.
(a) 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, and each Servicer shall have full power and authority (to
the
extent provided in the applicable Servicing Agreement) to do any and all
things
that it may deem necessary or desirable in connection with the 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 applicable
Servicing Agreement, as applicable; provided that the Master Servicer shall
not
take, or knowingly permit any Servicer to take, any action that is inconsistent
with or prejudices the interests of the Trust Fund or the Certificateholders
in
any Mortgage Loan or the rights and interests of the Depositor, the Trustee,
the
Certificateholders under this Agreement. The Master Servicer further is
authorized and empowered by the Trustee, on behalf of the Certificateholders
and
the Trustee, in its own name or in the name of any Servicer (to the extent
permitted in the related Servicing Agreement), when the Master Servicer or
a
Servicer, as the case may be, believes it is appropriate in its best judgment
to
register any Mortgage Loan with MERS, or cause the removal from the registration
of any Mortgage Loan on the MERS system, to execute and deliver, on behalf
of
the Trustee and the Certificateholders or any of them, any and all instruments
of assignment and other comparable instruments with respect to such assignment
or re-recording of a Mortgage in the name of MERS, solely as nominee for
the
Trustee and its successor and assigns. The Master Servicer shall represent
and
protect the interests of the Trust Fund in the same manner as it protects
its
own interests in mortgage loans in its own portfolio in any claim, proceeding
or
litigation regarding a Mortgage Loan and shall not make or knowingly permit
any
Servicer to make any modification, waiver or amendment of any term of any
Mortgage Loan that would cause an Adverse REMIC Event. Without limiting the
generality of the foregoing, the Master Servicer in its own name or in the
name
of a Servicer, and each Servicer, to the extent such authority is delegated
to
such Servicer under the applicable Servicing Agreement, is hereby authorized
and
empowered by the Trustee when the Master Servicer or such Servicer, as the
case
may be, believes it appropriate in its best judgment and in accordance with
Accepted Servicing Practices and the applicable Servicing Agreement, to execute
and deliver, on behalf of itself and the Certificateholders, the Trustee
or any
of them, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge and all other comparable instruments, with respect
to the Mortgage Loans and with respect to the Mortgaged Properties. The Trustee
shall execute, upon request, any powers of attorney furnished to it by the
Master Servicer 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
169
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, necessary or appropriate to enable the Master Servicer to master
service the Mortgage Loans and carry out its duties hereunder and to allow
such
Servicer to service the Mortgage Loans, in each case in accordance with Accepted
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, then
upon request of the Trustee the Master Servicer shall join with the Trustee
in
the appointment of a co-trustee pursuant to Section 6.09 hereof. In the
performance of its duties hereunder, the 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.
Notwithstanding anything to the contrary, the Master Servicer shall not without
the Trustee’s written consent: (i) initiate any action, suit or proceeding
solely under the Trustee’s name without indicating the Master Servicer’s
representative capacity or (ii) take any action with the intent to cause,
and
which actually does cause, the Trustee to be registered to do business in
any
state.
(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall
employ
procedures, and shall exercise the same care that it customarily employs
and
exercises master servicing and administering loans for its own account, giving
due consideration to Accepted Servicing Practices where such practices do
not
conflict with this Agreement. Consistent with the foregoing, the Master Servicer
may, and may permit any Servicer to, in its discretion (i) waive any late
payment charge (but not any Prepayment Premium, except as set forth below)
and,
except as set forth below (ii) extend the due dates for payments due on a
Mortgage Note for a period not greater than 120 days; provided,
however,
that the
maturity of any Mortgage Loan shall not be extended past the date on which
the
final payment is due on the latest maturing Mortgage Loan as of the Cut-off
Date. In the event of any extension described in clause (ii) above, the Master
Servicer shall make or cause such Servicer (if required by the applicable
Servicing Agreement) to make Advances on the related Mortgage Loan in accordance
with the provisions of Section 5.04 on the basis of the amortization schedule
of
such Mortgage Loan without modification thereof by reason of such extension.
Notwithstanding anything to the contrary in this Agreement, the Master Servicer
shall not make or knowingly permit any modification, waiver or amendment
of any
material term of any Mortgage Loan unless: (1) such Mortgage Loan is in default
or default by the related Mortgagor is, in the reasonable judgment of the
Master
Servicer or the applicable Servicer, reasonably foreseeable, (2) in the case
of
a waiver of a Prepayment Premium if (a) such Mortgage Loan is in default
or
default by the related Mortgagor is, in the reasonable judgment of the Master
Servicer or applicable Servicer, reasonably foreseeable, and such waiver
would
maximize recovery of total proceeds taking into account the value of such
Prepayment Premium and the related Mortgage Loan or (b) if the prepayment
is not
a result of a refinancing by the Servicer or any of its affiliates and (i)
such
Mortgage Loan is in default or default by the related Mortgagor is, in the
reasonable judgment of the Master Servicer or the applicable Servicer,
reasonably foreseeable, and such waiver would maximize recovery of total
proceeds taking into account the value of such Prepayment Premium and the
related Mortgage Loan, or (ii) the collection of the Prepayment Premium would
be
in violation of applicable laws or (iii) the collection of such Prepayment
Premium would be considered “predatory” pursuant to written guidance published
or issued by any applicable federal, state or local regulatory authority
acting
in its official capacity and having jurisdiction over such matters, and (3)
the
Master Servicer shall have provided or caused to be provided to the Trustee
an
Opinion of Counsel (if required by the applicable Servicing Agreement) (which
opinion shall, if provided by the Master Servicer, be an expense reimbursed
from
the Collection Account pursuant to Section 4.02(v)) in writing to the effect
that such modification, waiver or amendment would not cause an Adverse REMIC
Event; provided, in no event shall an Opinion of Counsel be required for
the
waiver of a Prepayment Premium under clause (2) above.
170
Section
9.05. Enforcement
of Servicer’s and Master Servicer’s Obligations.
(a) Each
Servicing Agreement requires the applicable Servicer, respectively, to service
the Mortgage Loans in accordance with the provisions thereof. References
in this
Agreement to actions taken or to be taken by the Master Servicer include
actions
taken or to be taken by a Servicer on behalf of the Master Servicer. Any
fees
and other amounts payable to a Servicer shall be deducted from amounts remitted
to the Master Servicer by such Servicer to the extent permitted by the
applicable Servicing Agreement and shall not be an obligation of the Trust
Fund,
the Trustee or the Master Servicer.
(b) The
Master Servicer shall not be required to (i) take any action with respect
to the
servicing of any Mortgage Loan that the related Servicer is not required
to take
under the related Servicing Agreement and (ii) cause a Servicer to take any
action or refrain from taking any action if the related Servicing Agreement
does
not require the Servicer to take such action or refrain from taking such
action;
in both cases notwithstanding any provision of this Agreement that requires
the
Master Servicer to take such action or cause the Servicer to take such
action.
(c) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall use its reasonable best efforts to enforce the obligations of each
Servicer under the related Servicing Agreement, and shall, upon obtaining
actual
knowledge of the failure of a Servicer to perform its obligations in accordance
therewith, to the extent that such non-performance of such obligations would
have a material adverse effect on a Mortgage Loan, the Trust Fund or the
Certificateholders (determined in the case of the Class WF-3-1, Class WF-4-1
and
Class WF-6-1 Certificates without regard to the Certificate Insurance Policy),
terminate the rights and obligations of such Servicer thereunder and either
act
as servicer of the related Mortgage Loans or cause the other parties hereto
to
enter into a Servicing Agreement (and such parties hereby agree to execute
and
deliver any such successor Servicing Agreement), with a successor Servicer.
Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of 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, and shall be reimbursed
therefor initially (i) from a general recovery resulting from such enforcement
only to the extent, if any, that such recovery exceeds all amounts due in
respect of the related Mortgage Loans, (ii) from a specific recovery of costs,
expenses or attorneys’ fees against the party against whom such enforcement is
directed, and then, (iii) to the extent that such amounts are insufficient
to
reimburse the Master Servicer for the costs of such enforcement, from the
Collection Account.
171
(d)
The
Master Servicer shall be entitled to conclusively rely on any certifications
or
other information provided by the Servicers under the terms of the applicable
Servicing Agreement, in its preparation of any certifications, notifications,
filings or reports, in accordance with the terms hereof or as may be required
by
applicable law or regulation.
Section
9.06. Collection
of Taxes, Assessments and Similar Items.
(a) To
the
extent provided in the applicable Servicing Agreement, the Master Servicer
shall
cause each Servicer to establish and maintain one or more custodial accounts
at
a depository institution (which may be a depository institution with which
the
Master Servicer or any Servicer establishes accounts in the ordinary course
of
its servicing activities), the accounts of which are insured to the maximum
extent permitted by the FDIC (each, an “Escrow Account”) and to deposit therein
any collections of amounts received with respect to amounts due for taxes,
assessments, water rates, Standard Hazard Insurance Policy premiums, Payaheads,
if applicable, or any comparable items for the account of the Mortgagors.
Withdrawals from any Escrow Account may be made (to the extent amounts have
been
escrowed for such purpose) only in accordance with the applicable Servicing
Agreement. Each Servicer shall be entitled to all investment income not required
to be paid to Mortgagors on any Escrow Account maintained by such Servicer.
The
Master Servicer shall make (or cause to be made) to the extent provided in
the
applicable Servicing Agreement advances to the extent necessary in order
to
effect timely payment of taxes, water rates, assessments, Standard Hazard
Insurance Policy premiums or comparable items in connection with the related
Mortgage Loan (to the extent that the Mortgagor is required, but fails, to
pay
such items), provided that it or the applicable Servicer has determined that
the
funds so advanced are recoverable from escrow payments, reimbursement pursuant
to Section 4.02 or otherwise.
(b) Costs
incurred by the Master Servicer or by any Servicer in effecting the timely
payment of taxes and assessments on the properties subject to the Mortgage
Loans
may be added to the amount owing under the related Mortgage Note where the
terms
of the Mortgage Note 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. Such costs,
to
the extent that they are unanticipated, extraordinary costs, and not ordinary
or
routine costs shall be recoverable as a Servicing Advance by the Master Servicer
pursuant to Section 4.02.
(c) The
Master Servicer shall (i) cause all premium and any related premium taxes
and
assessments payable to PMI and MGIC under the applicable Bulk PMI Policy
to be
paid in a timely manner; (ii) comply or direct the applicable Servicer to
comply
with all reporting requirements under each Bulk PMI Policy; and (iii) cause
all
amounts received under each Bulk PMI Policy to be promptly deposited into
the
Collection Account.
Section
9.07. Termination
of Servicing Agreements; Successor Servicers.
(a) The
Master Servicer shall be entitled to terminate the rights and obligations
of any
Servicer under the applicable Servicing Agreement in accordance with the
terms
and conditions of such Servicing Agreement and without any limitation by
virtue
of this Agreement; provided,
however,
that in
the event of termination of any Servicing Agreement by the Master Servicer
or
the related Servicer, the Master Servicer shall either act as Servicer of
the
related Mortgage Loans or provide for the servicing of the Mortgage Loans
by a
successor Servicer to be appointed as provided in the applicable Servicing
Agreement.
172
The
parties acknowledge that notwithstanding the preceding sentence, there may
be a
transition period, not to exceed 90 days, in order to effect the transfer
of
servicing to a successor Servicer. The Master Servicer shall be entitled
to be
reimbursed from each Servicer (or by the Trust Fund, if the Servicer is unable
to fulfill its obligations hereunder) for all costs associated with the transfer
of servicing from the predecessor servicer, including without limitation,
any
costs or expenses associated with the complete transfer or all servicing
data
and the completion, correction or manipulation of such servicing data, as
may be
required by the Master Servicer to correct any errors or insufficiencies
in the
servicing data or otherwise to enable the Master Servicer to service the
Mortgage Loans properly and effectively.
(b) If
the
Master Servicer acts as a successor Servicer, it will not assume liability
for
the representations and warranties of the Servicer, if any, that it replaces.
The Master Servicer shall use reasonable efforts to have the successor Servicer
assume liability for the representations and warranties made by the terminated
Servicer in the related Servicing Agreement, and in the event of any such
assumption by the successor Servicer, the Trustee or the Master Servicer,
as
applicable, may, in the exercise of its business judgment, release the
terminated Servicer from liability for such representations and
warranties.
(c) If
the
Master Servicer acts as a successor Servicer, it will have no obligation
to make
an Advance if it determines in its reasonable judgment that such Advance
is
non-recoverable. To the extent that the Master Servicer is unable to find
a
successor Servicer that is willing to service the Mortgage Loans for the
Servicing Fee because of the obligation of the Servicer to make Advances
regardless of whether such Advance is recoverable, the applicable Servicing
Agreement may be amended to provide that the successor Servicer shall have
no
obligation to make an Advance if it determines in its reasonable judgment
that
such Advance is non-recoverable and provides an Officer’s Certificate to such
effect to the Master Servicer and the Trustee.
Section
9.08. Master
Servicer Liable for Enforcement.
Notwithstanding
any Servicing Agreement, the Master Servicer shall remain obligated and liable
to the Trustee and the Certificateholders in accordance with the provisions
of
this Agreement, to the extent of its obligations hereunder, without diminution
of such obligation or liability by virtue of such Servicing Agreements. The
Master Servicer shall use commercially reasonable efforts to ensure that
the
Mortgage Loans are serviced in accordance with the provisions of this Agreement
and shall use commercially reasonable efforts to enforce the provisions of
each
Servicing Agreement for the benefit of the Certificateholders. The Master
Servicer shall be entitled to enter into any agreement with any Servicer
for
indemnification of the Master Servicer and nothing contained in this Agreement
shall be deemed to limit or modify such indemnification. Except as expressly
set
forth herein, the Master Servicer shall have no liability for the acts or
omissions of any Servicer in the performance by such Servicer of its obligations
under the related Servicing Agreement.
173
Section
9.09. No
Contractual Relationship Between Any Servicer and Trustee or
Depositor.
Any
Servicing Agreement that may be entered into and any other transactions or
services relating to the Mortgage Loans involving any Servicer in its capacity
as such and not as an originator shall be deemed to be between such Servicer,
the Seller and the Master Servicer, and the Trustee and the Depositor shall
not
be deemed parties thereto and shall have no obligations, duties or liabilities
with respect to such Servicer except as set forth in Section 9.10 hereof,
but
shall have rights thereunder as third party beneficiaries.
Section
9.10. Assumption
of Servicing Agreement by Trustee.
(a) In
the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Event of Default under this Agreement), after
a
period not to exceed ninety days after the issuance of any notice of termination
pursuant to Section 6.14 or Section 9.28, as applicable, the Trustee shall,
in
accordance with Section 6.14, thereupon assume all of the rights and obligations
of such Master Servicer hereunder and under each Servicing Agreement entered
into with respect to the Mortgage Loans. The Trustee, its designee or any
successor master servicer appointed by the Trustee shall be deemed to have
assumed all of the Master Servicer’s interest herein and therein to the same
extent as if such Servicing Agreement had been assigned to the assuming party,
except that the Master Servicer shall not thereby be relieved of any liability
or obligations of the Master Servicer under such Servicing Agreement accruing
prior to its replacement as Master Servicer, and shall be liable to the Trustee,
and hereby agrees to indemnify and hold harmless the Trustee from and against
all costs, damages, expenses and liabilities (including reasonable attorneys’
fees) incurred by the Trustee as a result of such liability or obligations
of
the Master Servicer and in connection with the Trustee’s assumption (but not its
performance, except to the extent that costs or liability of the Trustee
are
created or increased as a result of negligent or wrongful acts or omissions
of
the Master Servicer prior to its replacement as Master Servicer) of the Master
Servicer’s obligations, duties or responsibilities thereunder; provided that the
Master Servicer shall not indemnify or hold harmless the Trustee against
negligent or willful misconduct of the Trustee.
(b) The
Master Servicer that has been terminated shall, upon request of the Trustee
but
at the expense of such Master Servicer, deliver to the assuming party all
documents and records relating to each Servicing Agreement and the related
Mortgage Loans and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer
of
each Servicing Agreement to the assuming party.
(c) Any
replacement of the Master Servicer will require the prior approval of PMI
and
MGIC.
Section
9.11. Due-on-Sale
Clauses; Assumption Agreements; Easements.
(a) To
the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, and to the extent that the
Master
Servicer has knowledge of the conveyance of a Mortgaged Property, the Master
Servicer shall cause the related Servicer 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.
174
(b) The
Master Servicer or the related Servicer, as the case may be, shall be entitled
to approve a request from a Mortgagor for the granting of an easement thereon
in
favor of another Person or any alteration or demolition of the related Mortgaged
Property if it has determined, exercising its good faith business judgment
in
the same manner as it would if it were the owner of the related Mortgage
Loan,
that the security for, and the timely and full collectability of, such Mortgage
Loan would not be materially adversely affected thereby. Any fee collected
by
the Master Servicer or the related Servicer for processing such a request
will
be retained by the Master Servicer or such Servicer as additional servicing
compensation.
Section
9.12. Release
of Mortgage Files.
(a) Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or (ii) the receipt
by the Master Servicer of a notification that payment in full has been or
will
be escrowed in a manner customary for such purposes, the Master Servicer
shall,
or shall cause the applicable Servicer to, promptly notify the Trustee (or
the
applicable Custodian) by a certification (which 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 Collection Account maintained
by the Master Servicer pursuant to Section 4.01 hereof have been or will
be so
deposited) of a Servicing Officer and shall request (on the form attached
hereto
as Exhibit C or on the form attached to the related Custodial Agreement)
the
Trustee or the applicable Custodian, to deliver to the applicable Servicer
the
related Mortgage File; provided,
however,
that in
lieu of sending a hard copy certification of a Servicing Officer, the Master
Servicer may, or may cause, the Servicer to, deliver the request for release
in
a mutually agreeable electronic format, and to the extent that such a request,
on its face, originates from a Servicing Officer, no original signature shall
be
required. Upon receipt of such certification and request, the Trustee or
the
applicable Custodian (with the consent, and at the direction of the Trustee),
shall promptly release the related Mortgage File to the applicable Servicer
and
neither the Trustee nor the applicable Custodian shall have any further
responsibility with regard to such Mortgage File. Upon any such payment in
full,
the Master Servicer is authorized, and each Servicer, to the extent such
authority is provided for under the applicable Servicing Agreement, 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 Collection
Account.
175
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, the Trustee shall execute such documents as shall be prepared
and
furnished to the Trustee by the Master Servicer, or by a Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution
of
any such proceedings. The Trustee or the applicable Custodian, shall, upon
request of the Master Servicer, or of a Servicer, and delivery to the Trustee
or
the applicable Custodian, of a trust receipt signed by a Servicing Officer
substantially in the form of Exhibit C, release the related Mortgage File
held
in its possession or control to the Master Servicer (or the applicable
Servicer). Such trust receipt shall obligate the Master Servicer or Servicer
to
return the Mortgage File to the Trustee or the applicable Custodian, as
applicable, when the need therefor by the Master Servicer or Servicer no
longer
exists unless (i) the Mortgage Loan shall be liquidated, in which case, upon
receipt of a certificate of a Servicing Officer similar to that hereinabove
specified, the trust receipt shall be released by the Trustee or the applicable
Custodian, as applicable, to the Master Servicer (or the applicable Servicer)
or
(ii) the Mortgage File has been delivered directly or through a Servicer
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 Master Servicer has delivered directly or through a Servicer to the Trustee
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 of such delivery.
Section
9.13. Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
(a) The
Master Servicer shall transmit, or shall cause the applicable Servicer to
transmit, to the Trustee such documents and instruments coming into the
possession of the Master Servicer or such Servicer from time to time as are
required by the terms hereof or of the applicable Servicing Agreement to
be
delivered to the Trustee or the applicable 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 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 Collection Account the Master
Servicing Fee 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
related Servicing Agreement. The Master Servicer shall, and shall (to the
extent
provided in the applicable Servicing Agreement) cause each Servicer to, provide
access to information and documentation regarding the Mortgage Loans to the
Trustee, its respective 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, or any 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, or by any 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 and shall be authorized to remit such funds to the Trustee
in accordance with this Agreement.
176
(c) The
Master Servicer hereby acknowledges that concurrently with the execution
of this
Agreement, the Trustee shall own or, to the extent that a court of competent
jurisdiction shall deem the conveyance of the Mortgage Loans from the Seller
to
the Depositor not to constitute a sale, the Trustee shall have a security
interest in the Mortgage Loans and in all Mortgage Files representing such
Mortgage Loans and in all funds and investment property now or hereafter
held
by, or under the control of, a Servicer or the Master Servicer that are
collected by any Servicer or the Master Servicer in connection with the Mortgage
Loans, whether as scheduled installments of principal and interest or as
full or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which a Servicer
is entitled under the applicable Servicing Agreement, or the Master Servicer
or
the Depositor is entitled to hereunder); and the Master Servicer agrees that
so
long as the Mortgage Loans are assigned to and held by the Trustee or any
Custodian, all documents or instruments constituting part of the Mortgage
Files,
and such funds relating to the Mortgage Loans which come into the possession
or
custody of, or which are subject to the control of, the Master Servicer or
any
Servicer shall be held by the Master Servicer or such Servicer for and on
behalf
of the Trustee as the Trustee’s agent and bailee for purposes of perfecting the
Trustee’s security interest therein as provided by the applicable Uniform
Commercial Code or other applicable laws.
(d) The
Master Servicer agrees that it shall not, and shall not authorize any Servicer
to, create, incur or subject any Mortgage Loans, or any funds that are deposited
in any Custodial Account, Escrow Account or the Collection Account, or any
funds
that otherwise are or may become due or payable to the Trustee, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
Section
9.14. Representations
and Warranties of the Master Servicer.
(a) The
Master Servicer hereby represents and warrants to the Depositor, the Certificate
Insurer and the Trustee, for the benefit of the Certificateholders, as of
the
Closing Date that:
(i) it
is
validly existing and in good standing as a limited liability company under
the
laws of the State of Delaware, and as Master Servicer has full power and
authority to transact any and all business contemplated by this Agreement
and to
execute, deliver and comply with its obligations under the terms of this
Agreement, the execution, delivery and performance of which have been duly
authorized by all necessary corporate action on the part of the Master
Servicer;
177
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A)
violate
the Master Servicer’s charter or bylaws, (B) violate any law or regulation or
any administrative decree or order to which it is subject or (C) constitute
a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Master Servicer is a party or
by
which it is bound or to which any of its assets are subject, which violation,
default or breach would materially and adversely affect the Master Servicer’s
ability to perform its obligations under this Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery
hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms
hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv) the
Master Servicer is not in default with respect to any order or decree of
any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially
and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument
or
subject to any charter provision, bylaw or any other corporate restriction
or
any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform
its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Master
Servicer of its obligations under this Agreement;
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering
into
this Agreement or performing its obligations under this Agreement;
(vii) the
Master Servicer, or an affiliate thereof the primary business of which is
the
servicing of conventional residential mortgage loans, is a Xxxxxx Xxx- or
Xxxxxxx Mac-approved seller/servicer;
(viii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer;
178
(x) the
Master Servicer has obtained an Errors and Omissions Insurance Policy and
a
Fidelity Bond in accordance with Section 9.02 each of which is in full force
and
effect, and each of which provides at least such coverage as is required
hereunder; and
(xi) the
information about the Master Servicer under the heading “The Master Servicer” in
the Offering Document relating to the Master Servicer does not include an
untrue
statement of a material fact and does not omit to state a material fact,
with
respect to the statements made, necessary in order to make the statements
in
light of the circumstances under which they were made not
misleading.
(b) It
is
understood and agreed that the representations and warranties set forth in
this
Section 9.14 shall survive the execution and delivery of this Agreement.
The
Master Servicer shall indemnify the Depositor, the Certificate Insurer and
the
Trustee and hold them harmless against any loss, damages, penalties, fines,
forfeitures, legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on
or
grounded upon, or resulting from, a breach of the Master Servicer’s
representations and warranties contained in Section 9.14(a). It is understood
and agreed that the enforcement of the obligation of the Master Servicer
set
forth in this Section to indemnify the Depositor, the Certificate Insurer
and
the Trustee as provided in this Section constitutes the sole remedy (other
than
as set forth in Section 6.14) of the Depositor, the Certificate Insurer and
the
Trustee, respecting a breach of the foregoing representations and warranties.
Such indemnification shall survive any termination of the Master Servicer
as
Master Servicer hereunder, and any termination of this Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by any of the Depositor, the Master Servicer, the
Certificate Insurer or the Trustee or notice thereof by any one of such parties
to the other parties. Notwithstanding
anything in this Agreement to the contrary, the Master Servicer shall not
be
liable for special, indirect or consequential losses
or
damages of any kind whatsoever (including, but not limited to, lost
profits).
(c) It
is
understood and agreed that the representations and warranties of the Depositor
set forth in Sections 2.03(a)(i) through (vi) shall survive the execution
and
delivery of this Agreement. The Depositor shall indemnify the Master Servicer
and hold each harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Depositor’s representations and warranties
contained in Sections 2.03(a)(i) through (vi) hereof. It is understood and
agreed that the enforcement of the obligation of the Depositor set forth
in this
Section to indemnify the Master Servicer as provided in this Section constitutes
the sole remedy hereunder of the Master Servicer respecting a breach by the
Depositor of the representations and warranties in Sections 2.03(a)(i) through
(vi) hereof.
179
Any
cause
of action against the Depositor relating to or arising out of the breach
of the
representations and warranties made in Sections 2.03(a)(i) through (vi) hereof
shall accrue upon discovery of such breach by either the Depositor or the
Master
Servicer or notice thereof by any one of such parties to the other
parties.
Section
9.15. Opinion.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered
to the
Depositor, the Seller, the Certificate Insurer and the Trustee one or more
Opinions of Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the Depositor and Xxxxxx Brothers Inc., as to the due
authorization, execution and delivery of this Agreement by the Master Servicer
and the enforceability thereof.
Section
9.16. Standard
Hazard and Flood Insurance Policies.
For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall
maintain, or cause to be maintained by each Servicer, standard fire and casualty
insurance and, where applicable, flood insurance, all in accordance with
the
provisions of this Agreement and the related Servicing Agreement, as applicable.
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.
Pursuant
to Section 4.01, any amounts collected by the Master Servicer, or by any
Servicer, under any insurance policies maintained pursuant to this Section
9.16
or any Servicing Agreement (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 Collection Account, subject to withdrawal pursuant to
Section
4.02. 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 Section
4.02.
Section
9.17. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall cause each Servicer (to the extent provided in the
applicable Servicing Agreement) to, prepare and present on behalf of the
Trustee
and the Certificateholders all claims under the Insurance Policies with respect
to the Mortgage Loans, 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 or bonds shall be promptly deposited in the
Collection Account or the Custodial Account upon receipt, except that any
amounts realized that are to be applied to the repair or restoration of the
related Mortgaged Property or related to the related Mortgagor in accordance
with the Master Servicer’s or related Servicer’s normal servicing procedures
need not be so deposited (or remitted).
180
Section
9.18. Maintenance
of the Primary Mortgage Insurance Policies.
(a) The
Master Servicer shall not take, or knowingly permit any Servicer (consistent
with 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 such Servicer,
would
have been covered thereunder. To the extent that coverage is available, the
Master Servicer shall use its best reasonable efforts to keep in force and
effect, or to cause each Servicer 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 knowingly permit
any
Servicer 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 Certificates
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 the extent provided in each Servicing Agreement,
to
cause each Servicer 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, any amounts
collected by the Master Servicer or any Servicer under any Primary Mortgage
Insurance Policies shall be deposited in the Collection Account, subject
to
withdrawal pursuant to Section 4.02.
(c) The
Master Servicer shall not cause either of the Bulk PMI Policies to be terminated
without the prior written consent of the Certificate Insurer. Any replacement
Bulk PMI Policy must be in the form and substance acceptable to the Certificate
Insurer and issued by a provider that has been approved by the Certificate
Insurer.
(d) The
Master Servicer shall notify the Certificate Insurer in writing of any notice
of
rescission or reduction of coverage under each Bulk PMI Policy after the
Servicer for Pool 2 has provided such information to the Master
Servicer.
(e) The
Master Servicer shall not cause the Mortgage Loans cover by the Bulk PMI
Policies to become subject to a commitment for any PMI risk-sharing structure,
risk-restucturing agreement, or special rate plan.
Section
9.19. Trustee
To Retain Possession of Certain Insurance Policies and
Documents.
The
Trustee (or the applicable Custodian on behalf of the Trustee) shall retain
possession and custody of the originals of the 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 the applicable
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 each Servicer to deliver
to the
Trustee (or the applicable Custodian), upon the execution or receipt thereof
the
originals of the Primary Mortgage Insurance Policies and any certificates
of
renewal thereof, and such other documents or instruments that constitute
portions of the Mortgage File that come into the possession of the Master
Servicer or any Servicer from time to time.
181
Section
9.20. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall use its reasonable best efforts to, or to cause each
Servicer 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
applicable Servicing Agreement. Alternatively, the Master Servicer may take,
or
authorize any Servicer to take, other actions in respect of a defaulted Mortgage
Loan, which may include (i) accepting a short sale (a payoff of the
Mortgage Loan for an amount less than the total amount contractually owed
in
order to facilitate a sale of the Mortgaged Property by the Mortgagor) or
permitting a short refinancing (a payoff of the Mortgage Loan for an amount
less
than the total amount contractually owed in order to facilitate refinancing
transactions by the Mortgagor not involving a sale of the Mortgaged Property),
(ii) arranging for a repayment plan or (iii) agreeing to a
modification in accordance with Section 9.04. In connection with such
foreclosure or other conversion or action, the Master Servicer shall, consistent
with Section 9.18, follow such practices and procedures as it shall reasonably
determine to be in the best interests of the Trust Fund and the
Certificateholders and which shall be consistent with its customary practices
in
performing its general mortgage servicing activities; provided that the Master
Servicer shall not be liable in any respect hereunder if the Master Servicer
is
acting in connection with any such foreclosure or other conversion or action
in
a manner that is consistent with the provisions of this Agreement. Neither
the
Master Servicer, nor any Servicer, shall be required to expend its own funds
or
incur other reimbursable charges in connection with any foreclosure, or
attempted foreclosure which is not completed, or toward the correction of
any
default on a related senior mortgage loan, or towards the restoration of
any
property unless it shall determine (i) that such restoration and/or
foreclosure will increase the proceeds of liquidation of the Mortgage Loan
to
the Certificateholders after reimbursement to itself for such expenses or
charges and (ii) that such expenses and charges will be recoverable to it
through Liquidation Proceeds or Insurance Proceeds (as provided in Section
4.02).
Section
9.21. Compensation
to the Master Servicer.
The
Master Servicer shall be entitled to withdraw from the Collection Account,
subject to Section 5.05, the Master Servicing Fee to the extent permitted
by
Section 4.02. Servicing compensation in the form of assumption fees, if any,
late payment charges, as collected, if any, or otherwise (but not including
any
Prepayment Premium) shall be retained by the Master Servicer (or the applicable
Servicer) and shall not be deposited in the Collection Account. If the Master
Servicer does not retain or withdraw the Master Servicing Fee from the
Collection Account as provided herein, the Master Servicer shall be entitled
to
direct the Trustee to pay the Master Servicing Fee to such Master Servicer
by
withdrawal from the Certificate Account to the extent that payments have
been
received with respect to the applicable Mortgage Loan. 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. Pursuant to Section 4.01(e), all income and gain realized
from any investment of funds in the Collection Account shall be for the benefit
of the Master Servicer as compensation. The provisions of this Section 9.21
are
subject to the provisions of Section 6.14.
182
Section
9.22. REO
Property.
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect of
any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall use its reasonable best efforts to sell, or cause the applicable Servicer,
to the extent provided in the applicable Servicing Agreement any REO Property
as
expeditiously as possible and in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable, but in all
events
within the time period, and subject to the conditions set forth in Article
X
hereof. Pursuant to its efforts to sell such REO Property, the Master Servicer
shall protect and conserve, or cause the applicable Servicer to protect and
conserve, such REO Property in the manner and to such extent required by
the
applicable Servicing Agreement, subject to Article X hereof.
(b) The
Master Servicer shall deposit or cause to be deposited all funds collected
and
received by it, or recovered from any Servicer, in connection with the operation
of any REO Property in the Collection Account.
(c) The
Master Servicer and each Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Master Servicing
Fees or Servicing Fees from Liquidation Proceeds received in connection with
the
final disposition of such REO Property; provided, that (without limitation
of
any other right of reimbursement that the Master Servicer or any Servicer
shall
have hereunder) any such unreimbursed Advances as well as any unpaid Net
Master
Servicing Fees or 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) 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 Collection 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 Trustee for deposit into the Certificate
Account on the next succeeding Master Servicer Remittance Date.
Section
9.23. [Reserved]
Section
9.24. Reports
to the Trustee.
(a) Not
later
than 30 days after each Distribution Date, the Master Servicer shall, upon
request, forward to the Trustee a statement, deemed to have been certified
by a
Servicing Officer, setting forth the status of the Collection Account maintained
by the Master Servicer as of the close of business on the related Distribution
Date, indicating that all distributions required by this Agreement to be
made by
the Master Servicer have been made (or if any required distribution has not
been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from the Collection Account maintained by the Master
Servicer. Copies of such statement shall be provided by the Master Servicer,
upon request, to the Depositor, Attention: Contract Finance, the Certificate
Insurer and to any Certificateholders (or by the Trustee at the Master
Servicer’s expense if the Master Servicer shall fail to provide such copies to
the Certificateholders (unless (i) the Master Servicer shall have failed
to
provide the Trustee with such statement or (ii) the Trustee shall be unaware
of
the Master Servicer’s failure to provide such statement)).
183
(b) Not
later
than two Business Days following each Distribution Date, the Master Servicer
shall deliver to one Person designated by the Depositor, in a format consistent
with other electronic loan level reporting supplied by the Master Servicer
in
connection with similar transactions, “loan level” information with respect to
the Mortgage Loans as of the related Determination Date, to the extent that
such
information has been provided to the Master Servicer by the Servicers or
by the
Depositor.
(c) All
information, reports and statements prepared by the Master Servicer under
this
Agreement shall be based upon information supplied to the Master Servicer
by the
Servicer without independent verification thereof and the Master Servicer
shall
be entitled to rely on such information.
Section
9.25. Assessment
of Compliance and Attestation Reports.
(a) Assessment
of Compliance
(i) By
March
15 of each year, commencing in March 2007, the Master Servicer, at its own
expense, shall furnish, and shall cause any Servicing Function Participant
engaged by it to furnish, at its own expense, to the Sponsor, the Depositor,
the
Master Servicer, the Certificate Insurer and the Trustee, a report on an
assessment of compliance with the Relevant Servicing Criteria (as identified
on
Exhibit O) 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 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 6.20(e), including, if there has
been
any material instance of noncompliance with the Relevant Servicing Criteria,
a
discussion of each such failure and the nature and status thereof, and (D)
a
statement that a registered public accounting firm has issued an attestation
report on such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for such period.
(ii) When
the
Master Servicer (or any Servicing Function Participant engaged by the Master
Servicer) submits its assessments to the Trustee, the Master Servicer will
also
at such time include the assessment (and attestation pursuant to subsection
(b)
of this Section 9.25) of each Servicing Function Participant engaged by it
and
shall indicate to the Depositor what Relevant Servicing Criteria will be
addressed in any such reports prepared by any such Servicing Function
Participant.
184
(iii) Promptly
after receipt of each such report on assessment of compliance, the Exchange
Act
Signing Party shall confirm that the assessments, taken as a whole, address
all
of the Servicing Criteria and taken individually address the Relevant Servicing
Criteria (and disclose the inapplicability of the Servicing Criteria not
determined to be
Relevant
Criteria) for
each
party as set forth on Exhibit O and on any similar exhibit set forth in each
Servicing Agreement in respect of each Servicer, and each Custodial Agreement
in
respect of each Custodian, and, where the Master Servicer is the Exchange
Act
Signing Party, shall notify the Depositor of any exceptions.
(b) Attestation
Reports
(i) By
March
15 of each year in which the Depositor is required to file reports with respect
to the Trust Fund in accordance with the Exchange Act and the rules and
regulations of the Commission, commencing in March 2007, the Master Servicer,
at
its own expense, shall cause, and shall cause any Servicing Function Participant
engaged by it to cause, at its own expense, a registered public accounting
firm
(which may also render other services to the Master Servicer) that is a member
of the American Institute of Certified Public Accountants to furnish a report
to
the Sponsor, the Depositor, the Certificate Insurer, the Master Servicer
and the
Trustee, to the effect that (A) 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 (B)
on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the PCAOB, it is expressing
an
opinion as to whether such party’s compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express
an
overall opinion regarding such party’s assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot
be
expressed, such registered public accounting firm shall state in such report
why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language.
(ii) Promptly
after receipt of such report from the Master Servicer or any Servicing Function
Participant engaged by such party, the Exchange Act Signing Party shall confirm
that each assessment submitted pursuant subsection (a) of this Section 9.25
is
coupled with an attestation meeting the requirements of this Section and
notify
the Depositor of any exceptions.
Section
9.26. Annual
Statement of Compliance with Applicable Servicing Criteria.
(a) The
Master Servicer shall deliver (and the Master Servicer shall cause any
Additional Servicer engaged by it to deliver) to the Sponsor, the Depositor,
the
Certificate Insurer and the Trustee on or before March 15 of each year,
commencing in March 2007, an Officer’s Certificate stating, as to the signer
thereof, that (A) a review of such party’s activities during the preceding
calendar year or portion thereof and of such party’s performance under this
Agreement, or such other applicable agreement in the case of an Additional
Servicer, has been made under such officer’s supervision 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 an Additional Servicer, in all material respects throughout such year
or
portion thereof, or, if there has been a failure to fulfill any such obligation
in any material respect, specifying each such failure known to such officer
and
the nature and status thereof.
185
(b) Copies
of
such statements shall be provided to any Certificateholder upon request,
by the
Master Servicer or by the Trustee at the Master Servicer’s expense if the Master
Servicer failed to provide such copies (unless (i) the Master Servicer shall
have failed to provide the Trustee with such statement or (ii) the Trustee
shall
be unaware of the Master Servicer’s failure to provide such
statement).
(c) The
Master Servicer shall give prompt written notice to the Trustee, the Sponsor,
the Certificate Insurer and the Depositor of the appointment of any
Subcontractor by it and a written description (in form and substance
satisfactory to the Trustee, the Sponsor and the Depositor) of the role and
function of each Subcontractor utilized by the Master Servicer, specifying
(A)
the identity of each such Subcontractor and (B) which elements of the Servicing
Criteria set forth under Item 1122(d) of Regulation AB will be addressed
in
assessments of compliance provided by each such Subcontractor.
(d) The
Master Servicer shall notify the Trustee, the Depositor and the Sponsor within
five (5) days of knowledge thereof (i) of any legal proceedings pending against
the Master Servicer of the type described in Item 1117 (§ 229.1117) of
Regulation AB and (ii) if the Master Servicer shall become (but only to the
extent not previously disclosed) at any time an affiliate of any of the parties
listed on Exhibit P to this Agreement. On or before March 1st
of each
year, the Depositor shall distribute the information in Exhibit P to the
Master
Servicer.
Section
9.27. Merger
or Consolidation.
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor
to the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to
the
contrary notwithstanding; provided,
however,
that the
successor or resulting Person to the Master Servicer shall be a Person that
shall be qualified and approved to service mortgage loans for Xxxxxx Xxx
or
Xxxxxxx Mac and shall have a net worth of not less than
$15,000,000.
Section
9.28. Resignation
of Master Servicer.
Except
as
otherwise provided in Sections 9.27, 9.28 and 9.29 hereof, the Master Servicer
shall not resign from the obligations and duties hereby imposed on it unless
it
or the Trustee determines that the Master Servicer’s duties hereunder are no
longer permissible under applicable law or are in material conflict by reason
of
applicable law with any other activities carried on by it and cannot be cured.
Any such determination permitting the resignation of the Master Servicer
shall
be evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee. No such resignation shall become effective until
a
period of time not to exceed 90 days after the Trustee receives written notice
thereof from the Master Servicer and until the Trustee shall have assumed,
or a
successor master servicer shall have been appointed by the Trustee and until
such successor shall have assumed, the Master Servicer’s responsibilities and
obligations under this Agreement. Notice of such resignation shall be given
promptly by the Master Servicer and the Depositor to the Trustee. Any
replacement of the Master Servicer will require the prior approval of PMI
and
MGIC.
186
Section
9.29. Assignment
or Delegation of Duties by the Master Servicer.
Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any Subservicer, any
Subcontractor or any other Person to perform any of the duties, covenants
or
obligations to be performed by the Master Servicer hereunder; provided,
however,
that the
Master Servicer shall have the right without the prior written consent of
the
Trustee or the Depositor to delegate or assign to or subcontract with or
authorize or appoint an Affiliate of the Master Servicer to perform and carry
out any duties, covenants or obligations to be performed and carried out
by the
Master Servicer hereunder. In no case, however, shall any such delegation,
subcontracting or assignment to an Affiliate of the Master Servicer relieve
the
Master Servicer of any liability hereunder. Notice of such permitted assignment
shall be given promptly by the Master Servicer to the Depositor and the Trustee.
If, pursuant to any provision hereof, the duties of the Master Servicer are
transferred to a successor master servicer, the entire amount of the Master
Servicing Fees and other compensation payable to the Master Servicer pursuant
hereto, including amounts payable to or permitted to be retained or withdrawn
by
the Master Servicer pursuant to Section 9.21 hereof, shall thereafter be
payable
to such successor master servicer.
At
any
time during the period that a Form 10-K is being filed with respect to the
Trust
in accordance with the Exchange Act and the rules and regulations of the
Commission, the Master Servicer shall not permit a Subservicer to perform
any
master servicing responsibilities hereunder with respect to the Mortgage
Loans
unless that Subservicer first agrees in writing with such Master Servicer
to
deliver an assessment of compliance and an accountant’s attestation in such
manner and at such times in compliance with Sections 9.25(a)(ii) and (b)(ii)
of
this Agreement.
Section
9.30. Limitation
on Liability of the Master Servicer and Others.
(a) The
Master Servicer undertakes to perform such duties and only such duties as
are
specifically set forth in this Agreement.
(b) No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure to
act or
its own willful misconduct; provided,
however,
that the
duties and obligations of the Master Servicer shall be determined solely
by the
express provisions of this Agreement, the Master Servicer shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement; no implied covenants or obligations shall be
read
into this Agreement against the Master Servicer and, in absence of bad faith
on
the part of the Master Servicer, the Master Servicer 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 Master Servicer
and
conforming to the requirements of this Agreement.
187
(c) None
of
the Master Servicer, the Seller or the Depositor or any of the directors,
officers, employees or agents of any of them shall be under any liability
to the
Trustee or the Certificateholders for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for
errors
in judgment; provided,
however,
that
this provision shall not protect the Master Servicer, the Seller or the
Depositor or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by reason of reckless disregard for its obligations
and duties under this Agreement. The Master Servicer, the Seller and the
Depositor and any director, officer, employee or agent of any of them shall
be
entitled to indemnification by the Trust Fund and will be held harmless against
any loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates other than any loss, liability
or
expense incurred by reason of willful misfeasance, bad faith or negligence
in
the performance of his or its duties hereunder or by reason of reckless
disregard of his or its obligations and duties hereunder. The Master Servicer,
the Seller and the Depositor and any director, officer, employee or agent
of any
of them may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Master Servicer shall be under no obligation to appear in, prosecute
or
defend any legal action that is not incidental to its duties to master service
the Mortgage Loans in accordance with this Agreement and that in its opinion
may
involve it in any expenses or liability; provided,
however,
that the
Master Servicer may in its sole discretion undertake any such action that
it may
deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and
any
liability resulting therefrom shall be expenses, costs and liabilities of
the
Trust Fund and the Master Servicer shall be entitled to be reimbursed therefor
out of the Collection Account it maintains as provided by Section
4.02.
Section
9.31. Indemnification;
Third-Party Claims.
The
Master Servicer agrees to indemnify the Depositor, the Sponsor, the
Certificate Insurer
and the
Trustee, and their respective officers, directors, agents and affiliates,
and
hold each of them harmless against any and all claims, losses, penalties,
fines,
forfeitures, reasonable legal fees and related costs, judgments, and any
other
costs, liability, fees and expenses that the Depositor, the Sponsor,
the
Certificate Insurer
or the
Trustee may sustain as a result of (a) any material breach by the Master
Servicer of any if its obligations hereunder, including particularly its
obligations to provide any reports under Section 9.25(a), Section 9.25(b)
or
Section 9.26 or any information, data or materials required to be included in
any Exchange Act report ,
provided,
however,
that in
no event shall the Master Servicer be liable for any special, consequential,
indirect or punitive damages pursuant to this Section 9.31, even if advised
of
the possibility of such damages,
(b) any
material misstatement or omission in any information, data or materials provided
by the Master Servicer, or (c) the negligence, bad faith or willful misconduct
of the Master Servicer in connection with its performance hereunder. The
Depositor, the Sponsor, the
Certificate Insurer
and the
Trustee shall immediately notify the Master Servicer if a claim is made by
a
third party with respect to this Agreement or the Mortgage Loans entitling
the
Depositor, the Sponsor, the
Certificate Insurer
or the
Trustee to indemnification hereunder, whereupon the Master Servicer shall
assume
the defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or them in respect of such
claim.
188
ARTICLE
X
REMIC
ADMINISTRATION
Section
10.01. REMIC
Administration.
(a) REMIC
elections as set forth in the Preliminary Statement shall be made on Forms
1066
or other appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. The regular interests and residual interest in each REMIC shall be
as
designated in the Preliminary Statement. For
purposes of such designations, the interest rate of any regular interest
that is
computed by taking into account the weighted average of the Net Mortgage
Rates
of the Mortgage Loans shall be reduced by the amount of any expense paid
by the
Trust to the extent that (i) such expense was not taken into account in
computing the Net Mortgage Rate of any Mortgage Loan, (ii) such expense does
not
constitute an “unanticipated expense” of a REMIC within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii) and (iii) the amount of such expense
was
not taken into account in computing the interest rate of a more junior Class
of
regular interests.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 86OG(a)(9) of the Code. The latest possible maturity date
for
purposes of Treasury Regulation 1.86OG-1(a)(4) will be the latest date provided
in the definition of the Latest Possible Maturity Date.
(c) The
Trustee 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 Trustee 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 Trustee in fulfilling its duties
hereunder (including its duties as tax return preparer). The Trustee shall
be
entitled to reimbursement of expenses to the extent provided in clause (i)
above
from the Certificate Account; provided,
however,
the
Trustee shall not be entitled to reimbursement for expenses incurred in
connection with the preparation of tax returns and other reports as required
by
Section 6.20 and this Section.
(d) The
Trustee shall prepare, the Trustee shall sign, and the Trustee will file,
all of
each REMIC’s federal and applicable state tax and information returns as such
REMIC’s direct representative. As used herein, applicable state tax and
information returns shall mean returns as may be required by the laws of
any
state the applicability of which to the Trust Fund shall have been confirmed
to
the Trustee in writing either by the delivery to the Trustee of an Opinion
of
Counsel to such effect, or by delivery to the Trustee of a written notification
to such effect by the taxing authority of such state. The expenses of preparing
and filing such returns shall be borne by the Trustee.
189
(e) The
Trustee 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
Trustee shall provide (i) to the Treasury or other governmental authority
such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any disqualified person or organization
pursuant to Treasury Regulation 1.860E-2(a)(5) and any person designated
in
Section 860E(e)(3) of the Code and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC
Provisions.
The
Trustee shall be entitled to receive reasonable compensation from the Trust
Fund
for the performance of its duties under this subsection (e); provided,
however,
that
such compensation shall not exceed $5,000 per year; provided, further, that,
after a Section 7.01(d) Purchase Event, any expenses incurred by the Trustee
in
connection with such Section 7.01(d) Purchase Event shall be reimbursed to
the
Trustee, regardless of the limitation set forth above, in accordance with
Section 4.04(b).
(f) The
Trustee, the Master Servicer and the Holders of Certificates shall take any
action, within their respective control and scope of their duties, 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 Trustee, the Master Servicer
nor
the Holder of any Residual Certificate shall knowingly take any action, within
their respective control, cause any REMIC to take any action or fail to take
(or
fail to cause to be taken) any action, within their respective control and
scope
of their duties, that, under the REMIC Provisions, if taken or not taken,
as the
case may be, could result in an Adverse REMIC Event unless the Trustee and
the
Master Servicer have received an Opinion of Counsel (at the expense of the
party
seeking to take such action) to the effect that the contemplated action will
not
result in an Adverse REMIC Event. In addition, prior to taking any action
with
respect to any REMIC or the assets therein, or causing any REMIC to take
any
action, which is not expressly permitted under the terms of this Agreement,
any
Holder of a Residual Certificate will consult with the Trustee, the Master
Servicer or their respective designees, in writing, with respect to whether
such
action could cause an Adverse REMIC Event to occur with respect to any REMIC,
and no such Person shall take any such action or cause any REMIC to take
any
such action as to which the Trustee or the Master Servicer has advised it
in
writing that an Adverse REMIC Event could occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
the related REMIC by federal or state governmental authorities. To the extent
that such taxes are not paid by a Residual Certificateholder, the Trustee
shall
pay any remaining REMIC taxes out of current or future amounts otherwise
distributable to the Holder of the Residual Certificate in any such REMIC
or, if
no such amounts are available, out of other amounts held in the Collection
Account, and shall reduce amounts otherwise payable to holders of regular
interests in any such REMIC, as the case may be.
190
(h) The
Trustee shall, for federal income tax purposes, maintain books and records
with
respect to each REMIC on a calendar year and on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC, except as
expressly provided in this Agreement.
(j) Neither
the Trustee nor the Master Servicer shall enter into any arrangement by which
any REMIC will receive a fee or other compensation for services.
(k) Upon
the
request of any Rating Agency, the Trustee shall deliver an Officer’s Certificate
stating, without regard to any actions taken by any party other than the
Trustee, the Trustee’s compliance with provisions of this Section
10.01.
(l) The
Trustee shall treat each of the Pool 1 Basis Risk Reserve Fund and the
Supplemental Interest Trust as an outside reserve fund within the meaning
of
Treasury Regulation 1.860G-2(h) that is owned by the Holder of the Class
1-X
Certificates and the Class S-X Certificates, respectively, and that is not
an
asset of any REMIC. The Trustee shall treat the Pool 2 Basis Risk Reserve
Fund
as an outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h)
that is owned by the Holder of the Class 2-X Certificates and that is not
an
asset of any REMIC. The Trustee shall treat the Class X Account as an outside
reserve fund within the meaning of Treasury Regulation 1.860G-2(h) that is
owned
by the Holder of the Class C Certificates and that is not an asset of any
REMIC.
The Trustee shall treat the rights of the Certificateholders (other than
the
Holders of the Class 1-AIO, Class C, Class 1-X, Class 2-X, Class C-X, Class
S-X,
Class LT-R-1, Class LT-R-2, Class R-1, Class R-2, Class 1-P and Class 2-P
Certificates) to receive Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
as rights in interest rate cap contracts, one of which is written by the
Class
1-X Certificateholders in favor of the Group 1 Certificateholders (other
than
the Class 1-AIO Certificates) with respect to the right to receive such amounts
from Pool 1 Monthly Excess Cashflow, one of which is written by the Class
C-X
Certificateholders in favor of the Group 1 Certificateholders (other than
the
Class 1-AIO Certificates) with respect to the right to receive such amounts
from
the Group 1 Cap Agreement, one of which is written by the Class S-X
Certificateholders in favor of the Group 1 Certificateholders (other than
the
Class 1-AIO Certificates) with respect to the right to receive such amounts
from
the Swap Agreement and one of which is written by the Class 2-X
Certificateholders in favor of the Group 2 Certificateholders with respect
to
the right to receive such amounts from Pool 2 Monthly Excess Cashflow. Thus,
each Certificateholder (other than the Holders of the Class 1-AIO, Class
C,
Class 1-X, Class 2-X, Class C-X, Class S-X, Class LT-R-1, Class LT-R-2, Class
R-1, Class R-2, Class 1-P and Class 2-P Certificates) shall be treated as
representing not only ownership of regular interests in a REMIC, but also
ownership of an interest in an interest rate cap contract. Pursuant
to each such notional principal contract in the case of the Class S-X
Certificates, all beneficial owners of the Group 1 Certificates (other
than the Class 1-AIO Certificates) shall
be
treated as having agreed to pay, on each Distribution Date, to the beneficial
owners of the Class S-X Certificates an aggregate amount equal to the excess,
if
any, of (i) the amount payable on such Distribution Date on the interest
in the
Upper Tier REMIC 1 corresponding to such Class of Certificates over
(ii)
the
amount payable on such Class of Certificates on such Distribution Date (such
excess, a “Class I Shortfall”). A Class I Shortfall payable from interest
collections shall be allocated to each Class of Certificates to the extent
that
interest accrued on such Class for the related Accrual Period at the Certificate
Interest Rate for a Class, computed by substituting “REMIC 1 Net Funds Cap” for
“the applicable Net Funds Cap” in the definition thereof, exceeds the amount of
interest accrued for the related Accrual Period based on the applicable Net
Funds Cap, and a Class I Shortfall payable from principal collections shall
be
allocated to the most subordinate Class of Certificates with an outstanding
principal balance to the extent of such balance. However, any payment from
the
Group 1 Certificates of a Class I Shortfall shall be treated for tax purposes
as
having been received by the beneficial owners of such Certificates in respect
of
their Interests in the Upper Tier REMIC 1 and as having been paid by such
beneficial owners to the Supplemental Interest Trust pursuant to the notional
principal contract. For
tax
purposes, the notional principal contract shall be deemed to have a value
in
favor of the Group 1 and Group 2 Certificates entitled to receive Basis Risk
Shortfalls and Unpaid Basis Risk Shortfalls of $48,000 with respect to the
Group
1 Certificates (other
than the Class 1-AIO Certificates) as
of the
Closing Date and $17,000 with respect to the Group 2 Certificates as of the
Closing Date.
191
(m)
[Reserved]
(n) Notwithstanding
the priority and sources of payments set forth in Article 5 hereof or otherwise,
the Trustee shall account for all distributions with respect to a Class of
Certificates in amounts that differ from those payable pursuant to the REMIC
regular interest corresponding to such Class as amounts paid or received
(as
appropriate) pursuant to the interest rate cap contracts provided for in
this
Section. In no event shall any such amounts be treated as payments with respect
to a “regular interest” in a REMIC within the meaning of Code Section
860G(a)(1).
Section
10.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Master Servicer or the Trustee shall sell, dispose of,
or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust
Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, nor acquire any
assets for any REMIC, nor sell or dispose of any investments in the Certificate
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) result in an Adverse
REMIC
Event, (b) affect the distribution of interest or principal on the Certificates,
or (c) result in the encumbrance of the assets transferred or assigned to
the
Trust Fund (except pursuant to the provisions of this Agreement).
Section
10.03. Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
192
Upon
the
occurrence of an Adverse REMIC Event due to the negligent performance by
the
Trustee of its duties and obligations set forth herein, the Trustee shall
indemnify the Holder of the related Residual Certificate or the Trust Fund,
as
applicable, against any and all losses, claims, damages, liabilities or expenses
(“Losses”) resulting from such negligence; provided,
however,
that the
Trustee shall not be liable for any such Losses attributable to the action
or
inaction of the Master Servicer, the Depositor, the Class 1-X or Class 2-X
Certificateholder or the Holder of a Residual Certificate, as applicable,
nor
for any such Losses resulting from misinformation provided by the Holder
of such
Residual Certificate on which the Trustee has relied. The foregoing shall
not be
deemed to limit or restrict the rights and remedies of the Holder of such
Residual Certificate now or hereafter existing at law or in equity.
Notwithstanding the foregoing, however, in no event shall the Trustee have
any
liability (1) for any action or omission that is taken in accordance with
and in
compliance with the express terms of, or which is expressly permitted by
the
terms of, this Agreement or any Servicing Agreement, (2) for any Losses other
than arising out of a negligent performance by the Trustee of its duties
and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders (in addition to payment of principal and interest on
the
Certificates) even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.
Section
10.04. REO
Property.
(a) Notwithstanding
any other provision of this Agreement, the Master Servicer, acting on behalf
of
the Trustee hereunder, shall not, except to the extent provided in the
applicable Servicing Agreement, knowingly permit any Servicer to, rent, lease,
or otherwise earn income on behalf of any REMIC with respect to any REO Property
which might cause an Adverse REMIC Event unless the Master Servicer has advised,
or has caused the applicable Servicer to advise, the Trustee in writing to
the
effect that, under the REMIC Provisions, such action would not result in
an
Adverse REMIC Event.
(b) The
Master Servicer shall cause the applicable Servicer (to the extent provided
in
its Servicing Agreement) to make reasonable efforts to sell any REO Property
for
its fair market value. In any event, however, the Master Servicer shall,
or
shall cause the applicable Servicer to, dispose of any REO Property within
three
years of its acquisition by the Trust Fund unless the Master Servicer has
received a grant of extension from the Internal Revenue Service to the effect
that, under the REMIC Provisions, the REMIC may hold REO Property for a longer
period without causing an Adverse REMIC Event. If the Master Servicer has
received such an extension, then the Master Servicer, acting on the Trustee’s
behalf hereunder, shall, or shall cause the applicable Servicer to, continue
to
attempt to sell the REO Property for its fair market value for such period
longer than three years as such extension permits (the “Extended Period”). If
the Master Servicer has not received such an extension and the Master Servicer
or the applicable Servicer, acting on behalf of the Trustee hereunder, is
unable
to sell the REO Property within 33 months after its acquisition by the Trust
Fund or if the Master Servicer has received such an extension, and the Master
Servicer or the applicable Servicer is unable to sell the REO Property within
the period ending three months before the close of the Extended Period, the
Master Servicer shall cause the applicable Servicer, before the end of the
three
year period or the Extended Period, as applicable, to (i) purchase such REO
Property at a price equal to the REO Property’s fair market value or (ii)
auction the REO Property to the highest bidder (which may be the applicable
Servicer) in an auction reasonably designed to produce a fair price prior
to the
expiration of the three-year period or the Extended Period, as the case may
be.
193
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01. Binding
Nature of Agreement; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section
11.02. Entire
Agreement.
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any
course
of performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section
11.03. Amendment.
(a) On
or
prior to a Section 7.01(d) Purchase Event, this Agreement may be amended
from
time to time by the Depositor, the Master Servicer and the Trustee, but without
consent of the Swap Counterparty (except to the extent that the rights or
obligations of the Swap Counterparty hereunder or under the Swap Agreement,
respectively, are affected thereby or the ability of the Trustee on behalf
of
the Trust Fund to perform fully and timely its obligations under the Swap
Agreement is adversely affected, in which case prior written consent of the
Swap
Counterparty is required) and without notice to or the consent of any of
the
Holders, (i) to cure any ambiguity, (ii) to cause the provisions herein to
conform to or be consistent with or in furtherance of the statements made
with
respect to the Certificates, the Trust Fund or this Agreement in any Offering
Document, or to correct or supplement any provision herein which may be
inconsistent with any other provisions herein or with the provisions of any
Servicing Agreement, (iii) to make any other provisions with respect to matters
or questions arising under this Agreement or (iv) to add, delete, or amend
any
provisions to the extent necessary or desirable to comply with any requirements
imposed by the Code and the REMIC Provisions. No such amendment effected
pursuant to the preceding sentence shall, as evidenced by an Opinion of Counsel,
result in an Adverse REMIC Event, nor shall such amendment effected pursuant
to
clause (iii) of such sentence adversely affect in any material respect the
interests of any Holder (without regard to the Certificate Insurance Policy).
Prior to entering into any amendment without the consent of Holders pursuant
to
this paragraph, the Trustee and the Swap Counterparty shall be provided with
an
Opinion of Counsel (at the expense of the party requesting such amendment)
to
the effect that such amendment is permitted under this Section. Any such
amendment shall be deemed not to adversely affect in any material respect
any
Holder, if the Trustee receives written confirmation from each Rating Agency
that such amendment will not cause such Rating Agency to reduce the then
current
rating assigned to the Certificates (determined in the case of the Class
WF-3-1,
Class WF-4-1 and Class WF-6-1 Certificates without regard to the Certificate
Insurance Policy).
194
(b) On
or
prior to a Section 7.01(d) Purchase Event, this Agreement may also be amended
from time to time by the Depositor, the Master Servicer, and the Trustee,
but
without consent of the Swap Counterparty (except to the extent that the rights
or obligations of the Swap Counterparty hereunder or under the Swap Agreement,
respectively, are affected thereby or the ability of the Trustee on behalf
of
the Trust Fund to perform fully and timely its obligations under the Swap
Agreement is adversely affected, in which case prior written consent of the
Swap
Counterparty is required) with the consent of the Holders of not less than
66-2/3% of the Class Principal Amount (or Percentage Interest) of each Class
of
Certificates affected thereby for the purpose of adding any provisions to
or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Holders; provided,
however,
that no
such amendment shall be made unless the Trustee receives an Opinion of Counsel,
at the expense of the party requesting the change, that such change will
not
cause an Adverse REMIC Event; and provided further, that no such amendment
may
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount or Class Notional
Amount, as applicable (or Percentage Interest) of Certificates of each Class,
the Holders of which are required to consent to any such amendment without
the
consent of the Holders of 100% of the Class Principal Amount or Class Notional
Amount, as applicable (or Percentage Interest) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to “Holder” or
“Holders” shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
(c) After
a
Section 7.01(d) Purchase Event, this Agreement may be amended from time to
time
by the Depositor, the Master Servicer, the LTURI-holder and the Trustee but
without consent of the Swap Counterparty (except to the extent that the rights
or obligations of the Swap Counterparty hereunder or under the Swap Agreement,
respectively, are affected thereby or the ability of the Trustee on behalf
of
the Trust Fund to perform fully and timely its obligations under the Swap
Agreement is adversely affected, in which case prior written consent of the
Swap
Counterparty is required). Prior to entering into any amendment without the
consent of Holders pursuant to this paragraph, the Trustee shall be provided
with an Opinion of Counsel addressed to the Trustee and any NIMS Insurer
(at the
expense of the party requesting such amendment) to the effect that such
amendment is permitted under this Section and will not result in an Adverse
REMIC Event.
(d) Promptly
after the execution of any such amendment, the Trustee shall furnish written
notification of the substance of such amendment to each Holder, the Depositor,
the Swap Counterparty and to the Rating Agencies.
(e) It
shall
not be necessary for the consent of Holders under this Section 11.03 to approve
the particular form of any proposed amendment, but it shall be sufficient
if
such consent shall approve the substance thereof. The manner of obtaining
such
consents and of evidencing the authorization of the execution thereof by
Holders
shall be subject to such reasonable regulations as the Trustee may
prescribe.
195
(f) Notwithstanding
anything to the contrary in any Servicing Agreement, the Trustee shall not
consent to any amendment of any Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in this Section with respect
to
amendment of this Agreement and (ii) except for a Permitted Servicing Amendment,
any such amendment pursuant to Section 11.03(a)(iii) shall not be materially
inconsistent with the provisions of such Servicing Agreement.
(g) Notwithstanding
anything to the contrary in this Section 11.03, this Agreement may be amended
from time to time by the Depositor, the Master Servicer and the Trustee to
the
extent necessary, in the judgment of the Depositor and its counsel, to comply
with the Rules.
(h) Nothwithstanding
the foregoing, the Certificate Insurer shall only be required to consent
(such
consent not to be unreasonably withheld) to any amendment that has a material
adverse effect in any respect on the rights and interests of the Certificate
Insurer hereunder.
Section
11.04. Voting
Rights.
Except
to
the extent that the consent of all affected Certificateholders is required
pursuant to this Agreement, with respect to any provision of this Agreement
requiring the consent of Certificateholders representing specified percentages
of aggregate outstanding Certificate Principal Amount or Class Notional Amount,
as applicable (or Percentage Interest), Certificates owned by the Depositor,
the
Master Servicer, the Trustee, any Servicer or Affiliates thereof are not
to be
counted so long as such Certificates are owned by the Depositor, the Master
Servicer, the Trustee, any Servicer or any Affiliate thereof. In the absence
of
a default by the Certificate Insurer in the performance of its duties under
the
Certificate Insurance Policy, the Certificate Insurer will be entitled to
exercise all consent, voting or related rights of the holders of the Class
WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates.
Section
11.05. Provision
of Information.
(a) For
so
long as any of the Certificates of any Series or Class are “restricted
securities” within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Master Servicer and the Trustee agree to cooperate with each
other to provide to any Certificateholders, and to any prospective purchaser
of
Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder
or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee
in
providing such information shall be reimbursed by the Depositor.
(b) The
Trustee shall make available to any person to whom a Prospectus was delivered,
upon the request of such person specifying the document or documents requested,
(i) a copy (excluding exhibits) of any report on Form 8-K, Form 10-D or Form
10-K filed with the Commission pursuant to Section 6.20(c) and (ii) a copy
of
any other document incorporated by reference in the Prospectus (to the extent
that the Trustee has such documents in its possession or such documents are
reasonably obtainable by the Trustee). Any reasonable out-of-pocket expenses
incurred by the Trustee in providing copies of such documents shall be
reimbursed by the Depositor.
196
(c) On
each
Distribution Date, the Trustee shall make available on its website or otherwise
deliver to the Depositor a copy of the report delivered to Certificateholders
pursuant to Section 4.03.
Section
11.06. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
11.07. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when received by (a) in the case of the
Depositor, Structured Asset Securities Corporation, 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance, LXS 2006-17,
(b) in the case of the Seller, Xxxxxx Brothers Holdings Inc., 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance,
LXS
2006-17, (c) in the case of the Trustee, the applicable Corporate Trust
Office (d) in the case of the Master Servicer, Aurora Loan Services LLC,
00000 Xxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000; Attention: Master
Servicing, LXS 2006-17, (e) in the case of Mortgage Guaranty Insurance
Corporation, 000 X. Xxxxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: Risk Management, (f) in the case of PMI Mortgage Insurance Co.,
0000
Xxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000, Attention: Structured Transactions
and
(g) in the case of the Certificate Insurer, MBIA Insurance Corporation, 000
Xxxx
Xxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention: Insured Portfolio Management —
Structured Finance, Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series
2006-17, Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates, or as
to each
party such other address as may hereafter be furnished by such party to the
other parties in writing. All demands, notices and communications to a party
hereunder shall be in writing and shall be deemed to have been duly given
when
delivered to such party at the relevant address, facsimile number or electronic
mail address set forth above or at such other address, facsimile number or
electronic mail address as such party may designate from time to time by
written
notice in accordance with this Section 11.07.
Section
11.08. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in
no way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
197
Section
11.09. Indulgences;
No Waivers.
Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or
privilege with respect to any occurrence be construed as a waiver of such
right,
remedy, power or privilege with respect to any other occurrence. No waiver
shall
be effective unless it is in writing and is signed by the party asserted
to have
granted such waiver.
Section
11.10. Headings
Not To Affect Interpretation.
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
Section
11.11. Benefits
of Agreement.
Nothing
in this Agreement or in the Certificates, express or implied, shall give
to any
Person, other than the parties to this Agreement and their successors hereunder,
the Holders, any benefit or any legal or equitable right, power, remedy or
claim
under this Agreement, except to the extent specified in Section
11.15.
Section
11.12. Special
Notices to the Rating Agencies and the Certificate Insurer.
(a) The
Depositor shall give prompt notice to the Rating Agencies, the Certificate
Insurer and the Swap Counterparty of the occurrence of any of the following
events of which it has notice:
(i) any
amendment to this Agreement pursuant to Section 11.03;
(ii) any
Assignment by the Master Servicer of its rights hereunder or delegation of
its
duties hereunder;
(iii) the
occurrence of any Event of Default described in Section 6.14;
(iv) any
notice of termination given to the Master Servicer pursuant to Section 6.14
and
any resignation of the Master Servicer hereunder;
(v) the
appointment of any successor to any Master Servicer pursuant to Section
6.14;
(vi) the
making of a final payment pursuant to Section 7.02; and
(vii) any
termination of the rights and obligations of any Servicer under the applicable
Servicing Agreement.
198
(b) All
notices to the Rating Agencies provided for this Section shall be in writing
and
sent by first class mail, telecopy or overnight courier, as
follows:
If
to
Moody’s, to:
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
If
to
S&P, to:
Standard
& Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
(c) The
Trustee shall provide or make available to the Rating Agencies reports prepared
pursuant to Section 4.03. In addition, the Trustee shall, at the expense
of the
Trust Fund, make available to each Rating Agency such information as such
Rating
Agency may reasonably request regarding the Certificates or the Trust Fund,
to
the extent that such information is reasonably available to the
Trustee.
Section
11.13. Conflicts.
To
the
extent that the terms of this Agreement conflict with the terms of any Servicing
Agreement, the related Servicing Agreement shall govern unless such provisions
shall adversely affect the Trustee, the Trust Fund or the Certificate
Insurer.
Section
11.14. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one
and the
same instrument.
Section
11.15. Transfer
of Servicing.
The
Seller agrees that it shall provide written notice to the Master Servicer,
the
Certificate Insurer and the Trustee thirty days prior to any proposed transfer
or assignment by the Seller of its rights under the Servicing Agreement or
of
the servicing thereunder from time to time with respect to any Mortgage Loan
or
group of Mortgage Loans, or delegation of its rights or duties thereunder
or any
portion thereof to any other Person other than the initial Servicer under
such
Servicing Agreement; provided,
however,
that the
Seller shall not be required to provide prior notice of any transfer of
servicing that occurs within three months following the Closing Date to an
entity that is a Servicer on the Closing Date. In addition, the ability of
the
Seller to transfer or assign its rights and delegate its duties under the
Servicing Agreement or to transfer the servicing thereunder, from time to
time
with respect to any Mortgage Loan or group of Mortgage Loans, to a successor
servicer shall be subject to the following conditions:
199
(i) satisfaction
of the conditions to such transfer as set forth in the Servicing Agreement
including, without limitation, receipt of written consent of the Master Servicer
to such transfer;
(ii) Such
successor servicer must be qualified to service loans for Xxxxxx Xxx or Xxxxxxx
Mac, and must be a member in good standing of MERS;
(iii) Such
successor servicer must satisfy the seller/servicer eligibility standards
in the
Servicing Agreement, exclusive of any experience in mortgage loan origination
and must be reasonably acceptable to the Master Servicer, whose approval
shall
not be unreasonably withheld;
(iv) Such
successor servicer must execute and deliver to the Trustee and the Master
Servicer an agreement, in form and substance reasonably satisfactory to the
Trustee and the Master Servicer, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each covenant
and
condition to be performed and observed by the applicable Servicer under the
applicable Servicing Agreement or, in the case of a transfer of servicing
to a
party that is already a Servicer pursuant to this Agreement, an agreement
to add
the related Mortgage Loans to the Servicing Agreement already in effect with
such Servicer;
(v) If
the
successor servicer is not a Servicer of Mortgage Loans at the time of the
transfer, there must be delivered to the Trustee and the Master Servicer
a
letter from each Rating Agency to the effect that such transfer of servicing
will not result in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates (determined in the case of the Class WF-3-1,
Class WF-4-1 and Class WF-6-1 Certificates without regard to the Certificate
Insurance Policy); and
(vi) The
Seller shall, at its cost and expense, take such steps, or cause the
transferring Servicer to take such steps, as may be necessary or appropriate
to
effectuate and evidence the transfer of the servicing of the specified Mortgage
Loans to such successor or replacement servicer, including, but not limited
to,
the following: (A) to the extent required by the terms of the Mortgage Loans
and
by applicable federal and state laws and regulations, the Seller shall cause
the
prior Servicer to timely mail to each obligor under a Mortgage Loan any required
notices or disclosures describing the transfer of servicing of the Mortgage
Loans to the successor or replacement servicer; (B) prior to the effective
date
of such transfer of servicing, the Seller shall cause the prior Servicer
to
transmit to any related insurer notification of such transfer of servicing;
(C)
on or prior to the effective date of such transfer of servicing, the Seller
shall cause the prior Servicer to deliver to the successor or replacement
servicer all Mortgage Loan Documents and any related records or materials;
(D)
on or prior to the effective date of such transfer of servicing, the Seller
shall cause the prior Servicer to transfer to the successor or replacement
servicer, or, if such transfer occurs after a Servicer Remittance Date but
before the next succeeding Master Servicer Remittance Date, to the Trustee,
all
funds held by the prior Servicer in respect of the Mortgage Loans; (E) on
or
prior to the effective date of such transfer of servicing, the Seller shall
cause the prior Servicer to, after the effective date of the transfer of
servicing to the successor or replacement servicer, continue to forward to
such
successor or replacement servicer, within one Business Day of receipt, the
amount of any payments or other recoveries received by the prior Servicer,
and
to notify the successor or replacement servicer of the source and proper
application of each such payment or recovery; and (F) the Seller shall cause
the
prior Servicer to, after the effective date of transfer of servicing to the
successor or replacement servicer, continue to cooperate with the successor
or
replacement servicer to facilitate such transfer in such manner and to such
extent as the successor or replacement servicer may reasonably request.
Notwithstanding the foregoing, the prior Servicer shall be obligated to perform
the items listed above to the extent provided in the Servicing
Agreement.
200
Section
11.16. Matters
Relating to the Certificate Insurance Policy.
(a) All
notices, statements, reports, certificates or opinions required by this
Agreement to be sent to any other party hereto or to the Class WF-3-1, Class
WF-4-1 and Class WF-6-1 Certificateholders, shall also be sent, and any report
or statement sent by the Master Servicer to the Trustee, as applicable shall
be
sent to the Certificate Insurer at the following address:
MBIA
Insurance Corporation
000
Xxxx
Xxxxxx
Xxxxxx,
Xxx Xxxx 00000
Attention:
Insured Portfolio Management-Structured Finance
|
Re:
|
Xxxxxx
XS Trust Mortgage Pass-Through Certificates,
Series 2006-17, Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates |
or
such
other address as the Certificate Insurer may hereafter furnish to the
Depositor.
(b) Notwithstanding
any provision to the contrary, the parties to this Agreement agree that it
is
appropriate, in furtherance of the interest of such parties as set forth
herein,
the Certificate Insurer receive the benefit of Sections 2.05, 3.09, 4.03,
5.02,
5.03, 5.07, 6.01, 6.14, 7.01, 7.03, 9.14, 9.18, 9.26, 9.31, 11.03, 11.04,
11.12
and this Section 11.16 as an intended third party beneficiary of this Agreement
to the extent of such provisions.
(c) No
purchase of the property of Pool 2 pursuant to Section 7.01(c) shall occur
if
such purchase would result in a draw on the Certificate Insurance Policy,
unless
the Certificate Insurer has consented to such purchase.
(d) All
references herein to the rating of the Certificates shall be without regard
to
the Certificate Insurance Policy.
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto
by their respective officers hereunto duly authorized as of the day and year
first above written.
|
STRUCTURED
ASSET SECURITIES
CORPORATION,
as Depositor
|
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
|
||
| AURORA
LOAN
SERVICES LLC, as Master Servicer |
||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxx | |
|
Name:
Xxxxxx X. Xxxxxx
Title:
Vice President
|
||
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxx | |
|
Name:
Xxxxxxx Xxxxxxx
Title:
Vice President
|
||
Solely
for purposes of Section 11.15,
accepted
and agreed to by:
XXXXXX
BROTHERS HOLDINGS INC.
By:
/s/
Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
EXHIBIT
A
FORMS
OF
CERTIFICATES
X-0
XXXXXXX
X-0
FORM
OF
INITIAL CERTIFICATION
Date
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Citibank Agency & Trust (LXS 2006-17)
Aurora
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2006-17
|
Re:
|
Trust
Agreement dated as of October 1, 2006 (the “Trust
Agreement”),
by
and among Structured Asset Securities Corporation, as
Depositor,
Aurora
Loan Services LLC, as Master Servicer and Citibank, N.A., as Trustee
with
respect to Xxxxxx XS Trust Mortgage Pass-Through Certificates,
Series
2006-17
|
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Trust Agreement, subject to review
of the
contents thereof, the undersigned, as Custodian, hereby certifies that it
has
received the documents listed in Section 2.01(b) of the Trust Agreement for
each
Mortgage File pertaining to each Mortgage Loan listed on Schedule A, to the
Trust Agreement, subject to any exceptions noted on Schedule I
hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have
the
respective meanings assigned to them in the Trust Agreement. This Certificate
is
subject in all respects to the terms of Section 2.02 of the Trust Agreement
and
the Trust Agreement sections cross-referenced therein.
[Custodian]
By:_____________________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
INTERIM CERTIFICATION
Date
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Citibank Agency & Trust (LXS 2006-17)
Aurora
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2006-17
|
Re:
|
Trust
Agreement dated as of October 1, 2006 (the “Trust
Agreement”),
by
and among Structured Asset Securities Corporation, as
Depositor,
Aurora
Loan Services LLC, as Master Servicer and Citibank, N.A., as Trustee
with
respect to Xxxxxx XS Trust Mortgage Pass-Through Certificates,
Series
2006-17
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(b) of the Trust Agreement, the undersigned,
as
Custodian, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on Schedule
I
hereto) it (or its custodian) has received the applicable documents listed
in
Section 2.01(b) of the Trust Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed in Section 2.01(b) of the Trust
Agreement and has determined that each such document appears regular on its
face
and appears to relate to the Mortgage Loan identified in such
document.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement including, but not limited to, Section
2.02(b).
[Custodian]
By:______________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
FINAL CERTIFICATION
Date
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Citibank Agency & Trust (LXS 2006-17)
Aurora
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2006-17
|
Re:
|
Trust
Agreement dated as of October 1, 2006 (the “Trust
Agreement”),
by
and among Structured Asset Securities Corporation, as
Depositor,
Aurora
Loan Services LLC, as Master Servicer and Citibank, N.A., as Trustee
with
respect to Xxxxxx XS Trust Mortgage Pass-Through Certificates,
Series
2006-17
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(d) of the Trust Agreement, the undersigned,
as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on Schedule I hereto) it (or its custodian) has received the
applicable documents listed in Section 2.01(b) of the Trust
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified in
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed in Section 2.01(b) of the Trust
Agreement and has determined that each such document appears to be complete
and,
based on an examination of such documents, the information set forth in items
(i) through (vi) of the Mortgage Loan Schedule is correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement.
[Custodian]
By:_____________________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
ENDORSEMENT
Pay
to
the order of
Citibank, N.A., as trustee (the “Trustee”), under a Trust Agreement dated as of
October 1, 2006, among Structured Asset Securities Corporation, as depositor,
Aurora Loan Services LLC, as master servicer, and the Trustee, relating to
Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2006-17,
without
recourse.
__________________________________
[current
signatory on note]
By:_______________________________
Name:
Title:
B-4-1
EXHIBIT
C
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
Date
[Addressed
to Trustee
or,
if
applicable, Custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Trust Agreement dated as of October 1, 2006 by and among Structured
Asset Securities Corporation, as Depositor, Citibank, N.A., as Trustee, and
Aurora Loan Services LLC, as Master Servicer (the “Trust Agreement”), the
undersigned Servicer hereby requests a release of the Mortgage File held
by you
as Trustee with respect to the following described Mortgage Loan for the
reason
indicated below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The Servicer hereby certifies that all amounts received
in
connection with the loan have been or will be credited to the Certificate
Account pursuant to the Trust Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The Servicer hereby certifies that a Qualifying Substitute
Mortgage Loan has been assigned and delivered to you along with the related
Mortgage File pursuant to the Trust Agreement.)
4. Mortgage
Loan repurchased. (The Servicer hereby certifies that the Purchase Price
has
been credited to the Certificate Account pursuant to the Trust
Agreement.)
5. Other.
(Describe)
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Trust Agreement and
will be
returned to you within ten (10) days of our receipt of the Mortgage File,
except
if the Mortgage Loan has been paid in full, or repurchased or substituted
for a
Qualifying Substitute Mortgage Loan (in which case the Mortgage File will
be
retained by us permanently) and except if the Mortgage Loan is being foreclosed
(in which case the Mortgage File will be returned when no longer required
by us
for such purpose).
C-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Trust
Agreement.
[Name
of
Servicer]
By:__________________________________
Name:
Title:
Servicing Officer
C-2
EXHIBIT
D-1
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
|
1.
|
That
he [she] is [title of officer] ________________________ of [name
of
Purchaser] _________________________________________ (the “Purchaser”), a
_______________________ [description of type of entity] duly organized
and
existing under the laws of the [State of __________] [United States],
on
behalf of which he [she] makes this
affidavit.
|
|
2.
|
That
the Purchaser’s Taxpayer Identification Number is
[ ].
|
|
3.
|
That
the Purchaser is not a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the
“Code”) and will not be a “disqualified organization” as of [date of
transfer], and that the Purchaser is not acquiring a Residual Certificate
(as defined in the Agreement) for the account of, or as agent (including
a
broker, nominee, or other middleman) for, any person or entity
from which
it has not received an affidavit substantially in the form of this
affidavit. For these purposes, a “disqualified organization” means the
United States, any state or political subdivision thereof, any
foreign
government, any international organization, any agency or instrumentality
of any of the foregoing (other than an instrumentality if all of
its
activities are subject to tax and a majority of its board of directors
is
not selected by such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to persons
in
rural areas as described in Code Section 1381(a)(2)(C), any “electing
large partnership” within the meaning of Section 775 of the Code, or any
organization (other than a farmers’ cooperative described in Code Section
521) that is exempt from federal income tax unless such organization
is
subject to the tax on unrelated business income imposed by Code
Section
511.
|
|
4.
|
That
the Purchaser either (x) is not, and on __________________ [date
of
transfer] will not be, an employee benefit plan or other retirement
arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Code
(collectively, a “Plan”) or a person acting on behalf of any such Plan or
investing the assets of any such Plan to acquire a Residual Certificate;
(y) if the Certificate has been the subject of an ERISA-Qualifying
Underwriting, is an insurance company that is purchasing the Certificate
with funds contained in an “insurance company general account” as defined
in Section V(e) of Prohibited Transaction Class Exemption (“PTCE”) 95-60
and the purchase and holding of the Certificate are covered under
Sections
I and III of PTCE 95-60; or (z) herewith delivers to the Trustee
an
opinion of counsel (a “Benefit Plan Opinion”) satisfactory to the Trustee,
and upon which the Trustee, the Master Servicer, any NIMS Insurer
and the
Depositor shall be entitled to rely, to the effect that the purchase
or
holding of such Residual Certificate by the Investor will not result
in
any non-exempt prohibited transactions under Title I of ERISA or
Section
4975 of the Code and will not subject the Trustee, the Master Servicer,
any NIMS Insurer or the Depositor to any obligation in addition
to those
undertaken by such entities in the Trust Agreement, which opinion
of
counsel shall not be an expense of the Trust Fund or any of the
above
parties.
|
D-1
|
5.
|
That
the Purchaser hereby acknowledges that under the terms of the Trust
Agreement (the “Agreement”) by and among Structured Asset Securities
Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer,
and Citibank,
N.A.,
as Trustee, dated as of October 1, 2006, relating to Xxxxxx XS
Trust
Mortgage Pass-Through Certificates, Series 2006-17, no transfer
of the
Residual Certificates shall be permitted to be made to any person
unless
the Depositor and Trustee have received a certificate from such
transferee
containing the representations in paragraphs 3 and 4
hereof.
|
|
6.
|
That
the Purchaser does not hold REMIC residual securities as nominee
to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a “Book-Entry
Nominee”).
|
|
7.
|
That
the Purchaser does not have the intention to impede the assessment
or
collection of any federal, state or local taxes legally required
to be
paid with respect to such Residual
Certificate.
|
|
8.
|
That
the Purchaser will not transfer a Residual Certificate to any person
or
entity (i) as to which the Purchaser has actual knowledge that
the
requirements set forth in paragraph 3, paragraph 6 or paragraph
10 hereof
are not satisfied or that the Purchaser has reason to believe does
not
satisfy the requirements set forth in paragraph 7 hereof, and (ii)
without
obtaining from the prospective Purchaser an affidavit substantially
in
this form and providing to the Trustee a written statement substantially
in the form of Exhibit D-2 to the
Agreement.
|
|
9.
|
That
the Purchaser understands that, as the holder of a Residual Certificate,
the Purchaser may incur tax liabilities in excess of any cash flows
generated by the interest and that it intends to pay taxes associated
with
holding such Residual Certificate as they become
due.
|
|
10.
|
That
the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person
that holds a Residual Certificate in connection with the conduct
of a
trade or business within the United States and has furnished the
transferor and the Trustee with an effective Internal Revenue Service
Form
W-8ECI
(Certificate of Foreign Person’s Claim for Exemption From Withholding on
Income Effectively Connected With the Conduct of a Trade or Business
in
the United States)
or
successor form at the time and in the manner required by the Code
or (iii)
is a Non-U.S. Person that has delivered to both the transferor
and the
Trustee an opinion of a nationally recognized tax counsel to the
effect
that the transfer of such Residual Certificate to it is in accordance
with
the requirements of the Code and the regulations promulgated thereunder
and that such transfer of a Residual Certificate will not be disregarded
for federal income tax purposes. “Non-U.S. Person” means an individual,
corporation, partnership or other person other than (i) a citizen
or
resident of the United States; (ii) a corporation, partnership
or other
entity created or organized in or under the laws of the United
States or
any state thereof, including for this purpose, the District of
Columbia;
(iii) an estate that is subject to U.S. federal income tax regardless
of
the source of its income; (iv) a trust if a court within the United
States
is able to exercise primary supervision over the administration
of the
trust and one or more United States trustees have authority to
control all
substantial decisions of the trust; and,
(v) to the extent provided in Treasury regulations, certain trusts
in
existence on September 20, 1996 that are treated as United States
persons
prior to such date and elect to continue to be treated as United
States
persons.
|
D-2
|
11.
|
That
the Purchaser agrees to such amendments of the Trust Agreement
as may be
required to further effectuate the restrictions on transfer of
any
Residual Certificate to such a “disqualified organization,” an agent
thereof, a Book-Entry Nominee, or a person that does not satisfy
the
requirements of paragraph 7 and paragraph 10
hereof.
|
|
12.
|
That
the Purchaser consents to the designation of the Trustee as its
agent to
act as “tax matters person” of the Trust Fund pursuant to the Trust
Agreement.
|
IN
WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________, 20__.
_________________________________
[name
of
Purchaser]
By:______________________________
Name:
Title:
D-3
Personally
appeared before me the above-named [name of officer] ________________, known
or
proved to me to be the same person who executed the foregoing instrument
and to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and
the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________, 20__.
NOTARY
PUBLIC
COUNTY
OF_____________________
STATE
OF______________________
My
commission expires the _____ day of __________, 20__.
X-0
XXXXXXX
X-0
RESIDUAL
CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
____________________________
Date
|
Re:
|
Xxxxxx
XS Trust
Mortgage
Pass-Through Certificates, Series
2006-17
|
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with
respect to a Residual Certificate. In addition, the Transferor has conducted
a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to
pay
its debts as they become due.
Very
truly yours,
_______________________________
Name:
Title:
D-2-1
EXHIBIT
E
SERVICING
AGREEMENTS
E-1
EXHIBIT
F
FORM
OF
RULE 144A TRANSFER CERTIFICATE
|
Re:
|
Xxxxxx
XS Trust
Mortgage
Pass-Through Certificates
Series
2006-17
|
Reference
is hereby made to the Trust Agreement dated as of October 1, 2006 (the “Trust
Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
Aurora Loan Services LLC, as Master Servicer, and Citibank, N.A., as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Trust Agreement.
This
letter relates to $__________ initial Certificate Balance of Class
Certificates
which are held in the form of Definitive Certificates registered in the name
of
(the
“Transferor”). The Transferor has requested a transfer of such Definitive
Certificates for Definitive Certificates of such Class registered in the
name of
[insert name of transferee].
In
connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred
in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser
that the Transferor reasonably believes is a “qualified institutional buyer”
within the meaning of Rule 144A purchasing for its own account or for the
account of a “qualified institutional buyer,” which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction.
This
certificate and the statements contained herein are made for your benefit
and
the benefit of the Depositor.
_____________________________________
[Name
of
Transferor]
By:__________________________________
Name:
Title:
Dated:
___________, ____
F-1
EXHIBIT
G
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTOR
Date
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount
of
Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2006-17 (the
“Privately Offered Certificates”) of the Structured Asset Securities Corporation
(the “Depositor”), we confirm that:
|
(1)
|
We
understand that the Privately Offered Certificates have not been,
and will
not be, registered under the Securities Act of 1933, as amended
(the
“Securities Act”), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of
any
accounts for which we are acting as hereinafter stated, that if
we should
sell any Privately Offered Certificates within two years of the
later of
the date of original issuance of the Privately Offered Certificates
or the
last day on which such Privately Offered Certificates are owned
by the
Depositor or any affiliate of the Depositor we will do so only
(A) to the
Depositor, (B) to “qualified institutional buyers” (within the meaning of
Rule 144A under the Securities Act) in accordance with Rule 144A
under the
Securities Act (“QIBs”), (C) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act, or (D) to an institutional
“accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act that is not a QIB
(an
“Institutional Accredited Investor”) which, prior to such transfer,
delivers to the Trustee under the Trust Agreement dated as of October
1,
2006 by and among the Depositor, Aurora Loan Services LLC, as Master
Servicer, and Citibank, N.A., as Trustee (the “Trustee”), a signed letter
in the form of this letter; and we further agree, in the capacities
stated
above, to provide to any person purchasing any of the Privately
Offered
Certificates from us a notice advising such purchaser that resales
of the
Privately Offered Certificates are restricted as stated
herein.
|
|
(2)
|
We
understand that, in connection with any proposed resale of any
Privately
Offered Certificates to an Institutional Accredited Investor, we
will be
required to furnish to the Trustee and the Depositor a certification
from
such transferee in the form hereof to confirm that the proposed
sale is
being made pursuant to an exemption from, or in a transaction not
subject
to, the registration requirements of the Securities Act. We further
understand that the Privately Offered Certificates purchased by
us will
bear a legend to the foregoing
effect.
|
|
(3)
|
We
are acquiring the Privately Offered Certificates for investment
purposes
and not with a view to, or for offer or sale in connection with,
any
distribution in violation of the Securities Act. We have such knowledge
and experience in financial and business matters as to be capable
of
evaluating the merits and risks of our investment in the Privately
Offered
Certificates, and we and any account for which we are acting are
each able
to bear the economic risk of such
investment.
|
G-1
|
(4)
|
We
are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account
or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment
discretion.
|
(5) We
have
received such information as we deem necessary in order to make our investment
decision.
(6) If
we are
acquiring ERISA-Restricted Certificates, we understand that in accordance
with
ERISA, the Code and the Exemption, no Plan and no person acting on behalf
of
such a Plan may acquire such Certificate except in accordance with Section
3.03(d) of the Trust Agreement.
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Trust Agreement.
You
and
the Depositor are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceeding or official inquiry with respect to
the
matters covered hereby.
Very
truly yours,
[Purchaser]
By:
________________________________
Name:
Title:
Title:
G-2
EXHIBIT
H
FORM
OF
ERISA TRANSFER AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of (the “Investor”), a [corporation
duly organized] and existing under the laws of __________, on behalf of which
he
makes this affidavit.
2. In
the
case of an ERISA-Restricted Certificate, the
Investor either (x) is not, and on ___________ [date of transfer] will not
be,
an employee benefit plan or other retirement arrangement subject to Section
406
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”)
(collectively, a “Plan”) or a person acting on behalf of any such Plan or
investing the assets of any such Plan; (y) if the Certificate has been the
subject of an ERISA-Qualifying Underwriting, is an insurance company that
is
purchasing the Certificate with funds contained in an “insurance company general
account” as defined in Section V(e) of Prohibited Transaction Class Exemption
(“PTCE”) 95-60 and the purchase and holding of the Certificate are covered under
Sections I and III of PTCE 95-60; or (z) herewith delivers to the Trustee
an
opinion of counsel (a “Benefit Plan Opinion”) satisfactory to the Trustee, and
upon which the Trustee, the Master Servicer, any NIMS Insurer and the Depositor
shall be entitled to rely, to the effect that the purchase or holding of
such
Certificate by the Investor will not result in any non-exempt prohibited
transactions under Title I of ERISA or Section 4975 of the Code and will
not
subject the Trustee, the Master Servicer, any NIMS Insurer or the Depositor
to
any obligation in addition to those undertaken by such entities in the Trust
Agreement, which opinion of counsel shall not be an expense of the Trust
Fund or
the above parties.
3. In
the
case of an ERISA-Restricted Swap Certificate, either (i) the Investor is
neither
a Plan nor a person acting on behalf of any such Plan or using the assets
of any
such Plan to effect such transfer or (ii) the acquisition and holding of
the
ERISA-Restricted Swap Certificate are eligible for exemptive relief under
the
statutory exemption for nonfiduciary service providers under Section 408(b)(17)
of ERISA and Section 4975(d)(20) of the Code, XXXX 00-00, XXXX 00-0, XXXX
91-38,
PTCE 95-60 or PTCE 96-23 or some other applicable exemption.
4. The
Investor hereby acknowledges that under the terms of the Trust Agreement
(the
“Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
Aurora Loan Services LLC, as Master Servicer, and Citibank, N.A., as Trustee,
dated as of October 1, 2006, regarding Xxxxxx XS Trust Mortgage Pass-Through
Certificates, Series 2006-17, no transfer of the ERISA-Restricted Certificates
or the ERISA-Restricted Swap Certificates shall be permitted to be made to
any
person unless the Trustee has received a certificate from such transferee
in the
form hereof.
H-1
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________, 20___.
_________________________________
[Investor]
By:______________________________
Name:
Title:
ATTEST:
|
STATE
OF
|
)
|
|
)
ss:
|
|
|
COUNTY
OF
|
)
|
Subscribed
and sworn before me this _____ day of _________ 20___.
______________________________
NOTARY
PUBLIC
My
commission expires the
_____
day
of __________, 20___.
H-2
EXHIBIT
I
[RESERVED]
I-1
EXHIBIT
J
[RESERVED]
J-1
EXHIBIT
K
CUSTODIAL
AGREEMENTS
K-1
EXHIBIT
L
[Reserved]
L-1
EXHIBIT
M
FORM
OF
BACK-UP CERTIFICATION TO BE PROVIDED TO
THE
DEPOSITOR AND/OR THE MASTER SERVICER BY THE TRUSTEE
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2006-17
Aurora
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
|
Re:
|
Xxxxxx
XS Trust
Mortgage
Pass-Through Certificates, Series
2006-17
|
Reference
is made to the Trust
Agreement dated as of October 1, 2006 (the “Trust Agreement”), by and among
Citibank, N.A., (the “Trustee”), Aurora Loan Services LLC, as master servicer
(the “Master Servicer”), and Structured Asset Securities Corporation, as
depositor (the “Depositor”). The Trustee
hereby certifies to the Depositor and the Master Servicer, and its officers,
directors and affiliates, and with the knowledge and intent that they will
rely
upon this certification, that:
|
(i)
|
The
Trustee has reviewed the annual report on Form 10-K for the fiscal
year [
], and all reports on Form 10-D containing distribution reports
filed in
respect of periods included in the year covered by that annual
report,
relating to the above-referenced
trust;
|
|
(ii)
|
Based
solely upon the information provided to us pursuant to Sections
6.20(d)
and 6.20(e) and the information provided by us pursuant to Sections
6.20(d) and 6.20(e), the information set forth in the reports referenced
in (i) above does not contain any untrue statement of material
fact;
and
|
|
(iii)
|
Based
on my knowledge, the distribution information required to be provided
by
the Trustee under the Trust Agreement, together with the information
specific to and required to be provided by the Trustee pursuant
to
Sections 6.20(d) and 6.20(e) is included in these
reports.
|
Date:
Citibank,
N.A., as Trustee
By: ____________________________
Name: __________________________
Title: ___________________________
M-1
EXHIBIT
N-1
FORM
OF
SWAP AGREEMENT
EXHIBIT
N-2
FORM
OF
CLASS GROUP 1 CAP AGREEMENT
EXHIBIT
O
FORM
OF
CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT OF COMPLIANCE
Where
there are multiple checks for criteria the attesting party will identify
in
their management assertion that they are attesting only to the portion of
the
distribution chain they are responsible for in the related transaction
agreements. Capitalized terms used herein but not defined herein shall have
the
meanings assigned to them in the Trust Agreement dated as of October 1, 2006
(the “Agreement”), by and among Citibank, N.A. (the “Trustee”), Aurora Loan
Services LLC, as master servicer (the “Master Servicer”), and Structured Asset
Securities Corporation, as depositor (the “Depositor”) with respect to Xxxxxx XS
Trust Mortgage Pass-Through Certificates, Series 2006-17.
|
Servicing
Criteria
|
Trustee
|
Master
Servicer
|
|
|
Reference
|
Criteria
|
||
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
X
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on 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.
|
X
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
X
|
|
Servicing
Criteria
|
Trustee
|
Master
Servicer
|
|
|
Reference
|
Criteria
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
|
|
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.
|
X
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
X
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan 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.
|
X
|
|
|
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.
|
X
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
|
Servicing
Criteria
|
Trustee
|
Master
Servicer
|
|
|
Reference
|
Criteria
|
||
|
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.
|
||
|
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.
|
X
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
X*
|
|
|
|
|
||
*
Only
with respect to the Certificate Insurance Policy
EXHIBIT
P
TRANSACTION
PARTIES
Sponsor
and Seller: Xxxxxx Brothers Holdings Inc.
Depositor:
Structured Asset Securities Corporation
Trustee:
Citibank, N.A.
Master
Servicer: Aurora Loan Services LLC
Cap
Counterparty: Xxxxxx Brothers Special Financing Inc.
Swap
Counterparty: IXIS Financial Products Inc.
Servicer(s):
Aurora Loan Services LLC, Countrywide Home Loans Servicing LP, IndyMac Bank,
F.S.B. and Xxxxx Fargo Bank, N.A.
Originator(s):
Xxxxxx Brothers Bank FSB and Xxxxx Fargo Bank, N.A.
Custodian(s):
Deutsche Bank National Trust Company, LaSalle Bank National Association,
U.S.
Bank National Association and Xxxxx Fargo Bank, N.A.
Primary
Mortgage Insurance Providers: Mortgage Guaranty Insurance Corporation and
PMI
Mortgage Insurance Co.
Certificate
Insurer: MBIA Insurance Corporation
EXHIBIT
Q
FORM
OF
INSURANCE AGREEMENT
EXHIBIT
R
FORM
OF
CERTIFICATE GUARANTY INSURANCE POLICY
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[On
file
with XxXxx Xxxxxx LLP]
